Applying the Stored Communications Actto the Civil Discovery of SocialNetworking Sites

Table of ContentsI. Introduction 1260II. The Stored Communications Act 1261III. Crispin v. Christian Audigier 1264IV. The Stored Communications Act's Relationship to General Civil Discovery of Social Networking Site Information 1271A Discovery Cases 1272B. Relevance to the Stored Communications Act 1275V. Applying Crispin v. Christian Audigier 1277A Privacy Settings Should Not Be Determinative of Whether a User's Profile Is "Private" Under the Stored Communications Act 1278B. Extending Crispin to the Rest of a User's Facebook Profile 12801. Facebook Profile Content Is Electronic Communication Under the Stored Communications Act 12802. Facebook Acts as Both a RCS and an ECS 1282C. Determining at What Point in Time Privacy Settings Matter 1286VI. Proposed Legislative Reform 1287A Collapse the ECS/RCS Distinction 1288B. Include an Exception in the Stored Communications Act for Civil litigants 1289VII. Conclusion 1292I. IntroductionLarry sued Ten Pin Lanes for personal injuries stemming from an unfortunate bowling accident. Vanessa, Ten Pin's attorney, suspects Larry is malingering. Her diligent research digs up a gem - Larry has been posting all over Facebook about his latest Aspen ski trip, and this evidence would deal deathly blows to Larry's claim of physical impairment. But because Vanessa expects a long and expensive discovery battle if she requests the Facebook information from Larry directly, Vanessa decides to subpoena Facebook for Larry's profile content (including any personal information, photos, videos, messages, wall posts, and status updates).Vanessa will soon find out that the Stored Communications Act (SCA)1 governs her request.2 But the application of the SCA to social networking sites like Facebook is only a recent phenomenon.3 Various interpretative difficulties arise when applying the SCA in this context, and the relevant case law has provoked more questions than answers.This Note explores the application of the SCA in civil htigation to aspects of social networking sites unexplored by the courts. This Note then proposes legislative reforms to update the SCA with respect to social networking sites in the civil htigation context. Part ? summarizes the SCA Part TJI analyzes Crispin v. Christian Audigier, Inc.* a landmark case applying the SCA to social networking sites. Part IV discusses how the SCA's apphcation to social networking sites relates to general civil discovery rules. Part V addresses the questions left unanswered by Crispin and apphes the decision to the parts of a Facebook profile unexplored by the court. Finally, Part VI proposes legislative reform.II. The Stored Communications ActIn 1986, Congress enacted the Electronic Communications Privacy Act (ECPA),5 part of which is a statute known as the Stored Communications Act (SCA).6 Generally, the ECPA was enacted to update the federal privacy law in hght of new changes in communication technology.7 These "new" communications included 'large-scale electronic mail operations, computer-to-computer data transmissions, cellular and cordless telephones, paging devices, and video teleconferencing. …