Access to Private Property on Social Network Platforms - Research Paper Example

Access to Private Property on Social Network Platforms For Use in Personal-Injury Cases and Defences I. Introduction There have been many cases of law enforcers resorting to investigations using social networks like Facebook for the purpose of gathering evidence. Very recently, according to Kashmir Hill (2012), Phil Markoff was under investigation as the killer of an erotic masseuse. The police tried to track cell phone records at about the time of the incident, only to find hundreds of possibilities. That approach turned out to be a dead end. They tried the email account of Phil with Microsoft. Finally, it was in Facebook where the police hoped to get more information. Through a subpoena for Facebook to give the available information about Phil Markoff and the victim, the police was able to get (a) the basic info of the subscriber, and (2) photos, private messages, friends list. But it required more than a subpoena to get the second set of private information. The judge would have to review the subpoena and issue a warrant in order to protect Facebook from the possible fishing activity to find evidence. The appended exhibits disclose what Facebook provides after being ordered by the court to provide documents about a suspect. Unfortunately, none of these got to be utilized because that suspect committed suicide when charges were filed against him. A total of 71 pages were submitted for investigation purposes. At that time, it was not yet necessary for Facebook to demand a warrant from the court in order to provide more than just the basic information of the suspect. A court order is already required by law for purposes of securing private pictures and communications set to private access. The courts have been informed about the fact that some information are “protected by .The Stored Communications Act” as mentioned by Carli Carioli (2012). Private information gathered from social networking websites has become very helpful to establish the circumstances of people involved in particular cases. Communications between two or more people are recorded online. Pictures obviously connect a person to another. And motives can be traced from historical database. The use of private information supposedly protected within online social networking websites has become acceptable to courts, provided such information is legally obtained. Hana Noor Al-Deen and John Hendricks said (266) that the definition of social media from the court’s point of view has appeared to be “a public space where individuals have less of an expectation of privacy than they do in their physical homes”. As a matter of fact, the courts have rejected that idea of giving equal value to the privacy of a person at home along with properties at home and communications kept in social media platforms. The reasonable expectation that any person may demand out of social media can only be less than the privacy that one can obtain from a home. There is readily accessible information which can be viewed online because the settings of the account are open to the public. If more data will be needed, any person interested to gather additional information may simply join or pretend to be interested to join as friend or connection, so that he can view the other communications within an account. Even more private information made available to a few or just the owner of the account cannot be accessed except through a subpoena or a court order. Finally, there are even more sensitive personal details that the law will not allow the webmaster or administrators to provide except through a warrant issued by the court. And the judge will not issue such a warrant without reviewing the grounds for overriding the provisions for the Stored Communications Act (SCA) which protects the privacy of personal information online. However, Glenn A. Fine (80) wrote that the Federal Bureau of Investigation is authorized “to obtain historical data from communications service provider” once the legal process is formally initiated. The SCA itself prohibits all Electronic Communication Service Providers (ECSP) from voluntarily disclosing the private information of any account holder. Under the law, (Jacqueline R. Kanovitz, 3) there are procedures that must be followed prior to compelling the ECSP to access the private information of their client. For the private sector, this thesis should be educational in the sense that it will make the people aware of the possible consequences of uploading all their private files. Although most people will not be accused of any crime, there is always the possibility of being implicated with a connection to another person who commits a crime. Some knowledge about the process of investigation involving private communication online will teach people to be careful about associating with just about anybody through online resources. For the legal forum or lawyers and law enforcers, their practices can be refined or improved by simply becoming aware of recent trends pertaining to admission of evidences whether it is from the defence side or the complainant. Knowledge about successful surveillance and gathering of evidence leading to the solution of a civil or criminal case will tend to encourage law enforcers to usually tap the social network platforms, and even make it their standard operating procedure. Under the Tort Law, a person can be held liable for damages in any of the three Tort classifications, namely, (1) intentional tort, (2) negligent tort, and (3) strict liability tort. But there would have to be sufficient evidence to prove the existence of such a civil law violation. This formal documentation shows a pattern of investigation which has led police surveillance to a successful gathering of evidence coming from the social network platform. It also points out the privilege of the FBI to access private information from ECSPs. With such background information, lawyers can similarly work around their research for evidence