On August 29, 2013, the District of New Jersey ruled that the federal Stored Communications Act (“SCA”) covers “private” Facebook wall posts.  The plaintiff, a registered nurse and paramedic, sued her former employer in federal court asserting a number of claims including violations of the SCA.  The SCA prohibits unauthorized access of stored wire and electronic communications and records that are intended to be private. Specifically, it prohibits anyone (including employers) from accessing electronic communications in electronic storage without authorization.  The SCA provides for monetary damages, injunctions and attorney’s fees for violations of its provisions.

The plaintiff claimed that Monmouth-Ocean Hospital Service Corp. violated the SCA by accessing her Facebook wall posts, which were set to “private.”  Specifically, the plaintiff selected privacy settings for her account that limited access to her Facebook wall to only her Facebook friends.

The plaintiff had many coworkers as Facebook “friends,” none of whom were managers at Monmouth-Ocean.  Unbeknownst to the plaintiff, one of her coworkers regularly took screenshots of her Facebook wall and emailed them to Monmouth-Ocean management.  The plaintiff claimed that Monmouth-Ocean had violated the SCA by improperly accessing her Facebook wall posts.

In assessing Monmouth-Ocean’s motion for summary judgment, the court determined that non-public Facebook wall posts are covered by the SCA.  The court reasoned that because Facebook allows users to select privacy settings for their Facebook walls, users may configure their posts to be inaccessible to the general public for purposes of the SCA.  The critical inquiry for the court was whether the particular Facebook user took steps to limit access to the information on their Facebook walls—not the number of “friends” the user has.

After determining that the SCA covers non-public Facebook wall posts, the court then evaluated whether the SCA’s statutory exceptions applied.  Specifically, the court considered whether the plaintiff authorized the access to her wall posts.  Because the plaintiff authorized her coworker to access her Facebook wall by accepting him as her Facebook “friend,” the plaintiff had authorized the access to her wall.  The court found in turn, Monmouth-Ocean was also “authorized” to view the posts because the posts were provided to management without coercion or payment.  Accordingly, the authorized exception applied and Monmouth-Ocean was not liable under the SCA.

The court’s decision is noteworthy for a few reasons.  First, the opinion makes clear that employers should avoid taking active steps to seek out their employees’ private social media postings.  Employers should consider training their management and supervisors not to coerce or pressure their employees to provide such information.

Next, the opinion provides guidance to employers that if a concerned employee presents copies of a coworker’s “private” Facebook posts, the employer may accept the communication and consider disciplining the employee without subjecting itself to liability under the SCA.  However, employers should be aware that an employee’s Facebook comments with current and former co-workers may constitute protected, concerted activity under the NLRB—discussed here in a previous post.

Heather L. Sherrod (heather.sherrod@nortonrosefulbright.com / +1 713 651 5163) a lawyer in Norton Rose Fulbright’s Houston Employment and labor practice.