Subpoena information for Facebook & Myspace

Your site states in part “It's not all that difficult to subpoena information from social networking sites.” I disagree.

Facebook, MySpace, blogs, etc. are prohibited from lawfully producing the contents of a user’s private mail messages or stored content files held or maintained on behalf of a user to a any non-government entity, by the Stored Communications Act (“SCA”) 18 U.S.C. §§ 2702-2703. The materials protected from disclosure by Section 2702(a)(2) include the above social networking sites and include user content including, but not limited to, friend lists, photos, blogs and private messages.

In the civil arena, court's must consider First Amendment issues. The foregoing First Amendment interests also apply with full force to the discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35 (1984); Herbert v. Lando, 441 U.S. 153, 178 (1979) (Powell, J., concurring) (“In supervising discovery … a district court has a duty to consider First Amendment interests as well as the private interest of the plaintiff”); Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 435 n.8 (1992) (“It is acknowledged that court orders which compel, restrict or prohibit discovery constitute state action which is subject to constitutional limitations….”, citing Rhinehart, supra.). As such, simply sending out a subpoena does not mean it will be replied to as Facebook and MySpace have a history of fighting invalid subpoenas.

If the subpoena relates to uncovering the true name of a person who uses an aka online to protect his or identity, then even a higher standard is often used to pry open the door of anonymity. The right of anonymous or pseudonymous speech applies with equal force to discussions on the Internet. American Civil Liberties Union v. Johnson, 4 F.Supp.2d 1029, 1033 (D. N.M. 1998) (statute requiring personal identification information impermissibly “prevents people from communicating and accessing information anonymously”); American Civil Liberties Union v. Miller, 977 F. Supp. 1228, 1233 (N.D. Ga. 1997) (law making it illegal to use false name “prohibits such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy … — a prohibition with well-recognized first amendment problems.”

Given the above, I do not agree “It's not all that difficult to subpoena information from social networking sites.” Although each social networking site provides contact info does not mean the subpoena will be complied with or not provide the subject of the subpoena the opportunity to object to it. No doubt, if police believe a user of a social networking site is using it as an instrumentality of a crime (child porn, online predator, stalking, etc) then that allows police to do what they need to do within the parameters of the law. However, in the civil arena, it's just not that easy!

Individuals should be more cautiosly aware of who & what person information and pictures they post on their pages especially when their are minor children involved. Situations become very person and yet when information hits the court room it’s not so personal anymore. Innocent people are affected by the neglogence of adolescent adult behavior.