Are Facebook and MySpace Messages Subject to Discovery?

In the recent case of Crispin v. Audigier, a California judge ruled that Facebook and MySpace messages that aren’t publicly available are protected information under the Stored Communications Act, and therefore can’t be subpoenaed for use in civil litigation.

Buckley Crispin sued clothing maker Christian Audigier for copyright infringement, alleging that Audigier used his artistic material outside the scope of a license agreement. Audigier issued a subpoena to Facebook, MySpace, and two other third parties seeking communications by Crispin about Audigier.

Crispin’s lawyers argued that such communications fell under the Stored Communications Act, which prevents providers of communication services from divulging private communications to certain entities and individuals. A magistrate judge rejected the argument and found that Facebook and MySpace were not Electronic Communications Services and therefore not subject to the protections of the Stored Communications Act. Because the magistrate judge thought the websites’ messaging services are used solely for public display, he found that they did not meet this definition.

Judge Morrow of the US District Court for the Central District of California disagreed and laid out some thoughts about the use of the sites and how they relate to civil litigation. (Law enforcement can always use a warrant to get the information, assuming it is related to a crime.)

The Judge noted that the Stored Communications Act distinguishes between a remote computing service and an electronic communications service.

“electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications (18 U.S.C. § 2510(15)) With certain enumerated exceptions, the Stored Communications Act prohibits an electronic communication service provider from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” (18 U.S.C. §§ 2702(a)(1), (b))

“remote computing service” means the provision to the public of computer storage or processing services by means of an electronic communications system (18 U.S.C. § 2711(2)) The Stored Communications Act prohibits an remote computing service provider from “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.” (18 U.S.C. §§ 2702(a)(2)).

In the end, the decision about whether a particular message is subject to disclosure is dependent on security settings. Different messages in Facebook and MySpace (and other web 2.0 sites) will be subject to different standards.

The judge found that webmail and private messages are inherently private and quashed the subpoena for those messages. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, the decision will be dependent on the person’s privacy settings and the extent of access allowed. If the general public had access to plaintiff’s Facebook wall and MySpace comments then presumably they are subject to discovery in civil litigation.

The Stored Communications Act was passed as part of the Electronic Communications Privacy Act in 1986. This was obviously well before the development of the current internet applications and technology. Courts, including the one in this Crispin case, have found that the application of this nearly 25-year-old statute presents challenges in application to the current use of the internet.

As Facebook changes the privacy settings in its platform, those changes will affect the discoverability of messages in civil litigation.

Sources:

• Crispin v. Audigier Judge Buckley’s Order. 2:09-cv-09509, in the U.S. District Court for the Central District of
  California (hosted on JD Supra)
• Stored Communications Act 18 U.S.C. § 2701
• Electronic Communications Privacy Act 18 U.S.C. § 2510
• e-Discovery Challenges of Social Media by Jaclyn Jaeger in Compliance Week
• The Stored Communications Act: District Court Issues First Opinion on Privacy Protection for Information on Social Networking and Web Hosting Sites an eData lawflash from Morgan Lewis