by Valeria Angelucci and Alessio Sciarra
The progressive popularity of social networks, such as Facebook, Instagram, Twitter and Tik Tok, where users post and share personal information, pictures, videos and other content, has also raised the issue of whether users have a right to privacy on those platforms. There are still few to no regulations at a federal and state level in the US addressing specifically the privacy rights on social media, and whether a user can have a reasonable expectation to privacy, however it the context of discovery, courts have generally found that a party cannot withhold production of social media content on the basis of such party’s right to privacy.
Reasonable Expectation of Privacy
The right to privacy has been generally found to derive from the Fourth Amendment to the U.S. Constitution, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
The drafters designed the Fourth Amendment to “safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Carpenter v. United States, 138 S. Ct. 2206, 2213, 201 (2018). The protection of the Fourth Amendment refers to individuals’ privacy interests in their houses and in their personal belongings against any governmental unjustified intrusion. Newell, Rethinking Reasonable Expectations of Privacy in Online Social Networks, 17 Rich. J.L. & Tech. 12 (Spring 2011), citing Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). This has also been extended to find that individuals have a reasonable expectation of privacy in the contents stored into their personal computers or devices.
However, when an individual sends information contained in its devices to a third-party, or when such information is shared publicly on social networking platforms, the individual may not be entitled to any privacy protection. Expectation of Privacy in and Discovery of Social Networking Web Site Postings and Communications, 88 A.L.R.6th 319, I. Indeed, the United States Supreme Court “has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party.” Smith v. Maryland, 442 U.S. 735, 744 (1979) (quoting United States v. Miller, 425 U.S. 435, 443 (1976)).
No Expectation of Privacy for Social Media
Social media platforms provide users with a place where they can freely share posts, pictures, information, and content with the general public. Courts have found that there is no expectation of privacy for content and statements made on social media sites, thus there is no such a thing as a privacy right to a user’s social media posts. In re Christus Health Se. Texas, 399 S.W.3d 343, 348 (Tex. App.—Beaumont 2013, no pet.). Indeed, courts have explained that the “capacity to claim the protection of the Fourth Amendment depends upon whether the person who claims the protection has a legitimate expectation of privacy in the invaded place.” United States v. Castellanos, 716 F.3d 828, 833 (4th Cir. 2013) (citation and alterations omitted). To demonstrate a legitimate expectation of privacy, a person “must have a subjective expectation of privacy, and that subjective…expectation of privacy must be objectively reasonable”. Id. at 832 (citations omitted).
In several cases, courts have considered the issue of whether users of social media platforms, such as Facebook, twitter or Myspace, have a legitimate expectation of privacy. In deciding that, courts mainly focused on the nature and main purpose of social media. For example, Facebook and Twitter are social networking sites where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking. Indeed, Facebook policy states that “it helps you share information with your friends and people around you,” and “Facebook is about sharing information with others.”
Based on these considerations, numerous courts have found that the inherent purpose of a social networking site undercuts any subjective or objective expectation of privacy. See U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (one has no reasonable expectation of privacy in internet postings or e-mails that have reached their recipients). Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (no reasonable expectation of privacy in posts on password-protected bulletin board or in e-mail that had reached its recipient). See also Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr. 3d 858, 863 (Cal. App. 5th 2009) (no reasonable expectation of privacy where affirmative act of posting writing on Myspace made it available to anyone with a computer and thus opened it up to the public); Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 656–57 (N.Y. Sup. Ct. 2010) (no reasonable expectation of privacy in information published on social networking websites where plaintiff consented that information would be shared when she created the accounts); Dexter v. Dexter, No. 2006-P-0051, 2007 WL 1532084, at *6 n.4 (Ohio Ct. App. May 25, 2007) (not designated for publication) (no reasonable expectation of privacy regarding Myspace writings open to public view). Since the sharing of personal information “is the very nature and purpose of these social networking sites else they would cease to exist”, users of those platforms could not have a reasonable expectation of privacy for shared content. Romano, 907 N.Y.S.2d at 657, n.16.
Discovery of Social Media Content
Accordingly, the information and content shared via social may become a source of relevant information discoverable by parties to a lawsuit. Reid v. Ingerman Smith LLP, 116 Fair Empl. Prac. Cas. (BNA) 1648, 2012 WL 6720752 (E.D. N.Y. 2012), §§ 6, 29. Specifically, the information shared on social media can be subject to a motion to compel production against the party who published the information, or subject to a subpoena against third parties, recipients and providers.
The discoverability of information shared on social media platforms applies to both public and private accounts. As to public social media accounts, the content shared on those accounts is freely discoverable and does not require a court order to disclose such information because the subscriber’s intent is to disseminate this information. Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592, 290 Ed. Law Rep. 227 (Sup 2013).
As to private accounts, courts have recognized that postings and communications may be discoverable even when the subscriber’s account is private. In fact, relevant information in the private section of a social media account is not shielded from discovery simply because the account is private or is accessible to a selected group of recipients and not available for viewing by the general public. E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430, 110 Fair Empl. Prac. Cas. (BNA) 49 (S.D. Ind. 2010); Potts v. Dollar Tree Stores, Inc., 117 Fair Empl. Prac. Cas. (BNA) 1352, 2013 WL 1176504 (M.D. Tenn. 2013).
In fact, such information is not privileged nor protected from production by a common law right of privacy and thus it is discoverable. Howell v. Buckeye Ranch, Inc., 116 Fair Empl. Prac. Cas. (BNA) 455, 34 I.E.R. Cas. (BNA) 717, 2012 WL 5265170 (S.D. Ohio 2012) (unreported opinion); Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 116 Fair Empl. Prac. Cas. (BNA) 265, 83 Fed. R. Serv. 3d 585 (C.D. Cal. 2012); Keller v. National Farmers Union Property & Cas. Co., 2013 WL 27731 (D. Mont. 2013); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012).
Nevertheless, the party requesting the production of the social media contents does not have a generalized right to access to content posted on private social media platforms, but, as for any other discovery request, the party will be entitled to production of such information solely in case the sought information is relevant and reasonably likely to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b). This rule’s objective is to prevent a party from engaging in a fishing expedition in the hope to find relevant information in the other party’s social accounts. Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012),