Oct 022010
 October 2, 2010  Posted by  Court, Laws, Online

Andy Serwin writes:

As the Senate Judicary Committee continues its analysis regarding ECPA, it should note that the statement that ECPA was “famous (if not infamous) for its lack of clarity” was reaffirmed by two conflicting decisions—one from the Central District of California, and one from New York, which reach opposite conclusions regarding the discovery and privacy implications of social media. Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457, 462 (5th Cir. 1994); Serwin, Information Security & Privacy: A Guide to Federal and State Law and Compliance, § 7:8. The confusion in large part relates to the characterization of Facebook as an ECS [Electronic Communication Service — Dissent], versus an RCS [Remote Computing Service — Dissent], a concept that is discussed in previous blog posts, as well as some issues with the court’s understand and application of ECPA as many of these communications are “electronic communications” subject to ECPA.

One thing that is helpful to understand before the cases are discussed is the functionality of social media sites. Facebook permits you to send private emails—like a classic ISP, but it also let’s you post messages and content to your Facebook profile. This can be viewed by your friends on Facebook, but isn’t “public” in the classic sense unless you choose to open your profile up to all. If you choose certain settings, the ability of people to see your postings is restricted.  Also, in types of services offered matter as well.  At some level soclal media allows electronic communications in the classic way, but it also offers cloud services such as storing photos and other content.

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