Facebook Lacks Standing To Challenge Subpoenas For User Info, Says New York Appellate Court

Here we go again. Another privacy-related Facebook legal issue has arisen.

Facebook

In a disability fraud case in New York, in which “more than 130 police officers and other public workers in New York City whose disability claims allegedly conflicted with information about life activities on their Facebook accounts,” Facebook has reportedly been told by a New York appellate court that it lacks standing to challenge subpoenas for the users’ personal information. Although Facebook has produced the information as ordered, it does not plan to give up on the issue. In fact, according to Bloomberg, Facebook released the following statement:

We continue to believe that overly broad search warrants—granting the government the ability to keep hundreds of people’s account information indefinitely—are unconstitutional and raise important concerns about the privacy of people’s online information.

Apparently, Facebook has not decided whether to appeal the ruling further.

How much information does Facebook maintain on its users, anyway?  According to a Forbes article from several years ago, the answer is A LOT. The personal data stored by Facebook includes everything from “every person who has ever poked you” to “a list of the machines that [the user] has used Facebook from, how often [the user] has signed in from the machine, as well as a list of all the other Facebookers who have logged in on that machine.” An exemplar full report discussed by the Forbes article was over 800 pages long.

If you are curious about how to download all of your Facebook data, Facebook tells you how to do so here:

Download facebook data

This information, of course, can be helpful to lawyers when fashioning interrogatories and requests for production of documents pertaining to Facebook data. As you may recall, we at Abnormal Use have covered many Facebook-related legal topics in the past, which can be accessed here.

Washington Court Of Appeals Rejects Argument That Facebook Post Not Authentic

Rarely do we write about criminal cases on this site, but we did feel it appropriate to mention a new case in which the defendant challenged his burglary and assault convictions, in part, on the grounds that his lawyer did not object to the admission of certain Facebook posts into evidence. State v. Fawver, No. 32271-8-III (Wash. Ct. App. June 9, 2015 (unpublished).

The facts were these:

The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year’s Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been “jumped” at the party.
Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce’s residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.

A detective later found a Facebook post on the page of one “Corey Fawner” in which the owner of the account posted the following status update: “Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are.” The defendant was, of course, convicted.

On appeal, the defendant raised the issue of ineffective assistance of counsel because his attorney failed to object to the Facebook post.

Finding the the defendant’s argument that the Facebook post was not properly authenticated to be “questionable,” the court noted as follows:

There are at least as many ways to try a case as there are trial attorneys. Skilled counsel often do not raise objections to the form in which otherwise admissible evidence is entered. In most instances, it will be nigh impossible to establish that counsel erred by failing to make an objection that, if successfully lodged, would simply require the opposing party to offer the evidence in a different manner. That is the situation here. Mr. Fawver does not argue that the posting could never be authenticated; he only argues that this authentication was inadequate. Under the circumstances, it is doubtful that counsel’s decision to not object was such an egregious decision that it constitutes a failure to live up to the standards of the profession.
Nonetheless, even if this type of behavior could constitute error under Strickland, it does not do so here. Mr. Fawver has identified no Washington authority, nor have we, that sets forth authentication requirements for Facebook postings. On that basis alone, it is difficult to conclude that counsel erred since there is no governing authority to establish a failure to adhere to professional norms.

However, the court also went to some length to describe how the Facebook post, or “screen-grab” as it called it, was authenticated:

Given the unique comment posted so close in time to the assault, the fact that a friend of Mr. Fawver recognized it as his Facebook page, the name on the post matched Mr. Corey Fawver’s name, the picture was identified as the picture of Mr. Fawver, and the fact that Facebook is widely known to generally be password protected, the Facebook post appears to have been properly authenticated.

Keep that in mind, folks. Most of those authentication components would be the same regardless of whether the evidence was digital in nature. The circumstances surrounding the post, the manner in which the detective was led to it, and the facts contained therein all served to authenticate it.

Remember that when you’re litigating these issues in civil cases.

