This article is a good review of where the courts currently are in terms of authenticating social media evidence in court proceedings and the accessibility of social media information for purposes for discovery – even that which is password protected. In this post I focus primarily on access.
I’ve written before about this trend but increasingly it appears that courts don’t even consider arguments for keeping password protected information private. Five years ago, the Store Communications Act of 1986 was believed to shield social media providers from discovery requests. However, last year a California Appellate court upheld a consent form sent to Facebook requiring the company to release a party’s posts. In another ruling in Colorado Federal Court, the judge required all class members in employment class action suit to turn over its social media user names and passwords.
Assume You Have No Privacy on the Internet
This is an important assumption for all potential parties and lawyers when it comes to information that has been shared online. You may believe that you are only sharing information with a select few and that your privacy will be protected. In many cases, this assumption may prove accurate but if what you post becomes relevant to a legal issue, kiss that assumption goodbye.