Dealing With Third Parties: Social Networks and Cloud Computing

David H. AngeliAngeli Law Group LLC

Seth H. RowParsons Farnell & Grein LLP

Oregon Law InstituteMarch 18, 2011

Why Social Media & the Cloud Matters

Why Social Media & Cloud Matters

• Fastest growing form of communication• Even less formal than email – more of a “bar scene” than “water cooler”• Social media = more fragile than email • The ‘cloud’ = preservation/access/proliferation

Stored Communications Act• Prohibits “Electronic Communication Service” from divulging “content” of messages without consent – even with a subpoena

• Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Cal. May 26, 2010) – broad interpretation

• Take away: webmail provider cannot provide emails/FB cannot provide messages

ECPA & Stored Communications Act• Evans v. Evans, 168 N.C. App. 358, 610 S.E.2d

264 (2005)• Husband produced email sent by wife to lover• Electronic Communications Privacy Act (ECPA)

prevents disclosure of intercepted email • Must occur “contemporaneously” with

transmission• Here, email stored on hard drive of family

computer - not intercepted contemporaneously

SCA & Social Media Groups

• Pietrylo v. Hillstone Restaurant Group, Docket No. 2:06-cv-05754 (D.N.J. 2008)• Restaurant employees created MySpace group• Password protected/labeled private (“EULA”)• Owners got password, looked, fired ‘yees• Court: violation of SCA – owners may have

compelled password from employee• BE CAREFUL DURING INVESTIGATION!

How Do You Get What You Need

Increasingly parties using non-court-ordered remedies to get what they need – using ordinary discovery toolsSubpoena – w/o consent will only work to get basic user information - Jessup-Morgan v. America Online, Inc. 20 F. Supp.2d 1105 (Ed. Mich. 1998)If the customer refuses to consent, can go to court to force giving consent to the ISP/SM provider, or force self-collection - D.M. v. J.E.M., 873 N.Y.S. 2d 447 (N.Y. Fam. Ct. 2009)

Compelling consent…

• Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010) • Personal injury• Public information on SM site did not match

injuries• Court found no real privacy expectation• Compelled consent for active and deleted data

from Facebook and MySpace

Data Preservation In the Cloud

Starts with the contract – or TOSComplicated by redundancyEffective litigation hold depends on thorough, updated, comprehensive data map – extensive input by business unitsPreservation will usually require collection from the cloud

Chatter allows drag-and-drop of files into its cloud system – unlike Twitter – creating an additional repository of potentially non-duplicative ESI.

Producing ESI From the Cloud/Social Media

• HTML format preserves almost all attributes of social media

• FB self-collection tool matches what a subpoena will produce

• Metadata often is not preserved when cloud information is collected because metadata tied into the cloud system – cannot be preserved, often

Upload date/time

Using Social Media EvidenceAt Trial

• Griffin v. State, 192 Md. App. 518 (Md. App. 2010)

• Commonwealth v. Williams, 456 Mass. 857 (Mass. 2010)

Ethics & Social MediaInvestigation

Philadelphia Bar Association Opinion 2009-02

New York State Bar Committee on Professional Ethics Opinion 843

Questions?