 

North Carolina Court Of Appeals Matter-Of-Factly Cites Litigant’s Facebook Profile In Factual Background Section Of Opinion

Here’s something interesting.

In the factual and procedural background section of a recent opinoin, the North Carolina Court of Appeals cites to a litigant’s Facebook profile to introduce him in that section. See Staton v. Josey Lumber Co., Inc., No. COA14–1001 (N.C. Ct. App. May 5, 2015).

It’s a workers compensation case, and the claimant “injured his left leg and foot when he fell off scaffolding while welding.” The North Carolina Industial Commission found that it had no jurisdiction to hear his claim because it determined he was an independent contractor and not an employee. The claimant appealed this finding, although the court of appeals affirmed.

In the second paragraph of the factual background section (and the fifth paragraph of the opinon), the court of appeals noted:

Staton called himself a contractor on his Facebook page. He stated that “[m]ost everyone knows I’m a welder. I travel alot chasing jobs. I do shutdown work. That is when a company takes off a week or so and contractors go in and fix whatever is broke.”

The court of appeals quoted this language again in the analysis section of the opinion.

So, here, we’re not dealing with spoliation or impeachment or any of the usual issues when social media is involved in litigation. It offers no citations or footnotes to justify some type of novel citation to new social media technology.

Rather, the Court of Appeals matter-of -factly quotes the litigant’s Facebook profile (just like it would any other statement or document).

How about that?

Private Message or Process Server – Service Through Facebook?

Revolutions have started through the use of it.

Marriages have started through the use of it.

Opinions (informed and uninformed) are shared on it.

So why should a lawsuit not start through its use?

What is it? Why Facebook and potentially other social media platforms, of course. In a recent divorce case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096, Mar. 27, 2015), the New York County Supreme Court permitted a wife to serve her husband solely with a summons via private message to the husband’s account on Facebook.  While recognizing that Facebook is not a statutorily permitted method of service, the Court asked and answered several relevant questions in making its way to its conclusion that service in this fashion was proper.

The Court first asked whether the standard form of personal service was at all possible. It reasoned that since the couple had never resided together, the last known address the wife had for the husband was from an apartment he left in 2011, and the husband told her he had no fixed address or employment, it was an impossibility to personally serve the husband.

The Court next had the wife show that statutorily permissible “substitute service” of serving on someone of suitable age and discretion or through “nail and mail” would also be unavailable under the circumstances.  The Court quickly rejected the possibility of substitute service since such service is premised upon knowledge of the husband’s actual place of business or home address.

The Court further insisted that the wife demonstrate that sending the summons through Facebook would be a way to reasonably expect he would receive actual notice. The Court noted that whether the method used would comport with due process was the “ultimately determinative” factor.

To ensure that the Court’s order was constitutionally reasonable, the Court required the wife to submit a supplemental affidavit verifying the husband’s Facebook account, including copies of exchanges between the husband and wife on Facebook and the identification of husband in certain photographs. The wife’s affidavit also showed that husband regularly logged into the account.  Finally, the Court determined that service by publication would be useless and costly in these circumstances, finding that publication was almost guaranteed not to provide husband with notice of the action.

The Court concluded that the wife’s attorney would log into her account, message the husband by first identifying himself, and either include an image of the summons or a hyperlink to the summons.  Additionally, the attorney would have to repeat the message once each week for three weeks or until husband acknowledged service, and after the initial transmittal, the wife and the attorney would have to call and text message the husband to inform him of the Facebook message.

Baidoo is not the only case to contemplate service by Facebook.  But could service by Facebook extend outside of cases for divorce or between individuals?

Just two years before Baidoo, the Federal Trade Commission, in alleging “that the defendants operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers,” requested leave to serve five India-based companies by means of both email and Facebook.  F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE (S.D.N.Y. Mar. 7, 2013).  While the Court noted that Facebook and email were not within the scope of Article 10 of the Hague Convention on Service, it also noted that India had not objected to the use of Facebook and email as a means of service such that the Court could authorize service by those means. In turn, the Court found that the FTC’s proposal to serve defendants by both email and Facebook satisfied due process, stating that “[w]here defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.” This holding was followed several months later in F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE (S.D.N.Y. Aug. 7, 2013).

