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Court Demands Private Facebook Data
Posted by
kdawson
on Sat Mar 14, 2009 09:17 PM
from the judge-is-your-new-friend dept.
from the judge-is-your-new-friend dept.
Defeat Globalism writes in with a Canadian court decision that has ordered a man suing over injuries from a car accident to answer questions about content on his private "friends only" Facebook page. "Lawyers for Janice Roman, the defendant in the lawsuit, believe information posted on John Leduc's private Facebook site — normally accessible only to his approved 'friends' — may be relevant to his claim an accident in Lindsay in 2004 lessened his enjoyment of life. As a result of the ruling by Justice David Brown of Ontario's Superior Court of Justice, Leduc must now submit to cross-examination by Roman's lawyers about what his Facebook page contains. Brown's Feb. 20 ruling also makes clear that lawyers must now explain to their clients 'in appropriate cases' that postings on Facebook or other networking sites — such as MySpace, LinkedIn and even blogs — may be relevant to allegations in a lawsuit, said Tariq Remtulla, a Toronto lawyer who has been following the issue."
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With all due respect to our Canadian neighbors (Score:4, Insightful)
Like harrassment, it really isn't up to the perpetrator to determine just how victimized a victim feels.
It is unclear to everyone but the victim just how much loss of enjoyment of life he sustained. Using something as innocuous and meaningless as tweets on Facebook to determine someone's state of mind is like trying to determine the intelligence of someone from their postings on Slashdot.
Re:With all due respect to our Canadian neighbors (Score:5, Insightful)
with all due respect to a fellow slashdot poster, if you are asking a court to give you money for "loss of enjoyment of life" then your life is now fair game for examination. relying solely on the plaintiffs statements would not make for a just proceeding.
Parent
Re:With all due respect to our Canadian neighbors (Score:5, Interesting)
The reality is though that facebook is not about your or anybody else's life, it is a fabricated digital facade, a impression you wish to create of yourself to be viewed by others be they strangers or friends. The lawyers fishing expedition was not even about catching real fish, it was all about trying to catch phantom illusory fish and then hoping to present that illusion as real.
So a real warning to people who naively surrender their privacy, about how that information can be misused and twisted out of shape to present in what ever light people can use to their advantage. So face book, myspace et al, a really bad idea unless you simply want to put up a completely non personal digital illusion of yourself and present yourself in the best possible light. New online business prospect, the creation and maintenance of PR=B$ on line profiles, you too can now be like the rich and greedy pseudo celebrities, where publicists create an illusion to hide the venal self serving worthless reality.
Do you also know that you can also use that illusory personal profile in court cases to your advantage, as long as it is suitable and carefully prepared over an extended period.
Parent
Re: (Score:2)
He should have had a Digg facade where his persona was an angry troller to counteract any "happy" that was on facebook.
Re:With all due respect to our Canadian neighbors (Score:5, Interesting)
Well said. But bear in mind:
If the loss of enjoyment of life refers to what we all suspect it refers to, and the "vic" brags about banging every hot bod in town to his private friends it goes directly to credibility, and possible perjury.
The private pages are not necessarily the same as the public facade pages. The public pages amount to public statements.
The private pages amount to a private discussion in the lobby of a hotel with friends.
If they differer the vic has a problem.
Far too many people jump into the meat market of web 2.0 thinking it will make the cool, relevant, and part of the in crowd.
Parent
Re:With all due respect to our Canadian neighbors (Score:4, Interesting)
The reality is though that facebook is not about your or anybody else's life, it is a fabricated digital facade, a impression you wish to create of yourself to be viewed by others be they strangers or friends.
vs the fabricated facade he and his lawyers are trying to present in court?
Everyone knows everyone in the courtroom is projecting an image they want bought.
If the the facade he offers up when not in court are much more caveleir about his accident, or are even contradicts the claims he's making in court, that should count against him.
Like the cliche about the guy who shows up in court in a wheelchair because 'he can't bear the pain of even walking' yet the insurance investigator catches him on the following weekend moving a fridge and playing ball hockey.
Or better still catching him bragging about the Swiss Alps skiing trip he's going to take with his 'soon to be paid out' settlement.
Do you also know that you can also use that illusory personal profile in court cases to your advantage, as long as it is suitable and carefully prepared over an extended period.
