July 31, 2012 | By Cindy Cohn

EFF Asks Supreme Court to Reverse "Forced Consent" to Facebook Disclosure

Co-authored by EFF Fellow Jon Eisenberg, who also authored EFF's amicus letter.

When a judge forces you to "consent" to a disclosure of your private electronic communications, have you really consented?  No.

EFF today asked the California Supreme Court to review a decision of a lower court that forced a juror to "consent" to allow the content of his Facebook postings to be turned over to the parties to the case, after it was discovered that he had been improperly posting about the case on his Facebook wall during a trial. The case is called Juror Number One v. Superior Court

At issue is the Stored Communications Act, which generally prevents Facebook, and most other service providers, from disclosing the content of your communications in civil lawsuits.  EFF helped confirm this rule in a case called O'Grady v. Superior Court (also called Apple v. Does) a few years ago.

An exception to the SCA’s disclosure prohibition is that a provider may divulge the contents of a communication with the “lawful consent” of the originator or an addressee or intended recipient. Here, the trial judge tried to invoke the SCA’s “lawful consent” exception by ordering Juror Number One to consent to Facebook’s disclosure of his postings.

In urging the California Supreme Court to take the case, EFF argues that this judicial maneuver is just an end run around the protections Congress created for users in the SCA, which plainly provide that any civil discovery of digital communications must be obtained from the user themselves, not from the third party hosts of their communications. This protection is especially important when the person giving the discovery isn't even a party to the case and, as here, was merely a juror. A decision on the petition is expected by the end of September.

As the United States Supreme Court said in 1968 in Bumper v. North Carolina: “Where there is coercion there cannot be consent.” That's as true today as it was 40 years ago. 

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