Stored Communications Act Protects Facebook and MySpace Users’ Private Communications
By Kathryn Freund – Edited by Jad Mills
Crispin v. Christian Audigier, Inc., CV 09-09509-MMM-JEMx (C.D. Cal. May 26, 2010)
The Central District of California reversed and quashed Magistrate Judge McDermott’s order granting a subpoena to obtain private Facebook and MySpace messages and vacated and remanded his order granting a subpoena to obtain Facebook wall postings and MySpace comments.
Judge Morrow held that private messages sent using Facebook and MySpace fall under the protections of the Stored Communications Act (“SCA”), 18 U.S.C. 2701, which limits the government’s ability to compel Internet service providers to “disclose information in their possession about their customers and subscribers.” He further held that the wall postings and comments also fall under the SCA, but only to the extent that the communications are not public, and remanded to determine the public access allowed under the user’s privacy settings. In so holding, the court provided a detailed analysis of the SCA and noted the difficulty of applying the SCA to modern internet communications.
The Technology & Marketing Law Blog provides an overview of the order and comments on the difficulty of gathering evidence from private Facebook profiles and messages through subpoenas. The Federal Lawyer describes some of the restrictions the SCA places on discovery.
The Plaintiff, Buckly Crispin, alleges Christian Audigier, Inc. (“Audigier”) violated an oral license Crispin granted it to use his art in the manufacture of garments. Specifically, Crispin alleges that Audigier violated the license by failing to include Crispin’s logo on various garments displaying Crispin’s art and attributing Crispin’s art on some of the garments to others. In addition, Audigier sublicensed the art without Crispin’s consent. The defendants attempted to subpoena Facebook and MySpace communications of Crispin stating that the communications demonstrate the “nature and terms of the agreement, if any, into which Crispin and Audigier entered.” The court held that Crispin had standing to challenge the third-party subpoenas because his private communications are analogous to other personal information like bank records.
The court held that Facebook and MySpace are electronic communication service (ECS) providers under the SCA, and that the SCA protects any unopened private messages sent via an ECS provider as “temporary” storage. 18 U.S.C. § 2510(17)(A). A private and undeleted message that an user opens “renders that communication stored for backup purposes as defined in the statute.” Because the SCA applied to the private messages, subpoenas could only be issued under its terms, and the magistrate’s subpoena failed to meet the stringent standards.
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 are RCS providers that 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 to determine whether Crispin’s privacy settings rendered the wall postings and comments public and therefore unprotected by the SCA.
This order demonstrates the complexity of applying the SCA to new and evolving electronic technology that has come into existence since Congress passed the law back in 1986. Such complexity has led to treating different communication tools on a single website in different ways. Therefore, users and providers will likely continue to find the protections afforded by the SCA difficult to rely on and unpredictable despite this order’s grant of protection.
Kathryn Freund is a 2L at the Harvard Law School.