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Stored Communications Act Covers Facebook Postings

If you are one of the hundreds of millions of people using social networks, there is a good chance that the information you share through social networking is exposed to more people thank you think. With the growing use of social networks we should all be aware of how this lack of privacy in social networking can affect us.

With so few decisions addressing the privacy protections in social media, the issue was recently addressed in the Federal District Court in New Jersey, which issued a decision holding that private wall posts placed on Facebook fall within the protection of Stored Communications Act ("SCA"). The SCA was passed in 1986 so as to provide privacy protections with regard to electronic communications. While the SCA was passed in 1986, prior to the start of the internet era, courts have held that it applies to: 1) an electronic communication, 2) transmitted via an electronic communication service, 3) that is in an electronic storage medium, and 4) is not public.

In the recent decision in Ehling v. Monmouth-Ocean Hospital Services Corp., 2013 WL 4436539 (D.N.J. Aug. 20, 2013), the Federal District Court in New Jersey held that Facebook wall posts, with privacy settings not allowing public disclosure, meet all four of the criteria enumerated in the SCA, allowing for a private cause of action under the SCA. The Court held that private Facebook postings clearly fall within the SCA's protections, because Facebook "allows users to select privacy settings for their Facebook walls." Id. The Federal District Court held that "when users make their Facebook wall posts inaccessible to the general public," those posts are deemed to be private communications, transmitted and stored electronically at Facebook for purposes of the SCA. Nonetheless, the District Court held that although plaintiff's private Facebook posts are in fact covered under the SCA, the plaintiff failed to prove a viable claim because the defendant's access to the Facebook posts was authorized, and therefore, fell within the "authorized user" exception under the Act.
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