Facebook Discovery and the Unbearable Sameness of Internet Law

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70 ARKANSAS LAW REVIEW [Vol. 65:39 nonprivileged materials. This procedure for supplying the action with factual evidence is only overridden in situations where the need for unfiltered access to the evidence is particularly compelling, such as a criminal investigation where there is probable cause to believe the evidence exists in a certain location. A second lesson that may be drawn from the socialnetworking discovery cases is in how judges conceive of private information. Several courts, in considering motions to obtain or compel discovery from social-networking accounts, appear to be viewing the privacy interests at stake as minimal. For example, several opinions cited the number of “friends” able to view a Facebook account, often numbering in the hundreds, as weighing against a privacy interest in the information. 138 But this reflects an overly cramped notion of privacy widely held in the judiciary, as well as, to some extent, society at large. The theory is sometimes voiced that any fact that is disclosed to anyone—that is known by more than one person—is not private anymore. But no one actually lives their life that way. 139 In fact, people disclose information about themselves all of the time to friends, family, and coworkers that they fully and reasonably expect to remain unknown by people outside of their regular social circle. And that circle can be quite large. The average adult knows approximately 1700 individuals. 140 A fact known by all 1700 is likely not still private, but a fact known by a considerably smaller subset of those individuals might well stay within the confines of the individual’s social network, which means in effect that fact is still private from the rest of the 138. See, e.g., Murphy v. Perger, 2007 CarswellOnt 9439, para. 20 (Can. Ont. Super. Ct. J.) (WL) (“The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site.”). The factual circumstances have gotten more complicated, as Facebook now offers the ability to tailor the number of people able to see any given post; complete access to an account might therefore reveal posts seen by just one person as well as those visible to “friends of friends.” In addition, it has long been possible to send private chat messages and emails through Facebook, which would also be visible to someone with complete access. 139. See United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring) (criticizing privacy as secrecy theory); SOLOVE, supra note 68, at 43-44 (criticizing privacy as secrecy theory). 140. Strahilevitz, supra note 68, at 974. As Strahilevitz points out, these are not necessarily friends or even acquaintances, but persons an individual knows in any capacity. Id.
2012] OVERSHARING: FACEBOOK DISCOVERY 71 world. 141 Since a social-networking account is almost by definition comprised of individuals within one’s social network, it can at least be said that there are privacy interests at stake in ordering production, even if they are not so weighty as to defeat the opposing party’s interest in discovering relevant information in most cases. But they should certainly be enough to defeat the discovery of irrelevant information. It is also possible that courts and lawyers are having difficulty in applying the rules of discovery to social-networking sites for a much more prosaic reason: confusion over what exactly constitutes a “document” on a social-networking site. That is, the problem may simply be one of translation from new technology to more familiar forms of media. It is possible that some courts and lawyers are conceiving of the information visible on a social-networking site as akin to an ordinary website, in which a “document” is typically defined as a single webpage. Once it has been shown that relevant information exists in a document, typically the entire document must be produced, absent redactions for privileged information, so that the relevant information maintains its context. 142 In ordering access to entire sites, courts may be thinking of socialnetworking accounts as in essence single documents, or a small number of documents. But the information on socialnetworking sites is not constructed in the same manner that a paper or even website document typically is. The information available on a person’s Facebook “News Feed,” for example, is an agglomeration of information from multiple sources and on a variety of subjects, compiled in a bric-a-brac fashion over a period of days, or if one scrolls far enough down, months or even years. Each separate post concerns a discrete discussion, initiated by the user putting the post on his or her wall, which is then often the subject of contemporaneous comments from other users on the same subject. It would make more sense in that context to say that each post is a document; production of responsive documents would therefore entail production only of 141. See id. at 974-75. 142. See Expert Choice, Inc. v. Gartner, Inc., Civil No. 3:03CV02234 (CFD)(TPS), 2007 WL 951662, at *5 (D. Conn. Mar. 27, 2007).
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Facebook Discovery and the Unbearable Sameness of Internet Law

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