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Judge Demands Email and Facebook Passwords From Women In Sexual Harassment Case 218

Posted by Soulskill
from the just-wants-to-go-like-his-own-posts dept.
An anonymous reader writes "Back in September, a U.S. judge ruled that a school district violated the First Amendment (freedom of speech) and Fourth Amendment (unreasonable search and seizure) rights of a 12-year-old student by forcing her to hand over her Facebook password to school officials who in turn used it to search for messages they deemed inappropriate. This month, another U.S. judge has ordered that women suing their employer for sexual harassment must hand over cell phones, passwords to their email accounts, blogs, as well as to Facebook and other social networks."
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Judge Demands Email and Facebook Passwords From Women In Sexual Harassment Case

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  • Lets split it (Score:4, Insightful)

    by synapse7 (1075571) on Wednesday November 21, 2012 @02:07PM (#42058581)
    I propose /. split into two sites, one featuring litigation and the other focuses on news for nerds.
    • I propose /. split into two sites, one featuring litigation and the other focuses on news for nerds.

      So interesting court cases are never news? I don't really have a problem with them turning up here.

      The main issue I have with litigation stories are the inane comments threads. You have things that are blatantly wrong written by people who seem to have little understanding of the law (confusing civil and criminal matters, not understanding self-incrimination etc) and lawyers posting saying "I can't com

      • by camperdave (969942) on Wednesday November 21, 2012 @03:19PM (#42059465) Journal

        I propose /. split into two sites, one featuring litigation and the other focuses on news for nerds.

        So interesting court cases are never news?

        It's like wrestling on the sci-fi channel. Yes, technically it is fantasy, but it just feels wrong.

        • It's like wrestling on the sci-fi channel. Yes, technically it is fantasy, but it just feels wrong.

          Unless it's Captain Kirk wrestling with a sexy blue alien, that IS wrong, but it feels so right.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        The crap legal stories that Slashdot runs are not news. The submitters, editors, and commenters don't know anything about law, so dozens of cases that are just ordinary applications of long-standing rules about evidence, procedure, etc., are published, usually with an absurdly over-dramatic leading question in the summary.

  • Duh, it's evidence (Score:5, Insightful)

    by Anonymous Coward on Wednesday November 21, 2012 @02:10PM (#42058621)

    A judge is perfectly permitted to require the defense access to potentially usable evidence given probable cause that the evidence is there. School officials, on the other hand, are not judges or part of the legal system.

    Complete non-story by some muckraker. Naturally, /. posts it.

    • by MozeeToby (1163751) on Wednesday November 21, 2012 @02:17PM (#42058711)

      But a facebook password gives access to a whole lot of stuff that has nothing to do with the case. This would be like the Judge demanding unlimited access to your house (without your oversight) so that they could have a look at what the TV in your living room looks like. There are better, more restrictive ways that the evidence could be gathered, ways that don't expose every intimate detail of a person's private life to the courts.

      • by Old97 (1341297) on Wednesday November 21, 2012 @02:21PM (#42058763)
        The judge will be determining if there is anything on Facebook relevant to the case. If so he'll let the defense see it. If not, they won't get it. That's what judges are for. Seems fair.
        • by kubernet3s (1954672) on Wednesday November 21, 2012 @02:40PM (#42059015)
          These are civil suits, not criminal cases. The insidious implication of this ruling is that there is likely to be evidence in someone's Facebook or email. that pertains to a sexual harassment case, sight unseen. This ruling seems to do nothing but pave the way for "fishing expeditions," as another commenter put it, on behalf of judges, who can then go "Oh, a smiley face at the end of a WORK RELATED email, looks like you were leading him on pretty hard."

          If, on the other hand, the defense wishes to use the email records as a defense, and the plaintiff disputes the veracity of these records, I can see the judge ordering access to the records to check on their veracity. If the plaintiff fails to provide these, then toss the case out: I have no problem with that. However, requiring a priori access to a person's correspondence at the outset of a case for no reason than to provide a judge with evidence outside the context of the court seems downright unconscionable.
          • by Old97 (1341297) on Wednesday November 21, 2012 @02:53PM (#42059165)

            The insidious implication of this ruling is that there is likely to be evidence in someone's Facebook or email. that pertains to a sexual harassment case, sight unseen.

            You didn't read the article did you? Sight unseen? Of course it is sight unseen.. That's why the judge wants to see it - not to pass judgement on the case but to determine if there is anything there that will support the defense - as the defense alleges there is. If the judge finds that whatever is there is irrelevant then the defense cannot get access to it. If the plaintiff wants to avoid this then she can drop her complaint.

