Facebook Discovery and the Unbearable Sameness of Internet Law

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68 ARKANSAS LAW REVIEW [Vol. 65:39 Indeed, logging in to someone else’s account to gain information from it, even with the user’s acquiescence, may be more than an invasion of the user’s privacy; it is conceivably also a crime. Under the Computer Fraud and Abuse Act, it is a misdemeanor to intentionally exceed authorized access to a protected computer and obtain information from it. 133 A “protected computer” is essentially any computer connected to the Internet. 134 And several prosecutors and courts have taken the position that it “exceeds authorized access” to access a computer after having violated any contractual provision governing its use, including form terms of service. 135 Facebook, for example, prohibits its users in its terms of service from sharing their passwords, allowing others to access their accounts, or soliciting login information or accessing someone else’s accounts. 136 Facebook users who obtain a password from another user in violation of Facebook’s terms are therefore arguably “exceeding authorized access” to Facebook’s servers, and if they obtain information in doing so, thereby committing a federal misdemeanor. 137 IV. CONCLUSION The treatment of social-networking sites during discovery is an example of Internet law in action: the application of an existing body of doctrine to a profoundly new technological and sociological set of circumstances. There may be valuable lessons in how courts have responded to that challenge, 133. 18 U.S.C. § 1030(a)(2) (2006). Violation of § 1030(a)(2) is punishable by a fine or imprisonment for not more than one year, or both. 18 U.S.C. § 1030(c)(2)(A) (2006). 134. See United States v. Drew, 259 F.R.D. 449, 456 (C.D. Cal. 2009). 135. See United States v. Nosal, 642 F.3d 781, 784 (9th Cir. 2011); United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010); Drew, 259 F.R.D. at 456 (C.D. Cal. 2009) (finding prosecution’s theory void for vagueness). 136. Statement of Rights and Responsibilities, FACEBOOK (Apr. 26, 2011), http:// www.facebook.com/legal/ terms. 137. To be sure, there is a persuasive argument that it is incorrect as a matter of either statutory interpretation or constitutional limits of due process to interpret the Computer Fraud and Abuse Act as criminalizing violations of form user agreements. See Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 MINN. L. REV. 1561, 1562 (2010); Orin S. Kerr, Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes, 78 N.Y.U. L. REV. 1596, 1598-99 (2003). The point here is simply that the matter is currently unresolved in the federal courts, placing civil litigants at some nontrivial risk of criminal liability when they access an account pursuant to court-authorized discovery.
2012] OVERSHARING: FACEBOOK DISCOVERY 69 particularly in those decisions that appear to have extended the ordinary bounds of discovery when confronted with a novel form of evidence. What can be learned from these cases? First, judges and parties appear in some cases to be having trouble fitting a new source of information into an existing legal trope about how discovery is conducted and what objections are proper. For example, it is well understood that paper documents are obtained with a document request and that oral questions are asked in depositions, and the forms for both asking for such discovery and objecting to it are both deeply engrained and rarely thought about. Confronted with issues arising from a new source of information, however, lawyers and judges are forced to consider what box to place those issues in. The courts granting opposing parties access to accounts, and perhaps even some of those denying access, appear to have placed all of the issues in the “relevance” box—that is, is there relevant information in the account? Almost certainly, in all of the cases considered above, the answer to that question is yes—there is likely to be relevant and discoverable evidence in the account. But the answer to that question did not address another question, one that rarely comes to mind: what is the proper method to obtain that information? Just because the information is discoverable does not mean that any conceivable method of obtaining it is permissible. Similarly, judges, and attorneys for both sides, appear in many cases to have confused what is properly a dispute over the method of discovery with one of whether some sort of privilege should bar discovery entirely. Confronted with arguments from plaintiffs’ attorneys that their clients’ social-networking information was privileged, courts unsurprisingly rejected that assertion. One advantageous result of the decisions granting access to social-networking communications is that they have unwittingly demonstrated the privacy-protective nature of the rules of discovery, in particular those rules that preserve the adversarial process. It is not often the subject of much sustained attention, but it is plainly important how Rule 34 and the other discovery rules say materials are to be obtained in discovery. It matters in preserving some measure of privacy that it is the party’s own attorney, and not the opposing party’s attorney or the court, that combs through the party’s documents looking for responsive
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Facebook Discovery and the Unbearable Sameness of Internet Law

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