Private May Not Be Private When it Comes to Social Networking

Technology continues to change the legal landscape on a daily basis. The latest mode of attack is through unfettered access to litigants’ social networking sites. Regardless of what privacy settings you may think you have in place, the Courts are alarmingly allowing complete access to all of a litigant’s postings – postings by others – and especially communications that one may have considered to be private. Even though Facebook will protect your privacy and not disclose your information except in the most limited of circumstances, the courts are requiring full disclosure – and in a few cases even your password – if it is requested by the other side.

I find several problems with this approach – not least of which is that it presupposes that anything one posts on the internet is “true”. We all use the internet and social media tools for a variety of reasons; whether it be keeping in touch with grade school friends – marketing our business – or just curious voyeurism into others lives. While several post intimate details of their lives probably not appropriate for public transmission; others utilize the service to have almost an alternative identity and may not always post the truth – the whole truth – and nothing but the truth. For example, I have many Facebook friends that state their age as “29” though we clearly are not!

I also take issue with access to my clients’ information when they have availed themselves of the privacy settings that sites such as facebook or myspace offer. By utilizing these tools they are not submitting information to the world at large. I have had one judge tell me that if my client is putting information on the internet there is no expectation of privacy regardless of what privacy settings they may have in place.

The most important lesson to be learned is simple. If you do not want whatever you or others are posting about you displayed in a courtroom someday – do not post it. As an attorney I have successfully had the Courts limit any disclosure to the timeframe that is relevant to the case; but it is also my experience that each Judge handles these issues differently. Until there are appellate cases that address social networking disclosures; the best rule of thumb is if you are hesitant about who may see that photo or posting – just do not post it.

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