In 1986, Facebook founder Mark Zuckerberg was two years old and the World Wide Web hadn’t yet made surfing the Internet as easy as typing in an address. What we now know as the Internet existed mainly as a service for researchers, academics and businesses, and it would be four years before commercial service providers began offering Internet access directly to consumers.

The same year, Congress enacted the Stored Communications Act (SCA), which brought Fourth Amendment protection against unreasonable searches and seizures to the realm of electronic information. The law, Title II of the Electronic Communications Privacy Act, prohibits disclosures of “stored wire and electronic communications and transactional records” by third party Internet service providers (ISPs).

Despite the profound way the Internet and how people use it have evolved in the past two and a half decades, the SCA still governs the area. Court cases in recent years have explored how the aging law might apply to areas of electronic communications that it didn’t consider in 1986, including text messages, web-based e-mail and discussions in online forums.

In Crispin v. Audigier, a federal district court applied the SCA to determine whether parties can subpoena Facebook and MySpace messages and “wall postings,” that have proliferated in the age of online social networking.

“Both plaintiffs and defendants seek information about their adversaries and about third parties, and they’re realizing there’s a wealth of information to be found, not just in e-mail but in people’s social networking accounts,” says Mason Weisz, an associate at Hunton & Williams. “This decision recognizes that in many cases the social networking websites should be treated the same way providers of regular e-mail services are treated with respect to whether they can be compelled to disclose information about their users.”

It’s a Quash

Buckley Crispin filed a complaint in December 2009 against Christian Audigier Inc., purveyors of flashy street wear adorned with tattoo-style illustrations. Crispin claimed Christian Audigier had violated an oral licensing agreement by reproducing Crispin’s artwork on apparel not bearing his logo and by failing to obtain his consent to sublicense his work for use on other merchandise. In February 2010, Christian Audigier served subpoenas on third parties including Facebook and MySpace, seeking certain communications between Crispin and another artist.

Crispin’s lawyers moved to quash the subpoenas, arguing in part that the SCA prohibits third-party ISPs from disclosing such communications. A magistrate judge rejected the argument, but on
May 26 the U.S. District Court for the Central District of California reversed. It quashed the portions of the subpoenas seeking private messages from Facebook and MySpace and characterized the social networks as “electronic communication services”–a designation that afforded such messages the same protections under the SCA as previous courts have given web-based e-mail.

“The decision says you can get this evidence from the party whose Facebook profile you’re looking to dig into, but you can’t get it from Facebook,” says Venkat Balasubramani, co-founder of Focal, a law firm catering to media and technology companies. “It makes it harder to obtain this type of profile information.”

The district court also vacated the magistrate’s decision on the Facebook wall posts and MySpace comments, which can be visible to the public if a user’s privacy settings allow it, and remanded that issue for further development of the evidentiary record. It pointed out that analysis on this issue must be on a case-by-case basis, and that wall posts and comments are distinct from private messages or e-mails.

“Unlike an email, there is no step whereby a Facebook wall posting must be opened, at which point it is deemed delivered,” Judge Margaret Morrow wrote for the court. “Thus a Facebook wall posting or a MySpace comment is not protectable as a form of temporary, intermediate storage.”

Levels of Exposure

Whether Christian Audigier’s subpoenas for the wall postings stand up in court will ultimately depend on the extent of Crispin’s privacy settings as reconsidered by the magistrate judge.

“I would expect to see other decisions like this at some point that more closely examine how particular websites work and how particular privacy settings for a particular user work,” Balasubramani says.

But given the limited evidentiary record, the district court’s reasoning falls in line with other recent rulings finding that if a forum discussion is password protected, the communication isn’t subject to disclosure in a subpoena.

“The wall feature is very much akin to earlier existing bulletin boards,” says Jill Kirila, a partner at Squire Sanders. “Whether it’s subject to disclosure in a subpoena will depend on what efforts the user took to protect the privilege of that page–it’s very easy to take a look at some people’s Facebook walls. If that’s the case, it’s going to fall over the line as far as being readily available to the public, and it’s going to be subject to disclosure through a subpoena.”

For private messages as well as wall postings and comments that aren’t accessible by the public, the practical thrust of Crispin is that parties to litigation should get consent from the other party to access such communications, rather than seeking them from the ISP.

“Courts have recognized that if evidence is useful, the parties shouldn’t be deprived of access because of the SCA, and have pushed parties and witnesses to sign a consent or to agree to disclose,” Balasubramani says. “The courts all recognize that the party whose Facebook information is sought can be forced to produce. You just can’t get that information from Facebook.”