Privacy & Information Security Law Blog

On May 26, 2010, the court in Crispin v. Christian Audigier, Inc. quashed portions of subpoenas seeking the disclosure of private messages sent through Facebook and MySpace.  The court left open the question of whether Crispin’s wall postings and comments should be disclosed pending a more thorough review of his online privacy settings.

On February 10, 2010, defendants in the copyright infringement case subpoenaed the social networking sites for wall postings and private messages from plaintiff Crispin’s accounts.  Crispin filed a motion to quash the subpoenas, asserting that the Stored Communications Act (“SCA”) prohibited the disclosure.  The SCA generally prohibits an entity that provides an “electronic communication service” (“ECS”) or a “remote computing service” (“RCS”) to the public from disclosing the contents of certain communications that are carried, maintained or stored on that service.

After a lengthy analysis, the court determined that Facebook and MySpace were each either an ECS or RCS and thus potentially covered by the SCA.  The court then referred to a provision in the federal Wiretap Act stating that “[i]t 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 such electronic communication is readily accessible to the general public.” (emphasis added)  Based on this provision, the court quashed the subpoena insofar as it sought messages that Crispin sent through the websites’ private messaging services.  The court found that those communications are “inherently private” such that the stored messages are not “readily accessible to the general public.”

The plaintiff’s Facebook wall posts and MySpace comments, however, presented a thornier question.  Because Crispin’s privacy settings could have determined whether his wall posts were public, the court declined to resolve the issue, instead directing that the parties “develop a fuller evidentiary record regarding plaintiff’s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.”