By:  Adam Young, Associate Survey and Symposium Editor


            We, as a society, have entered into an era in which electronic communications has become the preferred way of communicating with friends, co-workers and loved ones.  A recent study has shown that Americans spend over 20% of their online time on social networking sites alone.[1]  Although the majority of social networking sites originated as those where you could find friends, they have exploded into increasingly complex sites.  Most social networking sites, today, allow users to upload photographs and videos, post status updates, comment on friends’ posts, play games, send messages to other users and even tag themselves at specific places where they have been.  As these sites have become more popular, the number of users and the amount of content shared has increased significantly.  For example, Facebook has one billion active users as of October 2012.[2]  604 million of those monthly users use Facebook mobile products, making social networking even more convenient for, and pervasive in, people’s lives. [3]


            As technology advances over time, it forces all professional fields, specifically that of the law, to keep up with it.  One way in which the law is struggling to understand the changes in technology is the discoverability of social media files.  As Americans share more personal information on social networking sites, lawyers are increasingly turning to these social networks as resources when confronted with litigation.  Social media are not just limited to certain types of litigation – they can be found in various litigated issues.


            Social media differ from other media outlets and websites that one might mistake them for being.  Unlike traditional media outlets like newspapers, television, or books, social media’s distinctive characteristic is ease of access.  While it takes significant effort to publish a magazine or broadcast a television program, social media allow users to publish content for wide distribution at little to no cost.  Additionally, social media are different from typical websites.  Unlike a website that can be accessed simply by entering a URL, the information on social networks is not always public because users have power to control access to the content that they publish.  This notion of privacy is not only present in the mind of a social media user.  The companies that own social networking sites are concerned about the privacy of the user as well, which creates the problems lawyers face in the discovery process of social media files.  Many social media providers, as well as other holders of electronic communications, refuse to produce the content of electronic communications of their users based upon the SCA.


            The SCA was enacted as Title II of the Electronic Communications Privacy Act (“ECPA”).[4]  Part of the reason why the act was adopted was to address privacy concerns created by the rise of new technologies that the Fourth Amendment might not be able to adequately address.  In passing the SCA, Congress hoped to “protect privacy interests in personal and proprietary information” that may be stored online.[5]  At the time in which the SCA was passed, internet users were very limited to what they could do.  Therefore, the language of the SCA does not take into account advanced technology due to the very limited version of the internet that existed in 1986.  Since there have been no updates to this piece of legislation, courts have struggled on how to apply it as the internet continues to grow.


            There is a mixture of cases supporting the protection of social media sites under the SCA and those that choose to ignore the SCA completely.  The prominent case that supports protection under the SCA comes from the U.S. District Court for the Central District of California.[6]  The Crispin court walked through the language of the SCA and considered what could be protected (putting emphasis on security settings) with regards to each aspect of social media information that was to be discovered (wall posts, private messages, etc.)  The other line cases, that disregard the SCA, allow overbroad discovery requests and subsequently fail to explain why the SCA does not protect any of the information contained in the requests.


            With some viewing the currently unrevised SCA as falling into antiquity, many questions remain as to how to apply it to cases involving technologically advanced companies.  Social networking sites present one of the largest challenges for courts to tackle when it comes to apply the SCA.  Because social media providers continue to raise the SCA as a defense to third party subpoenas, courts cannot ignore the SCA forever.  In coming years, many courts will have to address whether the SCA actually offers protection to social media providers from third party subpoenas.

[1] What Americans Do Online:  Social Media and Games Dominate Activity, Neilson Wire (Aug. 2, 2010), mobile/what-americans-do-online-social-media-and-games-dominate-activity.

[2] Statistics, Facebook, statistics (last visited Jan. 20, 2013).

[3] Id.

[4] Pub. L. No. 99-508, 100 Stat. 1848 (1986).

[5] S. Rep. No. 99-541, at 3 (1986).

[6] Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010).