Facebook: For Friendly Eyes Only?

Just how private is your Facebook account? Is limiting your privacy settings enough to keep your Facebook status updates, messages, pictures and other activity from the eyes of an opposing party in a civil or criminal case? You may be surprised to learn that the answer is likely “No.”

When you activated your Facebook account, you may have adjusted your privacy settings to limit access to your content to only specific “friends.”  You may or may not have read the company’s disclosures regarding the content and use of your account information. Facebook takes the position that it is covered by the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, which prohibits certain entities from voluntary or compelled disclosure of stored electronic communications.  Pursuant to the SCA, Facebook contends that cannot disclose the content of your account to any non-governmental entity without a subpoena or court order.  Thus, Facebook will not respond to a civil subpoena requesting disclosure of a user’s personal content. (However, Facebook will, without notifying you, provide your basic account information to a third party.)

So, you’re protected from anyone gaining any access to the content of your Facebook account, right? Not completely. There are no North Carolina or Fourth Circuit cases interpreting the Stored Communications Act with respect to disclosing the content of a user’s Facebook activity.  In fact, there is little case law throughout the country regarding how Facebook or other online social media fit into the Stored Communications Act.  Crispin v. Christian Audigier, Inc. 2010 WL 2293238 (C.D. Cal.), one of the first cases to consider whether social media websites are covered under the SCA, held that the SCA applies to emails and private messages, but not necessarily to wall postings and comments.  This means that Facebook could be required to disclose your wall postings and comments, if properly served with a subpoena and pursuant to a court order.

Even if Facebook will not disclose your account content voluntarily or pursuant to legal process, you can personally be required to produce the contents of your Facebook account to a third party.  Courts are addressing this issue across the country, and are largely compelling parties in a lawsuit to produce the contents of their social media accounts when requested in connection with the lawsuit.  This is true even if you have made your user account “private”.

What exactly might you be required to turn over? Check it out for yourself by going under the “Settings” tab of your account.  Click on “Download a copy” of your Facebook data, and you will probably be shocked to see status updates, messages and pictures from years ago.  All of this is subject to the eyes of an opposing party and their attorney.

So, think before you post. Is your status update something that you want your estranged spouse to see during a divorce action? Is your post about not feeling like working on a particular day something you want your employer to see? Might pictures of you partying be used to show alcohol consumption prior to an accident? If in doubt, don’t post it. That’s the only way to surely protect yourself from your social media activity being used against you.