Privacy v. Discovery: The Battle for Social Media Information

Social media is eroding traditional notions of privacy in the law. Millions of people interact on social media sites like Facebook, Twitter and MySpace every day to chronicle the intimate details of their personal and professional lives. As more people turn to social media for online interaction, it comes as no surprise that these new technologies are affecting the legal system at a rate faster than courts can establish precedent to adapt to these new mediums. This is especially true in terms of social media discovery.

Social media is a virtual treasure chest of online information that could make or break any party’s case. Social media “profiles” can include electronic messages, postings, pictures, videos, blogs, mood indicators, lists of “friends,” locations visited, groups joined, and any other type of personal information the user has posted or created online. While millions of people use these features to communicate with friends, family or acquaintances, often the information they share remains hidden from the general public view behind a virtual wall of privacy settings.

Privacy settings generally allow social media users to select who may view their profiles or certain profile content. Based on this veil of virtual privacy, parties frequently ask courts to determine the proper scope of social media discovery when Internet users have a certain expectation of privacy over protected content.

In my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, I analyze the effect of privacy settings on the discoverability of social media information. First published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23, this in-depth article surveys the split of authority amongst federal jurisdictions over whether content and messages “hidden” behind privacy features are subject to discovery. Over the series of posts, I will discuss the reasoning of each line of cases in more detail – and provide additional commentary on the case for discovery, privacy, and advocating for unique judicial resolutions that provide a balance between privacy interests and the need to access discoverable social media information in litigation. The complete article can be found here.