following the procedures provided by the SCA. There are many instances of tort in need of clarifications. In itself, it covers many cases and elements in each of the different case considered as tort. Taking a single case, for example, wherein social media has become a source of offense against another party, some elements must be considered. (a) What was the wrong action committed? The act of a student humiliating school officials in a social media forum can lead to tort. (b) What is the nature of wrong committed? A tort case would involve a private offense. In this case, destroying the reputation of school officials will be the tort involved. (c) Which court should hear the case? Only the civil court may hear tort cases. (d) Who are the parties involved? Students accused of severely damaging the reputation of some school officials will be the defendant, while the complainant will be the plaintiff. (e) What are the standards of proof? Every school has a manual for students to follow in order to maintain good conduct at all times. Therefore the school officials will refer to the manual and cite the social media communication made by students who have committed torts. (f) Who will represent the parties involved? School administrators can be represented by its disciplinary and guidance counsellor while the student may be called upon for questioning to defend himself. (g) Does the accused have a right to counsel? Yes. But the student himself would have to answer all the questions even if he has to follow the advices of his counsellor. (h) What are the procedures or rules that have to be followed? The civil court has civil procedures and corresponding rules in following the procedures. (i) What testimony may be accepted or required? Oftentimes, the defendant is compelled to testify. (j) Who makes and how may the verdict be given? In the USA, a jury provides the verdict for torts and damages even by having less than unanimous votes. (k) What will be the expected outcome of the proceedings? Defendants may or may not be held liable for torts. However, if there is liability, the jury determines the liability. (l) If the defendant is found liable, what will normally happen? In situations involving students, the punishment will be the disciplinary actions prescribed in the school manual. But for most other tort cases, a certain amount of monetary consideration is paid as relief for the damages against the offended party. II. Literature Review From the 2012 resource of Cornell University Law School, it can be found that the State Law on Torts was made by judges and by the legislature. Acts that are recognized as wrong under the Civil Code, except for cases involving breach of contract, can be the basis of lawsuits. Such wrong deeds have been called torts. Some of them are punishable under the law and are also considered as crime that warrants imprisonment. However, the purpose of Tort Law has been to deter other people from committing the same crime and to provide relief to the offended party after damages were incurred by the guilty offender. Examples of damages would be the loss of customer patronage as a result of actions that have blemished the reputation of the offended party, physical, or material losses as a result of a mischievous or offensive actions. There are three classifications of torts. First, there is the intentional tort. People who intentionally offend others by their aggressive actions against or by their wilful attacks will be held liable for intentional tort. Second would be the negligent tort. If damages are incurred because the offender did not exercise due care prescribed by law or did something obviously not safe before performing an action, the offender will be guilty of negligent tort. And third is the strict liability tort in cases wherein a businessman sells a defective product. Other tort cases may be about defamation, unreasonable violation of privacy, nuisance, and those economic in nature such as fraud, misrepresentation, falsehood, and interference with (a) prospective advantages, and (b) contractual relations. According to William P. Statsky (514), Congress had passed the law that prohibits any tort action against social network websites because the contents in specific cases that got published are created by a third party. The immunity from suit was based on the rationale that Facebook, for example, will find it impossible to edit 500 million online users and their input. However, the source of uncivilized behaviour such as defamation using cyberspace may be sued and the posted destructive information may be utilized as evidence in court. William P. Statsky (5) clarified that “every tort is a cause of action, which is simply a legally acceptable reason for bringing a suit” against an offender. Factual evidence will be needed to support each tort in order to have the right to receive judicial relief from the person guilty of tort. Presentation of evidence will lead to having a prima facie case against an accused party. There are many tort cases already made public. One of them involves the photos posted in MySpace and specifically involving Jessica Binkard, 22 years old. Her pictures with friends showed her lack of remorse after accidentally bumping and killing Alex Baer who was her passenger while she was drunk and driving. She was sentenced to “five years and four months in prison”, according to Evan Wagstaff (dailynexus.com). Another case was about the president of a Student Government Association who got expelled for joining a group in Facebook that was known to be controversial and that irritated the college officials including its President, Administrator, Police Chief of Campus, and the Dean. The Facebook group he joined apparently was a campaign that complained against the school’s disciplinarians.He joined using the name Duke of Propaganda while the creator of the account who was a friend of Cameron Walker, identified himself as King for Life. Unfortunately, they were traced. And both Cameron and Kurt were expelled for what