Crispin v. Christian Audigier, Inc.

Citation
Crispin v. Christian Audigier, Inc., 17 F.Supp.2d 965 (C.D. Cal. 2010) (full-text).

Factual Background
This matter arose as part of discovery requests in private litigation, when defendant Christian Audigier, Inc. served subpoenas on Facebook and MySpace for access to communications between the plaintiff and a third party.

Trial Court Proceedings
The plaintiff moved to quash the subpoenas, arguing that Facebook and MySpace were prohibited from disclosing the communication under §2702(a)(1) of the Stored Communications Act (SCA).

As to the private messages sent on these social networking sites, the court relied on U.S. v. Weaver and the dicta in Theofel v. Farey-Jones to hold that when messages are opened and retained on the site, Facebook and MySpace operate as Remote computing service (RCS) providers, and the messages are subject only to the subpoena requirement.

The court next turned to the "wall postings" on Facebook and the MySpace comments page, which permit users to post messages on another user's profile space. The court first analogized these comment pages to the traditional electronic bulletin board services (BBS). A BBS is a website that permits users to post messages on a "board" for the general public to view. Precedent and legislative history established that these bulletin boards were covered under the SCA.

However, to be entitled to protection under the SCA, access to messages posted on these sites must be restricted in some meaningful way from the public at large. Facebook and MySpace, the court reasoned, provide a similar function: they permit users to post messages on other users' "walls" so long as they have authorization to do so.

Although these social networking sites were considered Electronic communication services (ECSs), the court still had to determine whether the information had been in "electronic storage" under the SCA. The court concluded that messages that had not been retrieved fell within the first definition of electronic storage &mdash; that is, that they were being temporarily stored "incidental to transmission." However, because Crispin had already accessed the messages, they fell within the second electronic storage pathway &mdash; stored for backup purposes.

Ultimately, the Court remanded the case to the magistrate judge to determine if "either the general public had access to plaintiff's Facebook and MySpace comments, or access was limited to a few." If the latter, the communications would fall under the SCA's protections and the subpoena would be quashed.