Is There Such a Thing as Social Network Privilege?

Susuk Lim

Pennsylvania–As social networking sites like Facebook and MySpace rise in prominence and become integrated into the daily lives of more and more people, serious questions of confidentiality arise.  Much has been made of the loose lips syndrome afflicting social network users, and in many cases, courts have been unwilling to protect inculpatory posts from discovery.  In the latest case to tackle these issues, McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (Pa. Ct. of Common Pleas), a Pennsylvania court not only concluded that information posted on one’s profile lacked protection, but that login credentials to the profiles themselves are not confidential.

McMillen is, at its core, a personal injury case.  Plaintiff, a stock car racer, was apparently injured during the cooldown lap of a race held on property owned by Defendant.  After the injury, Plaintiff posted information about his recreational activities on Facebook, including his attendance of the Daytona 500 and a fishing trip.  During the course of Plaintiff’s suit, Defendant requested full discovery of Plaintiff’s social networking profiles, including usernames and passwords required to fully access them.  Plaintiff objected.

The court proceeded from a presumption, under Pennsylvania law, of discovery’s generally broad scope and the limited application of evidentiary privilege.  Given the social nature of sites like Facebook and Myspace, wherein users intentionally share information in an effort to connect with new and existing friends (and, as the court noted, those friends were free to disseminate any potentially confidential information to other parties), the court first reasoned that “[w]hen a user communicates through Facebook or MySpace … he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate.” It concluded that there was no element of confidentiality that protected Plaintiff’s Facebook and MySpace accounts from discovery.

The court reached the same conclusion upon applying Wigmore’s four-part test for new evidentiary privilege.  Under Wigmore’s test, the party seeking creation of the privilege has the burden of satisfying all of the conditions; (1) that the communications must originate in confidentiality, (2) that the element of confidentiality must be essential to the maintenance of relation between the parties, (3) that relation is one that is sedulously fostered by the community, and (4) the injury arising from disclosure is greater than the benefit derived from the correct disposal of litigation.  Here, upon considering MySpace and Facebook’s use policies, the court concluded that confidentiality was neither expected nor essential to maintain the relationships between social network users.  It posited that “[t]he relationships to be fostered through those media are basic friendships, not attorney-client, physician-patient, or psychologist-patient types of relationships, and while one may expect that his or her friend will hold certain information in confidence, the maintenance of one’s friendships typically does not depend on confidentiality.”

In handling social networks as monoliths with a singular purpose to share information, the court evinced a lack of appreciation of social networking’s modern complexities.  First, the scope of discovery here was not limited to inculpatory posts – it requested, and the court granted, read and write access to the account itself. It treated Plaintiff’s username and password combination no differently than the information contained within the account, even though the basis for protecting confidentiality should have been completely different.

Second, both Facebook and MySpace have integrated, e-mail-like private messaging capability.  By painting “social networking” in broad strokes, the court effectively sweeps capabilities intended to provide a measure of confidentiality into the “unprivileged” bucket.

Third, social networking sites – especially Facebook – have responded to widespread criticism from its own users to improve control of the confidentiality of posts and features at a granular level.  Users may now lock down practically every aspect of their profile from public, semi-private, or even fully private dissemination, and may also control the sharing of information between the first generation.  The court practically ignores a user’s clear intent to preserve confidentiality if they create these posts after mindfully setting these privacy options – and the broad wording of the decision sweeps practically every social networking user, however mindful of his or her privacy, into the same unprotected classification.

Finally, since the granted discovery request in this case includes everything in Plaintiff’s social networking profile, Defendant will be given every bit of a very large portfolio of information.  Unlike the court’s view, social networking profiles have become very complex and hold more than just posts.  In being granted such a broad request, Defendant will be assailed with pictures of puppies, a long history of Farmville scores, Youtube videos, and other similarly disparate and irrelevant nuggets of information – and not just from Plaintiff himself.  Rather than limit the discovery to the portion of Plaintiff’s profile relevant to the litigation, the court chose to ignore the relevance analysis altogether, possibly from not understanding the scope and implications of its actions.

McMillen provides us with two main takeaways.  First and most obviously, nothing posted in a social networking site is safe from discovery – not even posts made by third parties.  As in McMillen, a court may look to the underlying purpose of social networking itself and conclude that it is simply not important enough to protect anything on a social networking site against what it views as the “correct” dispatch of litigation.  Simply state, be mindful of what you post, because it could very well be used against you.

Second, McMillen demonstrates the importance of clear advocacy, especially when involved in litigation the court is unlikely to fully understand. The McMillen court will unfortunately not be the last in not fully understanding emerging technology before passing judgment on its legal status.  Given the complex nature and perhaps previously unimaginable scope of something like social networking, it is understandable – after all, courts were never meant to be independent experts on the subject matter of every case they are assigned.

While the court may not be responsible for independent research, the advocate surely is.  Had the court fully appreciated the complexity of social networking as an entity, it may not have decided as broadly against evidentiary privilege as it did.  Instead, it appears that Plaintiff pursued a broad, unsubstantiated argument – namely, the creation of a “social network site privilege” in the absence of case law either for or against it – and the court responded with a broad denial.

2 thoughts on “Is There Such a Thing as Social Network Privilege?

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