they considered a joke. The case of Cameron Walker and Kurt Vachon was one wherein their Facebook Account did not hide their identity because their profile was set to public. Thus, it was easy for school administrators to know what their real names were. This was reported in the Brown Daily Herald Campus Watch by Stu Woo (2005). In 2011, there was a case following a riot. Christopher Schneider (Shaw Media Inc., globaltvbc.com), sociologist and criminology expert in Vancouver, stated that “a photo of a person or a joke posted in Facebook could be taken out of context…ruin people’s lives even if they are cleared in court”. As a result of the full apology of Nathan Kotylak which was loaded online in an interview, his family was pressured to move out of their address, having been located through online social media. In an effort to investigate a riot, 1,011 of the evidences gathered came from social media like Facebook. In another separate case, the law enforcers utilized photos that had been uploaded in social network websites. Their search led to the death of an 18-year old college student who appeared in “Facebook with friends and high-powered guns”, based on the report of Mandy Locke (newsobserver.com), when the Deputy Sheriff suspected and raided the hole of Peyton Strickland who was then considered heavily armed and dangerous based on the pictures online. What the law enforcers saw included an AR-15 rifle that was capable of piercing through bullet-proof vests. The deputy shot through the closed door after hearing what sounded like a gunshot. Behind the door, Peyton Strickland got killed accidentally. He was not armed. When the police force inspected the house, that high powered gun was not even there. As a matter of practice, the National Police can make decisions based on pictures found online. A 16-year old who appeared in MySpace was charged in court for possession of a gun he showed online. School disciplinarians in New York State University found the Facebook pictures of Tharindu Meepegama with a shotgun. They used that picture plus a comment to send him to a mental hospital. Facebook alone has about 500 million accounts. Its use was reported to have been the cause of many problems. In a report by Atul Gawande, even children bully their classmates online. There have been cases of impersonation and identity theft. Offensive comments and messages have caused emotional difficulties, economic and social negative impact in the lives of real people. A case was filed for using the name of another person to identify with sex-related social network. If there is a similar case, an immediate solution would have to be a formal filing of temporary restraining order which can take effect within days. III. Findings and Analysis In cases involving torts, defendants’ private communications are investigated by lawyers for the purpose of knowing whatever the plaintiff reported as having been publicized online that caused a problem. The intention is to prove the offensive matters that were published online. Without a proof that a communication is highly offensive, torts cannot be qualified for damages. Social norms and views are taken into consideration when there is a need to determine whether or not the published information is highly offensive or not. Exhibit 1 shows the contents of the subpoena coming from the District Attorney. Exhibit 2 states that Facebook provided the confidential materials pertaining to Philip Markoff. Exhibit 3 shows part of the basic information of the Facebook user made available to the court. Exhibit 4 discloses communications revealed by Facebook to some friends. Exhibit 5 presents a sample photo made available by Facebook to the District Attorney. Torts can also depend on the information that are said to be more private than just the basic profile. To be able to able to access those private files, the said Stored Communications Act should be studied. Known as the SCA, it prevents Electronic Communication Service (ECS) providers and the Remote Computing Service (RCS) providers from disclosing information to third party and government whether “voluntarily or under compulsion without a search warrant. The Tort Case of Kathleen Romano (Plaintiff) vs. Steel Case Inc. & EICSI (Defendant) A claim against Steel Case Inc. happened when Kathleen Romano sat on the chair that suddenly collapsed and caused her personal injury. She sued the manufacturer because allegedly, “the accident had damaged her enjoyment of life” as mentioned by Goldstein and Basher (eglaw.com). The defendant asked the judge to require plaintiff to make public her Facebook and MySpace web pages. That request was granted. Kathleen was obliged by the judge to authorize both social network websites’ administrators to submit all public, strict private and recently deleted contents pertaining to the plaintiff. For substantial damages to be justified, discovery was allowed through the granting of permission for access to materials that can disclose the truth. Decided cases cited to support this process included the items shown in Table A. Table A. Sample Cases Obliging Social Media & Plaintiff to Submit Private Files Case : Plaintiff v Defendant Action Court Decision To Discover Hoening v Westphal, supra Seek damages for personal injury. Disclosure materials may not be shielded by the plaintiff. Walker v City of New York 205 AD2d 755 [2DEP 1994] “Claim for loss of enjoyment of life.” Discovery was permitted to clarify the issue of damages and injury. (1)Orlando v Richmond Precast Inc., 2008 (2)Vanalst v. City of New York,2000 and (3)Mora v St. Vincent’s Catholic Med Ctr, 2005 “Recover damages for personal injuries.” Materials sought were considered necessary and material evidence. Sgambelluri v Recinos 192 Misc2d 777 (Sup Ct Nassau Co 2002) Motor Vehicle Accident allegedly sustained permanent injuries. Plaintiff’s Wedding Video 2 years later was used as evidence. Kathleen Romano v Steelcase Inc., 2009 Accidental chair breakdown caused injuries that deprived the plaintiff from engaging