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Facebook Privacy Privilege Rejected

There are no secrets.  Perhaps a wise rule to live by in an age of instant and gratuitous sharing of personal information, reinforced by a shifting culture where the boundaries of trust, privacy and discretion are fluid, and sensitivities to, and definitions of, what is "confidential" varied, and set by self-interest more than traditional community norms.  It is this latter perception that may cause many to think that the information they post on social networking sites is somehow special, protected, or private, or not part of their "real life."  Anyone that harbors such views should consider the caution of two commentators, whose work was recently cited in a judicial decision:  "…in this environment privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."  (Fleming and Herlihy, Department: Heads Up: What Happens When the College Rumor Mill Goes Online? Privacy, Defamation and Online Social Networking Sites, 53 B.B.J. 16 (January/February, 2009)). 

And so, as so often happens, dreams of wishful thinkers are dashed, sometimes in rather inglorious circumstances.  Take, for example, Bill McMillen, Sr., who claimed damages for personal injuries resulting from an accident he had when he was rear-ended in a stock car race.  He sued the speedway.  The speedway demanded that Bill turn over all his passwords and user names to Facebook and MySpace because it had reason to believe that information had been posted that suggested he was not injured as claimed.  Bill claimed his Facebook and MySpace passwords and user names were confidential and, more importantly, that his communications with friends on Facebook and MySpace were privileged from disclosure, much like a confidential communication between an attorney and his or her client.  The court in McMillan v. Hummingbird Speedway, Inc. (Pennsylvania Court of Common Pleas 9/9/10) rejected his contention.  After reviewing each site's terms of use and their basic structure and purpose ("…their ilk are social network computer sites people utilize to connect with friends and meet new people…they do not bill themselves as anything else."), the court noted that while millions of people join social networks, "more than a few use those sites indiscreetly" and the if they do, and those "indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail."  Where there is an "indication" that relevant information may reside on a social network site, "access to those sites should be freely granted."  Bill McMillan was ordered to turn over user names and passwords to opposing counsel, who were granted free access to the contents of his accounts. 

The court pointed out that social networks are a "communication forum" useful in fostering relationships – but that confidentiality is not essential to maintain those relationships, and "while one may expect that his or her friend will hold certain information in confidence" the maintenance of the friendship does not depend on it.  A friendship is not like a relationship with a doctor, lawyer or priest.  And, when one posts information on a social network, given their terms and how they operate, he or she cannot reasonably expect that communications would remain confidential – such an expectation may be wishful thinking. 

In short, a member of Facebook or MySpace cannot maintain that his or her account is confidential.  So, anyone who claims to be injured, and is seeking compensation for those injuries, should realize that videos they post on Facebook of them jumping off cliffs, playing softball, wrestling with alligators, surfing big waves, etc. will be discovered and used to impeach their claims.  Revealed content may have other consequences, more or less consequential.  Social networking can be a wonderful way to maintain relationships and pass on information instantaneously – but if you have a secret to keep, do it the old-fashioned way. 

Stephen C. Gerrish, Employment Group