EHLING v. MONMOUTH-OCEAN HOSP. SERV. CORP., 961 F. Supp. 2d 659 (Delaware 2013)
Plaintiff Deborah Ehling was hired by Monmouth-Ocean Hospital Service Corp. (MONOC) in 2004 as a registered nurse and paramedic. Plaintiffâ€™s claims in this case arise out of an incident involving her Facebook account. Ehling sued for violation of her privacy rights under the Federal Stored Communications Act (SCA) because another employee who had access to her social networking site copied items that were posted on the site and provided those copies to the her supervisor.
From 2008-2009, Plaintiff maintained a Facebook account and had approximately 300 Facebook friends. She selected privacy settings for her account that limited access to her Facebook wall to only her Facebook friends and did not add any MONOC managers as Facebook friends. However, Plaintiff added many of her MONOC coworkers as friends, including a paramedic named Tim Ronco. Plaintiff posted on Roncoâ€™s Facebook wall, and Ronco had access to Plaintiffâ€™s Facebook wall. Unbeknownst to Plaintiff, Ronco was taking screenshots of Plaintiffâ€™s Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso. Ronco and Caruso became friends while working together at a previous job, but Ronco never worked in Carusoâ€™s division at MONOC. The evidence reflects that Ronco independently came up with the idea to provide Plaintiffâ€™s Facebook posts to Caruso. Caruso never asked Ronco for any information about Plaintiff, and never requested that Ronco keep him apprised of Plaintiffâ€™s Facebook activity. In fact, Caruso was surprised that Ronco showed him Plaintiffâ€™s Facebook posts. Caruso never had the password to Roncoâ€™s Facebook account, Plaintiffâ€™s Facebook account, or any other employeeâ€™s Facebook account. Once Caruso received copies of Plaintiffâ€™s Facebook posts, he passed them on to Quagliana, MONOCâ€™s Executive Director of Administration.
On June 8, 2009, Plaintiff posted the following statement to her Facebook wall:
An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards. . . . go to target practice
After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that Plaintiffâ€™s comment reflected a â€œdeliberate disregard for patient safety.â€ In response, Plaintiff filed a complaint with the National Labor Relations Board (â€œNLRBâ€œ). After reviewing the evidence, the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.
WILLIAM J. MARTINI, U.S. DISTRICT JUDGE Plaintiff argues that Defendants violated the SCA by improperly accessing her Facebook wall post about the museum shooting and that her Facebook wall posts are covered by the SCA because she selected privacy settings limiting access to her Facebook page to her Facebook friends. The issue before the Court is whether the SCA applies to Facebook wall posts. Very few courts have addressed this issue. For the reasons set forth below, the Court finds that Facebook wall posts fall within the purview of the SCA.
In 1986, Congress passed the Electronic Communications Privacy Act, which was intended to afford privacy protection to electronic communications. Title II of the Electronic Communications Privacy Act contains the SCA. The SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. Facebook wall posts that are configured to be private meet all four criteria. The Court finds that, when users make their Facebook wall posts inaccessible to the general public, the wall posts are â€œconfigured to be privateâ€ for purposes of the SCA. Accordingly, the Court finds that non-public Facebook wall posts are covered by the SCA. Because Plaintiff in this case chose privacy settings that limited access to her Facebook wall to only her Facebook friends, the Court finds that Plaintiffâ€™s Facebook wall posts are covered by the SCA.
The Court next evaluates whether either of the SCAâ€™s statutory exceptions apply. The SCA â€œdoes not apply with respect to conduct authorized (1) by the person or entity providing a wire or electronic communications service; [or] (2) by a user of that service with respect to a communication of or intended for that user.â€ First, access to Plaintiffâ€™s Facebook wall post was â€œauthorized.â€ The undisputed evidence establishes that Ronco voluntarily provided Plaintiffâ€™s Facebook posts to MONOC management without any coercion or pressure. Caruso testified at his deposition that Plaintiffâ€™s Facebook friend Ronco voluntarily took screenshots of Plaintiffâ€™s Facebook page and either emailed those screenshots to Caruso or printed them out for him. Plaintiff provided no evidence to support her theory that access to her Facebook page was unauthorized. Second, access to Plaintiffâ€™s Facebook wall post was authorized â€œby a user of that service.â€ Plaintiff acknowledged that she added Ronco as a Facebook friend and posted on Roncoâ€™s Facebook wall. Third, Plaintiffâ€™s Facebook wall post was â€œintended for that user.â€ Based on the privacy settings that Plaintiff selected for her Facebook page, Plaintiffâ€™s wall posts were visible to, and intended to be viewed by, Plaintiffâ€™s Facebook friends. On June 8, 2009, when Plaintiff posted the comment about the museum shooting, Ronco was one of Plaintiffâ€™s Facebook friends. Thus, the post was intended for Ronco.
In conclusion, access to Plaintiffâ€™s Facebook wall post was authorized by a Facebook user with respect to a communication intended for that user. Therefore, the authorized user exception applies and defendants are not liable under the SCA.
Do you agree with the courtâ€™s reasoning? Would you have thought that actions by a third party could destroy your right to privacy?
ETHICAL DECISION MAKING
How do you feel about the third party employee who gave copies of the plaintiffâ€™s Facebook postings to management? Was his behavior ethical? Why or why not?