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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Filed Under: canada, privacy, social networks
Companies: facebook
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I dunno Mike
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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. 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.
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Re: Re: I dunno Mike
> 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.
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How to view private facebook profiles
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Re: How to view private facebook profiles
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Re: Re: I dunno Mike
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Re: I dunno Mike
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Re: Re: I dunno Mike
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Re: Re: Re: I dunno Mike
Why is there any difference when you share with one person as opposed to sharing it with 3 people?
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Re: Re: Re: Re: I dunno Mike
Its really not, unless you meet very specific tests, your speech is not "private" in either case.
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Re: I dunno Mike
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.
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Re:
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Re: Re: (Chrono's comment)
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...
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Re:
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.
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I can see both sides to this...
Then on the other hand, people are expecting a certain level of privacy when they choose who they want see the information.
I wonder how this case will turn out.
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Just throwing this out
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.
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Re: Just throwing this out
1. Since that information was open to all to see at the time of opening the case, it would be fair use.
2. True, but it is very easy to archive a website so show the changes.
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Information not under your 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.
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Re: Information not under your control
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Disocovery
> 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.
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Re: Disocovery
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.
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Re: Re: Discovery
> 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.
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Re: Re: Re: Discovery
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Re: Re: Re: Re: Discovery
> 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.
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Re: Disocovery
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.
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Sorry ladies, but you heard the man. Start posting!
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Discovery
> 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.
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Re: Discovery
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.
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Re: Re: Discovery
> 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.
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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.
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Don't Let Facts or Law Get in the Way
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.
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Re: Don't Let Facts or Law Get in the Way
> 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.
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Disagree with article
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isn't discovery the issue?
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.
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Yet another reason why Canada sux
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There is no Privacy on Facebook
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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.
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Government in bed with the service provier means...
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.
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The very point is that if you share a paper copy of ANYTHING with ANYONE except your attorney it is NO-LONGER private as the information has been shared with at least one person
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WWW = WORLD WIDE WEB
Now, what ever information you look up on the web is your own business not the governments (unless they have a proper warrant).
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Chrono S. Trigger
What you READ on the web is your private business.
What you POST is public.
Or to put it this way.
I read what you posted above that is my own business that I read it.
What I right here is public.
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Re: Chrono S. Trigger
>> 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.
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history
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)
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Facebook Private Profiles
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Privacy
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How to view private facebook profiles
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Facebook Private?
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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private profiles
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Re: private profiles
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i agree
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The decision is right
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