Should “friends-only” user-created content on social networking sites be discoverable in non-criminal cases? In the recent T.V. v. Union Township Board of Education case in New Jersey, Superior Court Judge Kathryn Brock found that without a particularized showing that the content was relevant, privacy interests prevail. The defendant school board argued that the teenage plaintiff’s “friends-only” posts on Facebook and MySpace were functionally undistinguishable from email messages, which are routinely brought into evidence in civil cases. The prosecution argued that Facebook and MySpace are part of a wide array of Internet communications that are relied upon by teens for confidential communication in the way that the telephone was used before the Internet. More details at Law.com. It seems that posts on social networking sites that are intended for a limited audience, selected by the poster, would be discoverable, but there wasn’t enough of a reason to allow such discovery in this case. Indeed, given that instant messaging, and social networking sites are used by teens in the way that email is used by 30-somethings, drawing lines between these methods of communication may prove difficult over the long haul. Use of one method often blends with use of other methods, an adaptation made easier because all of these methods flow over the same Internet. Email, instant messaging, and social networking sites (not to mention newer communications applications like Twitter) send packets via the same underlying Internet protocols. Communications go from User A’s computer to User B’s computer by technical means that are provided by an outside party (Facebook, MySpace, Twitter, Google Chat, et al.). Is there really a difference in expectation of privacy between email messages to friends, “friends-only” content in MySpace, AOL AIM chat messages to friends, or “friends-only” Twitter updates? If there is no real difference in privacy expectation, should all of the other means be lumped in with email and allowed in discovery? Or has the march of e-mail discovery gone too far in private party situations that don’t invoke HIPAA or Sorbanes-Oxley?

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