Scott Malouf, The Daily Record Newswire
Social media evidence is playing a larger role in many matters such as business deals, employment decisions, injury claims and family law issues. Inevitably, social media users are pushing back, often claiming social data is private. Some recent decisions offer guidance on privacy issues in discovery disputes and on claims that social data is entitled to constitutional or statutory privacy protections.
Privacy as a bar to seeking evidence
In the personal injury action Fawcett v. Altieri, 38 Misc 3d 1022 (Richmond Co. Sup. Ct. 2013), the defendants sought authorizations for full access to all of the minor plaintiff’s social media information. While recognizing that social media evidence was discoverable regardless of privacy settings, the court held that it must determine if such information was “material and necessary” and then balance the request for the information against the plaintiff’s privacy rights.
The court rejected the demands because the requesting party did not provide proof that the material was relevant. The court stated that absent proof that social media contained relevant information “granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming ‘fishing expedition,’ which the courts ought not condone,” Fawcett at 1028, see Oddone v. Suffolk Cnty. Police Dept., 2013 NY Slip Op 32479 (Suffolk Co. Sup. Ct. 2013)(citing Fawcett and analyzing privacy in the context of a FOIL request) and Jennings v. TD Bank, 2013 NY Slip Op 32783 (Nassau Co Sup Ct 2013)(citing Fawcett and finding disclosure of social media information warranted).
Claims for violation of privacy
When access to social media information results in harm, such as embarrassment or termination from employment, litigants may raise constitutional or statutory privacy claims.
Chaney v. Fayette County Public School District (N.D. GA 3:13-cv-00089-TCB, Sept. 30) addresses whether a Facebook user has an expectation of privacy in a photo. In Chaney, a school district employee found a Facebook photo of the plaintiff in a bikini and used the plaintiff’s photo and full name in a presentation about online safety. The employee had proper access to the photo because Chaney’s account gave access to “friends-of-friends,” which included the employee. Chaney asserted that the presentation, as a whole, humiliated her. She claimed violations of her privacy rights under the Fourth and Fourteenth amendments and she also made various state law claims.
For Fourth Amendment protections to apply, a person must have an “objectively reasonable expectation of privacy.” To establish such an expectation, the claimant must show: 1) that she had a subjective expectation of privacy, and 2) a willingness of society to recognize that expectation as legitimate.
Focusing on the second element — societal recognition of privacy expectations — the court held that Chaney had no reasonable expectation of privacy because her “friends-of-friends” setting was the broadest available to her at the time; hundreds or thousands of people she did not know had access to the photo; such access was continuing to expand as more friends were added; and those with access might be expected to share the material beyond “approved” users. The court also rejected Chaney’s Fourteenth Amendment claim because the privacy rights protected therein do not include protection from embarrassment or reputational damage.
In Ehling v. Monmouth-Ocean Hospital Service Corp., (D. NJ 2:11-cv-03305-WJM, Aug. 20) the court addressed whether Facebook posts were private under the Stored Communications Act (SCA) 18 U.S.C. §§ 2701–2712 and whether an employer receiving such posts could be liable under the SCA.
Ehling, a paramedic and nurse, was terminated from her employment and sued. She claimed violations of the SCA, common law invasion of privacy and violations of various other statutes. For our purposes, the key issue revolved around a Facebook post she made suggesting Washington, D.C., paramedics should have allowed a patient with offensive political views to die. Ehling’s Facebook friend, a coworker, copied the offending post and forwarded it to management, who terminated Ehling.
The court found that private Facebook posts were protected by the SCA because they met the admittedly cumbersome and technical SCA requirements. Plaintiff’s posts were: 1) electronic communications, 2) transmitted via an electronic communication service, 3) in electronic storage (here, for backup purposes), and 4) not public.
In determining whether the plaintiff’s posts were public, the court stated: “The touchstone of the Electronic Communications Privacy Act is that it protects private information. The language of the statute makes clear that the statute’s purpose is to protect information that the communicator took steps to keep private.” Here, the court found that when a user uses Facebook settings to make Facebook wall posts inaccessible to the general public, those posts are private under the SCA. Unlike the Chaney court, the Ehling court focused solely on privacy settings and rejected connecting the definition of “private” to the number of people with access to the material (the court refers to the Electronic Communications Privacy Act (ECPA) because the SCA is Title II of ECPA).
Despite the Facebook post at issue falling under SCA protection, the court found that the employer had not violated the SCA because it received an unsolicited copy of the post from an authorized user under the SCA — the plaintiff’s Facebook friend.
The dual evolutions of privacy and the law
Social media services are changing how we understand privacy. Mark Zuckerberg explained:
“When I got started in my dorm room at Harvard, the question a lot of people asked was why would I want to put any information on the Internet at all? Why would I want to have a website? And then in the last 5 or 6 years, blogging has taken off in a huge way and all these different services that have people sharing all this information. People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people. That social norm is just something that has evolved over time.
“We view it as our role in the system to constantly be innovating and be updating what our system is to reflect what the current social norms are. A lot of companies would be trapped by the conventions and their legacies of what they’ve built, doing a privacy change — doing a privacy change for 350 million users is not the kind of thing that a lot of companies would do. But we viewed that as a real important thing, to always keep a beginner’s mind and what would we do if we were starting the company now and we decided that these would be the social norms now and we just went for it,” Fawcett at 1026.
These changes matter because privacy expectations are a component of many statutes, rules or common law standards, such as:
• Laws protecting communications. NY Penal Law § 250.25(1) states: “A person is guilty of tampering with private communications when: Knowing that he does not have the consent of the sender or receiver, he opens or reads a sealed letter or other sealed private communication.”
• Legal ethics opinions regarding attorneys researching jurors. “In general, attorneys should only view information that potential jurors intend to be — and make —public.” NY City Bar Assoc. Formal Opinion 2012-2: Jury Research and Social Media. The opinion also states that attorneys may view “… public information that a juror might be unaware is publicly available, except in the rare instance where it is clear that the juror intended the information to be private.”
• False light invasion of privacy claims. “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public,” The Restatement (Second) of Torts § 652D.
It’s clear, social media inexorably evolves. Social media services offer more features. Users share more — both quantitatively and qualitatively. These changes may reduce individual expectations of privacy, may generate demands for greater privacy protection, or may result in an ad hoc privacy regime that continually changes. Whatever the outcome, these changes will affect how statutes, rules and common law standards will be applied.
Takeaways
1. If you intend to use non-public social media materials assess whether the materials raise legally-recognized privacy concerns.
2. Privacy analysis is contextual. For social media, look at account settings, number of connections, uses of the material, content and community standards.
3. A court addressing privacy may defer merely to account settings, may analyze “real world” factors such as how many users have access to the data at issue, or may modify prior standards to new situations.
4. If an authorized user forwards private materials it may be very difficult to estop or sanction the ultimate recipient of the materials.
5. Recognize that social media services and expectations of privacy are evolving.
Conclusion
Litigants always hope for “smoking gun” evidence. Social media can provide it. If you are lucky enough to find such evidence, make sure privacy considerations don’t turn the gun back on you.
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Scott Malouf is an attorney who helps other attorneys use social media, text and Web-based evidence. You can learn more about him at his website (www.scottmalouf.com) and follow him on Twitter at @ScottMalouf. Although he is a good cook, he has been accused of “over herbing.”
