Facebook wall posts protected by privacy law — unless your friends share

September 17, 2013

Facebook lockBy now, there’s been enough media coverage of employers’ combing through their employees’ (or prospective employees’) Facebook pages that people are generally cautious about what they share on Facebook and who they share it with.

A new federal court ruling out of the U.S. District Court for the District of New Jersey underscores the need for such caution

The ruling, Ehling v. Monmouth-Ocean Hosp. Service Corp., held that non-public Facebook posts are protected under the federal Stored Communications Act (SCA).

I’ve discussed the SCA in great detail in two previous posts, but here’s the short version:

The SCA was enacted in 1986 to ensure privacy protections to electronic communications.

The SCA creates legal liability against whomever:

  1. intentionally accesses without authorization a facility through which an electronic communication service is provided; or
  2. intentionally exceeds an authorization to access that facility;

and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system

As more succinctly stated by the court, the SCA protects:

  1.  electronic communications,
  2. that were transmitted via an electronic communication service,
  3. that are in electronic storage, and
  4. that are not public.

The court found that Facebook wall posts are electronic communications, and that since Facebook is an electronic communication service, the posts were transmitted via such a communication service.

As for the third element, the court noted that Facebook stores all posts and messages on a separate server as backup for an indefinite period of time.  Thus, Facebook wall posts “are in electronic storage” under the SCA.

In discussing the final element, the court noted that “Facebook wall posts that are configured to be private are, by definition, not accessible to the general public.”  As such, the court held that Facebook messages which are not viewable by the general public fall under the protection of the SCA.

Although the ruling may suggest that your Facebook posts are protected as long as you don’t let your employer see them, there’s another side to it of which to be aware: the SCA only protects “unauthorized” access to stored electronic communications.

What happens if the access was authorized?

That’s exactly what happened in this case.  Ehling involved a registered nurse and paramedic, Deborah Ehling, who was fired in part because of a post that she made on Facebook:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards …. go to target practice.

The post was not made accessible to the public, and Ehling was not Facebook Friends with any of her managers or supervisors.

She was, however, friends with a coworker by the name of Tim Ronco, who had access to Ehling’s wall posts.

Unbeknownst to Ehling, Ronco had become friends with one of Ehling’s managers while working together at a previous job, and Ronco was taking screenshots of Ehling’s Facebook page and sending them to the manager.

According to the court, “[t]he evidence reflects that Ronco independently came up with the idea to provide Plaintiff’s Facebook posts to [the manager].  [The manager] never asked Ronco for any information about [Ehling], and never requested that Ronco keep him apprised of [Ehling]’s Facebook activity.”

Because the posts were copied by one of Ehling’s intended recipients, the messages were not unauthorized under the SCA, even though they eventually ended up being seen by individuals whom Ehling would certainly not have wanted to see them.

Consequently, the court concluded that no SCA violation occurred in Ehling’s case.

As I stated at the beginning of this post, this ruling underscores the need to be cautious about what you share on Facebook and with whom.

Clearly, it is never a good idea to publish on Facebook that you want paramedics to intentionally let an injured person die, especially when you yourself are a paramedic.  But if you do happen to post something ill-advised, make sure that the people seeing it aren’t secretly sending your Facebook posts to management.

Since you never can be 100% sure that one of your Facebook Friends isn’t a secret informant for your boss at work, it’s probably best if you just don’t post anything that might get you fired on Facebook.