Yes. Of course. The criminal mastermind is truly hard to catch. Most criminals, however, aren't masterminds.
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Re: (Score:2)
I think the lawyer is looking for the guy to say "oh man I am about to sit the pants off this sucker and go retire somewhere nice." I don't think they are going to try and decide how bad he REALLY felt based on what emoticons he used.
Re: (Score:2)
Or if he's got pictures of himself enjoying life.
"Oh, you're smiling in this photo. Clearly, watching your kids get run over didn't affect you at all."
Re: (Score:3, Insightful)
Sure, public information is fair game Watching you mow your grass, or cruise the mall.
But what abut watching you in your house? That is private. Why is this not also private ? The 'its on the public internet so live with it' argument shouldn't apply as you specifically marked it private.
Its not much different then reading others emails 'because its on the internet'...
Re: (Score:2, Funny)
Are you telling me that my conclusion that Slashdot members are actually anthropomorphised vegetables is unfounded?
Re:With all due respect to our Canadian neighbors (Score:4, Funny)
I was trying to think how an anthropomorphised vegetable would reply so I could make a witty retort, but I couldn't.
I'm not sure if that means I did or not.
The mind of a vegetable is too complex.
Parent
What about emails between friends? (Score:2, Funny)
Can the courts require that relatives and friends turn over data to the court? Why not just require every contact the suspect or defendant has turn over "pertinent data including email, voicemails, contact lists, letters, bank accounts and personal ties?
If I ever got in trouble Kevin Bacon would go down.
Re:What about emails between friends? (Score:4, Funny)
By "friends", do you mean people I've raided with on WoW?
Parent
Re: (Score:3, Insightful)
Typically, in the U.S at least, discovery requests must be reasonably calculated so as to result in the discovery of evidence relevant to the issues in the case. So, if you have good reason to believe that the person's e-mail, voice mail, etc. might contain something relevant to the lawsuit, you are entitled to it.
"The public has the right to every man's evidence." - Many sources, no idea which is the original.
I'm not overly concerned (Score:5, Insightful)
I don't see any problems here. In reading groklaw over the years I was surprised at the level of disclosure IBM and SCO had to provide eachother, whole servers of data were exchanged.
The moral of the story and a good example in the article: If you're on disability and post pics of yourself skiing on your facebook, even only visible to 'friends', don't be surprised if it comes back to bite you in the ass.
Re: (Score:2)
This is pretty much what I thought. A friends-only posting somewhere is no more inherently private than a conversation had between friends without anyone else present.
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Actually, it's substantially less private. Most in person conversations aren't digitally recorded and kept until the end of time.
Re:I'm not overly concerned (Score:4, Funny)
Parent
Ya well (Score:5, Insightful)
If you post it online, you should assume anyone can see it. None of these minor protections like "friends only" are any sort of serious impediment. Online is where things go to be seen by the world. So, if you aren't comfortable with it getting out, don't post it. That's not to say you can't make use of privacy settings, just don't count on them to keep everyone out.
If something is private, keep it off websites and other such things. If something is really private, keep in encrypted and/or stored in a secure location (like a good safe). If something is really, really private, don't have a record of it at all, keep it just in your head.
Re: (Score:2)
While that is true, it greatley decreases the usefulness of the internet. While I don't know if there is a way to avoid it, continuous demanding (and subsequent acquiescing to the demand) of data is harmful to society.
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If you post it online, you should assume anyone can see it. None of these minor protections like "friends only" are any sort of serious impediment.
Apparently in this case the impediment is sufficient to force the vic to answer questions under oath.
I suspect cross-boarder issues prevents the Canadian court from simply getting a warrant for Facebook to produce the page, or they suspect the pages in question may be already taken down.
Re:Ya well (Score:4, Interesting)
Exactly right, its like mother always said never write something down unless you expect others to read it. Anytime you record anything anywhere on any medium you invite the possibility someone else will view it. If that is not ok then don't record it; encrypted or not.
Parent
Re: (Score:3, Informative)
Yeah, and there have been cases about just this already (maybe not Canada, but here in the US) from what I recall. I think it was decided (IIRC) that once it that once it hits the curb it becomes fair game. Of course, IANAL.
