Courtoom drama: from movies to real life
Toward the end of Aaron Sorkin’s movie The Social Network, there’s a combative scene between Facebook founder Mark Zuckerberg and the lawyer deposing him. Zuckerberg comments quietly that it’s raining outside in response to a question by the silver-haired litigator who’s trying to discredit him. Zuckerberg’s non-sequitur pisses the lawyer off.
“Mr. Zuckerberg, do I have your full attention?”
“No,” he replies while continuing to gaze out the window. Then he turns to face the lawyer and fires back: “You have part of my attention. You have the minimum amount.”
If Zuckerberg didn’t care much to help lawyers before Facebook became a big deal, he probably cares even less now. Facebook isn’t in business to help lawyers, especially not ones who disrupt its business mission whilst they gather information.
What’s an information-seeking lawyer to do?
If you are persistent you can get information out of Facebook, under certain circumstances. The first step is to read Facebook’s online guide to getting information with a civil subpoena. If you represent law enforcement read this (PDF file)(good news: it’s a little easier if you’re with the government).
If you don’t carry a badge Facebook will provide only basic subscriber information (not content). And it will do this only where:
- the requested information is indispensible
- and not in the requesting party’s possession
- if Facebook receives a valid subpoena
- from California state court,
- or a Federal court.
Thus, subpoenas from states other than California must be ‘domesticated’ in California, and then personally served on Facebook’s agent. Again, this is only for basic subscriber information.
Can I get a little content over here?
You probably want the Facebook user’s actual content, don’t you? Well, sorry, that’s going to be a problem.
Facebook takes the position that the Stored Communication’s Act, 18 U.S.C. §2701, prohibits it “from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.” So if you want the content, you’re probably going to have to rely on the opposing party to cooperate a bit and download the information themselves.
Or as Facebook explains:
“Parties to civil litigation may satisfy discovery requirements relating to their Facebook accounts by producing and authenticating contents of their accounts and by using Facebook’s “Download Your Information” tool, which is accessible through the “Account Settings” drop down menu.”
So what happens if the Facebook user deleted their content or disabled their account? Facebook responds thusly:
“If a user cannot access content because he or she disables or deleted his or her account, Facebook will, to the extent possible, restore access to allow the user to collect and produce the account’s content. Facebook preserves user content only in response to a valid law enforcement request.”
If you get into issues with the SCA, it would behoove you to read Crispin v. Christian Audigier, Inc. 2010 WL 2293238 (C.D. Cal.), which was the first case to address whether social media sites are covered by the SCA. Short answer: SCA applies to emails and private messages, but not necessarily to wall postings and general comments.
Anyway, here’s the thing you need to know: if a user deletes data look for a long uphill climb, with no assistance from Facebook. Why no help? Well, obviously, Facebook is concerned about potential liability arising from preserving or resurrecting data after its user specifically deletes it. So their self-interest is diametrically opposed to yours in those situations.
Tips from a lawyer who’s run the gauntlet
My attorney-friend Al Robert had to navigate the Facebook subpoena gauntlet recently, and offers the following observations and recommendations.
- Unless you’re a law enforcement agent, Facebook will not preserve information about a user’s account and the associated data—even if you send them a Notice of Preservation Letter. So, it’s important to identify specifically the Facebook data you want in your preservation letter to opposing counsel.
- Although Facebook will provide user account information in response to a subpoena, they’re going to fight any attempt to produce any data in the account (i.e., wall postings, messages, photos, etc.). Supposedly, this is because of the Stored Communications Act, 18 U.S.C. §2701. That’s the bad news. So, is there any good news?
- Well, generally, unless the user has entirely hidden the account, you’ll be able to get some account details from a simple search.
- If you need to subpoena basic user account data, you will need to serve a valid California or federal subpoena on Facebook. Subpoenas from proceedings taking place outside of California must be domesticated. See California Code of Civil Procedure § 2029.300.
- Facebook’s registered agent for service of process is: Custodian of Records, Facebook, Inc. c/o Corporation Services Company 2730 Gateway Oaks Drive, Suite100, Sacramento CA 95833.
- If you need more than just basic account information, the only way to effectively obtain data is through the standard discovery process via the use of the “Download My Information” tool.
- If you have a Facebook account, consider downloading your own data to get an understanding of how the tool works. Patrick DiDomenica provides a great overview of the process on the IPLawAlert blog. In short, if a user deletes information from an account, it will only be available from the “Download My Information” tool for no more than 90 days after it’s deleted. After that, it’s unlikely it would ever be recovered—unless Facebook is preserving data in response to a valid law enforcement request.
- Send the opposing party a Request for Production as soon as possible (and specify that you want the data in native format). If the opposing party complies you should get a zip file that contains the user’s information (this is what gets generated by the “Download My Information” sequence).
- If the opposing side fails to comply with the request, you’ll have to file a motion to compel and persuade the judge to order them to produce the data. If you win then you’re going to have to send a copy of the order to Facebook.
- There are many phone numbers available on the internet for Facebook. But, they don’t answer the phone, so don’t waste your time trying to get someone on the phone.
- Send a copy of your order and your request to email@example.com
- Outside counsel (from Big Law) will respond within a week or two. Facebook apparently doesn’t mind spending money on outside counsel to handle routine subpoena requests. Nice work, if you can get it.
- If you suspect the user has not been truthful about whether and when content might have been deleted, don’t expect help from Facebook in proving it. They’ll probably take the position that the SCA prohibits them from divulging anything about that. Facebook seems to believe that the SCA is a tailor made tool to fend off litigious information gathering. Unless you’re a law enforcement officer.
So, that’s it—you can get some of Facebook’s attention, for the most part a minimal amount. Response time will be leisurely, and you’ll have to deal with outside counsel from a big firm. Other than that, it’s all Aces.
If you have any questions feel free to email Al Robert’s for more infomation at firstname.lastname@example.org.