The privacy and confidentiality of social network site communications is a developing issue in litigation.  Electronic communications and information are discoverable between the parties to a civil lawsuit, provided they are relevant to the litigation and not otherwise privileged communications.  The Court of Common Pleas of Jefferson County, PA recently ordered a plaintiff in a personal injury suit to produce his Facebook user names, log-in names, and passwords to the defense counsel (McMillen v. Hummingbird Speedway, Inc., et al, No. 113-2010 CD).  The Court addressed the plaintiff’s objection that there might be privileged communications located in the site (such as an attorney-client, or a doctor-patient communication).  The Court pointed out that both the Facebook and Myspace user agreements disclose that it is possible that materials on the site may be viewed by third parties, and that the communications may be viewed and censored by operators of the site.    

In addressing the issue of privileged communications, the Court found that a user of Myspace or Facebook tacitly submits to the possibility of a third party recipient’s (including the site operators) receipt of the communications.  The Court held that this is “wholly incommensurate with a claim of confidentiality, stating that “the law does not even protect otherwise privileged communications made in the presence of third parties”.   The Court concluded by stating that “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit…and given the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”  In sum, the Court found that even if a communication existed on the site that would otherwise be privileged, use of the site voided any such privilege.

New York State courts agree.  In Romano v. Steelcase (2010 NY Slip Op 20388) (also a personal injury suit), the Court ordered the plaintiff to give to defense counsel “a properly executed consent and authorization as may be required by the operators of Facebook and Myspace, permitting said Defendant to gain access to Plaintiff’s Facebook and Myspace records, including any records previously deleted or archived by said operators.”   In Maryland, a Myspace post was admitted as evidence in a criminal trial for murder (Griffin v. State of Maryland, Case No. 1132 (Md. Ct. App. May 27, 2010)).  In this case a police officer was permitted to authenticate a Myspace page allegedly posted by the defendant’s girlfriend, that he had printed from the internet as evidence, which included the text “snitches get snitches!! U know who you are !!.”   The Court of Appeals in the Griffin case noted that “…prosecutors and criminal defense attorneys are increasingly looking for potential evidence on the expanding array of internet blogs, message boards and chat rooms.”  

These state court opinions appear to contradict recent holdings in federal court restricting third party subpoenas of social networking sites.  A federal district court in California held in May of 2010 that the Stored Communication Act of 1986 (18 USC §121), a subsection of the Electronic Communications Privacy Act,  applies to third party subpoena’s seeking content from Myspace and Facebook social network sites (Crispin v. Christian Audigier, Inc., 2010 U.S. Dist. Lexis 52832 (CD CA 2010)).  The Court held that both private messages, as well as comments visible to a restricted set of site users, were both communications held in “electronic storage”.   Violations of the Electronic Communications Privacy Act were also alleged in the class action complaint, Robbins v. Lower Merion School District, District Court for the Eastern District of Pennsylvania, 10 CV 00665, which involved allegations that high schools had secretly activated webcams and observed students at their homes (case was settled).   The distinction to date appears to be that the state courts are willing to force a party to litigation to reveal its social network site account access information entirely, while the federal courts have limited the ability of parties to subpoena such information from the social networking site operator. 

Since the confidentiality of posts is still is a developing issue in litigation, we suggest that users proceed with caution. If you have any questions regarding this issue or on content that you have already posted, please contact our office at 412.242.4400.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.