Law Office of Marc J. Smith, LLC
Employment Law and Litigation Counsel

Employment Law Blog

Court Orders Facebook to Produce “Private” Information

In an interesting recent case, Romano v. Steelcase, Inc., an employee alleged she had suffered a workplace injury that caused significant physical harm, including an injury to her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life.” As part of its defense, the employer sought to obtain copies of its employee’s Facebook and MySpace profiles—both the portions that were publicly available and those that the employee had marked as private using the sites’ privacy settings.

After the employer served subpoenas on Facebook and MySpace, Facebook objected to the request on the basis that it cannot release a user’s profile information without the user’s consent because to do so would be in violation of the Stored Communications Act. The employee refused to provide her consent and sought to quash the subpoena.

The employer argued that the public portions of the employee’s Facebook and MySpace profiles showed, contrary to the claims asserted in her lawsuit, the employee actually had an “active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”

The employee claimed that she “possesse[d] a reasonable expectation of privacy in her home computer” and that her employer’s attempt to gain access to her private information would give her employer access to “wholly irrelevant information as well as extremely private information.” Nonetheless, the New York Supreme Court wasn’t buying the employee’s theory. Instead, the court ruled, precluding the employer from accessing its employee’s profiles “would condone [her] attempt to hide relevant information behind self-regulated privacy settings.” he court found that the fact that, based on the publicly available portions of the employee’s profiles, it was reasonable to conclude that the private portions of her profiles “may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

The court also rejected the employee’s argument that the release of the information would violate her Fourth Amendment right to privacy because, by joining the sites, she consented to the possibility that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites or they “would cease to exist.”

Another reason to be cautious about what you post on Facebook and other social networking sites.



Marc Smith