Social Networking sites’ “Privacy Settings” are not private in the courtroom

An interesting case was recently decided that gives us another opportunity to review some concepts from our readings.  New York’s Suffolk County Supreme Court decided that a plaintiff must give a corporate defendant access to private postings from Facebook and MySpace that could contradict claims she made in a personal injury action.  In this single case (Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010)) we see issues such as online privacy, social networking, discovery, and the ECPA.

In 2003, Romano fell off a chair while working at Stony Brook University in New York. She claimed that the fall caused serious permanent personal injuries and, as a result, she had to undergo multiple surgeries.  Romano sued Steelcase Inc., the manufacturer of the chair.  She maintained that she had herniated discs, restricted motion in her back/neck, and “pain and progressive deterioration with …loss of enjoyment of life.”

However, Steelcase, in a bit of good detective work, looked at her public Facebook and MySpace profiles, which “revealed that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”  Smartly, the defendants served Romano with a notice for discovery requesting authorization to access her private portions of both social networking sites.  Romano refused, and claimed that she “possesses a reasonable expectation of privacy in her home computer.”

In class we reviewed the basic test for privacy (although there are plenty of specific privacy laws on the books).  Generally, privacy exists when 1) a person exhibits an actual expectation of privacy and 2) society recognizes the expectation is reasonable.  However, we know there are several exceptions to that general summation.

Romano argued that “ordering the release of all private messages” on her accounts “would permit this defendant to obtain wholly irrelevant information as well as extremely private information to the extreme prejudice of plaintiff.”

Facebook also stepped into the fray with a specific request to the court.  In a motion that opposed Steelcase’s request, Facebook strongly urged the manufacturer to request the communications directly from Romano rather than from Facebook itself.

If Romano’s profile and information were produced by Facebook without her consent it might violate another law we discussed in class: the Stored Communications Act (SCA or ECPA Title II).  Remember that the SCA prohibits intentionally accessing without authorization or exceeding authorization a facility through which an electronic communication service is provided and thereby accessing wire or electronic communication while it is in electronic storage.  It also prohibits ISPs, who provide electronic communication service to the public, from knowingly divulging the contents of any communication while in storage.

In the end all these privacy arguments were outweighed by the right of discovery.  As we discussed in class discovery is the phase of a trial where there is “compulsory disclosure, at a party’s request, of information that relates to the litigation.”  The judge ordered that precluding Steelcase Inc. from accessing Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

Since the public portions of Romano’s social networking sites contain material that was contrary to her disabled claims, the court stated that there is a reasonable likelihood that the private portions of her sites may contain further evidence.

 This decision is in line with a growing body of caselaw that holds that information posted on social networking sites is, at least in part, discoverable.  See also Ledbetter v. Wal-Mart Stores, Inc. (D. Colo. 2009), Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. 2007) and Beye v. Horizon Blue Cross Blue Shield (D. N.J. 2006).

 The lesson here: expect everything you post on any social networking site (Facebook, MySpace, Ning, Flickr, etc.) to be considered public information that can be accessed by court order.  And certainly do not expect that your “high level” privacy settings will protect you from discovery or disclosure in court.

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