          • by AmiMoJo (196126) *

            According to TFA it has already been shown that there is potentially damaging material on her Facebook page. I suppose it was either public or she was friends with someone who passed it to the defence.

            In other words he doesn't just want to snoop or go fishing, he has been presented with evidence she has already lied and feels there is a good chance material on her Facebook page may undermine her and her co-claimant's case.

      • by MightyMartian (840721) on Wednesday November 21, 2012 @02:22PM (#42058783) Journal

        As does any kind of warrant. How is this any different than a search of a house, which will contain lots of materials that have nothing to do with the case?

        • As does any kind of warrant. How is this any different than a search of a house, which will contain lots of materials that have nothing to do with the case?

          A totally different situation actually. If there is a criminal case against you, and the state wants to get evidence against you, they need a search warrant.

          This is a civil case. There is a plaintiff, and a defendant, and they are supposed to be treated equally. There's no "innocent until proven guilty". The judge has to decide who is more likely to be right. And both sides have to hand over any evidence the judge asks for. Well, they don't have to. If they destroy or hide evidence, the judge _will_ assu

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        >But a facebook password gives access to a whole lot of stuff that has nothing to do with the case.

        What's your point? A search warrant for a house also "gives access to a whole lot of stuff that has nothing to do with the case". Guess who's in charge of regulating what's allowed as evidence in both situations?

      • by SighKoPath (956085) on Wednesday November 21, 2012 @02:29PM (#42058865)
        You seem to think that anything on Facebook is private. How quaint.
      • by Erioll (229536) on Wednesday November 21, 2012 @02:30PM (#42058871)

        I echo somebody else's comment above that comparing this to a school board is disingenuous. A court order is far different than a school board going fishing.

        For this case, a court order for information from a person's web account should have a way to subpoena the information necessary without requiring disclosure of passwords. That's reasonable, just like how with a court order a suspect must provide the keys and/or open up a safe on their property if such is specified in a search warrant. It's similar. The problem comes that with some models of computer security, that information is not available without a privacy violation (giving up a password). It's quite a conundrum.

        That being said, in this case (and many others) I'm shocked that Facebook (& friends) don't have some type of "legal request mechanism" that would work as a "backdoor" for this type of thing. They can reset passwords and such, so it's hard to believe they don't have a mechanism to handle requests from legal systems for a history of posts, images, etc. The law should always require a warrant to access it if it's not publicly posted, but other than that, I'm surprised it isn't already there.

        • by blueg3 (192743) on Wednesday November 21, 2012 @02:56PM (#42059205)

          I'm shocked that Facebook (& friends) don't have some type of "legal request mechanism" that would work as a "backdoor" for this type of thing. They can reset passwords and such, so it's hard to believe they don't have a mechanism to handle requests from legal systems for a history of posts, images, etc.

          You shouldn't be shocked; they do, of course, have such a mechanism. You might be shocked that in this case it wasn't used.

        • by jythie (914043)
          They have such a mechanism, but it requires some kind of LEO action or court order. In this case it sounds like defense discovery for a civil case, which Facebook is probably under no obligation to honor.
          • by Cederic (9623)

            They have such a mechanism, but it requires some kind of LEO action or court order.

            You mean, something akin to the court order stating she has to hand over her Facebook password?

      • So does searching your home.
        • Facebook is used for so much more now: access to websites above and beyond facebook. A warrant may allow them to search your home, but it doesn't give them access to Aunt Petunia's home. Giving them a facebook password gives them access to other sites.
    • by Aglassis (10161)

      It should only be acceptable if it is directly relevant to the case. Judges shouldn't allow the defense to go on a fishing expedition. Judges generally don't handle this well. In this case the judge used an intermediary to check the accounts and then hand over the applicable information to the defense. I'm sure the judge felt that this was an acceptable way to protect privacy. But that still classifies as a fishing expedition since the courts decide that all 'relevant' information is turned over and not jus

    • If the judge really needed the evidence, then they can go subpoena Facebook directly and request an archive of the communications to/from the parties involved. No risk of information outside of the scope of the subpoena being leaked.
  • by v1 (525388) on Wednesday November 21, 2012 @02:11PM (#42058633) Homepage Journal

    We'e seen a few stories recently like this, where a judge has demanded someone to turn over information that they've already agreed not to in a TOS.

