Are Communications Made through Social Networking Sites “Readily Accessible “ to the Public?

Defendant in Crispin v. Audigier, a copyright infringement case, served subpoenas to four web sites, among them Facebook and MySpace, seeking the disclosure of wall postings and private messages from plaintiff’s accounts.

Plaintiff moved to quash the subpoenas, arguing that the subpoenas sought electronic communications that ISPs are prohibited from disclosing under the Stored Communications Act(SCA).

Judge McDermott rejected the motion to quash. The Judge found that the SCA only prohibits the disclosure of communications held in “electronic storage” by the ECS provider, and that material held by the social networking sites are not in electronic storage as defined in the SCA.

Plaintiff then moved for reconsideration of Judge McDermott’s decision. The Central District Court of California quashed portions of the subpoenas, distinguishing between private messages sent through the social networking sites, and wall postings and comments.

The Stored Communications Act

The SCA was passed by Congress in 1986 as part of the Electronic Communications Privacy Act (ECPA). The Act was passed to extend the reach of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 to electronic communications, including stored electronic communications. It protects stored e-mails, voicemails, and non-content records. Does it also protect emails sent through social networking sites, Facebook wall postings, and MySpace comments?

The statute applies to “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. §§ 2510(15 It protects the privacy of stored Internet communications by preventing providers of communication services from divulging private information to governmental entities or private persons.

The SCA “was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address,” http://www.jdsupra.com/post/documentViewer.aspx?fid=aeb48a5a-eab7-4106-af6c-99238d446d1c , 529 F.3d 892, 902 (9th Circ. 2008), quoting an article by Orin Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO> WASH.L.REV. 1208 (2004).

The SCA distinguishes between “remote computing services”(RCS) and “electronic communication services”(RCS). Both an RCS and an ECS can divulge private information to, or with the lawful consent of the “addressee or intended recipient of such communications.” However, only an RCS may release this information with the lawful consent of the subscriber, 18 U.S.C. §§ 2502(b)(3)

What is an Electronic Communication Service Provider?

An Electronic Communication Service Provider(ECP) is defined by the SCA as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15)

The SCA prohibits an ECS from “knowingly divulge[ing] to any person or entity the contents of a communication while in electronic storage by that service”, unless, among other exceptions, that person or entity is “an addressee or intended recipient of such communications.” 18 U.S.C. §§ 2702(a)(1), (b)(1), (b)(3)

An ECS is prohibited from divulging “the contents of a communication while in electronic storage by that service. ” 18 U.S.C. §§ 2702(a)(1). “Electronic storage” is defined as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication” 18 U.S.C. § 2510(17).

What is a Remote Computing Service?

The SCA distinguishes an ECP from a remote computing service (RCS) provider which is defined as “the provision to the public of computer storage or processing services by means of an electronic communications systems” 18 U.S.C. § 2511(2).They also are prohibited from “knowingly divulge[ing] to any person or entity the contents of any communication which is carried or maintained on that service.” 18 U.S.C. § 2702(a)(2)

A RCS may not divulge the content of any communication received by electronic transmission that is carried or maintained on its service for a customer or subscriber “solely for the purpose of providing storage or computer processing services to [the] subscriber or customer, if the provider is not authorized to access the contents of [the] communications for purposes of providing … service other than storage or computer processing.” 18 U.S.C. § 2511(a)(2)

The SCA prohibits an RCS from “knowingly divulge[ing] to any person or entity the contents of any communication which is carried or maintained on that service.”

The fact that a company provides storage is however not enough to decide whether a company is an ECS provider or a RCS provider, as an ECS provider may also provide storage of communications, whether it be temporary storage incidental to the communication, or storage for backup protection, 18 U.S.C. § 2510(17). If the provider store electronic communications as a backup, it is an ECS provider, Quon.

Judge McDermott had cited Quon for the proposition that a company is an ECS provider if it “served a conduit for the transmission of electronic communications from one user to another, and stored those communications as a backup for the user.” Judge McDermott then applied that definition to social networking sites and held that they were ECS providers only if they “provid[ed] internet access or operate as conduits for the transmission of data from one location to another”. Since the social networking sites are used only for public display, Judge McDermott found that they were not ECS providers.

