The U.S. District Court for the Central District of California recently held in Crispin v. Christian Audigier, Inc. that private messaging services provided by Facebook and MySpace are protected under the Stored Communications Act (“SCA”) because the sites constitute both electronic communication service (“ECS”) and remote computer service (“RCS”) providers—which are typically treated differently under the SCA. Interestingly, the ruling also suggested that postings to a social media service’s “wall” would be entitled to SCA protection as well, so long as access to the wall is restricted to invitees only.
Enacted in 1986, the SCA, which is part of the broader Electronic Communications Privacy Act, created a set of Fourth Amendment-like privacy protections that regulate the relationship between, on one hand, service providers that possess private user information, and, on the other hand, government investigators. The SCA governs both voluntary and compelled disclosures of “stored wire and electronic communications…” and applies to services that either “provide[ ]…the ability to send or receive wire or electronic communications” (that is, ECS providers), or provide public “computer storage or processing services by means of an electronic communications system” (that is, RCS providers).
The standard of care that must be applied under the SCA depends on which type of service is involved—but in Crispin, the district court ruled that Facebook and similar sites perform the services of both types of providers. In light of this, the court quashed the portions of the subpoenas that targeted webmail and private messaging specifically, as the court was “satisfied that those forms of communications… are inherently private such that the stored messages are not readily accessible to the general public,” and are therefore protected under the SCA. The court, however, remanded the issues of whether Facebook wall postings and MySpace comments were readily accessible to the public; specifically, the court ordered “the parties to develop a fuller evidentiary record regarding plaintiff’s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.” More information on the case can be found at InsideCounsel.com. (We will feature further thoughts on the Crispin decision in our next issue.)