I have been asked about obtaining account information from Facebook in a civil lawsuit. This is an interesting issue; e.g. whether you can get information from Facebook itself. (This would be when privacy settings are such that you cannot see the data yourself, or you don’t have access to the data through other legitimate means.)
You can certainly, if the information is relevant, ask a Judge to compel a Facebook user to hand over the information in his or her Account. But getting the information from Facebook itself in a civil case is something different.
Facebook will provide information about an account only to the extent that it feels is legal under the Stored Communications Act, 18 U.S.C. § 2701 et seq. This means that Facebook will provide, “only provide basic subscriber information (not content) to a party in a civil matter only where: 1) the requested information is indispensable to the case and not within the party’s possession; and 2) you personally serve a valid California or federal subpoena on Facebook. Out-of-state civil subpoenas must be domesticated in California and personally served on Facebook’s registered agent.”
Facebook states, “Federal law prohibits Facebook from disclosing user content (such as messages, Wall posts, photos, etc.) in response to a civil subpoena.”
Facebook used to provide more information, as you can tell from this older article from Lawyerist on the subject. I found two useful more recent objects that address the issue at hand. One links to the other. The first is here. The second, an excellent article on the subject of obtaining information from Social Media accounts may be found here (in .pdf format.)
But generally, in a civil case, Facebook won’t hand over the information contained within the Account. Only information about the Account, such as who owns it, and then only under appropriate circumstances.
What should you do?
So how do you get the information? Personally, I would ask the Judge to compel access to the Account. An the owner of the Account can download everything through the Facebook Download Account Tool. Once the download is complete the file can be placed on a usb drive and provided to Counsel.
The problem here is that the person could delete anything incriminating from his or her Account. Facebook states, “if a user cannot access content because he or she disables or deleted his or her account, Facebook will, to the extent possible, restore access to allow the user to collect and produce the account’s content. Facebook preserves user content only in response to a valid law enforcement request.”
What this means then is that the Account owner needs to be compelled to have Facebook restore the Account itself, if it has been disabled and then engage in the Account download process. The problem here is any deleted data is already gone and there isn’t much to be done about that. This would only help if all the Account owner did is disable the Account, but didn’t actually delete individual pieces of information.*
Once you get the data what next?
Once you obtain the information, Facebook states, “the account owner, or any person with knowledge of the contents of the account, can authenticate account content. Further, under federal and California law, business records produced by Facebook are self-authenticating.”
I must admit to finding this troubling. Data can be altered, so what if you Download the Account, but don’t know about the alterations, or cannot prove them?
I find myself wondering how this will work out in the end. Attorneys will want the data and it is clearly useful. On the other hand, Facebook is stuck in a bit of a rock and a hard place with the law relating to stored communications. It is understandably unwilling to hand out the data, but there is no doubt it is compelling information that can be helpful or harmful to the account owner. Obviously the account owner will be happy to give up the data when it is helpful; not so willing when harmful. I would not be too surprised to see this issue taken up in both the Courts and in Congress over the next year or so.
Editing to Note Two Issues: Ask and Duty to Preserve
I am editing this post because I want to add three points.
- My post above is assuming you have asked for the information and been refused. You should ask first unless you have some reason not to.
- Make sure you notify opposing counsel of a duty to preserve. This should be something you do in all cases, given the number of people with Social Media accounts. Notify counsel that all social media data must be preserved. Check out this excellent ABA article on how expensive e-discovery sanctions can be.
- You might even want to ask Counsel to use the Facebook download tool to preserve the evidence as it is right away in the assumption that the data might be discoverable later on in the case. The amended Discovery rules (2006) note that discovery often needs to begin much earlier in the process when it comes to electronic data.
*I edited to clarify that once data is deleted from Facebook it is likely gone. Facebook will restore a disabled account, but any deleted data itself is not recoverable.
Side Note: How to download an Account
Here are the steps for downloading an account.
- Log in to the appropriate Account
- Visit Account (top right)
- Account Settings
- Scroll down and find Download your information (above Deactivate Account)
- Click on Learn More
- Click on Download
- Click on Download (again)
- You will see a note informing you an email will be sent to you once the information is ready for download (Facebook has to gather it together for you first.)