Canadian Court Apparently Decides That Private Facebook Profiles Aren't Actually Private

from the privacy-settings-are-meaningless dept

The folks at Facebook are notoriously proud of the granular levels of privacy their system allows, such that you can pick and choose what you share with different people. Apparently, all of that is meaningless to a judge in Ontario, who has decided that if you use Facebook at all, your profile can be used against you in a civil court case, even if you set it to private. The judge’s reasoning is quite troubling:

a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others. From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.

That’s sort of true. It is for sharing content with others… but the very point is that you get to choose who those others will be. So, even if it’s not exactly like a diary, it could be considered a diary that is just shared with a select group of individuals. Just because I share something secret with one other person, does not mean I automatically have consented to have that information shared with everyone. I wonder if this means that all of the judge’s correspondences with others should be opened to the public. After all, the judge is obviously not conducting a monologue with himself, but uses things like email or letters or phone calls to share information with others.

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Comments on “Canadian Court Apparently Decides That Private Facebook Profiles Aren't Actually Private”

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58 Comments
Anonymous Coward says:

I dunno Mike

“personal information available to others” is the crux of this decision. This information does NOT have to be made available to the public, but the act of placing it on a “social network” is ample evidence that this person intended to share it with at least “others” and therefor the expectation of privacy is reasonable dimished. I dunno, it seems like a reasonable decision to me?

Chronno S. Trigger says:

Re: I dunno Mike

By the act of speaking, one intends to share information with at least “others” but douse not indicate that you want to share that information with everyone.

As far as I can tell, an E-Mail is still considered privet even though one intends on sharing it with others. A conversation in your living room in privet.

Just because it can be accessed by someone placing a camera or mic in your home or hacking into a server doesn’t diminish the expectation of privacy.

BTR1701 says:

Re: Re: I dunno Mike

> As far as I can tell, an E-Mail is still
> considered privet even though one intends
> on sharing it with others.

Yes, and e-mails are discoverable in a civil trial.

I’m not sure why TechDirt is focusing on the private/not private aspect of this issue here. All sorts of truly private things about our lives are discoverable in both civil and criminal lawsuits. Unless it’s covered by a privilege (attorney-client, doctor-patient, priest-penitent, etc.), it’s discoverable. I see no reason why a Facebook profile should be any different no matter how “private” it may be in practice.

Michael Talpas (profile) says:

Re: I dunno Mike

The expectation of privacy is pretty clear in this case. You set your facebook profile to private, adding that only certain people can access it. This would suggest that you want it kept private.

If I stood on a soap box on the corner and shouted out my secrets for the world to hear, that would be one thing. But if I send a message to someone through a carrier (Whether it be facebook, email, or voice mail) there is an expectation that it will be kept private.

Anshar (profile) says:

I have to agree with Anonymous Coward. This seems pretty reasonable. It’s true that if you tell someone a secret that you’re not necessarily consenting to everyone knowing that secret. It’s also true that once you tell someone that secret, you’ve given up privacy in favour of trust – trust that the person you told won’t spread the secret. Likewise, once you give someone permission to view your facebook info you’ve given up privacy in favour of trusting your ‘friends’ to not repost your info in a more public place.

What you’re suggesting in the article is akin to saying that a witness in court can’t testify about something he/she was told in confidence by the accused without the accused giving permission.

The Truth Beacon says:

Re: Re: (Chrono's comment)

This isn’t like you telling me a personal secret and me testifying that information in court, that has never been a privacy issue. It’s like me bugging your house and everything you say to anyone else (say your dog) can be published because you intended to share it with someone.

Except that publishing your information on Facebook for others to see IS (with a private profile) like telling others a personal secret in public. If you posted this information in a hidden journal section that nobody else could see regardless of privacy settings, then yes I could see the point you made in the above text.

