Super Lawyers
William C. Altreuter
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Friday, October 01, 2010

Plaintiffs must provide access to their social media sites-- Facebook, MySpace-- regardless of the privacy settings the plaintiff has elected. Romano v. Steelcraft. This is huge. Bob Kelner has the plaintiff, and says he may go up on it. The argument he makes by analogy is not bad:

"We feel that there is a huge difference between what an individual puts on the electronic media for public consumption and what you put on the media that is designated [as] private." What occurred here was equivalent to tearing down curtains blocking the view into an individual's home. "This to us is your living room or bedroom electronically."

I'm not so sure I buy that, with all respect to Bob. What it is more like, I think, is overhearing a conversation. That's how Facebook is used, after all. People chat, share photographs  and whatnot, and it is all done in a  forum that is, at most, semi-private. It's about as private as the supermarket actually-- I'd say that the vast majority of the people on my friends list have never seen my living room.

I also think that the argument about the expectation of privacy is flawed generally in this context. This is much more akin to surveillance activity. Naturally if the defense comes into possession of a plaintiff's Facebook statements those statements must be exchanged-- in fact, this is the practice we have followed. There is a somewhat better argument for the privacy of the messaging and chat functions of this form-- that sort of thing does appear to be intended as private, and is more like email. The decision doesn't speak to this, and I'd say it is an open question.

Also-- MySpace? Who uses MySpace?

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