Facebook, in a Help page article titled “May I obtain contents of a user’s account from Facebook using a civil subpoena?”<http://linkon.in/XWGVkB>, cites the Stored Communications Act as the reason that “Federal law prohibits Facebook from disclosing user content…in response to a civil subpoena,” stating unequivocally:

 “Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”

But, is the Stored Communications Act really that clear about exempting this information from a civil subpoena?

The Stored Communications Act was enacted before Facebook or even the World Wide Web existed. Despite that fact, the judge in Crispin v. Audigier, 717 F.Supp.2d 965 (2010, C.D. CA) < http://linkon.in/CrispinvAudigier> held that certain elements (e.g., private messages) of a user’s Facebook or Myspace profile were protected from being subpoenaed under the Stored Communications Act by analogizing them to a type of electronic message (Bulletin Board System–BBS) that was mentioned in the Stored Communications Act. Thus, the court quashed the defendant’s subpoenas to Facebook and Myspace (and one other site) requesting private messages from the plaintiff’s account.

As to the subpoenas seeking Facebook wall postings and MySpace comments, however, the Crispin court remanded the matter so a fuller evidentiary record regarding plaintiff’s privacy settings could be determined before deciding whether to quash the subpoena for those elements. This implies that Facebook does not get to decide where the “privacy” bar should be set in determining whether social networking postings and comments are subject to a subpoena as Facebook’s Help pages would lead us to believe—only the Court gets to decide that.

 – By Carole Levitt JD, MLS & Mark Rosch

Carol and Mark will be speaking together at ABA TECHSHOW 2013 on Social Media and Large Firm topics. Don’t miss their first Session, Social Media as an Information Gathering Tool, on Thursday, April 4, 2013 from 8:30 a.m. – 9:30 a.m.