One of the biggest points I think this is trying to make is that people tend to use social networking sites as a brag spot. If they do something stupid, they use the sites to brag about it to their friends and expect to hide behind privacy settings to prevent incrimination. They need to realize that secrets are only secrets if they aren’t shared with anyone.

PS: I hate to be a jerk (well, not really) but please learn to spell private (and as many other words as you can) correctly…

Michael Talpas (profile) says:

Re: Re:

I think you missed the point, Anshar. The court isn’t saying that the people you invited to your facebook profile don’t have the right to share what they have seen. The court is saying that the civil court has the right to demand ‘from facebook’ the information it wants.

This is a lot like saying that the police have a right to listen to your phone calls, because you are calling someone. You are not talking to yourself, obviously. So therefor, your ‘reasonable expectation of privacy’ is taken away because you intend to talk to someone. I’m sorry, but I can’t agree with that.

Obviously, however, the other person you are talking to can parrot your statements to whomever they want. That is their right, because you shared the information with them. However, the carrier cannot do that. It invades privacy.

Debunked says:

Just throwing this out

I do not know Facebook privacy settings so this is guesswork: (Please correct me as I am trying to learn here)

1. If a person got sued and then changed their settings to private to hide the stuff that was previously open would that be fair in a civil suit?

2. Obviously Facebook would not publish to the outside world dates or privacy changes from one privacy setting to another as that would be, I don’t know, private.

Michael Kohne says:

Information not under your control

If you put personal information on systems not under your control, you need to expect that it’s going to come back at you later. There’s just no physical way for you to retain control.

Heck, Facebook could have a bug tomorrow that makes all data public for all users. Wouldn’t be intentional on their part, but if it happened, everyone would see everyone about you.

BTR1701 says:

Disocovery

> So, even if it’s not exactly like a diary,
> it could be considered a diary that is just
> shared with a select group of individuals.

Well, that’s great and all, but the reality is that traditional written diaries– which are undeniably private in nature– are themselves discoverable in civil suits if they contain relevant information to the case.

If lawyers for the other side can force you to turn over the little black diary book you’ve been writing in since you were a kid, why would you think information on a Facebook profile would be exempt from discovery, no matter how “private” the service allows you to make it?

The only matters exempt from discovery are those covered by statutorily recognized privileges– attorney-client, doctor-patient, etc.– and as far as I know, there’s no social network-customer privilege under the law.

Rebel Freek (profile) says:

Re: Disocovery

“Well, that’s great and all, but the reality is that traditional written diaries– which are undeniably private in nature– are themselves discoverable in civil suits if they contain relevant information to the case.”

They still need some type of probable cause to go look through that, they cant just go into it looking for something to use against you.

BTR1701 says:

Re: Re: Discovery

> They still need some type of probable cause
> to go look through that, they cant just go
> into it looking for something to use against you.

“Probable cause” is a standard pertinent only to criminal prosecutions. It has nothing to do with a civil lawsuit, which is what we’re talking about here.

The only standard a party has to meet to discover evidence (including Facebook profiles) in a civil suit is relevancy. If the plaintiff can demonstrate to the judge’s satisfaction that the information contained on a Facebook page (or a diary or a bank account or whatever) is relevant to the issues being decided in the lawsuit, then it’s discoverable, no matter how private it may be.

Anonymous Coward says:

Re: Re: Re: Discovery

Did you read the case? The plaintiff’s attorneys says they don’t have to prove the facebook page is irrelevant, the defense should have to prove its relevant before they turn it over. The defense wants to just look at it because they think it could be. That actually have no proof that it would be.

BTR1701 says:

Re: Re: Re:2 Discovery

> The defense wants to just look at it because they think it
> could be. That actually have no proof that it would be.

That’s pretty standard in all civil suits when there’s a dispute as to relevancy. Both parties meet with the judge and the moving party makes their case for why it’s relevant. The other party has a chance to respond/rebut and the judge decides one way or the other.

