Litigation Support

Recently, Facebook spokesman Andrew Noyes said that the company has created a team led by a former FBI employee to manage requests for information in criminal cases. According to Noyes, a big part of the job is explaining the applicable laws and the limitations on access to Facebook user information. He said that Facebook strives to respect the balance between law enforcement's need for information and the privacy rights of citizens.

In an illustrative case, on December 22nd, a judge in Lynchburg, VA. denied a request by a professor accused of sexually assaulting one of his students to gain access to her Facebook records to discredit her at trial.

Joshua Young Moon, 45, was indicted in June on a charge of object sexual penetration. The woman called police after visiting Moon's office in April to finish taking a test. She had accepted an offer of a brief massaage after complaining about pain from an earlier car accidnet. She said she fell asleep during the massage and found Moon inappropriately touching her when she awoke.

Moon's lawyer, Randy Trost, argued that the woman was seeking favors (including additional time to take a test) from Moon because she was doing poorly in the course and that the touching was consensual. Trost said that the Facebook information would show that she spent the weekend before the test at the beach with friends, not studying diligently as she claimed. Moreover, he said the information would show that her back was not bothering her because she had gone rock climbing.

The requested information was private, only viewable by friends on Facebook. Lynchburg Circuit Court Judge Mosby Perrow said Moon's request for all of the woman's Facebook records from September 2008 (the time of the car accident) until the present was too broad. He did say he would allow Trost to file a more specific request for records.

The decision is consistent with what we've been seeing. Facebook fishing expeditions are no more allowed than any other kind of fishing expedition. Regardless of what information is being sought, judges are more and more inclined to protect an individual's privacy online and are increasingly demanding that that requests be narrowed and very specific.

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq