Get Outta my Face(book): Does “Private” Really Mean Private?

[Ed. Note: Last Monday, we brought you Part 1 of 2 of this month’s Facebook series, in which Dan Nabel walked us through some of the ethical pitfalls for lawyers litigating in a socially-networked world. Today, Rachel Wilkes wraps up our mini-series by giving you non-lawyers your due, explaining just how “private” your “private information” is once you move from the Facebook Wall to the courthouse steps. Preview: looks like everyone has yet another reason (besides the obvious) to move to California.]

A day in the life of an avid Facebooker might look something like the following. (This is what I hear, anyway. Not speaking from personal experience. At all. Ahem.): Get up. Eat breakfast. Post to Facebook about your breakfast. Drive to work. Post to Facebook about the horrible traffic in L.A. Do some work. Do some work on your farm on FarmVille.* Go to happy hour with co-workers. Post happy hour photos on Facebook… You get the idea.

All of a sudden, your 500 closest friends (or people you haven’t seen since elementary school) know every gory detail about your life. But that’s OK, because you adjusted your privacy settings so only your “friends” can see your profile details, and you don’t mind sharing those details with all of them. So it’s all still considered “private” vis-à-vis the rest of the world….right?

The answer to that may depend on which court is deciding.

This year, as Forbes blogger Kashmir Hill recently described, a federal court in California and astate court in New York have come out on opposite sides of the privacy issue. Both courts were faced with the question of whether information designated “private” on Facebook and Myspace could nonetheless be discovered by the opponent in a civil lawsuit. In a nutshell (help, how do I get out of this nutshell?) the California court found that private messages, and wall postings designated private, would be protected from disclosure. The New York court found, on the other hand, that a user had no reasonable expectation of privacy in those types of so-called private postings regardless of what her Facebook settings were.

The California case, Crispin v. Audigier (Case No. CV 09-09509), involved an artist suing a apparel company, Christian Audigier (you know, the one that sells $100 T-shirts with images like a wolf’s face as “cool”) for breach of an oral license to use his artwork. Audigier issued subpoenas to Facebook, MySpace and two other sites, seeking Crispin’s communications on those sites that referred to Audigier or other defendants. Crispin objected and moved to quash the subpoenas on the grounds that Facebook, MySpace et. al. were prohibited from disclosing those communications under the Stored Communications Act (“SCA”) — which prevents entities like Facebook and MySpace from disclosing such information without user consent — and that disclosure would violate his privacy rights. The magistrate judge denied the motion and the issue went to the district court judge.

The Crispin court engaged in some nuanced and technical analysis based on the SCA, and ultimately found that with respect to private messaging on the sites, “those forms of communications media are inherently private such that stored messages are not readily accessible to the general public,” and therefore private messages should be protected from disclosure. Likewise, the court found that if the user’s privacy settings barred access by the “general public” to his Facebook and MySpace postings, and “access was limited to a few,” they would retain protection like private messages. The court sent the case back to the magistrate to allow the parties to gather evidence about plaintiff’s privacy settings and the extent of public access he allowed to his Facebook wall and MySpace comments.

This issue of access raises an interesting question: where is the tipping point for when something is accessible to the “general public” and therefore no longer protected? If Crispin has 5 Facebook friends, that would presumably be a small enough group to maintain protection for the information he posts “privately” on his Facebook wall. But what if he has 500 friends (“friends” defined loosely, i.e., “anyone whose last name I ever learned”)? 5,000 friends (“friends” defined in the Internet-only sense of the word, i.e., “I like that profile picture of you, let’s be friends”)? At a certain point, the dissemination of the information becomes sufficiently open to the general public — even if technically limited to just “friends” — that it should lose protection, but the Crispin court did not decide where the line should be drawn.

The recent New York decision, Romano v. Steelcase, Inc., 2010 NY Slip. Op. 20388 is more clear-cut. The plaintiff in Romano alleged that she sustained permanent injuries after falling out of a supposedly defective chair. But despite her “permanent” injuries and her claim that she was confined to her house, she appeared in her public profile page on Facebook “smiling happily in a photograph outside the confines of her home,” and other information on her public page showed that she had traveled to Florida and Pennsylvania. (Can you say BUSTED? Also, if I fell out of my chair laughing at this, who could I sue?)

The court found that production of entries on plaintiff’s Facebook and MySpace pages would not violate her right to privacy and that the SCA did not preclude their disclosure because “as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.” The court pointed out that both Facebook and MySpace have express warnings that privacy is attempted, but cannot be guaranteed. The court commented that any privacy on social networking sites is just “wishful thinking” and aptly noted that, “Indeed, [sharing personal information with others] is the very nature and purpose of these social networking sites, else they would cease to exist.”

The defendant was granted access to plaintiff’s Facebook and MySpace records, “including any records previously archived or deleted.” Once plaintiff posted the information, it lost its privacy protection and it was too late to go back — no use trying to delete or hide those incriminating photos, even if that were legal and/or ethical (see here for my colleague’s discussion of those issues).

The Romano decision speaks broadly about the lack of privacy inherent in sites like Facebook regardless of a user’s privacy settings, but the fact that the plaintiff’s public profile showed information that directly contradicted plaintiff’s claim of damages was important because it caused the Court to conclude that “there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life.” It is unclear whether the Court would have reached the same sweeping conclusions if the plaintiff’s public profile information had not so glaringly belied her allegations, or whether it would have considered defendant’s requests to be overbroad and/or merely a fishing expedition.

So what does all of this mean for us (um, I mean, you all), oh lovers of Facebook? While you can hope that more courts follow the Central District of California and protect your “private” posts (and if you’re already in California, huzzah for you!), even under the Crispin court’s reasoning, it seems that at a certain point if you disclose too much, you will lose that privacy protection. While the Crispin court is persuasive on the protection that should be afforded private messages, the Romano court’s reasoning about the lack of privacy of wall posts strikes this blogger as most persuasive in the long run, in particular because of the essential nature and purpose of social networking. If you send an e-mail, write a letter, or send a private Facebook message, you are not opening those communications up for public consumption (that is, unless, your three closest friends are not trustworthy enough to keep the goriest details of your personal life secret). But if you post it on your Facebook wall, where all your “friends” can see it, show it to their friends and so on, you are voluntarily putting your life out there for the world to see. As collegesemployers, and criminal defense attorneys alike would caution, it pays to be judicious about what you post on Facebook.

And of course, if you’re a plaintiff in a personal injury case or otherwise claiming severe injuries, you’d better stay off of Facebook unless you’re just in bed tending to your FarmVille crops. And if you post any photos, they’d better look like this:

* The FarmVille part is genuinely not me. Does anyone else get what is fun about planting fake crops?

TwitterFacebookLinkedInGoogle+Share

Leave a Reply