College alumni in their mid to late twenties remember the good old days
when Facebook used to be exclusive for only those with a valid college
Back then, Facebook consisted of a single page with just the basics:
- Profile picture
- Friend list
- Wall of posts
- Status log
- Photo album
Each college was its own network and Facebook advertised itself as a networking
site. As college kids got to know their classmates and dorm mates, they
added these new people to their friends list. Facebook then kept everyone
up-to-date with a newsfeed that provided constant status, picture, and
Facebook Grows Beyond Its Simple Origins
Facebook proved to be a successful venture into the relatively new world
of social media. It continued to grow, opening its doors to community
colleges, then to corporations, and eventually to anyone with an e-mail
address. It became so popular that “Facebook” became a verb.
For example: “Why don’t you Facebook her to find out what
she’s doing tonight?” or “Is he single? Facebook him
and find out.”
When Facebook became an application on smartphones, users became even more
“connected.” The Facebook application allows users to “check-in”
to any place, allowing the phone’s GPS to locate these users and
broadcast where they are to the world. The application can also utilize
a smartphone’s camera to snap a picture and instantly upload it.
Facebook has continuously upgraded its layout to accommodate so much information.
“Timelines” allow a friend to search a user’s status
updates, check-ins, and uploaded photographs throughout the years. Facebook
is basically an open diary for anyone with the right privacy authorization
to see — which can be an issue.
Evidence Discovery in the Social Media Age
Facebook has had its share of privacy problems. Because more and more people
are willing to upload intimate and potentially embarrassing material onto
the internet, Facebook responded by creating increasingly complicated
and customized privacy settings. A user can become Facebook friends with
his parents and carefully finagle the privacy settings so that Mom only
sees pictures of him frantically chugging a cappuccino before an exam
or posting statuses that say “got an A on my history paper!”
rather than those pictures of him chugging beer through a funnel and statuses
that say “woke up in jail today.”
Facebook’s popularity has turned it into a powerful discovery tool.
Take, for example, the
car accident case of Mary and Rob. Mary’s car was rear-ended by Rob’s in a violent
crash. She now claims that she is so injured that she can no longer partake
in life’s pleasures. Traditionally, Rob would send a private investigator
to take pictures of Mary out and about to see if her claims could be disproved.
Now, all Rob would have to do is access Mary’s Facebook page to
find pictures of her exercising, running errands, and generally being
unbothered by her injuries, and there goes both her claim and credibility.
The conflict arises when Rob tries to access Mary’s Facebook page
and is blocked by her privacy settings. Only Mary’s Facebook friends
are permitted to view her posted material. All Rob can see is her name
and profile picture, which really doesn’t tell him anything. Rob
files a motion in a Pennsylvania court to compel discovery of Mary’s
Facebook page. What would be the outcome?
Is There Any Privacy Online?
Since the dawn of the internet era, consumers have been repeatedly reminded
to never give out their passwords. Understandably, people bristle when
an opposing attorney demands their username and password in order to have
unfettered access to something that they thought was private. Yet, it
seems as though Pennsylvania discovery rules side with disclosure. Pa.R.C.P.
4003.1 allows a party to obtain discovery regarding any unprivileged matter
as long as it is somehow relevant to litigation. In
McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, an argument was made in the Jefferson County court that private Facebook
material should be subject to a “social network site privilege”
based upon the belief that the plaintiff’s postings were private
communications between him and his friends.
The court shot this argument down by pointing out that the law disapproves
of privileged information so there could be no such thing as a social
network site privilege. In addition, Facebook’s own terms and privacy
policies say that it cannot prevent friends from reposting information
or Facebook operators from accessing that information, so it is unrealistic
to expect Facebook postings to be privileged. The McMillen court ultimately
ordered the plaintiff to give the defendant his Facebook username and password.
What Posts are Really Relevant?
One way to approach Facebook disclosure is to ask the court to conduct an
in camera review of the private Facebook page in question. In
Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011), the court ordered the plaintiff to disclose his Facebook username and
password then proceeded to review the plaintiff’s Facebook page
in chambers. This review revealed that all of the relevant information
the defendant needed had already been displayed on the public portion
of the plaintiff’s page. The court concluded that the plaintiff
knew his Facebook page best and could have produced the posts the defendant
wanted without the court’s help.
On the other hand, the court in
Zimmerman v. Weis, No. CV-09-1535 (Northumberland Cnty) determined that it would be an unfair burden on the court if it had to
go through the plaintiff’s Facebook page to determine what is relevant
and what is not. It ordered the plaintiff to provide his Facebook username
and password to the defendant.
In Luzerne County, a court refused to compel a plaintiff to give defense
counsel his username and password. The facts in
Kalinowski v. Kirschenheiter and National Indemn. Co, No. 6779 of 2010,
(Luzerne Cnty.) involved a plaintiff who was a bar owner with a Facebook page. When the
defendant demanded access to the page, the plaintiff claimed that the
defendant was only trying to embarrass him with pictures of the plaintiff
in his best party attire. The court denied the defendant’s Motion
to Compel without prejudice because the plaintiff’s public page
did not reveal anything that impeached the plaintiff. The court did also
order that the plaintiff refrain from deleting anything from his Facebook
page to open the door for future social media discovery.
Facebook: For Friends & Litigants
It seems as though the trend in Pennsylvania is to allow a party access
to the opposing party’s Facebook page as long as something in the
public profile suggests that relevant information may be contained in
the private profile. Facebook postings may not only affect your relationship
with your friends and family, but it may also affect the outcome of your
case. The world as a whole is still trying to sort out the role social
media plays in professional settings – classes are even beginning
to be taught on the topic. Although the rules on Facebook discovery are
not set in stone, what parents, teachers, and employers often advise still
Be careful what you post on Facebook!