Hitting Facebook In Its Private Parts

It is not difficult to feel old, from a legal perspective, as one can remember testing the bounds of fingerprinting, skin cell shedding, DNA profiles (and databases, of course) in court. One of the more recent battles has been the use and accuracy of cell site evidence which also has the added benefit of being able to use the word ‘azimuth’ in everyday conversation. However, the modern litigant (which includes aspiring criminal) fails to appreciate the ethereal yet indelible e-profile that many secrete like a webslug on a daily basis.

Nowadays, the person without a Facebook, LinkedIn or Twitter account is the exception rather than the norm, with even most companies having their own accounts. How people use social networking sites varies hugely with some limiting themselves to succint or pithy observations thrice weekly, others self-proclaim purported business achievements multiple times a day and many document every mundane step of their reflexively scintillating lives.

The social networking habits of a client, witness or company are fast becoming a vital area of evidence that demands a lawyer’s attention for many reasons. The main revenue source of many sites is data-mining i.e. they collect information on their users and sell information to other companies for various uses. As a result, it is their object to collect as much data on their users as possible from their movements, from when people check in, to what people sell, from marketplaces. Especially, as such sites have become mobile through the use of smart phones and apps, many people check-in constantly, giving a better-than-GPS trace on their movements. It is no surprise that one of the first lines of offense for law enforcement agencies is the Facebook account of a suspect.

This article is not meant to not meant to warn lawyers that they should scare their clients into going low-tech but rather that they should look and manage first before anybody else does. In civil litigation, a client must be made aware that document preservation also extends to their tweets and updates, even if the user has used certain privacy settings, which may not be deemed at law to have been private. Such issues are currently the subjects of heated debate as there are certain states poised to open a Pandora’s Box of discovery, permitting all that has ever been posted to be disclosed.

One would expect California to be leading the jurisprudence on such issues but rather Pennsylvania is at the coal face, and thankfully thus far has adopted a very common-sense approach, which some appellate court will probably reverse at some point and impose some unworkable test. Currently, the PA courts require a party seeking disclosure of private content to demonstrate at a prima facie level that the party’s public profile contains relevant information, if that is satisfied, the private may fall to be disclosed. See Zimmerman v. Weis Mkts., Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187.

At first blush, the public/private distinction seems to make sense, and it is a welcome change to concepts of wide ranging discovery, where relevance is being addressed by the court as a prerequisite for discovery. However, one feels that this may well just be the few fingers in the dyke before the we are submerged in a deluge of mostly-meaningless posts. A point of contention will be the nature of privacy policies if how they have been used will be the determinator in wheher such information has to be turned over. Those who use social networking sites receive quite regular updates that privacy policies have changed, yet very few are savvy enough to fully appreciate how they have changed. Therefore, despite the fact that choices were originally made to keep certain categories private, policy changes by the networking platform could rob a party of the cloak of privacy that was elected.

This may be just a little fear-mongering but our predictions usually end up becoming true. To that end, there has been at least one judgment who has restored our faith in judicial blithe indifference where in Gallagher v Urbanovitch No. 2010 – 33418 (C.P. Mont. Co. Feb. 27, 2012 Carpenter, J.), without the Montgomery County judge requiring any showing of relevance, the defendant’s profile was opened up for all to see.

The moral of the current installment of the story is that concept of privacy in the social networking world is so malleable that it might be a mirage. Certainly the platforms mines user information for onward sale, privacy policies change regularly and courts can order wholesale discovery. If parties, or even attorneys, fail to fully appreciate different expectations of privacy, why should a court be any different?

Robert Garson
rg@gs2law.com