Facebook User Voluntarily Shared Image; Cannot Claim "Reasonable Expectation of Privacy" under Fourth Amendment

by Holland & Knight LLP
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It's not far-fetched to say that this blog could run every day solely on posts analyzing the recent legal developments regarding Facebook. As the social networking behemoth has become a functionally ubiquitous presence in the United States, particularly in the lives of teenagers, questions of user privacy in particular have proliferated with alacrity. Recently, responses to those questions have been answered by a court in Georgia and legislators in California, at least in the context of the privacy rights associated with posts made by users under age 18.

In Chaney v. Fayette Cnty. Pub. Sch. Dist., No. 3:13-cv-00089 (N.D. Ga. Sept. 30, 2013), the plaintiff was a minor student who sued a school district under various statutory and Constitutional provisions after the district publicly shared an image of plaintiff to the community in a presentation on "Internet safety." Specifically, after an image of the plaintiff in a bikini was featured in the presentation immediately subsequent to an image allegedly depicting promiscuity and alcohol abuse, the plaintiff sued the district for invading her rights to avoid unreasonable searches and seizures pursuant to the Fourth Amendment.  Use of social network becomes relevant in the case because the school official who produced the presentation had found the image through searching the plaintiff's Facebook friends.

In her complaint, the plaintiff alleged that this searching of Facebook for the image and then thereafter appropriating and publicizing it constituted an illegal search and seizure. However, as the court noted in denying her claim for relief, the plaintiff did not have an objectively reasonable expectation of privacy, thereby mooting any argument based under the Fourth Amendment. The court came to this conclusion after noting that because the plaintiff intentionally selected the most inclusive privacy setting on Facebook, in which not only could her friends see the pictures she posted but so could the friends of her friends, she surrendered the reasonable expectation of privacy required to sustain a claim under the Fourth Amendment.

In order to perhaps prevent the pain and anguish potentially suffered by the minor plaintiff in Chaney, the state legislature in California recently enacted a bill granting enhanced protections to teenagers after they post materials on social networking sites. The so-called "eraser bill" otherwise known as Senate Bill (S.B.) No. 568 will require social media sites to afford users under 18 the ability to remove their postings as of January 2015 unless the content was originally uploaded by a third party or is under subpoena. Though major social media sites like the aforementioned Facebook and Twitter already grant this option, supporters of the bill believed heightened privacy protections for teenagers are necessary in a world where a recent survey showed that more than one out of four college-admissions officers peruse applicants Facebook profiles.

As admirable as the intentions behind S.B. 568 undoubtedly are, the facts of Chaney vividly illustrate why the "eraser" option for minors may not have a significant impact. After all, the image of the bikini-clad plaintiff that instigated the problem was found not by accessing her profile (and thus the posts therein), but rather by accessing the profile of a third-party who was connected to her on the site. As such, this case vividly illustrates the problem with limited legislation like S.B. 568 that only applies to user control over their previously posted information and not to the control over the use of that same information by the countless third-parties with whom the user will inevitably interact. 

- See more at: http://www.hklaw.com/DigitalTechBlog/Facebook-User-Voluntarily-Shared-Image-Cannot-Claim-Reasonable-Expectation-of-Privacy-under-Fourth-Amendment-10-24-2013/#sthash.LyvgEdp6.dpuf

It's not far-fetched to say that this blog could run every day solely on posts analyzing the recent legal developments regarding Facebook. As the social networking behemoth has become a functionally ubiquitous presence in the United States, particularly in the lives of teenagers, questions of user privacy in particular have proliferated with alacrity. Recently, responses to those questions have been answered by a court in Georgia and legislators in California, at least in the context of the privacy rights associated with posts made by users under age 18.

In Chaney v. Fayette Cnty. Pub. Sch. Dist., No. 3:13-cv-00089 (N.D. Ga. Sept. 30, 2013), the plaintiff was a minor student who sued a school district under various statutory and Constitutional provisions after the district publicly shared an image of plaintiff to the community in a presentation on "Internet safety." Specifically, after an image of the plaintiff in a bikini was featured in the presentation immediately subsequent to an image allegedly depicting promiscuity and alcohol abuse, the plaintiff sued the district for invading her rights to avoid unreasonable searches and seizures pursuant to the Fourth Amendment. Use of social network becomes relevant in the case because the school official who produced the presentation had found the image through searching the plaintiff's Facebook friends.

In her complaint, the plaintiff alleged that this searching of Facebook for the image and then thereafter appropriating and publicizing it constituted an illegal search and seizure. However, as the court noted in denying her claim for relief, the plaintiff did not have an objectively reasonable expectation of privacy, thereby mooting any argument based under the Fourth Amendment. The court came to this conclusion after noting that because the plaintiff intentionally selected the most inclusive privacy setting on Facebook, in which not only could her friends see the pictures she posted but so could the friends of her friends, she surrendered the reasonable expectation of privacy required to sustain a claim under the Fourth Amendment.

In order to perhaps prevent the pain and anguish potentially suffered by the minor plaintiff in Chaney, the state legislature in California recently enacted a bill granting enhanced protections to teenagers after they post materials on social networking sites. The so-called "eraser bill" otherwise known as Senate Bill (S.B.) No. 568 will require social media sites to afford users under 18 the ability to remove their postings as of January 2015 unless the content was originally uploaded by a third party or is under subpoena. Though major social media sites like the aforementioned Facebook and Twitter already grant this option, supporters of the bill believed heightened privacy protections for teenagers are necessary in a world where a recent survey showed that more than one out of four college-admissions officers peruse applicants Facebook profiles.

As admirable as the intentions behind S.B. 568 undoubtedly are, the facts of Chaney vividly illustrate why the "eraser" option for minors may not have a significant impact. After all, the image of the bikini-clad plaintiff that instigated the problem was found not by accessing her profile (and thus the posts therein), but rather by accessing the profile of a third-party who was connected to her on the site. As such, this case vividly illustrates the problem with limited legislation like S.B. 568 that only applies to user control over their previously posted information and not to the control over the use of that same information by the countless third-parties with whom the user will inevitably interact.

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