Subpoenas for Facebook Content

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In our previous blogs, we’ve covered the admissibility of social media evidence, but we have only briefly touched on the laws governing subpoenas for private Facebook information. This blog delves into some of the laws you need to be familiar with if you’re looking to subpoena social media sites.

In general, a government agency may subpoena social media sites to disclose information with a warrant. However, in civil cases, most social media sites use the Stored Communication’s Act (18 U.S.C. § 2701) (“SCA”) as a defense. 

The SCA generally prohibits service providers from disclosing communications about their customers or subscribers to private parties, creating a Fourth Amendment-like privacy protection. The statute limits the government’s ability to force providers to disclose information about their customers, and also limits a provider’s ability to disclose information about customers. 

The statute distinguishes between a Remote Computing Service (“RCS”), the “provision to the public of computer storage or processing services by means of an electronic communications system,” and an Electronic Communication Service (“ECS”), which is “any service which provides to users thereof the ability to send or receive wire or electronic communications.” An ECS provider is prohibited from disclosing “the contents of a communication while in electronic storage by that service,” while an RCS provider can’t disclose “the contents of any communication which is carried or maintained on that service.”

Facebook does not release account content via a civil subpoena, citing to the SCA on their website and stating that, “Federal law does not allow private parties to obtain account contents (ex: messages, Timeline posts, photos) using subpoenas.” However, Facebook may disclose basic subscriber information if the “requested information is indispensable to the case.” In order to obtain basic subscriber information, Facebook must be served with either a federal or a California, or California domesticated, subpoena. The subpoena must “specifically identify accounts by email address and Facebook user ID.” 

The leading case is Crispin v. Christian Audigier, Inc., where the defendant subpoenaed Facebook and Myspace for account information. The court first found that Facebook and Myspace were ECS providers because of their private messaging services and bulletin board services (“BBS”) in the form of Facebook wall posts and Myspace comments, since BBS posts may be private. Social media sites are also RCS providers because they “provide storage services for the user.” The court held that “webmail and private messaging… are inherently private such that stored messages are not readily accessible to the general public” and denied the subpoena seeking private messages. However, whether wall posts or comments may be subpoenaed depends on the level of privacy. The court stated that “a completely public BBS does not merit protection under the SCA.”

However, not all cases follow Crispon. In Romano v. Steelcase Inc., the plaintiff claimed that, as a result of her injury, she could not longer participate in certain activities and that it effected her enjoyment of life. However, a review of the public portions of her Facebook and Myspace accounts revealed that she maintained an active lifestyle and traveled during times when she claimed that her injuries precluded her from traveling. The court held that, “it is reasonable to infer from the limited postings on Plaintiff’s public Facebook and Myspace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” 

The court further held that since “neither Facebook nor Myspace guarantee complete privacy, Plaintiff has no legitimate expectation of privacy” and that “Defendant’s need for access to the information outweighs any privacy concern.” The court then ordered Plaintiff to execute a consent and authorization, as required by Facebook and Myspace, to permit access to Defendant, and that a copy of that order be sent to remaining parties as well as non-party Facebook.

While courts continue to debate whether social media sites may be subpoenaed, the best bet to gain access to a social media account is to narrowly tailor the request by showing that it may reasonably lead to the discovery of admissible evidence. SMI may be able to assist you in finding evidence to help support that showing.

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