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The Social Network: Do Online Privacy Settings Extend to Discovery Requests?

10.18.10

Recently the media has reported extensively about the privacy settings available on Facebook and My Space. These and other social networking sites permit users to restrict access to the information that users post on their pages. Not surprisingly, courts have had to address the effect these privacy settings have on the ability of others, including litigants, to access user's messages and postings. Most recently, a plaintiff in a personal injury lawsuit in New York attempted to keep her "private" information from discovery by the company she sued by claiming that disclosure violated her Fourth Amendment right to privacy.

After determining the information sought was relevant to the case, the Supreme Court, Suffolk County, New York, in Romano v. Steelcase, Inc., 907 NY.S. 2d 650 (9/21/10) rejected the plaintiff's claim of an expectation of privacy. The court ordered the plaintiff to provide a consent and authorization to the defendant, as required by Facebook and My Space, which would allow the defendants to obtain access to all of the plaintiff's records, including any deleted or stored information. New York does not have a common law right to privacy. Thus, the court analyzed the plaintiff's claim to a right of privacy under the Fourth Amendment to the United States Constitution.

To establish a right to privacy under the Fourth Amendment, the individual seeking the privacy protection must have exhibited an expectation of privacy and society must be prepared to accept that expectation as reasonable. Specifically, the court in Romano rejected the plaintiff's expectation of privacy and found that when the plaintiff created her Facebook and My Space accounts she consented to the fact that her information would be shared with others. The court noted that the sharing of information was the very purpose of these social networking sites. The mere fact that the plaintiff set the privacy settings on her accounts to limit what was generally viewable to persons to whom she did not grant access did not create an expectation of privacy regarding the information posted.

Interestingly, the court stated that it considered the Stored Communication Act (SCA), 18 U.S.C. §2701 and its limitations on disclosure of information from providers such as Facebook and My Space. The court did not say how it considered the SCA or discuss the Act in its opinion. It should be noted, however, that several other courts have rejected efforts to subpoena information directly from these and other online sites holding that the SCA precludes such disclosure. The apparent distinction of the Romano case is that the court ordered the plaintiff to provide consent and authorization for the release of such information and did not directly order Facebook or My Space to provide the information. If Facebook or My Space refuses to comply even with the consent and authorization from the plaintiff, there may be no recourse to require them to produce the information.

The practical effect of this decision is a reminder that users of social networking sites, including businesses, should be aware that all the information posted to those sites may be subject to disclosure in any litigation in which the opposing party can show that the information posted is relevant or could lead to the discovery of relevant information.

For more information, please contact any member of the Waller Litigation and Dispute Resolution practice at 800-487-6380.

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.

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