In Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305-WJM-MF (D.N.J. Aug. 20, 2013), a registered nurse was fired after her employer viewed several of her controversial private Facebook posts. In a matter of first impression, the New Jersey District Court held that such private Facebook posts are protected by the federal Stored Communications Act (SCA), a law that prohibits unauthorized access to non-public wire or electronic communications. However, the court further noted that the SCA contains two important exceptions: (1) it does not apply to conduct authorized by the provider of the services (Facebook can access its users’ private content); and (2) it does not apply to an authorized user of the service to whom the communication was intended (e.g., your Facebook friends can see your private posts). In this case the second exception applied—the employer was innocently provided screenshots of the posts by an authorized user to whom the posts were directed (the plaintiff’s Facebook friend). Because the plaintiff’s Facebook friend voluntarily showed his employer the plaintiff’s private posts—without any coercion or duress—the employer’s conduct did not violate the SCA. There likely would have been a different result if the employer coerced or strong-armed the co-worker into turning over his friend’s private posts, or if the employer somehow obtained the plaintiff’s Facebook password and accessed the posts itself.
Note: This article was published in the September 2013 issue of the New Jersey eAuthority.