Tag: privacy

A Social Media Enthusiast’s Nightmare

A recent Washington Post article by Ariana Eunjung Cha on “When Web sites see all – and tell all too” relates the story of Disa Powell. Powell’s husband and brother were injured while working at a Wal-mart store. The family sued Wal-mart and as part of the lawsuit Wal-mart subpoenaed (as part of seeking information about the men’s injuries) and gained full access to Powell’s Facebook and MySpace accounts. According to the WaPo article, Wal-mart had access to every public and private message, contact and photo Powell had posted, sent or received in the previous 2 1/2 years. Wow!

How Did That Happen?

That story left me puzzled. I work on many internet law issues – but as a transactional attorney noodling over contracts; not as a litigation attorney issuing discovery requests.

I do know that the Stored Communications Act should block an internet service provider – including a social media site such as LinkedIn or MySpace – from handing over your electronic communications to a third party who asks for them. There are exceptions – but those exceptions do not include subpoenas issued in civil lawsuits. This means that if you are sued, the person suing you can subpoena email communications that are in your possession. However, the person suing you cannot force a third party provider like Facebook to hand over your communications.

So how on earth did Wal-mart use a subpoena to get its hands on Powell’s Facebook and MySpace accounts?

Some Answers

In my quest to answer this question, I found a helpful article, “Obtaining Records from Facebook, LinkedIn, Google, and Other Social Networking Websites and Internet Service Providers” written by Attorney James Parton.

Mr. Parton does confirm that in his experience, social media websites will not produce records containing the content of electronic communications. The social media websites do cite the Stored Communications Act for this refusal. Mr. Parton goes on to explain that the Stored Communications Act does not block subpoenas that do not request “content” and that the definition of “content” is uncertain. For example, the social media site might turn over solely the dates and times of your email communications if it interprets such date/time information not to be content. In other circumstances, a court might compel you to consent to allowing the social media company to hand over your electronic communications.