You Posted What?! “Private” Social Media Posts Are NOT Private Under Fourth Amendment

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

We all have those friends with constant Facebook updates:

“Getting ready for Singles Awareness Day… :(”

“OMG, I have the best boyfriend ever!”

“Facebook is changing again?! I just got used to it!”

Aside from minor annoyances, Facebook’s good far outweighs the bad. Like other social networking sites, Facebook allows its users to stay “connected” to old friends and family. But for Christine Rubio, a Facebook post cost Rubio her job, at least temporarily. Rubio, a 38-year-old woman, taught fifth grade math at Brooklyn Public School 203. With 15 years under her belt, Rubio enjoyed tenure. She had no disciplinary issues or U-Ratings aside from an unrelated incident.

On June 22, 2010, a New York public school student fatally drowned during a field trip to the beach. The next morning, Rubio logged on her Facebook profile. She posted a message about how awful it was that the twelve-year old girl had drowned. But after a rough day of school, she later logged back on at her home, stating, “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are devils (sic) spawn!” One of Rubio’s Facebook friends then commented on the post, “oh you would let little Kwame float away!” Rubio responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

Although she removed the posts three days later, the damage was already done. One of Rubio’s Facebook friends, who also worked at PS 203, contacted the school’s assistant principal and expressed concern about the propriety of the postings. After showing the posts to the principal, an investigation began. The investigator recommended that Rubio be terminated. The principal met with Rubio to discuss the situation and showed her the report. Rubio responded that she did not remember the postings and that a friend, Joanne Engel, had access to her Facebook account. Rubio provided contact information and the investigator re-opened the investigation, which included an interview with Engel.

During this interview, Engel admitted responsibility for the postings. But when the investigator expressed disbelief and warned that she could be incarcerated for perjury, Engel came clean. She confessed that the Rubio had asked her to take responsibility for the postings so Rubio would not lose her job. When asked about Engel’s confession, Rubio repeatedly denied having asked her friend to take the blame. She apologized numerous times during her New York School District hearings.

But that wasn’t enough to save her job. The hearing officer, in a 52-page opinion, found that Rubio had posted the messages, emphasizing that she had engaged in conduct unbecoming a teacher by posting offensive comments in a forum that is not truly private. Rubio was later terminated.

On appeal to the New York State Supreme Court (a trial court hearing appeals from the Department of Education), Judge Jaffe reduced Rubio’s penalty. In evaluating whether Rubio’s “punishment fit the crime,” Judge Jaffe credited Rubio’s unblemished record and the fact that Rubio posted the comment outside of school after school hours. She added, “Ending [Rubio’s] long-term employment on the basis of a single isolated lapse of judgment teaches otherwise.” Rubio successfully won her job back.

What’s most interesting about Rubio’s case is her defense. Because her profile was set on the private setting, Rubio’s post only was distributed to her Facebook friends – a small, private, adults-only audience. Thus, she expected that only her friends would see the postings. Regardless of her claim, one of Rubio’s Facebook friends turned her in. The important (and more interesting) implication is the scope of “privacy” of Facebook and other social networking.

With the boom of social media, the intersection with the law has become a topic of conversation. Most people assume that the information they send through their “locked” or “private” profile is actually private. Behind the veil of a computer screen, people are actually emboldened to post otherwise questionable material. Perhaps that is why Rubio and millions of others use Facebook to rant when angry.

Federal Rule of Civil Procedure 26(b)(1) allows a party to discover “any nonprivileged matter that is relevant to any party’s claim or defense.” And as more people put more of their personal life on Facebook and other sites, litigants are increasingly using the sites for discovery and evidentiary purposes. See Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL 119149 (D.Nev. 2007) (recognizing defendant’s right to request discovery of private MySpace messages relevant to plaintiff’s sexual harassment allegations).

In “locking” the profile or making it “private,” a user’s intent that the profile be shielded from the public may not be a legitimate basis for exclusion. But the actual release of information, whether or not it is set to private, may depend on where you live. In fact, as some law review articles have analyzed, U.S. courts have issued inconsistent holdings with different analyses and results. These holdings range from requiring the litigant to turn over all social networking information including logins and passwords, to enlisting the judge in the case to “friend” the litigant to obtain access to information and perform an in camera (“behind closed doors”) review, to allowing discovery of any information that fulfills narrowly tailored discovery requests.[1] The analysis may be further confused if litigants are trying to obtain information directly from social media sites.

For example, Facebook lets you know that it may reveal information when requested legally. Here’s a Facebook page that you have likely never seen:

We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.

But until the discoverability rules materialize into a set form, social media users need to be aware that their content is not as “private” as they think it is. Furthermore, users may need to be more selective in accepting friend requests. After all, it was a Facebook friend of Rubio’s that turned her in. Whatever the specific parameters of the discoverability of social media, one thing is clear: the information is available, making courts more susceptible to using your own posts against you. Use at your own peril.


Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010)

[1]Kelly Ann Bub, Privacy’s Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1442 (2011).

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One thought on “You Posted What?! “Private” Social Media Posts Are NOT Private Under Fourth Amendment

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