Friday, August 30, 2013

NJ Federal Court: Password Protected Facebook Posts Covered By Stored Communications Act

A New Jersey federal district court recently ruled that non-public Facebook posts are protected by the Stored Communications Act.  The decision in Ehling v. Monmouth-Ocean HospitalService Corp., demonstrates that courts are continuing the trend of recognizing that we still have an expectation of privacy in the digital age.

In Ehling, a paramedic working for a hospital made an alleged inappropriate post on her password protected Facebook account.  The post was forwarded by one of the paramedic's Facebook friends to management who disciplined the paramedic because of the post.  Initially, the paramedic challenged the discipline before the NLRB and lost. Subsequently, the paramedic filed a lawsuit in federal court claiming that management violated the federal Stored Communications Act and the common law invasion of privacy tort.  

While the Court granted summary judgment in favor of hospital management on both claims it stated, "The Court finds that, when users make their Facebook wall posts inaccessible to the general public, the wall posts are “configured to be private” for purposes of the SCA. The Court notes that when it comes to privacy protection, the critical inquiry is whether Facebook users took steps to limit access to the information on their Facebook walls. Privacy protection provided by the SCA does not depend on the number of Facebook friends that a user has."

This decision is a huge victory for privacy because it recognizes that employers and schools may not require employees and/or students turn over their digital user names, passwords, or password protected digital content.  The bottom line is that employers and schools should not hire social media monitoring companies to act like the NSA to spy on their employees or students unless they are interested in losing a lawsuit.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

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