Discovering Facebook: Social Network Subpoenas and the Stored Communications Act

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TABLE OF CONTENTS

I. INTRODUCTION
II. THE STORED COMMUNICATIONS ACT
  A. SCA Background
  B. What Does the SCA Do?
    1. Parties Covered by the SCA
    2. Protections and Restrictions on ECS and RCS
      Providers
III. APPLYING THE SCA TO SOCIAL NETWORKS: CRISPIN V.
CHRISTIAN AUDIGIER, INC
  A. Case Background
  B. The Court's Analysis
    1. Private Messages
    2. Wall Posts, Comments, etc.
  C. Result
IV. CASES THAT HAVE IGNORED THE SCA
  A. Ledbetter v. Wal-Mart Stores, Inc.
  B. Romano v. Steelcase Inc.
V. THE PROPER APPROACH TO SOCIAL NETWORK DISCOVERY
  A. Step One: Apply the Rules of Civil Procedure
  B. Step Two: Apply the SCA
VI. CONCLUSION

I. INTRODUCTION

For many people, online social networks have become an important part of everyday life. A recent study showed that Americans spend over 20% of their online time on social networks and blogs. (1) Although these networks began as sites where users could simply find friends and view their contact information, they have grown increasingly complex. Modern social networking sites allow users to upload photographs and videos, post status updates, comment on friends' posts, play games, and send messages to other users. As the functionality of these sites has expanded, there has been a dramatic increase in both the number of users and the amount of content shared on social networks. Facebook, for example, currently has over five-hundred million active users, and the " [a]verage user creates 90 pieces of content each month." (2)

As Americans share more personal information on their social networking pages, lawyers have increasingly looked to these social networks as litigation resources. (3) Information from these sites is useful because "users of social network sites often 'let their hair down' in a way that surpasses even the thoughtless statements that all too often appear in email." (4) However, the best method for obtaining this information remains unclear. Lawyers can request social network information directly from users, but there may be problems with information access and formatting. Because social network users do not have access to the native format, they are only able to produce screenshots of their social network pages. (5) Additionally, it is impossible to know whether users have included all relevant information, because they may not have access to all of it. (6) For these reasons, many lawyers have found it easier to request social network information directly from social networks using civil subpoenas. (7) Social networks, like Facebook and Myspace, (8) have resisted these subpoenas, however, by invoking the protection of the Stored Communications Act ("SCA"). (9)

Since the adoption of the SCA in 1986, courts have used the Act to protect the privacy of Internet users. (10) This is consistent with Congress's intention to "protect privacy interests in personal and proprietary information, while protecting the Government's legitimate law enforcement needs." (11) From the text of the SCA, it is uncertain whether this protection extends to information on social networks, as Facebook and Myspace claim. Without the SCA, however, there is little to protect users from aggressive litigants and government prosecutors who wish to access their social network information. (12)

This Note explores the challenges related to discovery of online social network information. Part II explores what protections, if any, the SCA provides against discovery of information on online social networks. Part III analyzes the U.S. District Court for the Central District of California's decision in Crispin v. Christian Audigier, Inc.,12 the first case to hold that social networks are protected from disclosing some information by the SCA. Part IV critiques recent decisions that have allowed broad discovery of social network information, arguing that the discovery requests in these cases violated Federal Rule of Civil Procedure 26(b)(1) and that the requested information should have qualified for SCA protection. …