in active lifestyle. Judge ruled in favor of gaining access to both public and strictly private data from Facebook and MySpace of the plaintiff. Ledbetter v Wal-Mart Stores Inc. (06-cv-01958-WYD-MJW [D Colo April 21, 2009]) Injuries affected daily lives physically and psychologically. Defendant was able to secure a subpoena for the production of plaintiff’s contents in the social media. The objective of the defendant was to verify if indeed the plaintiff lost enjoyment of her life as a result of a chair that broke down accidentally. Defendant Steelcase Inc. had observed some inconsistencies in the portion of Kathleen’s Facebook made available to the public, tending to contradict the plaintiff’s claim about her loss of enjoyment after experiencing an accident with a chair manufactured by Steelcase Inc. Therefore, the defendant asked for access to portions of Kathleen’s Facebook account that were set to private. And the court granted the request. The Kathleen Romano v Steelcase Inc. should serve as a warning to all who believe there is absolute privacy online. Vlad Kushnir (2) cited “at least four Pennsylvania courts have examined the Facebook disclosure issue.” Discovery of materials related to tort claims will be generally allowed by the court. This happened also in the “McMillen v. Hummingbird Speedway Inc.(2010 Pa Dist. & Cnty., September 9, 2010” wherein the plaintiff was compelled to the plaintiff to provide the court with the Facebook and MySpace information wanted by the defendant, and even disallowed any action to delete or change the information already posted. The same motion to discover material evidence was approved (Vlad Kushnir, 2) by the court in another case, “Zimmerman v. Weis Markets, Inc. (2011 Pa. Dist. & Cnty., May 19, 2011)”. However, in another case between Piccolo v. Paterson, due to lack of basis for compelling the plaintiff to provide access to his Facebook account, the motion of the defendant was denied. The court was against a fishing expedition. There was no mention of any inconsistency found in the public Facebook information of the plaintiff. IV. Conclusions Tort cases over the past years until the present have convinced judges to consistently allow defendants to gain access to online public and private communications, basic information about individuals, including those considered as very private and deleted because of sensitive matters. The plaintiff may be asked to authorize the defendant to secure such wanted information. If there is resistance to provide full disclosure by voluntarily allowing such an access, the court can issue a subpoena or even a warrant to compel the Electronic Communications Service Provider (ECSP) or social network website administrators to submit all those secrets uploaded and kept in an account based on the relevance and importance. But what if syndicates purposely utilize their online accounts to create evidence in their favor? How can the court decipher whether or not torts actually deserve compensation for damages? The fabricated information uploaded online can mislead the court into thinking that a pre-meditated claim is in fact a valid cause and deserves substantial damages. As of this time, however, there seems to be no such case. Future research projects should consider such a possibility. Works Cited Atul Gawande. Facebook Torts – Online Libel and Invasion of Privacy. VAIL Litigation Strategy & Innovation. Available at Last accessed April 12, 2012. Carly Carioli. When Cops Subpoena Your Facebook Information, Here’s What Facebook Sends the Cops. The Phoenix Blogs. April 6, 2012. Available at . Last accessed April 12, 2012. Cornell University Law School. Tort. 2012. Legal Information Institute (LII). Available at Last accessed April 12, 2012. Evan Wagstaff. Court Case Decision Reveals Dangers of Networking Sites,2007. Daily Nexus, February 28, 2007. Available at . Last visited April 11, 2012. Glenn A. Fine, Review of the Federal Bureau of Investigations’s Use of Exigent Letters and Other Informal Requests for Telephone Records. 2010. Office of the Inspector General, Department of Justice. Diane Publishing, January 2010. Print. Goldstein & Basher. New York Accident Victim Ordered to Hand Over Facebook and MySpace Accounts in Personal Injury Case. 2012. Available online at . Last accessed April 14, 2012. Hana Noor Al-Deen and John Hendricks, Social Media: Usage and Impact. December 16, 2011. Lexington Books. Print. Jacqueline R. Knovitz, Constitutional Law, 13th Edition. February 23, 2012. Elsevier. p. 306 Print Kashmir Hill. What Facebook Hands Over To Police When A User Is Suspected of Murder. Forbes. April 10, 2012. Available at . Last access April 12, 2012. Mandy Locke. Photos Online Brew Trouble. September 22, 2009. NewsObserver.com. Available at Last accessed April 12, 2012. Ryan A. Ward. Discovering Facebook: Social Network Subpoenas and the Stored Communications Act. Harvard Journal of Law & Technology. 24 (2) Spring 2011. Available at . Last accessed April 12, 2012. Shaw Media Inc..Vancouver Riots 2011: Crown to Look at Potential Charges. Global News. June 20, 2011. Available at Last accessed April 11, 2012. Stu Woo. The Facebook: Not Just for Students. 2005. The Brown Daily Herald Campus Watch. Hovember 3, 2005. Available at Last accessed April 11, 2012 Vancouver Police Shift Blame for Riot. CBN News. June 20. 2011. Available at Last accessed April 12, 2012. Vlad Kushnir, Facebook Helps You Connect and Share with the People in Your Life. But What If People Want to Use Your Facebook Posts Against You in a Civil Lawsuit? February 2012. Litigation Quarterly. Available at . Last accessed April 17, 2012. William P. Statsky. Torts: Personal Injury Litigation, 5th Edition. Cengage Learning. August 26, 2010. Exhibits Exhibit 1. The Letter of Request from a District Attorney Exhibit 2. Transmittal Letter from Facebook Exhibit 3. Profile Submitted to Investigator Pertaining to a Suspect Exhibit 4. Communications With Megan McAllister Exhibit 5. Sample Photo of Phil in His Facebook Read More