Recently the media has reported extensively about the privacy
settings available on Facebook and My Space. These and other social
networking sites permit users to restrict access to the information
that users post on their pages. Not surprisingly, courts have had
to address the effect these privacy settings have on the ability of
others, including litigants, to access user's messages and
postings. Most recently, a plaintiff in a personal injury lawsuit
in New York attempted to keep her "private" information
from discovery by the company she sued by claiming that disclosure
violated her Fourth Amendment right to privacy.
After determining the information sought was relevant to the case,
the Supreme Court, Suffolk County, New York, in Romano v.
Steelcase, Inc., 907 NY.S. 2d 650 (9/21/10) rejected the
plaintiff's claim of an expectation of privacy. The court
ordered the plaintiff to provide a consent and authorization to the
defendant, as required by Facebook and My Space, which would allow
the defendants to obtain access to all of the plaintiff's
records, including any deleted or stored information. New York does
not have a common law right to privacy. Thus, the court analyzed
the plaintiff's claim to a right of privacy under the Fourth
Amendment to the United States Constitution.
To establish a right to privacy under the Fourth Amendment, the
individual seeking the privacy protection must have exhibited an
expectation of privacy and society must be prepared to accept that
expectation as reasonable. Specifically, the court in
Romano rejected the plaintiff's expectation of privacy
and found that when the plaintiff created her Facebook and My Space
accounts she consented to the fact that her information would be
shared with others. The court noted that the sharing of information
was the very purpose of these social networking sites. The mere
fact that the plaintiff set the privacy settings on her accounts to
limit what was generally viewable to persons to whom she did not
grant access did not create an expectation of privacy regarding the
information posted.
Interestingly, the court stated that it considered the Stored
Communication Act (SCA), 18 U.S.C. §2701 and its limitations
on disclosure of information from providers such as Facebook and My
Space. The court did not say how it considered the SCA or discuss
the Act in its opinion. It should be noted, however, that several
other courts have rejected efforts to subpoena information directly
from these and other online sites holding that the SCA precludes
such disclosure. The apparent distinction of the Romano
case is that the court ordered the plaintiff to provide consent and
authorization for the release of such information and did not
directly order Facebook or My Space to provide the information. If
Facebook or My Space refuses to comply even with the consent and
authorization from the plaintiff, there may be no recourse to
require them to produce the information.
The practical effect of this decision is a reminder that users of
social networking sites, including businesses, should be aware that
all the information posted to those sites may be subject to
disclosure in any litigation in which the opposing party can show
that the information posted is relevant or could lead to the
discovery of relevant information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
