Is Facebook Legally Private? It Depends Where You Live

Do your Facebook privacy settings matter if you wind up in court? Intriguingly the courts seem undecided on this. Based on case law so far, they do in California but not in New York.

Blogger Kashmir Hill has described the disparity on her blog for

In California, artist Buckley Crispin sued apparel company Christian Audigier for using his designs in ways that violated his original contract. During the course of defending itself, the company wanted access to all of Crispin’s communications about his work for Audigier from Facebook and MySpace, among others.

Crispin objected on privacy and electronic data privacy law grounds. He lost initially to a magistrate judge but a federal judge agreed with him on appeal. The judge ruled that messages sent on Facebook and MySpace were considered private and that “wall postings” would fall into the same category depending on a user’s privacy settings. If someone restricts his wall to friends only, his status updates have the same privacy protections as an email message.

Meanwhile, in New York a woman named Kathleen Romano has sued a furniture company, Steelcase Inc, because she fell out of an allegedly defective chair while working at Stony Brook University. She claims she sustained “serious, permanent personal injuries”, needed multiple surgeries for back injuries and that she’s been bedridden and stuck at home since the incident.

Steelcase’s lawyers wanted access to Romano’s Facebook and MySpace profiles to see if she were really as injured as she claims. They were suspicious because of her profile picture and the fact it appeared she had taken a trip to Florida. Facebook fought the subpoena saying that turning over Romano’s info would be a violation of federal law. But Justice Jeffrey Arlen Spinner ruled otherwise.

The judgment said: “[W]hen Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.”

I find Justice Spinner’s point to be particularly interesting. I think private messages on Facebook should be afforded the same protections as emails but the porous nature of Facebook, even with privacy controls, makes it difficult to say the same thing about status updates, comments, photos and so on. Can you share something but restrict who you share it with? If emails are private communications, what about group emails? What’s the difference between a Facebook status update – with privacy controls in place – and a group email?

Both judges used the same 1986 law, the Electronic Communications Privacy Act, as the basis for their differing decisions. This law is being updated by Congress so perhaps there will be greater clarity in the future. It’s also expected that Romano will appeal, so it’s not over yet.