Court Magistrate Demands Social Media Logins in Sexual Harassment Case
Approximately twenty (20) women have taken the Honeybaked Ham Company to the EEOC (Equal Employment Opportunity Commission) for alleged sexual harassment.
While suing their employer on sexual harassment advances, a US Judge ordered social media accounts (Facebook) email, cellphones, text messages and password information be reported to the court.
James Jackman, Manager of the Honeybaked Ham Company, has been charged with making sexual requests and frequent groping toward his employees including Wendy Cabrera.
All of the plaintiffs stated that they reported Jackman’s behaviors to his Leaders at the corporate office, however, the Leaders failed to take any action.
A Colorado federal magistrate judge, Michael E. Hegarty, delivered a court order stating that the plaintiffs (Cabrera) account on Facebook was considered a public exhibit and relinquishes privacy and could be used for the defense.
In Hegartys court order, he advises that the information displayed on social media by the plaintiff could be relevant to the case since the plaintiff intentionally posted certain items on Facebook. She opened the door – Per Hegarty statement on the court order:
“If all of this information was contained on pages filed in the ‘Everything about Me’ folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.”
The material stated in the court order stemming from Cabrera’s social media account included:
- Employment and financial conditions
- HER sexual aggressiveness
- Her optimistic outlook on her post-termination
- A picture of the word C*** written on a t-shirt worn by Cabrera
- Lawsuit expectations
- Reflections surrounding her current relationship status and losing a pet
Venkat Balasubramani posted a blog on Eric Goldman’s Technology & Marketing Law stating that handing over this type of information, including passwords, would be a violation of the Stored Communications Act: a law that addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs). It was enacted as Title II of the Electronic Communications Privacy Act (ECPA, Pub.L. 99-508, 100 Stat. 1848, enacted October 21, 1986). (Wikipedia). Balasubramani also states that information contained within these accounts could be irrelevant and no bearing to the case at hand which also could not be used in discovery.
Judge Hegarty reviewed the information and advised that although the posting of the information is considered “noveled”, giving such information is still an invasion of privacy on behalf of the plaintiff.
Because the Judge would like to review further, he will be using a forensic expert as a liaison: Although Hegarty agrees that the content posted on social media by the plaintiffs should be presented; he has reservations in Honey Baked Hams relevancy and is of privacy concerns.
If decided to use the social media information, the liaison will review the details of the emails, text and conversations between the parties to make sure that the information is relevant in the case.
What is considered to be Facebook privacy?
Per the Supreme Court: “The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
The EFF (Electronic Frontiers) advises that although the Supreme court has ruled on the fourth Amendment as mentioned above, the fourth amendment does not detail the protection of information others may have pertaining to us that we have freely given to them. (e.g. postings on social media, or information found via public searches). The intention of the material may not be clearly stated as to what it will be used for: the fact that you have given the information gives the right for it to be used at the discretion recipient or the courts.
The question to ponder is – to what extend is privacy considered “PRIVACY”?
Because I wear a t-shirt that states derogatory terms, shall I be harassed or punished because I am now considered to be “fair game”? If I am sexually abused, would the claim be dismissed because I dressed too sexy?
Are the courts now going to order every aspect of our lives that are considered private and let them be used for discovery?
Think about your post – most of us that are using social media usually will post a text, a picture or whatever comes to mind without giving it a second thought.
The second thought would be – could this posting be held against me if I ever had to go to court in reference to this conversation?