Given these cases and the fact that the cost of publication is increasing while the likelihood of notice by publication is decreasing, service only by Facebook on even corporate defendants could be a thing of the relatively short-term future. However, given the effort that must be exerted before a court will permit such service, it will likely be a long time before service by Facebook on either individual or corporate defendants is something that is commonplace. While there may be a shot for Facebook, a search of service by other social media platforms, including Twitter, Tumblr, Instagram, and Snapchat, has not produced any results to date.

Supreme Court of New Hampshire Reminds Us How Facebook Works

So, it’s 2015, so we’re not sure that a court needs to dedicate a section of an opinion to “Explanation of Facebook Technology Relevant to this Case.”

In February, the Supreme Court of New Hampshire did just that in an appeal arising from the defendant’s convictions for stalking and witness tampering.

In its opinion, the court noted as follows:

Facebook is a widely-used social media website, available for free to anyone with an e-mail account, whose stated mission is to give people the power to share and make the world more open and connected. Facebook and other social media sites are becoming the dominant mode of communicating directly with others, exceeding e-mail usage in 2009. With over one billion active users, Facebook is revolutionizing the way people behave and interact with one another in their everyday lives through site functions that facilitate sharing information, such as a user’s “profile page,” the ability to send personal messages to other users, and by allowing users to become “Facebook friends” with other users.

A profile page is a webpage that is intended to convey information about the user. By default, Facebook profile pages are public. When a user shares something publicly, anyone including people off of Facebook can see it. Alternatively, Facebook users can restrict access to their Facebook content using Facebook’s customizable privacy settings. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.

State v. Craig, No. 2013-229 (N.H. Feb. 12, 2015) (quotations and citations omitted).

We’ve deleted the citations, but we note that the court cited to law review articles and quoted from Facebooks pages directly.

But are these basic principles really so novel that they need to be stated and then supported with citations? If the authority the court is citing indicates that Facebook has one billion active users and that social media usage has surpassed email as a communications medium, isn’t it a familiar enough phenomena in society to go without saying? Can’t the court simply jump to the discussion of the relevant Facebook usage facts without pausing to remind us how it works? Do the terms profile page and Facebook friends really need to be in quotation marks at this point?

LinkedIn For Lawyers – Beyond The Basics

I was at a deposition recently when the subject of LinkedIn arose in conversation. After seeing a post I had made on the site, another lawyer said he did not see the benefit of LinkedIn for lawyers. That gave me an opening to share with him why LinkedIn is a part of my marketing tool box. I am certain that this lawyer knew the basics of LinkedIn, as described in hundreds of articles and books. Perhaps you have read some of that material, which includes the following suggestions:

  • Complete your profile, including information on your education and business
  • Use key words in the “background” and “experience” sections to optimize the search results
  • Make sure your “headline” describes what you do
  • Customize your links to websites and blogs
  • Build your network by making connections
  • Regularly share updates
  • Join different “groups” and participate in group discussions

Here are a few suggestions, beyond the basics, illustrating how LinkedIn has enhanced my professional networking.

In advance of a meeting or conference, I may have a list of attendees. It is helpful to search for these individuals on LinkedIn. I can learn about their background, the nature of their business, their hobbies, and personal interests. When I return to the office from such a meeting or conference, I can send them a personalized invitation to connect on LinkedIn.

Several years ago, our firm was planning an event in a particular city. Prior to the event, I performed a LinkedIn search on people in that city within a particular industry. What did I find? An individual with whom our firm had a business relationship many years before but with whom we had lost track as he had moved to a different company. I sent him an invitation to connect on LinkedIn, reminded him of our prior relationship, and invited him to our firm’s event. Following his attendance at the event, and other opportunities to reconnect, he is once again a client of our firm.

