From Wired magazine  Jargon Watch

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Postings to social network sites can be forced into evidence in legal proceedings

It seems like everybody is on Facebook or a similar social networking site. The prevalence of such websites has raised interesting questions relating to the level of privacy that should be afforded to users.

People often post intimate details concerning their lives and daily routines on Facebook. From a lawyer’s perspective, scattered among the minutia may lie pertinent information or evidence relating to legal proceedings the user is a party to.

Canada has some leading jurisprudence relating to this issue. A recent New York decision, Romano versus Steelcase, dealt with the defendant’s efforts to be granted access to the plaintiff’s current and historical Facebook and MySpace accounts.

The New York judge in Romano relied on the principles from the leading Ontario case on the matter, Leduc versus Roman from 2009. The judge in Romano echoed the reasoning in Leduc, demonstrating the court’s unwillingness to allow users a high level of protection.

In Leduc, the court held the moving party did not have the right to access the Facebook profile as a right. However, the court went on to state if the moving party can produce sufficient evidence there is information of relevance on the profile then the court can order the production of the evidence.

Based on the court’s finding it seems the level of privacy that will be afforded to Facebook profiles is considerably less than that afforded to other electronic communications, such as e-mails. The very purpose of social networking provides the reasoning behind this position.

The court noted in Leduc that to permit a party claiming damages for loss of enjoyment of life to hide behind self-set privacy controls on a website – the very purpose of which is to enable people to share information – risks depriving the opposing party of access to potentially pertinent information required for a fair trial.

Thus a high level of privacy will not attach to Facebook profiles because the very purpose of such profiles is to broadcast personal information to an audience or the public. If the moving party can demonstrate to the court that the profile might contain relevant evidence, the court can extinguish the user’s privacy rights and order the production of the evidence.

It should be noted if one’s profile is open to the public all information contained in it is fair game and no court order is required. A lawyer cannot however add a party as a friend in order to gain access to private information; this is an ethical breach.

The reasoning in Leduc has been adopted and followed in numerous cases in Ontario. It seems one should not assume information broadcast on their private profile is protected from the court’s gaze.

The lesson handed down by Leduc is we should be careful about what we post on social networking sites, as that information could end up being thrust under the microscope and laid bare in court.

It will indeed be interesting to see how this shakes out.

Frankly, the things that Facebook does from time to time suggests that Facebook / Zuckerberg either doesn’t understand or doesn’t care about privacy. 

Privacy issues can be complex and controversial – but the basic concepts of personal choice, transparency as to what is being done with one’s info and how to control that in a simple manner, and opt-in to new privacy sensitive features – should be easy to get.

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Many people are not concerned about their privacy on Facebook – but they should be. Facebook’s recent changes are a good lesson in how not to make changes that affect or control privacy.On April 21, 2010, at a Facebook developers’ conference called “F8″, the company introduced new features that essentially allow Facebook users to share more information about themselves with more people.

This sounds great, but the changes were made in a way that opened up people’s information without asking them first.

In other words, the new privacy defaults were more permissive than the previous defaults, and things that were private suddenly became public. Privacy options were expanded, but many found the options too complex and difficult to understand, thus requiring a lot of time and energy for each user to go in and adjust the settings.

That assumes of course that users first found out about the changes, understood that they needed to alter privacy settings, and took the time to actually do it.

Facebook believes that more users want to share more information about themselves as society becomes more transparent, and the new default settings reflected this. This is different from the more private attitude that Facebook started out with.

Frankly, that’s a decision that users must decide for themselves on an individual basis. You and I should get to decide that, not Facebook founder Mark Zuckerberg. Transparency is a good thing when it comes to understanding privacy choices, but transparency about an individual’s information is a decision that each individual must get to make for themselves.

Transparency is a concept that is now in vogue for business and government alike. It is about accountability to their stakeholders. That concept does not, however, translate to us as individuals or our personal information.

