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What is Private on Facebook?


What is Private on Facebook?

Largent v. Reed, No. 2009-1823, slip op. (Pa. C.P. Franklin Co. Nov. 8, 2011).  Trial courts continue to allow discovery of social network (specifically Facebook) user profiles, and to deflect the privacy arguments offered to limit such discovery.  In Largent, a personal injury Plaintiff refused to provide access to her Facebook account as part of civil discovery.  In granting the Defendant’s Motion to Compel, the court provided an excellent synopsis of the overall state of the law in this area, a useful primer on the security and privacy setting available in Facebook, and illustrates the trend that courts throughout the country are refusing to view Facebook postings as “private.”  In fact, the court in Largent says:

“There is no reasonable expectation of privacy in material posted on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information.”  Id at 9 (internal citations omitted).

In response to the Plaintiff’s argument that she had modified the default account settings to provide more “privacy” on her account, the court further held:

[M]aking a Facebook page “private” does not shield it from discovery. This is so because, as explained above, even “private” Facebook posts are shared with others.  Id at 10 (internal citations omitted).

The Largent court closes its discussion of the fact that subpoenas served directly upon Facebook are improper, per the Stored Communications Act, see 18 U.S.C. §§ 2702-03, and that a request for Facebook access must have some good faith basis, and not be a mere fishing expedition.

Largent illustrates what appears to be the emerging majority rule on social networking discovery: if you can demonstrate a good faith basis for seeking the material, and make the request upon the person with the account (rather than the social network itself), the discovery will likely be permitted.  Whether the reasoning of Largent may apply to a social network or similar site with greater user privacy and less ubiquity, however, remains to be seen.