Again, this happens with every other kind of document. I see no reason why a web site profile should be treated any different under law just because it’s on the internet.

Michael Talpas (profile) says:

Re: Disocovery

BTR1701: I did not know those laws, but if you are correct, that is fine. However, the court is not using ‘discovery’ as the reason why it is demanding that information. The fact that it is using this definition is disturbing and alarming. For instance: I tell my most intimate and darkest secrets to my psychiatrist. Now, my doctor/patient priviledge holds true here, but the court could claim that because I shared that information with the psychiatrist, I wanted it know by “others”. That is very disturbing, I’m afraid.

It isn’t the information being shared that is the problem, it is the reasonable expectation of privacy, and the way in which the court decided to pursue this information. Because of that, I am worried.

BTR1701 says:

Discovery

One more comment– I hit the “submit” button too fast:

> I wonder if this means that all of the judge’s
> correspondences with others should be opened
> to the public.

That’s already the case. If the judge is sued by someone, then yes, his written correspondence (if deemed relevant by the court hearing the case) will be both discoverable and subject to being entered into evidence in open court and become part of the public record.

Anonymous Coward says:

Re: Discovery

However, this isn’t the case here.

This isn’t about them turning over relevant documents that were private. Its about them forcing them to turn over private documents and just checked to see if its relevant. They’ve done nothing to prove its relevant other than, “well other facebook people put stuff like that in there.” This ruling is saying that due to (the judge’s understanding of) the nature of facebook, the privacy point is irrelevant and they’re public documents. Therefore no need to prove relevancy is required.

THAT is completely missed in all of your posts.

BTR1701 says:

Re: Re: Discovery

> They’ve done nothing to prove its relevant other than, “well
> other facebook people put stuff like that in there.”

That’s what plaintiffs do in lawsuits all the time with bank accounts, e-mail, letters and diaries. They suspect there might be relevant evidence but they don’t know till they can get a look at it, so they make a demand for discovery. If there’s an objection from the defendant, the judge orders it produced in his chamber, he/she looks at it and makes a ruling as to relevancy. If it’s relevant, it’s turned over, if it’s not, then the plaintiff gets to keep it secret.

That’s all that’s happening here with this Facebook profile.

> This ruling is saying that due to (the judge’s understanding
> of) the nature of facebook, the privacy point is irrelevant

Of course it’s irrelevant. Just like the privacy of your bank account is irrelevant when it comes to a civil suit. If the judge approves a discovery order for it, you have to turn it over.

> Therefore no need to prove relevancy is required.

Relevancy is always required for *all* evidence, whether it’s public or not.

Anshar (profile) says:

@Chronno S. Trigger

I respectfully disagree. I don’t think it’s like someone bugging my house, it’s more like someone getting a warrant to search my house and finding stuff I don’t want them to find. Is it an invasion of my privacy? Yes. Do they have the right to invade my privacy in that way? With a warrant – yes. Who’s to blame for what they find? I am to blame because I kept the stuff I didn’t want found knowing that if the house was searched they’d find it.

LostSailor says:

Don't Let Facts or Law Get in the Way

I wonder if this means that all of the judge’s correspondences with others should be opened to the public.

This has little to do with privacy, except to the extent that information was made available by this defendant publically, which would only reinforce the decision. It also really has nothing to do with the judge’s understanding of the nature of Facebook (though the judge seems to have a very good understanding of Facebook).

This has to do with discovery in a lawsuit. If they judge were being sued, then yes, his private correspondence with others…or even his personal diary shared with no one…could be the subject of a discovery order, as long as the documents are responsive to the discovery request.

Mike might want to actually read the court’s opinion (linked in the article Mike cite)…it is pretty short and would only take a couple of minutes…before making unwarranted assertions. A Facebook profile is hardly “private” if it’s shared with hundreds of “friends” even though it might not be open to the general public.