    Was this ever resolved, whether a judge can order you to violate a TOS? Either it's legally binding or it's not. Not variable on who's asking or whether or not it's convenient. They need to make up their minds.

    • by DM9290 (797337) on Wednesday November 21, 2012 @02:14PM (#42058681) Journal

      We'e seen a few stories recently like this, where a judge has demanded someone to turn over information that they've already agreed not to in a TOS.

      Was this ever resolved, whether a judge can order you to violate a TOS? Either it's legally binding or it's not. Not variable on who's asking or whether or not it's convenient. They need to make up their minds.

      Yes a judge can order you to violate a TOS. A judge's order obligates you and you can't be legally bound by contract to violate a judges order.

      • by v1 (525388)

        Yes a judge can order you to violate a TOS. A judge's order obligates you and you can't be legally bound by contract to violate a judges order.

        But by that reasoning, a judge could be a blank check for anyone to violate any contract.

        If that power exists, either it's got to have some significant limitations to it, or it should.

        It's not a judge's job to help people negate legally-binding documents.

        • by DM9290 (797337)

          But by that reasoning, a judge could be a blank check for anyone to violate any contract.

          If that power exists, either it's got to have some significant limitations to it, or it should.

          the law.

        • But by that reasoning, a judge could be a blank check for anyone to violate any contract.

          Pretty much. Bankruptcy judges do this *all the time*. Ultimately the judge is the arbiter of the law and if they make enough bad rulings there exist avenues for recourse and possibly removal of the judge from his position entirely. But on the bench judges have extraordinary latitude to rule as they see fit. And while there are appeals and other legal options to override a judge's decision (the bulk of which require you to get another judge or judges to agree to overturn it), there are precious few opti

        • It's not a judge's job to help people negate legally-binding documents.

          Of course it is. The law has always recognized different degrees of duty. One of the main points of even having courts and having judges is so that someone can sort out competing legal and ethical duties within complex relationships of multiple parties.

          You claim I did not fulfill my legal duty to provide working conditions without debilitating forms of harassment. I ask the judge to bend the normal everyday rules to privacy to see some of your personal information. Happens all the time.

          It may so happen

    • by sirwired (27582) on Wednesday November 21, 2012 @03:41PM (#42059683)

      You cannot avoid a lawfully issued subpoena (or warrant) by pointing at a contract saying you are obligated not to turn over the requested discovery/evidence. There are certain very limited communications not subject to subpoenas/warrants, and online posts with your friends aren't on that list. (Personal communications with doctors, lawyers, spouses, mental health professionals, and religious ministers are.)

      I can think of all sorts of malfeasance that could be hidden if a TOS magically inhibited the discovery process.

      The idea of a TOS is legally valid (although that does not stop it from containing invalid terms) but it does not override a court order.

  • by Anonymous Coward on Wednesday November 21, 2012 @02:14PM (#42058683)

    So a woman claims sexual harassment, states that all the evidence is on her phone, email and facebook, and we're supposed to be outraged that the judge wants the evidence?

    Yes, I checked the linked articles to make sure, downmod me for that, but without providing this information the accuser has no case whatsoever.

    I'm impressed that the judge actually wants the evidence, most of the lawsuits that get to Slashdot seem to show judges who ignore all evidence and go with whatever lawyer has the prettiest tie that day.

    • by sphantom (795286) on Wednesday November 21, 2012 @02:21PM (#42058769)

      I don't disagree that all pertinent evidence should be gathered to prove or disprove a case, but the correct course of action here is for the judge to issue a warrant to the respective carriers/sites for the necessary information. Asking for someones passwords for evidence is like asking for someone's ATM PIN code to get their financial records.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        I don't disagree that all pertinent evidence should be gathered to prove or disprove a case, but the correct course of action here is for the judge to issue a warrant to the respective carriers/sites for the necessary information. Asking for someones passwords for evidence is like asking for someone's ATM PIN code to get their financial records.

        A warrant? On what grounds? She didn't commit a crime. This is part of discovery for her lawsuit. If she doesn't want to provide the evidence she can drop her case. There's no reason to force anyone to do anything. Certainly no reason to drag a third party into it. It's her case. Her choice. Give up the evidence or drop the case.

    • by whoda (569082)

      This is the defense trying to get evidence that contradicts the plaintiffs allegations.
      Such as wearing a shirt with CUNT printed on it, then complaining for being called one after you labelled yourself.

