Privacy v. Discovery: The Case for Privacy

    July 31, 2012

    In part five of Privacy v. Discovery: The Battle for Social Media Information, I analyze the seminal case holding that social media information behind privacy settings is shielded from discovery. As explained below, the Central District of California demonstrates that federal law shields certain social media content hidden from the general public through privacy settings from discovery.

    The seminal case holding that “private” social media content is shielded from discovery is Crispin v. Christian Audigier Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010). In an action for breach of an oral license, the defendants served Facebook and MySpace with subpoenas seeking the plaintiff’s “basic subscriber information” and certain private communications. The plaintiff moved to quash the subpoenas, arguing that they violated his privacy rights by seeking electronic communications prohibited from disclosure under the Stored Communications Act, 18 U.S.C. § 2701(a)(1).

    Congress passed the SCA as part of the Electronic Communications Privacy Act to prevent Internet service providers that store their users’ private communications from releasing them to the public, the court explained. Specifically, the SCA creates a “zone of privacy” that protects Internet users’ personal information from third parties, the court said.

    First, the court analyzed whether private messages sent through social media sites generally fell within the ambit of the SCA. The court determined that, indeed, this type of message constituted protected “electronic communication services” under the SCA because only the sender and chosen recipient(s) could view them. While acknowledging this was an issue of first impression, the court quashed portions of the subpoenas ordering the social media sites to produce these messages.

    Second, the court considered whether comments on Facebook or MySpace walls fell within the SCA’s ambit. These postings raised a more difficult question, the court said, because they are not strictly “public.” Rather, users may restrict access to them through the platform’s privacy settings. As a result, the court remanded “to develop a fuller evidentiary record regarding plaintiff’s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.”

    This discussion was first published 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, in Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. In the next post, I will delve further into the line of cases holding that certain social media information behind privacy features may be shielded from discovery. 

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