Forbes blogger Kashmir Hill has noted some discrepancies in just how judges around the country treat the information you post on Facebook and other social media platforms for purposes of discovery at trial. In California, your Facebook private postings are private, in New York, they are not. Interpreting the Electronic Communications Privacy Act of 1986 (ECPA), the California judge held that as long as the user set his status update to “private,” his Facebook posts are as private as an email.
A New York judge however, has just held the opposite, that refusing to allow discovery of the Plaintiff’s private Facebook information would “condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.” The Plaintiff argued she had a reasonable expectation of privacy in her Facebook profile. Facebook even entered the fray, arguing that forcing the Plaintiff to produce her Facebook profile was a violation of the Stored Communications Act (SCA), which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena.”
Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.
So with at least one court holding that setting your Facebook content to “private” is sufficient to thwart discovery at trial and at least one court holding the opposite, it is important to be aware of where you are located and where you might sue or be sued when posting sensitive information to Facebook or any other social networking platform.