So, you’re an employer and you’ve just been sued for disability discrimination.   Allegedly, you fired an employee who was out of work without a legitimate reason.  You had heard grumblings that the worker had actually taken a four-day weekend in Vail but never had definitive proof, so you just relied on the no-call/no-show policy to say the employee abandoned his job. 

But what now? You think "I know where I’ll look — Facebook! (After all, Facebook has 350 million users now!)"  Surely, you think, there must be pictures, or a wall post, or a status update, or SOMETHING that can prove that the employee was really just having fun.

You write a nice letter to Facebook first asking for information about the individual. No response.

You then ask opposing counsel for copies of the Facebook page, but they refuse citing relevancy and privacy considerations.

So, you say, we’re going to subpoena Facebook.  Problem solved.

Not so fast.  You’re likely to get a response from Facebook that can be summarized with three simple words: Stored Communications Act.  And you’re not likely to get the information you want as a result. Facebook takes the position that the content of users on their site is protected by this law.

Is it right? That’s still unclear, but what is clear is that Facebook is willing to fight about its response if forced. So spoke Facebook Deputy General Counsel Mark "Howie" Howitson in an entertaining keynote speech at yesterday’s Legal Tech conference.  (A full recap is here.

So how to avoid this fight while still getting the information you desire?

  • Review your own computer systems. Very likely, you’ve told employees that you monitor their computers and that the computers remain the property of the company. If so, there may be e-mails that you can track down in the system that might contain that information that do not violate the SCA.
  • Some employees might carry company smart phones to access Facebook. Howitson said it was unclear if that type of usage was covered under the SCA.
  • And finally, you can always access this information if you get the person’s "lawful consent". But what happens if the court "orders" the former employee to "consent" to the release of information? That’s a gray area as well.

What’s the takeaway for employers? Before you want to go peeking behind Facebook’s privacy curtain, understand the rules that apply and be prepared for a fight.  And learn about the Stored Communications Act.