      And posting about your own sexual aggressiveness isn't the best idea either.

      • by cdrudge (68377) on Wednesday November 21, 2012 @03:19PM (#42059463) Homepage

        Such as wearing a shirt with CUNT printed on it, then complaining for being called one after you labelled yourself.

        My wife calls me sexy. I don't want my boss calling me sexy. I might call my wife a fucking bitch while playing a game if she makes a move that blocks. Her boss calling her a fucking bitch would be inappropriate in a professional office environment.

        The plaintiff may have been at a bachelorette party where friends put the shirt on her or she was otherwise having a good time and went along with it. That doesn't mean it was appropriate, right, or that she appreciated her boss calling her that or saying that to her.

        Context is very key and context can not be fully determined just from a picture. And even if it could, it still doesn't mean that the boss didn't sexually harass her or other plaintiffs.

        • Such as wearing a shirt with CUNT printed on it, then complaining for being called one after you labelled yourself.

          My wife calls me sexy. I don't want my boss calling me sexy. I might call my wife a fucking bitch while playing a game if she makes a move that blocks. Her boss calling her a fucking bitch would be inappropriate in a professional office environment.

          The plaintiff may have been at a bachelorette party where friends put the shirt on her or she was otherwise having a good time and went along with it. That doesn't mean it was appropriate, right, or that she appreciated her boss calling her that or saying that to her.

          Context is very key and context can not be fully determined just from a picture. And even if it could, it still doesn't mean that the boss didn't sexually harass her or other plaintiffs.

          Context is key, yes.
          Which is why the judge ordered that access to the accounts be turned over so that they can be independently reviewed for pertinent information.
          Otherwise you have the prosecution cherry picking things that eschew context and the defense doing the same.

          Judge thinks we need to see the full picture instead of sitting through a my word vs your word battle.
          The full picture does include behavior outside of the workplace. If you talk about the case, the defendants, or aspects of your life that

    • So a woman claims sexual harassment, states that all the evidence is on her phone, email and facebook, and we're supposed to be outraged that the judge wants the evidence?

      Yes, I checked the linked articles to make sure

      What?

      I checked and rechecked the linked articles and they sure as shit don't say that the plantif stated the evidence is contained in any of those things.

      What they do say is that the plantif discussed what she hoped to gain by the lawsuit (money), what kind of employment she might be able to get in the aftermath of the lawsuit and then a whole bunch blame-the-victim kind of thinking. Like complaining that the plantif wore a shirt that said CUNT on it and that because of that she shouldn't have taken offens

  • Even if the sexual harassment suit doesn't involve these forms of communication? Or could be verified by other means?

    That's the equivalent of saying that they need to allow the defense attorneys to search their home and make copies of all their personal documents.

    OTOH, seems as though a woman with a solid case for sexual harassment that does involve electronic communications would want to submit these all their electronic records to help the case (although not the passwords).

  • RTFA (Score:5, Informative)

    by b5bartender (2175066) on Wednesday November 21, 2012 @02:18PM (#42058723)
    The plaintiff was allegedly using facebook to make statements about the case and other events relevant to the case.
  • Facebook should have a secondary READ ONLY password that can be voided after say 7 days

    or Facebook should simply give the court a dump of the required info

    btw whats with them needing the actual hardware since the phones themselves should not have the needed data anymore
    (i could see asking for the NUMBERS but not the hardware)

    • by mlts (1038732) *

      Realistically, the judge should have gotten a subpoena on FB, asked for a snapshot of the records, preferably at the time the incidents happen, or at least one of the current day, and have that sent. That way, the username/password is not involved.

      Asking for a password can mean the defendant can always state that they use two factor authentication and their phone happens to be inoperable so no text messages can be received (which isn't destruction of evidence or contempt of court, although the judge is no

  • Good call! People put everything on facebook, I wouldn't be surprised for the clinch pin to be on the facebook wall or in a facebook message.
  • by DrEnter (600510) * on Wednesday November 21, 2012 @02:21PM (#42058767)
    There is a BIG difference between a judge ordering someone to disclose their facebook password to collect evidence and a school teacher or principal doing it. Also, the person in question here is the plaintiff. The defense generally does have a lot of latitude when it comes to evidence collection. My only complaint here is that the plaintiff's sexual behavior outside of work should not be relevant or admissible, but it looks like from some of the statements that the defense is going to push to get that stuff admitted. The judge should put pretty strict criteria on what evidence may be collected and presented to the jury. We aren't really getting those details here, though.
    • Exactly. The plantiff can drop out of the lawsuit. A 12-year-old girl doesn't have the option of not going to school anymore.

