Many social networking sites assert that the Stored Communications Act (“SCA”) precludes them from having to comply with subpoenas requesting documents. Indeed, as discussed in the previous issue of Socially Aware, the District Court for the Central District of California, in its Crispin decision, has indicated that text and other content posted to social media “walls,” if marked private, could be entitled to SCA protection.

Even if the SCA applies to private messaging and private postings on social media sites, however, this does not necessarily mean that any and all communications and content shared through social media sites is blocked entirely from discovery by litigants. A clever litigant may pursue alternate paths to obtain the desired information:  

  • First, if information is publicly available on a social networking site, it may be lawfully accessed under the SCA. Of course, accessing that information may still be subject to privacy, intellectual property, and other considerations and limitations under U.S. and foreign law, as well as restrictions included in the site’s own “Terms of Use” (which, as we noted in our last issue, can be relatively complex and onerous).  
  • Second, even if information is not publicly available on a social networking site, the SCA does not preclude “lawful access” to such information. One approach might be to seek the information directly from the controlling party under Rule 34 of the Federal Rules of Civil Procedure, which could help force an unwilling party to provide “lawful consent” to the disclosure of electronic communications held by third parties. In fact, at least one court has ordered a plaintiff to redraft a third-party subpoena as a Rule 34 Request to the defendant. Further, in a recent decision, a New York court ordered a plaintiff in a personal injury case to grant defendants access to her current and historical Facebook and MySpace pages, even where the information was not publicly available. Relying on such sites’ warnings emphasizing that information designated “private” may not remain so, the court held that there is no expectation of privacy, no matter what privacy settings were used.
  • Third, even content that is marked “private” on social media services may be found in users’ in-boxes. Because social media sites frequently send updates to end users through email (or even SMS) regarding other users’ posts and messages, users’ email accounts frequently contain copies of otherwise “private” social media messages.  
  • Finally, even if the information sought is not readily accessible, consider whether it can be construed as something other than an “electronic communication.” One exception to the SCA is the disclosure of “customer records”—that is, “a record or other information pertaining to a subscriber to or customer of such service”—to any person other than a governmental entity. For example, a plaintiff may want to know when and how long an individual was using a particular social media site. The dates and times at which an individual accessed a social networking site are not “content” within the meaning of the SCA and are therefore not subject to the SCA’s protections against disclosure.