A survey by Pew Research Center in 2015 found that as much as
     - 71% of adult internet users were on Facebook,
     - 23% were on Twitter, and
     - 26% were on Instagram.

With so many people connected online, accessing the intimate details of people’s lives is now easier than it’s ever been. Facebook posts. Twitter tweets. Instagram pictures. Although these social media sites offer privacy features such as restricting who can see your updates, recent outcomes in civil courts around the country pose new concerns for social media users. Is your content really private? And are your social media accounts protected by law?

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Stored Communications Act

The Fourth Amendment to the U.S. Constitution protects a person’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches”. However, information stored online is not recognized under these protections due to complications. The Stored Communications Act (SCA) was enacted in 1986 to expand upon the protections afforded by the Fourth Amendment. The SCA creates Fourth Amendment-like privacy protection for email and other digital communications stored on the internet. Under the SCA, commercial internet service providers (ISPs) are limited in the content they are allowed to give to non-government parties. In addition, the SCA limits the government from forcing ISPs to turn over information about their customers.

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In the United States and other countries, discovery is a pre-trial procedure where the parties involved in a lawsuit can obtain evidence from the other party(s). There are four types of formal discovery tools frequently used in lawsuits:

-  Depositions, where one party or their lawyer conducts a face-to-face questioning of the other party or a witness under oath, with the answers recorded for later use at trial.

-  Requests for production of evidence, where one party asks the other for physical evidence, such as relevant documents and records. These requests can also ask for the inspection of physical objects or properties, such as real estate in the case of property damage claims.

-  Interrogatories, similar to depositions, except questions are written and sent by one party to the other to be answered under oath. Can also be used to challenge a party who changes their story later.

-  Requests for admission, where one party asks the other to admit or confirm the legitimacy of facts or documents pertaining to the case under oath.

During the discovery procedure, information can be granted privileged status, meaning that the other party may not ask for it to be produced or confirmed. Often, this is confidential or classified information.

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Over the past decade, there have been multiple civil cases where one party has asked the other to produce evidence from their social media accounts. It sounds odd and out of bounds, but this practice has become common in civil courts around the nation.

In the 2010 New York case Romano v. Steelcase Inc., the court granted Steelcase Inc. access to Romano’s “current and historical Facebook and Myspace pages and accounts, including all deleted pages and related information.” The court ruled that allowing the plaintiff (Romano) to “hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

Cases like Romano v. Steelcase Inc. share similar details in their stories. What often happens in social media discovery cases is that an individual will sue an employer or other entity on claims of injury, emotional distress, or loss of enjoyment in life. When taken to court, the employer or other entity—as the defendant—will request that the individual produce evidence from their social media accounts. Sometimes, they may only ask for evidence relevant to the case; others, they may ask the individual to turn over the entirety of their social media, including private or filtered content. In these cases, the defendant claims that the plaintiff’s Facebook statuses, Instagram photos, or Twitter tweets will invalidate the plaintiff’s claims of injury, distress, or loss of enjoyment in life.

Romano v. Steelcase Inc. isn’t the only case where a court has granted social media discovery. In McMillen v. Hummingbird Speedway, Inc. (2010) and Zimmerman v. Weis Markets, Inc. (2011), the courts also granted the defendant parties access to the plaintiffs’ social media accounts. In their rulings, both courts cited clauses from Facebook and Myspace’s Terms of Use, outlining that users’ content and conduct could be monitored. The courts reasoned that services such as Facebook and Myspace being able to monitor user content as a third-party negated the confidentiality of the content. Because of this, the plaintiffs’ social media accounts were not recognized as privileged and were open to discovery.





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