Marking a Facebook Post “Private” is No Shield from Disclosure in New York State

By now, most litigators are aware of the potential gold mine that an opposing party’s social media account can contain. The trick is getting the other side to give it up. One common tactic for the party trying to prevent disclosure is to claim that certain material is private and therefore protected from discovery. Well, now litigators in New York State can combat this argument, thanks to the state high court’s decision in Forman v. Henkin, 2018 NY Slip Op 01015, 2018 N.Y. Lexis 180 (Feb. 13, 2018), which held that making a Facebook post “private” does not give it any special protection under the liberal principles applicable to the discovery process. The court also provided guidance for how to apply those principles to social media accounts, which can prove very useful for litigators in the future. Click here to read the full article.

Privacy Law and Social Media: Why Employers Should Create and Update Social Media Policies

When can an employer discipline an employee who uses social media to distribute content online that could be detrimental to the employer’s business interests? The answer, of course, is “it depends.”

The law struggles to keep pace with technology. Cyberspace has expanded the “workplace” beyond the physical confines of an office building and the traditional eight-hour workday (overtime concerns are the subject for a future blog post). At minimum, employers should create, update and distribute to employees its privacy rules and policies – typically in an employee handbook with a signed acknowledgment of receipt – that reduce the expectation of privacy in the workplace. Employees should be informed through company policies that  desks, files, vehicles and even lockers provided by the employer may be subject to search. The privacy rules and policies should also extend to digital property (data) contained in and transmitted through equipment and devices the employer provides that can be used both onsite and offsite such as laptops, smart phones, email accounts.

However, employers in California and other states also must balance the risk of disciplining employees for off-duty conduct online that may be detrimental to the employer’s interests with laws that prohibit employers from retaliating against employees who engage in legal off-duty conduct.  For example, under California Labor Code Section 96(k), commonly known as “the moonlighting law,” the Labor Commissioner may pursue claims against an employer “for loss of wages as the result of a demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”

So, how does an employer minimize the risks associated with addressing an employee’s off-duty and online conduct that may be undesirable or detrimental, but not illegal? The following steps may reduce the risks:

  • Create an employee handbook that specifically states the company’s privacy and social media polices.
  • Reference and incorporate general policies and guidelines for employee communications transmitted by email, text or voice through internet or social media.
  • Prohibit employees from creating conflicts of interest, revealing trade secrets and other specified conduct that is detrimental to the company’s legitimate business interests.
  • Inform employees they will be held to the same standards and code of conduct whether they are off-duty or on-duty.

Social Media Providers Prevail In Quashing Subpoenas In Criminal Proceedings

Derrick Hunter and Lee Sullivan were indicted and still await trial, on murder, weapons, and gang-related charges stemming from a drive-by shooting in California which occurred in 2013. Both Defendants served a subpoena duces tecum on Facebook, Instagram and Twitter, seeking public and private content from user accounts of the murder victim and a witness to the alleged crimes. As to Facebook, the subpoena stated “[a]ny and all public and private content,” including, but “not limited to user information, associated email addresses, photographs, videos, private messages, activity logs, posts, status updates, location data, and comments including information deleted by the account holder” for accounts belonging to the murder victim, Jaquan Rice and to the only witness Renasha Lee.

In January 2015, Facebook, Instagram and Twitter moved to quash the subpoenas as violative of the Stored Communications Act (SCA) (18 U.S.C. §§2701-2712). The SCA prohibits electronic communication service providers from releasing a customer’s data without the customer’s consent. (See 18 U.S.C. §§ 2702(a)(1), 2702(b)(3).) For this reason, just about every social networking service in America regularly refuses to produce records containing the content of electronic communications. There are a few exceptions, most notably for law enforcement officers who have a warrant. (See Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008).)

The trial court denied the motions to quash. Facebook, Instagram and Twitter appealed arguing that disclosure of the information sought was barred by the SCA. The Defendants opposed, contending that their constitutional rights to present a complete defense, cross-examine witnesses, and a fair trial prevailed over the privacy rights of account holders under the SCA. In an offer of proof as to Lee’s social media records, defendant Sullivan alleged that the records would demonstrate Lee, the sole witness who could implicate him in the shootings, was motivated by jealous rage over Sullivan’s involvement with other women, and that Lee had repeatedly threatened others with violence. Sullivan cited examples of postings that included a photograph of Lee holding a gun and making threats. In his offer of proof as to victim Rice’s social media records, Sullivan said review of the records was required to “locate exculpatory evidence” and to confront and cross-examine the prosecution gang expert from the San Francisco Police Department Gang Task Force, who testified that he “relied on social media records in forming an opinion whether a particular crime is gang related.”

Carefully reviewing, but ultimately rejecting these arguments, the Court of Appeal held the SCA provides no direct mechanism for access by a criminal defendant to private communication content, and “California’s discovery laws cannot be enforced in a way that compels . . . disclosures violating the Act.”

Although the court’s holding is limited; it left open the possibility that entities such as Facebook, Twitter or LinkedIn may be obligated to produce evidence of a person’s social media content in a criminal trial, instead of pretrial, as here. This is a curious procedural distinction, perhaps reflecting some discomfort with the holding.

The full opinion is available here.