It may be that Facebook was trying to be more like Twitter. The difference is that everyone knows that comments one makes on Twitter can be seen by anyone, as Twitter’s fundamental purpose is to share one’s thoughts with the world. That’s not the understanding people have when they sign up for Facebook.

User outrage has lead to recent changes. Facebook has created more simplified options on their privacy settings page, including cutting the number of settings from 50 to around 15 and consolidating seven pages of choices into three.

The lessons here for anyone providing services are numerous:

- Don’t make changes that automatically open up user information more than it already is. 

- Make privacy choices as clear and simple as possible.

- Make clear what information will be shared with whom, so users can make informed choices.

- Set defaults conservatively and allow users to open it up – not the other way.

- Think about privacy when doing new things to get it right at the outset. 

And if you are a Facebook user and have not looked at your privacy settings recently, take another look and change them if they are not to your liking.

First, a Techdirt post by Mike Masnick about a musician from Saskatoon that sought out the Google street view car to get his photo taken to promote his band.   The point is that he wanted the publicity and sought it out.   It was his choice.  That’s unlike the pervasive surveillance culture such as in the UK where one does not have a choice.

Second, Boing Boing’s Cory Doctorow refers to Google CEO Eric Schmidt’s comment that  privacy isn’t important, and Bruce Schneier’s brilliant response to that as follows:

Google CEO Eric Schmidt says privacy isn’t important, and if you want to keep something private, “maybe you shouldn’t be doing it in the first place” (in other words, “innocent people have nothing to hide.”)

Bruce Schneier calls bullshit with eloquence: “For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.”

(There is a T-shirt or poster waiting for a condensed version of that)

Third, the  EFF posts about the good, the bad, and the ugly about Facebook’s new privacy changes.  I know its a pain to have to take the time to deal with it – but we all need to go to our Facebook accounts and change whatever we need to.   Keep in mind that its our choice how much we want others to see, both by our privacy settings, and what we choose to post in the first place.

Baseline put together a brief slide show to summarize a CareerBuilder survey that questioned employers on how online information affected their hiring decisions.  The results are interesting.

Some highlights:

1/2 used social networking sites to research candidates

34% found content that made them pass on a candidate, such as inappropriate photos or information, content about drinking or drugs, or bad-mouthing former employers, co-workers or clients.

On the positive side, 18 % found content that caused them to hire someone.

The lesson for business, or anyone with a brand they want to protect, is that it may be worthwhile registering your business name and any brands as usernames for as many social networking sites and web 2.0 sites as you can.  Even if you don’t plan to actively use it, set it up with basic information and links back to your website.  For example, facebook, twitter, linkedin, flickr.   There are too many to possible get them all – but at least cover the mainstream ones.   Not sure what they are?  Search Google or Bing for social networking sites or web 2.0 sites.  Or ask anyone younger than you are.

So trade-mark owners should go here today and fill out this form - which is to preserve rights to trade-marks.

Any business that already has a Facebook page should take advantage and claim their username asap.  They apparently can’t be changed once you get it – so quick thought needs to go into the right name to use.

And if a business doesn’t have a Facebook page – consider whether its a good idea to get one. There is a delay for a couple of weeks before you can get a username if you don’t have a Facebook page now. That’s intended to lessen the chances of cybersquatting.

Mike Masnick of Techdirt points out that he had a post 3 years ago that suggested this might happen based on an article I wrote at the time.

Mike comments that we have not yet reached the point where such “youthful indiscretions” posted on the web are ignored.

The dividing line between “youthful indiscretions” and something serious enough to impair one’s career is very subjective.  It moves with the type of thing one is applying/running for, the entity one will be working for, and the person/people who are making the decision or evaluating the individual.

It might be interesting to track this over time to see if we become more tolerant of indiscretions posted on the web, and the nature of the indescretions that are tolerated and not tolerated.

Perhaps someone should start a wiki and track the “social network indiscretion index”, or “SNII”.  (Now there’s an acronym for a Wired magazine bit. )

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