BTR1701 says:

Re: Don't Let Facts or Law Get in the Way

> A Facebook profile is hardly “private” if
> it’s shared with hundreds of “friends” even
> though it might not be open to the general
> public.

Indeed, and whether it’s private or not isn’t even the issue, since lots of private things are subject to discovery in civil suits.

discovery request says:

isn't discovery the issue?

Aren’t there some sox requirements that corporations save all email? So any email between you and your lawyer, boss, customer, girlfriend, wife, boyfriend, etc. is discoverable, right? — regardless of what the corporate email privacy settings and requirements/rules?

That basically means a private email, SMS, hand written note, or phone conversation can all be used against you if a judge allows it as evidence, and can thus be part of public record, no? I’m including the “judge allows” clause, to include wire taps and warrants that might allow debate-able content into a trial.

Facebook is only a tool for capturing or storing the content which is discoverable.

Stew says:

There is no Privacy on Facebook

Calling facebook settings “levels of privacy” is really quite inaccurate and misleading. “Levels of access” would be a much more accurate description. In effect posting something to Facebook is publishing it. It might be equivalent to a subscription only newsletter, but it’s still publishing. And publishing is the act of making something public.

Anonymous Coward says:

People may wish to keep a few things in mind. First, the person being compelled to produce his facebook profile is the plantiff, and not the defendent. And this person is, according to the judge, asking for substantial monetary compensation due to loss of enjoyment of life.

The plantiff is required to turn over anything that may be relevent to showing this loss, and that would include interactions with people on facebook. And the judge didn’t appear to order the plantiff to turn over access to the profile, but rather was allowing the defendent’s lawyer to question him about it, although not being a lawyer myself that may amount to the same thing.

Anonymous Coward says:

Government in bed with the service provier means...

As long as you provide your info to a 3rd party, it could be considered public, regardless of use.

Once again, the best thing to do is create your own site, on your own server, with your own interwebs access. This way you can control the info, and also sue for trespassing on your server if it gets hizacked or otherwise obtained by unsavory TOS means.

Some enterprising company (Maybe Ning) could see this as an opportunity to sell a Social Network Appliance, based on OpenSocial, like what they’ve done over at the dd-wrt project.

Anonymous Coward says:

Re: Chrono S. Trigger

>> What you READ on the web is your private business.
>> What you POST is public.

Sure, but some news sites, magazine sites, or journal and professional sites require a membership, subscription or the like to access protected content. Accessing, reposting, re-transmitting, or other dissemination is usually grounds for membership revocation, if not also constituting hacking and possible downstream legal challenges.

If information was obtained in a manner inconsistent with the terms of service, and privacy is violated, it’s best that there is a warrant, or else expect evidence be challenged in court, and co-conspirators have their name maimed in public.

At the core, it seems going on a fishing expedition thru someone’s private facebook usually indicates a case based on flimsy evidence anyway.

shakir says:

history

a little history on the internet — it’s original form was created by defense department. please see: http://en.wikipedia.org/wiki/Internet#Creation

now are you trying to tell me that the information from DARPA net or any other entity that uses the network as a storage or a communication/dissemination tool is actually making that information public? this definition of private/public could have terrible recourse for defense departments across the globe (if of course they follow suit otherwise just for Canada)

Andy says:

Facebook Private?

OK, I think that the Judge is totally correct here. If you place your info / photos / whatever on facebook, you are posting it for all to see. Social sites are just that, Social. You put it up, you meant for someone else to see it. The people who get confused with that idea are usually the same ones who are sitting at their computer, naked, with a drumbeat coming from the bottom of their computer desk while looking at friends/cousins/sheep of the opposite (or maybe similar) sex.

Privacy Settings on a social site are hooey. You don’t know the security on the server’s end won’t break down, and based on the money you pay them (Precisely $dick ) for the service, it would be hard to do anything to them in court if they broke something on the server.

It would be like if a girl took her nude pictures to a party, and posted them on the door, hoping only the host would notice.

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