Dec 012011
 December 1, 2011  Posted by  Court, Online

Orin Kerr writes:

The decision is Largent v. Reed (Pa. Common Pleas Nov. 8, 2011), and it involves a discovery request by the defendant in a civil case arising from a car accident. The defendant has filed a Motion to Compel Facebook Login Information in an effort to look through the plaintif’s account for evidence that she was exaggerating her injuries. Judge Walsh grants the request, ruling:

Plaintiff . . . must turn over her Facebook login information to Defense counsel within 14 days of the date of the attached Order. Defense counsel is allotted a 21-day window in which to inspect [Plaintiff]’s profile. After the window closes, Plaintiff may change her password to prevent any further access to her account by Defense counsel.

Judge Walsh spends pages 10–12 considering how the Stored Communications Act applies to this situation, and given that he relies on an article I wrote, let me offer a quick comment. Judge Walsh writes that the Stored Communications Act isn’t implicated because the defendant seeks information directly from the plaintiff. As a result, neither the defendant nor the plaintiff is a regulated entity (known as an “RCS” or an “ECS”) under the statute:

In this case, [Defendant] seeks the information directly from [Plaintiff]. The SCA does not apply because [Defendant] is not an entity regulated by the SCA. She is neither an RCS nor an ECS, and accessing Facebook or the Internet via a home computer, smartphone, laptop, or other means does not render her an RCS or ECS. See Kerr, 72 Geo. Wash. L. Rev, at 1214. She cannot claim the protection of the SCA, because that Act does not apply to her. “The SCA is not a catch-all statute designed to protect the privacy of stored Internet communications.” Id. Rather, it only applies to the enumerated entities. Largent being neither an ECS nor an RCS, the SCA does not protect her Facebook profile from discovery.

While it’s true that neither the plaintiff nor the defendant are regulated entities under the statute, Facebook clearly is.

Read more on Orin’s commentary on The Volokh Conspiracy.

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