Friday, October 22, 2010

Social Media Update III

 To cap off our update on social media’s intersection with the workplace, we point you to a post from Sam Glover at the Lawyerist on subpoenaing Facebook and MySpace.  There, Mr. Glover details the process for record preservation requests and subpoenas. 

Here is what Mr. Glover uncovered with respect to Facebook:

Thank you for contacting Facebook.

If you are requesting that information on our site be preserved, please send a preservation order by mail or fax to the following address:

Facebook
1601 S California Avenue
Palo Alto, CA 94304
Attn: Security Department
Fax Number (650) 644-3229

Please provide as much of the following information as possible to expedite your request:
- Your full contact information (name, physical address, phone and email):
- Response date due (please allow 2-4 weeks for processing):
- Full name of user(s):
- Full URL to Facebook profile:
- School/networks:
- Birth date:
- Known email addresses:
- IM account ID:
- Phone numbers:
- Address:
- Period of activity (specific dates will most likely expedite your request):

Please be sure that your contact information is valid, so that we can contact you with updates on your request status.

Although providing this information will enable us to identify the account in question so that we can preserve available information, we will also need a valid subpoena or other court order in order to provide this information to you. This subpoena or court order should be mailed or faxed to the above address.

Governmental Agency

Please note that if the requesting party is a governmental agency, a search warrant is required for private inbox and/or outbox communication 180 days old or less. See 18 U.S.C. § 2703(a).

Civil Matters

With regard to civil matters, state court subpoenas must issue from a court within California or must be issued pursuant to the proper California court commission. Federal civil subpoenas seeking the production of documents must issue from the court in the district where the production is to be made. Please send the subpoena to subpoena@facebook.com or fax to 650-644-3229.

In addition, Facebook requires a $150 processing fee per User ID. Checks can be made payable to Facebook, Inc. and can be sent to the attention of Facebook Security at 1601 S. California Ave., Palo Alto, CA, 94304, bearing the name and number of the case for which the fees are paid.

Please note that our users’ data is protected by the Electronic Communications Privacy Act (“ECPA”). See 18 USC section 2701 et. seq. ECPA is a federal statute that prohibits Facebook from producing any “content” without notarized user consent or a Search Warrant.

If you have additional questions, you can contact us at [subpoena@ facebook.com].

* * * * * * *

And here is what Mr. Glover uncovered regarding MySpace:

MySpace received your request for information regarding proper service of legal process. MySpace requires personal service of legal requests to our registered agent in Los Angeles.

Please note that MySpace requires specific information in order to comply with your legal request. Providing only the user’s first and last names or dates of birth is not sufficient to identify the user’s profile. MySpace requires that you provide the user’s unique friend ID number or url. The friend ID number is located in the url line. For example, within the url http://www.myspace.com/index.cfm?fuseaction=user.viewProfile&friendID=6221&Mytoken=20050518161358, the friend ID is 6221.

The type of information MySpace can produce in response to a legal request is restricted by federal law. With a subpoena, MySpace may lawfully produce basic subscriber information and IP logs for a user’s account. MySpace is prohibited from lawfully producing the contents of a user’s private mail messages or stored content files held or maintained on behalf of a user to a any non-government entity, by the Stored Communications Act (“SCA”) 18 U.S.C. §§ 2702-2703. The materials protected from disclosure by Section 2702(a)(2) include MySpace user content including, but not limited to, friend lists, photos, blogs and private messages.

If these records are truly integral to the instant case, the clearly available mechanism for obtaining them is for the owner of the MySpace accounts in question to consent. For civil matters, this consent must be accompanied by a subpoena. To provide proper consent, MySpace requires that a user supply a signed statement containing the friend ID for the account, the password associated with the account, the user’s zip code, and the birth date provided to MySpace. You may also obtain an Order from the court compelling the owner of the account to consent to the disclosure of the emails in question.

MySpace requires personal service of subpoenas in civil matters. MySpace will accept personal service at 2121 Avenue of the Stars, Suite 700, Los Angeles, CA 90067 between the hours of 9:30-12:30 and 2:30-5:30. Personal service will also be accepted at CSC locations throughout the state of California. For a list of California locations, please call 888-690-2882. All subpoenas should be addressed to the Custodian of Records for MySpace.com. Additionally, MySpace will only accept subpoenas from out-of-state civil litigants if they have been properly domesticated through a California court.

Please be sure to visit our website at http://RobertBFitzpatrick.com

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