However, the Central District Court of California found that Judge McDermott had read Quon too broadly , as Quon is only applicable to text-messaging paper service. Instead, the Court recognized that the three social networking sites were providing private messaging or email services, and felt “compelled to apply the voluminous case law … that establishes that such services constitutes ECS.”

As Facebook wall posting and MySpace comments are not really “public”, but are rather accessible only to individuals selected by the user, the Central District Court of California also found case law regarding private electronic bulletin board services (BBS) as relevant. In MTV Networks v. Curry, 867 F. Supp. 202, 204 (S.D>N.Y. 1994), the Southern Department of New York describing computer bulletin boards as “generally offer[ing] both private electronic mail service and newsgroup. The later is essentially email directed to the community at large, rather than a private recipient.”

In Konop v. Hawaaiian Airlines, Inc., 302 F.3d 868, 875 (9h Cir. 2002), the Ninth Circuit noted that “the legislative history of the [SCA} suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards.”

However, a completely public BBS is not protected by the SCA. The SCA legislator wrote that “the bill does not for example hinder the development or use of electronic bulletin boards or other similar services where the availability of information about the service, and the readily accessible nature of the service are widely known and the service does not require any special access code or warning to indicate that the information is private. To access a communication in such a public system is not a violation of the Act, since the general public has been ‘authorized’ to do so by the facility provider”. (S. REP. NO. 99-541, at 36)

Since neither Facebook nor MySpace allow their user’s pages to be publicly accessible, but rather, only to persons having access to the user’s profile page, the Central District Court of California concluded that “there is no basis for distinguishing between a restricted-access BBS and a user’s Facebook wall or MySpace comments.”

The court finally concluded that Facebook and MySpace are either ECS or RCS providers, and thus within the meaning of the SCA.

Are private messages and postings on social networking sites electronic storage within the meaning of the SCA?

In Konop,the Ninth Circuit held that a secure website or a private bulletin board was covered by the SCA. (302 F3d at 874). Such a secure website was an ECS provider and the communications stored on the site were so under § 2510(17).

The Central District Court of California found persuasive Snow v. DIRECTTV, Inc., 2005 WL 1226158 (M.D. Fla. May 9, 2005), where the district court found that there could be no temporary, intermediate storage in the context of a BBS, as no one could “allege that the messages are being stored on his particular web site while waiting to be transferred to a final destination.” The BBS is the final destination, just as the social networking sites are the final destination., and postings made on such a site are not protectable as a form or temporary, intermediate storage.

The Central District Court of California interpreted Konop as holding that the postings, once made, are stored for backup purpose. Social networking sites are ECS providers as respects to wall postings and comments , and these communications are in electronic storage within the meaning of the SCA.

The importance of one’s privacy’s settings

Plaintiff argued that, if it it true that both Facebook and MySPace have privacy settings available to their users, their setting have to be sufficient to make a Facebook wall or a MySpace comments section sufficiently restricted as to not make them readily available to the general public. Indeed, under 18 U.S.C. § 2511(2)(g), “it shall not be unlawful under [the SCA] for any person … to intercept or access an electronic communication made through an electronic communication system that is configured so that suc electronic communications I readily accessible to the general public.”

The Central District Court of California held webmail and private messaging, which are inherently private. However, the evidentiary record presented to the Judge regarding Facebook wall postings and MySpace comments were not sufficient to determine whether the subpoenas should be quashed, and remanded so that Judge McDermott could direct the parties to develop a fuller evidentiary record regarding the plaintiff’s privacy setting.

Orin Kerr wrote that the SCA created a set of fourth Amendment-like protection by statute, GEO. WASH. L.REV. 1208, 1212. Does an Internet user have a “reasonable expectation of privacy” in remotely stored files held by a social networking site? We do not have a reasonable expectation of privacy in statements that we expose in plain view of outsiders . Such communications are not protected “because no intention to keep them to [one]self has been exhibited.” (Katz. V. U.S., Justice Harlan , concurring). Just as “it shall not be unlawful under [the SCA] for any person… to intercept of access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.” 18 U.S.C. §§ 2511(2)(g)

Setting their privacy on social networking sites is indeed an active way for users to state the extent to which they expect their communications to be private.