Legal Tech: Potential subpoena problems for Facebook and MySpace

By Peter LaSorsa In a recent decision from the United States District Court in the Ninth Circuit, Crispin v. Audigier[1], a subpoena issued to Facebook and MySpace for messages and wall postings was quashed. Although the decision of the Court is not controlling in Illinois, I believe the logic of the decision is sound and may be followed in the Seventh Circuit. The Court applied the Stored Communications Act (“SCA”) in determining that the subpoena should be quashed. The SCA in a nutshell brings fourth amendment protections against unreasonable searches and seizures into electronic information. In the Order the Court quashed portions of the subpoena seeking private messages from Facebook and MySpace and drew the analogy that those social networking websites are electronic communication services just as email services like Google and Yahoo. The Court afforded the same protections under the SCA to Facebook and MySpace as it has with email service provides. In essence the Court is saying you can get this information directly from the parties but not from the Facebook or MySpace. The court also held that wall postings and comments are protected under the SCA either as restricted access electronic bulletin boards or because Facebook and MySpace provide storage of the comments for the limited use of a few users. Although the court did apply the SCA to postings and comments, it remanded the issue of whether Crispin’s privacy settings rendered the wall postings and comments public and therefore unprotected by the SCA. The bottom line is get the information directly from the user of Facebook and MySpace and don’t rely on issuing a subpoena to those companies. Also, the privacy settings on a users account may determine the implication of the SCA on the subpoena. [1] CV 09-09509-MMM-JEMx (C.D. Cal. May 26, 2010) Peter LaSorsa can be reached at lasorsalaw.com. He also publishes a blog at www.illinoissexualharassmentattorneyblog.com