Facebook’s Law Department is Ready to Brawl over Requests for Information from a User’s Facebook Account

by Fred Abramson on February 2, 2010 · 5 comments

Image representing Facebook as depicted in Cru...
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What privacy rights do you have on social networks? Nearly everyday, civil litigators like myself and law enforcement officials request information from Facebook regarding user information.  Understandably, Facebook has been very difficult in responding to such requests, believing that users have a right to privacy concerning its users information. But how much right should users of social networks have over information that is of public record?

Many social networking sites have taken the position that they will not respond to requests for information without a subpoena.  This is a problem because users cannot obtain access to their accounts even if their account has been hacked.

This is especially problematic when it comes to the problem of cyber bullying. I have been trying to obtain records from Facebook for a client whose child whose account has been hacked by a cyber bully.  Facebook has been unwilling to provide information to me about my clients own account.

According to Law.com, the Deputy General Counsel of Facebook, Mark Howitson told lawyers at the Legal Tech Conference in New York today that they are ready to fight requests for user  information without a subpoena.

Unfortunately, you can only serve that subpoena in California which is problematic if you live in New York. Even with a subpoena, they will only provide basic subscriber information unless that user gives his or her consent.  The company believes that it does not have to provide user information under the Electronic Communications Privacy Act which was passed before Mark Zuckerberg, the founder of Facebook, danced to his first disco tune at his bar mitzvah. Since this issue is relatively new, a congressional hearing is forthcoming.

Mr. Howiston suggests that the best way to obtain information from Facebook is to make a simple friend request, which is of little utility.

What do you think?  What right of privacy should you have on social networks?  Should there be a cyber bullying exception?

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  • I take issue with the comment Myspace is 'hiding' behind the law. MySpace as well as Facebook is 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 MySpace user content including, but not limited to, friend lists, photos, blogs and private messages.

    Given the above, it is inevitable unless the supoena fits within the perview of the law, then the subpoena is open to be discarded on a Motion to Quash. The argument whether counsel for MySpace “has kids” is an emotional one the law doesn't recognize. If a police officer enters a house absent consent or probable cause and finds 10 bodies, the court will toss out the evidence based upon the Fourth Amendment due to a violation of the constitution. Likeewise, despite the allegations made in the lawsuit, if a murderer can go free–your subpoena may be discarded.

  • I take issue with the comment Myspace is 'hiding' behind the law. MySpace as well as Facebook is 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 MySpace user content including, but not limited to, friend lists, photos, blogs and private messages.

    Given the above, it is inevitable unless the supoena fits within the perview of the law, then the subpoena is open to be discarded on a Motion to Quash. The argument whether counsel for MySpace “has kids” is an emotional one the law doesn't recognize. If a police officer enters a house absent consent or probable cause and finds 10 bodies, the court will toss out the evidence based upon the Fourth Amendment due to a violation of the constitution. Likeewise, despite the allegations made in the lawsuit, if a murderer can go free–your subpoena may be discarded.

  • Darren Chaker

    Generally, the SCA prevents “providers” of communications services from divulging private communications to certain entities and/or individuals. Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). It does this in two ways: the statute limits on the government’s ability to compel providers to disclose information in their possession about their customers and subscribers, and second, the statute limits the ability of those providers to voluntarily disclose information about their customers and subscribers to the government.

    Darren Chaker, http://www.darrenchaker.com/

  • privacy advocate

    What is the issue with getting a subpoena or search warrant? They hand them out like candy in some states. I not only think Facebook and MySpace should absolutely protect the privacy of users unless the user themselves requests the information, but they should go a step farther on investigating the probable cause and open time limits on any warrant being sent to them contesting that warrant if it violates privacy in lack of validity. If someone gets a warrant based on 2 people being friends and having used Facebook to communicate and one is missing with the other having given a ride when last seen, why is all information since the dawn of man years back requested by the warrant for something that happened the prior month? There should be time limits to that relevant to an investigation vs. ransacking all information ever posted and deleted or in private mail with all photos and videos casting the net broad to see what can be pulled up. It is none of their business what a person did in time periods not relevant and a complete invasion of privacy.

  • privacy advocate

    Another comment is that if Facebook is so concerned about privacy, why do they have privacy settings for video not on the privacy page in their latest version? One can set video to friends only on the privacy settings on the account page and that video can still be seen because there is another setting in an obscure location that makes it public. I seriously had to get on the phone with someone and work for over an hour to find how a private set video on my son’s account was being pulled up by crazy people on public forums. After changing all of his settings to “only me” on the privacy page, the person on the other end of the phone could still pull it up. Finally found a setting elsewhere that made it private. So much for privacy on Facebook.

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