Re: (Score:3, Insightful)
In the USA for example a court can compel you to provide a decryption key, failure to do so resulting in contempt of court charges.
I don't believe you have that part exactly correct.
The only case I am aware of involved Border searches of a laptop, where the suspect cooperated and volunteered SOME information but balked at providing the decryption key.
Once you waive your right to refuse self incrimination you can not un waive it for certain acts only.
When asked what's on your lap top the best answer is to simply plead the 5th and refuse to answer anything more. Don't show your soft porn and then expect to hold back the good stuff.
IANAL
Re: (Score:3, Informative)
> In the case of a private key, the immunity is extended only to the content of the key itself.
Nope, thats far too narrow.
If you are given immunity it will be transactional immunity or Use immunity.
Transactional means the testimony and any evidence obtained via the testimony can't be uses in THIS proceeding.
Use immunity means it can be used against you at ALL for any future proceedings.
It has never been suggested (except by you) that the actual digits of the key are the only thing immunized, thats just t
Net escapism (Score:2)
Discovery (Score:5, Informative)
Duh!
Its called discovery.
I don't know about canadian laws, but in the US, any documents relevant to a lawsuit can be sought a party to the suit, even from non-parties from facebook, and this can be backed up by a court with a subpoena.
Its all in the Federal Rules of Civil Procedure.
F.R.C.P. 26(b)(1): "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense"
F.R.C.P. 34(1)(a): "A party may serve on any other party a request within the scope of Rule 26(b) ... to produce ... any designated documents or electronically stored information"
F.R.C.P. 45 covers subpeonas.
Basically, the rules are: if its relevant to the suit, and not privileged (like spousal privilege or 5th amendment self incrimination rights), it can be sought by a party. Even private letters to friends. That this information was published to friends on an online service probably means that any privilege the material had was waived.
If you have evidence, you may be compelled to produce it. This shouldn't shock anybody - our justice system won't work without it. Whether or not it's "private" doesn't matter except as provided in the rules or protected by law as "privileged" material.
Finally - its right there in the facebook privacy policy: "We may be required to disclose user information pursuant to lawful requests, such as subpoenas or court orders, or in compliance with applicable laws."
Re:Discovery (Score:5, Interesting)
I really don't see why this is news worthy myself. So a court ordered someone to hand over private documents... this happens all the time. The fact that it is stuff posted on the quasi private Facebook doesn't really change much. If the government demanded that Facebook hand over its entire database to search for terrorist, I would be concerned. The fact that someone who is being sued is getting their Facebook page opened up as apart of normal evidence gathering is unremarkable.
People... if you are breaking a law, don't post it on Facebook and assume that the magic of the internet will keep it from the authorities.
Parent
Re:Discovery (Score:4, Informative)
Parent
Re: (Score:3, Insightful)
Re: (Score:2)
Thank you for saving me a lot of typing. :-)
Re: (Score:2)
But not if you have self-incriminating evidence. You can't be compelled to provide that under fifth amendment protections. Discovery be damned.
The really relevant problem is once it's on Facebook's servers, it's no longer you being compelled to give the evidence, it's Facebook.
Sounds like the perfect end run around the fifth amendment.
Don't put anything you wouldn't want the whole world to see into "the cloud."
--
Toro
Re: (Score:2)
Did you read the story, or even the summary?
1) its in Canada, not the US. So grandstanding post of FRCP means nothing.
2) Nothing is being subpoenaed. He is being asked to testify about what he had in his pages, not to produce those pages.
I don't know if Canada has the equivalent of the 5Th amendment, but this tactic would never work in the US. They can go for the originals and subpeona facebook, but you can't make the man testify against himself.
In Canada, it appears that he CAN be made to testify against
Re: (Score:3, Informative)
Canada does have a 5th amendment equivalent. You cannot be compelled to testify at your own trial, at least not to anything related to the charge. However, if issued a subpoena for somebody else's trial, you must give testimony, even if it implicates you in a crime. That testimony cannot be used against you in another trial though. Unless its a trial for perjury, of course.
But this person is not being charged with a crime. And he won't be, not unless something on his facebook page show's he's outrig
Re: (Score:3, Interesting)
> I don't think the 5th protects you from being compelled to give testimony that might damage your civil case!
