In mid-June, a district court in Pennsylvania issued a memorandum in the matter of Rodriguez v. Widener University. The case involves a couple of our favorite things to talk about: Facebook and the Stored Communications Act – plus drugs and (pictures of) guns. The trouble began at a meeting in March 2011, when the plaintiff was “temporarily suspended due to the fact that he was perceived to be a threat to the community because he displayed images of weapons on his Facebook page.” After that meeting, Rodriguez was involuntarily taken to, and then committed at, a mental health facility. A police officer also “found a knife and less than 30 grams of marijuana” in plaintiff’s backpack. He filed this complaint alleging many violations, of which the two that relate to technology law involve the Electronic Communications Protection Act and the Stored Communications Act:
Count VI attempts to state a claim under the Electronic Communications Protection Act (“ECPA”)… based on the allegations that (1) “defendants’ [sic] went into plaintiff’s e-mail and obtained information about plaintiff,” and (2) the Defendants unlawfully accessed images from his Facebook page. He contends that their actions “were conscious, intentional, wanton and malicious, entitling Plaintiff to an award of punitive damages.” … Count VIII attempts to state a claim under the Stored Communications Act (“SCA”)… Rodriguez alleges that the “Defendants’ use and access of his Facebook images constitutes an unauthorized acquisition of stored electronic communications in violation of the SCA.”
(Internal citations omitted)
The ECPA claim is summarily dismissed in one regard – the email in question was sent by plaintiff to one of the defendants, so plaintiff “cannot plausibly assert a claim that the Widener Defendants improperly “intercepted” the email for purposes of the ECPA.” When it comes to the defendants accessing plaintiff’s Facebook page, however, things are different.
We find that Rodriguez has pled plausible ECPA and SCA claims based on the Widener Defendants’ alleged accessing of his Facebook images. While the Widener Defendants argue that Rodriguez’s Facebook postings are covered by § 2511(g) for purposes of the two claims — because they “were accessible to the general public and/or forwarded to certain Widener Defendants by concerned students who had equal and permitted access to Plaintiff’s Facebook postings” — there is no factual basis in the Complaint for this assertion. Further, they cite no legal basis from which we can conclude as a matter of law that Rodriguez’s Facebook images are generally available to the public.
So, even though plaintiff’s profile was seemingly non-private and easily readable, there’s still the chance that the information may have been improperly “intercepted”, and so on that count at least, the case is allowed to proceed.