LinkedIn also provides me with the opportunity to follow individuals from job to job. When a person changes jobs, LinkedIn will notify me. I can then follow up again with “congratulations” on their new position. On more than one occasion, this approach has allowed me to maintain a business relationship when individuals move to a new company.

Finally, sometimes, I just go on there and look around. If I am interested in a particular company, I can check on its corporate profile and see the list of individuals connected to that company. I might cruise through the groups which are relevant to my practice area to see if there is someone there I might know or would like to know. Have fun with it.

LinkedIn can be a powerful tool to help develop and maintain professional relationships. Once you have established the basics, you are limited only by your imagination.

Tennessee Federal Court Denies Motion To Compel Seeking Social Media Data

As you may recall, we’ve previously noted that courts are becoming a bit more skeptical of social media discovery requests.

Well, the latest example of this trend comes from a federal court in Tennessee.

In Horsnell v. Young Men’s Christian Ass’n of Middle Tennessee, No. 3:13–1130 (M.D. Tenn. Dec. 1,2014), the Plaintiff alleged violations of FMLA and other statutes as well as a retaliation claim. The court was called upon to review certain discovery requests after the defendant filed a motion to compel. Apparently, in response to a particular discovery request, the Plaintiff produced some limited social media data. Dissatisfied with the response, the defendant filed a motion to compel, and the court found as follows:

By its motion, [Defendant] seeks an order compelling Plaintiff to provide certain nonpublic information contained on Plaintiff’s Facebook and LinkedIn accounts. Apparently, Plaintiff has produced certain limited information publically available on these two social networking sites.

This Court has previously found that an adverse party does not have a generalized right to rummage through information that a party has limited from public view on a social networking site. Rather, there must first be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, a discovering party would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account. The undersigned finds that Defendant has failed to make a sufficient threshold showing to support an order requiring Plaintiff to produce copies of nonpublic information from his Facebook and LinkedIn sites, and to that extent Defendant’s motion to compel further response to Interrogatory No. 13 is DENIED.

(quotations and citations omitted).

And that’s it. No longer a novel issue, the breadth and appropriateness of social media discovery requests is now addressed by courts in two paragraphs.

Keep this in mind, folks.

A Post-Riley Analysis: Smartphone and Social Media Discovery

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other venues.  Recently, his piece, “A Post-Riley Analysis: Smartphone and Social Media Discovery,” was published in the October 2014 issue of the Defense Research Institute’s For The Defense magazine. In the piece, he explores the potential civil implications of the U.S. Supreme Court’s recent opinion in Riley v. California, 573 U.S. ___ (2014),  in which the Chief Justice Roberts noted the extent to which we now utilize our smartphones and the privacy interests at stake in any search of such devices. The article recognizes that those very privacy interests may alter the way in which courts analyze social media and smartphone discovery.

Here’s the first bit of the article:

Litigants now live much of their lives online or through the prism of their smartphones. Knowing this, defense lawyers often attempt to obtain as much digital discovery as possible in an effort to impeach the claims of a plaintiff, whether it is in the form of social media discovery or information extracted from a smartphone. Despite the fact that plaintiffs’ lawyers now warn their clients of such efforts, plaintiffs still live their lives online at the risk of their recovery in their lawsuits.

With state and federal courts now routinely ruling upon the permissible scope of such discovery requests, defense counsel must be aware of the potential backlash against these efforts in light of increasing concerns about the private nature of such information, and especially those recently expressed by the U.S. Supreme Court.

For the rest of the article, you’ll need to find a copy of this month’s issue of DRI’s For The Defense. For some of you, this issue is waiting in your inbox right now. Check out page 60.

Social Media Perils: Attempted Impeachment By Blog Post?

Well, it finally happened.

We have long suspected that someday it would happen, but recently, it finally did happen.

Of course, we are referring to the possibility that an opponent in litigation might cite to our blog in an effort to defeat our argument in a motion hearing.

We’ve been blogging here at Abnormal Use for more than four and a half years, and it has finally come to be.

