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The Stored Communications Act Protects Public Posts to Social Media Sites

The case arose from an oral licensing agreement between artist Buckley Crispin, Plaintiff, and Christian Audigier and companies (famously associated with the clothing line Ed Hardy), Defendants. Plaintiff alleged that Defendant violated the terms of an oral license by failing to put Plaintiff’s logo on his artwork and by using his artwork on items that were outside the scope of the license. Defendants served subpoenas duces tecum on four third-party websites including Facebook, Myspace, Black Market Art Company, and Media Temple seeking Plaintiff’s communications, sales information and basic subscriber information. The magistrate judge, below, denied Plaintiff’s motion to quash the subpoenas.

On appeal the Federal District Court for the Central District of California considered whether Plaintiff had standing under the Stored Communications Act (SCA)[1] to contest subpoenas served to third-parties. The court noted that two other district courts had determined that a plaintiff should have standing to contest the issuance of third-party subpoenas under the SCA because of the intensely personal nature of the online documents or posts and the broad goal of the SCA to prevent the “host of privacy breaches” associated with the advent of the internet. The court ultimately agreed and held that individual parties have standing to contest dissemination of their personal information by third-party websites visa vie third-party subpoenas.

Turning to whether the third-party subpoenas should have been quashed in Plaintiff’s case, the court stated, “Although some courts have considered the SCA’s application to certain types of providers, none appears to have addressed whether social-networking sites fall within the ambit of the statute.” After concluding that the web providers subject to the subpoenas were electronic communication services (ECS) under the SCA, the court determined that the information sought by Defendants was electronic storage within the meaning of the statute. The court also noted that, at least in the Ninth Circuit (although not every Circuit agrees), for the purposes of the SCA a provider can be considered both an ECS and a remote computing services provider (RCS)–the two are not mutually exclusive.

The Crispin Court concluded that the legislative history of the statute indicated a desire to “protect the electronic communications that are configured to be private, such as private electronic bulletin boards,” like a Facebook wall. The court also held that, “posting, once made, are stored for back-up purposes” once read. The court rejected the Defendants’ argument that where the postings are displayed to large numbers of people or where large numbers of people are granted access to the material, the material should not be considered private. In a somewhat circular argument, the court held that the display of the messages was indistinguishable or at least inseparable from the storage feature because “a storage service necessarily requires a retrieval mechanism to be useful. To retrieve communications in storage, the RCS provider must display those communications in some way.” The court seemed to hold that private electronic communications on social media sites are subject to protection from disclosure by third-parties in civil suits regardless of whether they disseminated through a public or semi-public section of the site. Where the communications are stored for “any back-up purpose,” not even necessarily related to user benefit (as opposed to a benefit to the provider), this will be sufficient to warrant protection.


Author Bio: Jennifer received a B.A. with Honors in Political Science and Philosophy with a minor in History from Union College. She will receive her J.D. from Seton Hall University School of Law in 2012. Jennifer has worked previously for the law firm of Aiello Harris, P.C. and is currently working with FINRA.

[1] The SCA precludes “providers of electronic communication services (ECS) or remote computing services (RCS) from divulging private communications to certain entities and individuals.”


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