According to the Reuters article “In U.S. Courts, Facebook Posts Become Less Private,” courts are now turning to information posted on social networking sites to determine the legitimacy of complaints. The article cites that defense lawyers, particularly those in personal-injury cases, are using social networking sites to show “potentially exculpatory evidence.” For example, in one recent case, a New York woman claimed to be bedridden after falling off a defective chair, only to be shown happily smiling in front of her home in family Facebook photos.
In high school, I volunteered for an organization called Teen Peer Court where I defended juveniles in courts with jury members made up of their peers. In one case, I had just directed the defendant and he had told the court that he had not smoked any marijuana since the incident occurred. To my dismay, the prosecution pulled up his Myspace page and showed the jury a photo of the defendant smoking marijuana. The photo was dated after the defendant’s arrest. This evidence not only proved that the defendant was lying, but also showed that he could not be trusted and had not learned his lesson by being arrested.
Cases such as these bring up privacy issues. Can courts legally bring social networking sites into evidence? Part of the answer lies in the person’s privacy settings. If the person’s social networking page is open to members of the public, that person should expect anyone to be able to access their information. In the case that the person’s page is set to private, the process becomes a little different. Jim Dempsey, vice president of public policy at the Center for Democracy and Technology states that, “You do have a right of privacy in your private Facebook postings. But in the context of litigation, that right can be overcome.” Dempsey is referring to court issued subpoenas.
The federal Stored Communications Act regulates how private information can be circulated in non-criminal matters. The law has been interpreted to mean that sites do no have to hand over users’ personal data in response to civil subpoenas. However, defense attorneys are finding ways to work around this. Attorneys are now asking judges to order plaintiffs to sign consent forms granting defendants access to their private information. Defendants are then attaching these consent forms to subpoenas to social networking sites. This essentially authorizes sites to hand over printouts of the private portions of the plaintiff’s social networking pages to defendants. Should these practices be legal?