Given the popularity of sites like Facebook (more than one billion people have created an account on the social networking site) and Google (it ranks as the most popular search engine), more and more litigants have looked to these avenues for information about the other party. While what you post online publicly is obviously fair game during litigation (think: that video you uploaded to Instagram of you dancing after claiming a workplace injury crippled you), what about your private messages and/or email?
According to Facebook, federal law does not allow private parties to obtain the content of communications (example: messages, timeline posts, photos) using subpoenas. However, parties to litigation may “satisfy party and non-party discovery requirements relating to their Facebook accounts by producing and authenticating the content of communications from their accounts and by using Facebook’s “Download Your Information” tool.” See the Stored Communications Act, 18 U.S.C. 2701 et seq.
If one party claims that they cannot access their content because their profile has been taken down, Facebook may attempt to restore access to deactivated accounts to allow the person to collect and produce their content. While Facebook claims it cannot restore account content that has been deleted, this is a statement we would not test.
When subpoenaed, Facebook may provide your basic account information (not content) where the requested information is indispensable to the case, and not within a party’s possession upon personal service of a valid subpoena or court order and after notice to affected account holders.
On the other hand, if Google receives a legal request for user data, it is unlikely that your private messages will be shared. The Stored Communication Act (SCA) prevents Google and other email service providers from providing the content of email messages. Of course, when law enforcement subpoenas content or emails from Facebook or Google, the game changes.
The moral of the story? Be thoughtful about what you type, whether privately or publicly. For more information, contact our office.