Tag: MySpace

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.

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Online Social Networking: Is It a Productivity Bust or Boon?

lawpracticemagazine

I recently had an article on Faceblocking published in the March 2009 issue of Law Practice magazine: Online Social Networking: Is It a Productivity Bust or Boon for Law Firms?

Steve Matthews and I conducted an informal poll to see if we could confirm that law firms were blocking access to social networking sites. Our theory was proven in the results. (You can download the raw survey data (.xls) if you want to see the underlying data.)

Of those responding to the survey, 45% said their firms blocked access to social networking sites. The three most blocked sites: Facebook, MySpace and YouTube. Those are also 3 of the top 10 most visited sites on the web. We also published some of written comments from the survey respondents: Speaking Out on Social Networking.

The survey is very unscientific. Steve and I thought that it would be useful to get some data about what law firms are doing about access to social networking sites. I was surprised that 45% of firms blocked access to some social networking sites. Perhaps those working at firms subject to blocking were more likely to respond to the survey. I was also surprised that the 45% blocking percentage was fairly consistent across firm size. So small law firms were just as likely to block access as big firms.

I conducted two surveys of the summer associates at my old law firm, the vast majority went to Facebook at least once a day. It seems to me that if you are recruiting young workers, you should not cut off one of the ways they communicate. Deacons published a survey indicating that an employer’s policy regarding on-line social networking would influence a significant percentage of workers’ decision to join one employer over another.

Although I am an advocate of open access, I do so with the caveat that you need to let the people in your organization know what is proper use and to monitor their compliance. I fear that many firms use blockage as their policy. That may have worked 10 years ago, but not today. You can just as easily access these sites from iPhone or blackberry as you can from a firm computer. Blocking does not stop the bad behavior that it is trying to prevent. Blocking merely changes the access method.

There is a fair amount of research, the most prominent of which are two reports from McKinsey, showing that access to social networks at work, coupled with a good policy results in a more engaged, more motivated and potentially more innovative workplace. You should set sensible policies and set reasonable expectations for your employees. Social networking sites at their core are communications platform. You should be able to adapt your policies on email, confidentiality, marketing and similar policies to easily include social networking sites. If not, those other policies probably need updating anyhow.

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