Tuesday, September 28, 2010

How private are your parts?

Do Your Private Settings Matter If You Get Sued?
Same kind of case different outcomes. Here's why its hard to tell whether what you do on Faceboook is private in the eye of the law.
THE NOT SO PRIVATE PARTS
Kashmir Hill


Your Facebook profile photo should look like this if you file a personal injury lawsuit.

Here’s a tale of two lawsuits: an artist who wants to get paid for his work and a university employee who wants to get paid for falling out of her chair. The former gets to keep his Facebook and MySpace communications private and the latter has to turn them over. Old electronic communications laws mixed with cutting edge electronic communication on social networking sites mean that individual judges have wide leeway in determining what online is private and what’s not.

In California, artist Buckley Crispin sued an apparel company for using his designs in ways that violated his original contract. During the course of defending itself, the company — Christian Audigier, for the fashionistas out there, known in part for having put its logo on luxury condoms — wanted access to all of Crispin’s communications about his work for Audigier from Facebook and MySpace, among others. They probably hoped to find evidence that Crispin was psyched that the company was not limiting his work to street-wear apparel, but was also putting it on jewelry, pet accessories, wine bottles, luggage, etc. Perhaps they would even find that he posted on someone’s Facebook wall that he hoped to see his designs on a condom soon.

Crispin wasn’t keen on having his social networking communications turned over. He objected on privacy and electronic data privacy law grounds. A magistrate judge was unsympathetic, but a federal judge came to his rescue on appeal.

The federal judge used a 1986 electronic communications law — which Congress is in the midst of updating — to determine that messages sent on Facebook and MySpace are considered private (and thus don’t have to be turned over to the opposition in a civil lawsuit) and that “wall postings” may fall into the same category depending on a user’s privacy settings. If Crispin’s Facebook wall is set to “Everyone,” he’d have to turn those puppies over, but if he restricts his wall to friends only, his status updates are considered as private as an email message.

A happy ruling for Crispin, and also for privacy advocates out there. (If you’re interested in the nitty-gritty details of that case, read this article by Duane Morris lawyers on the National Law Journal or read the nuanced and tech-savvy opinion from Judge Margaret Morrow.)

Now let’s go across the country to New York, where a woman named Kathleen Romano has sued a chair company –Steelcase Inc., for the, um, office-furnituristas among you — because she sustained “serious, permanent personal injuries” after falling out of an allegedly defective chair while working at Stony Brook University. (Hat tip: Eric Goldman for sending the opinion my way.) The chair-challenged woman claims that she needed multiple surgeries for back injuries and that she’s been bedridden and stuck at home since the incident.

Steelcase’s lawyers wanted access to Romano’s Facebook and MySpace profiles to see if she’s really as injured as she claims. They were suspicious because Romano’s profile photo on Facebook showed her smiling and standing in front of her home instead of grimacing painfully from an untidy bed. Plus, it appeared that she had taken a trip to Florida. They suspected that the non-public information in her profiles held other damning evidence of her enjoying life.

Facebook fought the subpoena saying that turning over Romano’s info would be a violation of federal law. But the judge in the case disagreed. “Both Facebook and MySpace are social networking sites where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking. Indeed, Facebook policy states that ‘it helps you share information with your friends and people around you,’ and that ‘Facebook is about sharing information with others,’” wrote Justice Jeffrey Arlen Spinner.

“To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial,” wrote Spinner. “[W]hen Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.”

(Want more legalese? Check out the article on this case at the New York Law Journal.)

Both judges used the same 1986 law to make their determinations on the privacy of what we do on social networks. But in California, your privacy settings matter on Facebook/MySpace, and in New York, they don’t.

Romano’s lawyer has said they will appeal the decision. Meanwhile, I hope Romano’s working on uploading a lot of new photos to her “Look How Miserable My Life Actually Is” Facebook photo album.

Is ‘Private’ Data on Social Networks Discoverable? [National Law Journal]

Crispin v. Christian Audigier [Central District of California]

Judge Grants Discovery of Postings on Social Media [New York Law Journal]

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