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May. 18 2010 - 7:47 pm | 4,528 views | 1 recommendation | 5 comments

Facebook can be used against you in court

Privacy is dead, and social media hold the smoking gun.

– Pete Cashmore, founder and CEO of the social media blog Mashable, writing on October 28, 2009 (via AtlanticWire)

Two women who accused their employers of sexual harassment experienced Cashmore’s Law of Online Privacy first hand when a federal judge ordered them to give defense attorneys a raft of information from their MySpace and Facebook accounts.

The judge requested the mother load in her May 11 ruling. The pair must turn over all profiles, status updates, wall posts, groups joined, causes supported, photos, applications, and the like that “reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state.” That sounds like just about everything, no?

The Equal Employment Opportunity Commission, which filed the complaint on behalf of the two women, objected to the defense request, arguing that they should only have to produce information directly referencing the sexual harassment allegations. But Magistrate Judge Debra McVicker Lynch ruled that that could leave out info that doesn’t jibe with the allegations, since people don’t “note non-events on their profiles, such as, ‘My supervisor didn’t sexually harass me today.’” (As far as posting non-events, Lynch is evidently unfamiliar with the uber-minutia often found on Twitter.)

The ruling comes amid mounting concerns over Facebook’s shady and shifting privacy policies. Lynch, however, wrote that it wouldn’t matter if the women locked away information from public access – they’d have to turn it over just the same. The judge reasoned that privacy concerns are trumped by the fact that the women already shared the information “with at least one person.”

“Protecting our privacy starts with us, not Facebook,” argued Mashable’s Ben Parr in defense of the site. There’s a lot of wisdom in what Parr, as well as Cashmore, have to say about social media. We all should know by now that participation in Facebook and other sites like them means you’re effectively sharing with everyone. Now that could even include opponents in court.


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  1. collapse expand

    This is just the beginning, and will redefine the concept of a “character witness.” Can my Facebook status update be used to determine my character or my intent? Where does online “persona” factor into the equation? Can’t wait til they argue emoticons in court.

  2. collapse expand

    One nuance to consider is that discoverable evidence isn’t necessarily evidence that can be produced in court. The status updates may never been seen by a jury.

    • collapse expand

      It’s true that a jury may never see status updates and other Facebook and MySpace, but the case may not go to trial (a vast majority never do; “court” isn’t just a jury trial). Nevertheless, defense attorneys could find other uses for that material, depending on what it actually is. If it supports the defense theory it could be used in a motion for dismissal, for example. But whether or not the material has any use in the case, the judges opinion does represent early case law in a novel area. I expect issues like this will continue to be litigated (who knows, Lynch’s ruling on discoverability could be overturned) as social media become more and more pervasive in our lives.

      In response to another comment. See in context »
      • collapse expand

        You’re not wrong in your assessment, but eDiscovery is one of the few bright spots in law right now and more aggressive practitioners recognize that this will continue. Divorce attorneys are advising clients to stop using twitter and facebook as soon as they retain counsel. One of my law professors insisted only on talking to clients face-to-face or on the phone so as to avoid an electronic trail of the specific advice she gave. Typically, email has to be produced (and reviewed) even though it is substantially less public than a typical facebook profile. I honestly don’t find the judge’s holding to be particularly surprising.

        In response to another comment. See in context »
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    About Me

    During my career in journalism, I've had the chance to write about all three branches of that hulking leviathan known as the federal government, starting with the judiciary as the L.A. federal court reporter for the Los Angeles Daily Journal and San Francisco Daily Journal. Since moving to Washington in 2008, I've reported on the Supreme Court, Congress, and the executive branch. I'm also interested in media studies, food, and the terrifying lows, dizzying highs, and creamy middles of the Boston sports scene.

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