The scene was thus: I arrived at a county courthouse relatively early, as I like to have a few moments to myself before court convenes to review my notes and any case authority once more before the hearing begins. Lawyers were beginning to enter the courtroom, although the judge had not yet arrived. I was there to argue a motion which was opposed by counsel for the plaintiff as well as other parties in the litigation. As fate might have it, the issue was being litigated that day was a relatively novel one, and there was not a wealth of authority on the particular common law issue in dispute. Counsel for one of the non-movants came into the courtroom, and as we had not previously met in person, we introduced ourselves and exchanged the customary pleasantries. We even chuckled about a few events in the case, as lawyers sometimes do before a hearing, and we then sat down – apart from each other, of course, so that we could finalize our preparations for the imminent hearing. Put another way, we had to get into character.

A few moments later, counsel for the non-movant looked back and raised a packet of notes in the air. Atop the stack was a color printout of a blog post from this website.

The conversation began.

“I guess I am supposed to show you this,” counsel for the non-movant said.

“What’s that?” I replied, not yet seeing what my opponent held before me.

“My associate found this for me. It’s from your blog.”

“Oh?” I asked, now realizing that what the opposing lawyer held was a printout from our blog and seeing several highlighted paragraphs from the post in question.

She read me the title of the post, and I immediately realized that it was not one that I myself had written. Getting a closer look, I saw that the post had run in our blog’s very early days – 2010! – and that the post in question was more in the form of a case summary than an argument on behalf of a legal principle.

“I’ve never had anyone cite my blog against me,” I said. “However, I don’t think that’s one of my posts.”

Looking disappointed, counsel for the non-movant gave the printout a closer look and realized that the author was another attorney.

“Oh, you’re the editor of the blog.”

“Yes, that’s right.”

Counsel for the non-movement seemed a bit crestfallen, as if this particular arrow in the quiver was suddenly less effective or appealing.

Ultimately, the blog post was not used during the hearing.

So, in the end, we suppose that we dodged this particular social media peril. But we knew something like this would happen someday.

The Rise and Fall of Orkut

You may recall that we recently expressed some surprise when a defense firm’s social media discovery at issue in a recent Kansas case referenced Orkut, Google’s social media network.

The request for production at issue in that case read as follows:

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook .com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way [The Defendant] and/or the matters referenced in your Complaint.

At the time, we quipped: “How curious to see a reference to Orkut in a social media discovery case! We wonder if the defendants had specific knowledge that the Plaintiff used Orkut or if that social media platform simply appears in all of their discovery requests.” As you might suspect from our comment, Orkut has always been a bit of an obscure network, never reaching the popularity of Facebook or Twitter.

Well, on July 5, 2014, just a few weeks after our posts referencing the social network, Orkut sent out an email (entitled “A Farewell To Orkut”) to its users. It read:

After ten years of sparking conversations and forging connections, we have decided it’s time for us to start saying goodbye to Orkut. Over the past decade, YouTube, Blogger and Google+ have taken off, with communities springing up in every corner of the world. Because the growth of these communities has outpaced Orkut’s growth, we’ve decided to focus our energy and resources on making these other social platforms as amazing as possible for everyone who uses them.

We will shut down Orkut on September 30, 2014. Until then, there will be no impact on you, so you may have time to manage the transition. You can export your profile data, community posts and photos using Google Takeout (available until September 2016). We are preserving an archive of all public communities, which will be available online starting September 30, 2014. If you don’t want your posts or name to be included in the community archive, you can remove Orkut permanently from your Google account. Please visit our Help Center for any further details.

It’s been a great 10 years, and we apologize to those of you still actively using the service. We hope you will find other online communities to spark more conversations and build even more connections for the next decade and beyond.

With respect to litigation, this development suggests that lawyers should investigate claimants’ Orkut usage, if any, with all deliberate speed before the service ends later this year. Additionally, lawyers referencing Orkut in their discovery requests may want to update their forms in the coming months. Goodbye, Orkut.

Oh, and by the way, we referenced Orkut in our 2013 April Fool’s Day post.