I. Requesting Social Media Content Directly From Social
Network Providers and the SCA
In some circumstances, it may be more advantageous
for a party to attempt to obtain social media content directly from a social
network provider, instead of seeking to compel the opposing party to disclose
the content themselves.[1] The primary advantage with obtaining
the content directly from the provider is that the opposing party looses any
opportunity to “clean up” their Facebook pages before or during litigation to
remove any potentially implicating content. [2] However, in addition to the increased
expenses associated with obtaining content directly from the social network
provider,[3]
it may be more difficult to obtain social media content because of SCA
prohibitions on certain electronic service providers from disclosing users’
communications.[4]
Unlike
in civil cases, law
enforcement officers in criminal cases can obtain Facebook information pursuant
to the proscribed procedure contained in the SCA,[5]
and then by following Facebook’s subpoena processing procedure.[6]
Beginning as early as the fall of 2005, investigators have been granted access
to social networking sites for criminal investigations.[7] Most recently, police officers have
been using social networking sites as an effective means to gather intelligence
about criminal gangs.[8] The SCA does not impact disclosure of
content in response to a warrant; instead, protections prevent disclosure of
content in the face of a civil subpoena.[9] According to Facebook, “Federal law prohibits Facebook from disclosing user content (such as
messages, timeline posts, photos, etc.) in response to a civil subpoena.”[10]
The SCA privacy protections are similar in concept to the physical space protections of
Fourth Amendment.[11] Congress first enacted the SCA in 1986
as Title II of the Electronic Communications Protection Act (ECPA), to extend
protection to new forms of communications.[12]
The ECPA was enacted after Fourth
Amendment jurisprudence had proven to be extremely difficult for courts to
apply to intangible communications.[13] According to the SCA, the amount of protection
must depend on the service provider’s classification, which is determined by
the services that it provides in relation to the communication at issue.[14] Because applicability of the SCA depends
on the particular communication at issue, courts must examine the circumstances
of each instance that litigants are seeking to compel Facebook to disclose.[15] Ultimately, the level of protection, if
any, will depend on the court’s determination of the status of each
communication at issue.[16]
The SCA sets forth eight instances
where certain providers (depending on their classification) may voluntary
disclose such non-public electronic communications.[17] The opponent to the disclosure must
object to disclosure of the electronic communication, citing the SCA’s
prohibition in its defense.[18]
The
first court to issue a decisive opinion on Facebook’s provider status under the
SCA was Crispin v. Christian Audigier, Inc.[19] The court specifically classified
certain Facebook communications as ECS (electronic communication service) while
others, such as unopened messages, were classified as RCS (remote computer
service).[20] In Crispin, the plaintiff
attempted to block the subpoenas that the defense had served on certain social
network providers by filing am ex parte motion to quash. [21] To determine whether the subpoenas
should be quashed under the SCA, the court had to carefully analyze whether
each specific Facebook communications fell within the SCA.[22] With the SCA passed in 1986, when
bulletin board service was the technology of the time, retro-fitting Facebook
electronic communications posed difficult questions for the court.[23] The court ultimately quashed the
subpoenas seeking private Facebook messages, with the status of wall postings to
be decided on remand. [24]
Courts
have interpreted the SCA to apply to social media sites, thereby prohibiting
disclosure of nonpublic content without a user’s consent.[25]
Additionally, because a civil court subpoena does not override the SCA
protection,[26]
Facebook issued the following policy:
“Facebook
may provide basic subscriber information (not content) to a party in a civil matter only where: 1) the
requested information is indispensable to the case and not within the party’s
possession; and 2) you personally serve a valid California or federal subpoena
on Facebook. Out-of-state civil subpoenas must be domesticated in California
and personally served on Facebook’s registered agent.”[27]
Given
that the SCA effectively prohibits social networking providers from disclosing
content to a non-governmental entity, Facebook encourages litigants to essentially
leave them out of the dispute, by resolving discovery issues on their own.[28] Additionally, because the SCA has been applied
to requests for information that are made directly to a social network
provider, courts have been increasingly asked to compel parties to provide
access to social media content.[29] Therefore, when a civil litigant wants
to obtain private Facebook content posted by a party, the litigant must be
given access to the content directly by the subscriber.[30] Obtaining access to such content is entirely
possible under the Federal Rules of Civil Procedure which requires parties to
produce requested relevant information that is within its possession, custody,
or control.[31]
[1] Allen Hankins, Compelling Disclosure of Facebook Content Under the Stored Communications Act, 17 Suffolk J. Trial & App. Advoc. 295, 296 (2012).
[2] Caroline Mankey, ‘But My Lawyer Told Me to Delete the Facebook Posts!’, L.A. Daily J., Mar. 6, 2012, available at http://cypressllp.com/wp-content/uploads/2011/10/DailyJournal3.6.121.pdf.
[3] See Kelly Ann Bub, Privacy's Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1460 (2011).
[4] See generally Hankins, supra note 17, at 296 (discussing protections provided for different types of communications defined under 18 U.S.C. §§ 2702-2703).
[5] 18 U.S.C. §§ 2701-2712 (2006).
[6]Facebook Law Enforcement Guidelines, available at http://www.facebook.com/safety/groups/law/guidelines/.
[7] Devon Lash, Site Used to Aid Investigations, Daily Collegian (State College, Pa.), Nov. 10, 2005, at 1.
[8] Edward Marsico, Jr., Social Networking Websites: Are MySpace and Facebook the Fingerprints of the Twenty-First Century? 19 Widener L. J. 967, 969 (2009-2010).
[9] See Hankins, supra note 17, at 301 (discussing 18 U.S.C. §§ 2702- 2703).
[10] Facebook Help Center: Law Enforcement & Third Party Matters, Information on Civil Subpoenas, available at http://www.facebook.com/help/473784375984502/ (last visited Dec. 9, 2012).
[11] See Orin Kerry, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, Geo. Wash. L. Rev. 1208, 1212 (2004) (describing SCA as a set of Fourth Amendment-like statutory privacy protections).
[12] See S. Rep. No. 99-541, at 1-2 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555-57 (setting forth the purpose of SCA).
[13] See S. Rep. No. 99-541, at 1-2 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555-57 (describing difficulties faced by courts in applying Fourth Amendment to telephone conversations).
[14] 18 U.S.C. §§ 2702-2703 (setting forth protections provided for the different types of communications).
[15] Hankins, supra note 17, at 319.
[16] Hankins, supra note 17, at 299.
[17] 18 U.S.C. § 2702(b) (listing exceptions for disclosure)
[18] Hankins, supra note 17, at 311.
[19] See Hankins, supra note 17, at 309 (discussing Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)).
[20] Crispin, 717 F. Supp. 2d at 991.
[21] Id. at 968-969.
[22] See generally Crispin, 717 F. Supp. 2d at 976-991.
[23] Id. at 988.
[24] Id. at 991.
[25] Steven Gensler, Special Rules for Social Media Discovery? 65 Ark. L. Rev. 7, 26 (2012).
[26] See 18 U.S.C. § 2703 (listing the exceptions that allow disclosure); see also Viacomm Int’l Inc. v YouTube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (holding that providers may not divulge contents of electronic communications that are stored on behalf of subscribers).
[27] Facebook Help Center, supra note 26.
[28] See Weiskopf, supra note 4, at 5 (discussing the need for litigation professionals to become better equipped to conduct electronic discovery in social media); see also Bub, supra note 19, at 1460 (discussing Facebook’s privacy policy when information is requested pursuant to a civil subpoena).