      If the plantiff's don't want a court to poke around on their Facebook page, then drop the suit or settle out of court.

  • by 140Mandak262Jamuna (970587) on Wednesday November 21, 2012 @02:28PM (#42058859) Journal
    Set aside the wisdom or its lack of judges ordering passwords to accounts to be disclosed in discovery. Imagine the havoc a blundering people unfamiliar with the service with a full access password. Imagine cops planting evidence too. It is a nightmare.

    As a first step we should demand "read only" access passwords from our service providers. Almost all the accounts, from trivial throwaway email accounts to brokerage/mutual fund accounts holding hundreds of thousands of dollars offer just one level of access. Either you get full access to do anything you damn well please, or nothing. If we have a "valet key" access with limited privileges at least we can be sure these cops or judges won't be able to mess it up.

    Other benefits include third party services that can watch for bills being posted, bills being paid on trime, or do investment portfolio analysis etc. E-Trade used to have something similar. They had a regular password and then a second "trading password" to invoke non-const member functions like ordering funds transfer or to buy/sell securities. But, sadly, they took it away.

    • by mlts (1038732) *

      Even better, expanding on that idea, why not go with snapshots? if the relevant data is from two bounds of time, then either have that data put on media and sent or allow read-only access to the account, and only data between the two temporal boundaries.

      Due to statute of limitations, it means data that is older than 2-3 years (assuming a civil case) would not be able to be fetched because it happened (the actual "transmission") far enough in the past that it is not relevant to any present proceedings.

      The p

  • Does the fact that the judge ordered for this disclosure require Facebook not to close the account when the account holder violates their terms of service?
    If Facebook does close the account does the account holder have any recourse to get the account reinstated? Does the judge?
    • Orders of court trump terms in contracts. If a judge orders a violation of an NDA for evidence purposes, the person ordered to testify is immune of the NDA consequences. The only recourse is for the non-testifying party to the NDA to petition for sealed records.

      How Facebook will react, illegally if they to terminate in this case, is unknown and whether the person handing over the password at the judge's behest is willing to fight them on it.

      The relevant element in the Facebook TOS is 19.11, which states Y

  • What do you do if you sue someone and DON'T have a social networking page. Will your case get thrown out for not providing what you don't have? We already see this with job interviews. How many people were not accepted for a job because they wouldn't or couldn't provide a Facebook password? I don't use ANY social networking sites with the exception of Linkedin. Do you think they would believe me if I said I don't have one? It should be the decision of the plaintiffs to provide that information as evidenc
    • It should be the decision of the plaintiffs to provide that information as evidence, not the position of the judge to order private information.

      No. A thousand times no. Defendants have rights, and they should have rights. One of those rights is necessarily the right to obtain evidence necessary to mount a capable defense. Telling the defense "you can only have the evidence the plaintiff wants to give you" puts his defense at the mercy of the plaintiff (who, you will remember, is fundamentally adverse to the defendant).

    • by nedlohs (1335013)

      You would say I don't have a facebook page.

      Of course if the other side shows that you do you are going to be in a world of hurt.

  • ... sexually harassing another...maybe she is butch...

    No I didn't RTFA... and yes I can guess that my statement is off target... that it was the woman whom the judge now wants to harass sexually.

    Of course maybe she is a bitch that deserves invasion of her privacy..... But not by the Founders of this country's agreement.

  • I will state that I think its *wrong* for anyone to compel anyone else to reveal passwords or security secrets to anyone.

    PERIOD.

    nope, no exception. I don't care if jesus is asking for the password. this is just plain WRONG.

    judges should honor the basic freedoms we have a bit better.

    shame on you, judge (and anyone else who think its their business what's inside someone else's private files)!

    every time I read about some authority figure trying to 'get inside' of someone else's stuff, it really ticks me off.

  • Rather than demanding the password from the customer, the judge should either order the parties to hand over all relevant information to the court, or if they are willing but unable to do so, order Facebook, etc. to preserve the account information for later review by a court-appointed official. The court should of course pay the service providers their actual costs of complying, then send the bill to the plaintiff. The plaintiff can then add the amount to the damages they are seeking.

    While expedient, han

  • by geekoid (135745)

    one was about opening up your private information to a school, the other is evidence in a court of law. They aren't the same thing.

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