The fifth only applies in criminal cases. However, if you are forced to testify in a civil case and thereby lay the groundwork for a follow-on criminal case (fraud, say) you can demand a "use immunity" hearing, preventing any use of the testimony or related evidence derived there from in subsequent criminal cases.
Criminal cases usually go to trial first in the US, precisely because the state doe
Rules of Civil Procedure (Score:4, Informative)
The Rules of Civil Procedure [canlii.org] govern this case. There's nothing new about this case, per se. Anything published on Facebook is a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding rare exceptions for such as solicitor-client privilege) by the person with control over it.
The relevant section governing documentary discovery is Rule 30. Rule 30.01 defines "document", and 30.02 places an obligation on a party to make appropriate disclosure of all relevant documents. The curious can read more about a report on electronic discovery in the Ontario Bar Association's guidelines (pdf) [oba.org] (see also OBA "e-discovery" [oba.org]), and a e-Discovery web-site [umontreal.ca].
I've reproduced cited excerpts of Rule 30, here:
RULE 30 - DISCOVERY OF DOCUMENTS
INTERPRETATION
30.01 (1) In rules 30.02 to 30.11,
(a) "document" includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form; and
(b) a document shall be deemed to be in a party's power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.
SCOPE OF DOCUMENTARY DISCOVERY
Disclosure
30.02 (1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.
There are some interesting scenarios related to Sedona obligations, namely the obligation to not destroy or delete electronic documents once a party has been advised of the potential relevance of certain electronic documents.
Re: (Score:2)
The first paragraph would be better if it read:
The Rules of Civil Procedure [canlii.org] govern the procedure in this case. There's nothing new about this case, per se. Anything published on Facebook that is relevant to a proceeding is considered a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding exceptions such as solicitor-client privilege) by the person with control over it.
Re: (Score:2)
If it were as cut and dried as you seem to suggest they would simply subpeona the pages.
Instead they are asking him to testify about those pages.
Maybe because Facebook is located in the US, or maybe because they already hacked in and know what was there but by doing so they committed a crime, or maybe because the pages are already taken down and all they have is hear-say as to their content.
But by forcing the guy to testify they are going for self incrimination, and THAT is the wrinkle that makes this case
Facebook? (Score:4, Funny)
We all know they should evaluate his porn downloads, not Facebook, to get an accurate assessment of the impact to his enjoyment of life.
Pics and tags (Score:2)
Why stop at facebook? (Score:3, Funny)
Why stop at facebook? I want his house raided, maybe he keeps a personal diary hidden in his daughter's room, camouflaged with flower stickers, stenographically encoded in valley speak.
Re: (Score:2)
The solution to this problem (Score:2, Interesting)
It's not private (Score:4, Interesting)
Under the law if you divulge secrets to third parties, they're no longer secrets. So if I write three friends about a secret, heck, even one friend, the state can subpoena those letters even though they were marked as private. The same is true of Facebook. Merely marking a Facebook page as private does not change the fact that it was used to give out information to third parties.
The only exception to this is if there is some sort of privilege. Such as when the third party is a priest or your therapist and is legally obligated not to divulge your secret. Then, there's an expectation of privacy that you keep. But if you tell your friends, it's discoverable under the law. And it's been this way for centuries.
Note to the internet generation: If you want to keep secrets, don't fricken tell anyone your secrets!
Re:*BSD is Dying (Score:4, Funny)
2000 called, they want their troll back.
Parent
Re: (Score:2)
The 90's called, they want their overused David Spade line back.
[Edit] Sorry, my mistake, that call was actually the 80's pranking the 90's, the 90's don't really want that line back. ;-)
Re: (Score:2)
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... when you do not have to do what any boss or client tells you.
That first part makes sense but I'm intrigued by how you manage to have a business where you don't listen to your clients.
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What if his lawyer is among the "friends", and privileged communications were taking place in a setting where only people who were giving him advice (his lawyer) and other privileged support (his psychologist) had access to them?
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Civil or not, if it were in the US you can still plead the 5th.
After all if the content of said pages reveals that his enjoyment of life was in fine fettle after the incident, then he is committing fraud/perjury with his claim.
Did you see the Goldmans successfully force OJ to produce the knife?