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Court Demands Private Facebook Data

kdawson posted more than 5 years ago | from the judge-is-your-new-friend dept.

Privacy 113

Defeat Globalism writes in with a Canadian court decision that has ordered a man suing over injuries from a car accident to answer questions about content on his private "friends only" Facebook page. "Lawyers for Janice Roman, the defendant in the lawsuit, believe information posted on John Leduc's private Facebook site — normally accessible only to his approved 'friends' — may be relevant to his claim an accident in Lindsay in 2004 lessened his enjoyment of life. As a result of the ruling by Justice David Brown of Ontario's Superior Court of Justice, Leduc must now submit to cross-examination by Roman's lawyers about what his Facebook page contains. Brown's Feb. 20 ruling also makes clear that lawyers must now explain to their clients 'in appropriate cases' that postings on Facebook or other networking sites — such as MySpace, LinkedIn and even blogs — may be relevant to allegations in a lawsuit, said Tariq Remtulla, a Toronto lawyer who has been following the issue."

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faced post (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27197251)

nothing more

With all due respect to our Canadian neighbors (4, Insightful)

BadAnalogyGuy (945258) | more than 5 years ago | (#27197261)

Like harrassment, it really isn't up to the perpetrator to determine just how victimized a victim feels.

It is unclear to everyone but the victim just how much loss of enjoyment of life he sustained. Using something as innocuous and meaningless as tweets on Facebook to determine someone's state of mind is like trying to determine the intelligence of someone from their postings on Slashdot.

Re:With all due respect to our Canadian neighbors (4, Insightful)

acvh (120205) | more than 5 years ago | (#27197331)

with all due respect to a fellow slashdot poster, if you are asking a court to give you money for "loss of enjoyment of life" then your life is now fair game for examination. relying solely on the plaintiffs statements would not make for a just proceeding.

Re:With all due respect to our Canadian neighbors (5, Interesting)

rtb61 (674572) | more than 5 years ago | (#27197495)

The reality is though that facebook is not about your or anybody else's life, it is a fabricated digital facade, a impression you wish to create of yourself to be viewed by others be they strangers or friends. The lawyers fishing expedition was not even about catching real fish, it was all about trying to catch phantom illusory fish and then hoping to present that illusion as real.

So a real warning to people who naively surrender their privacy, about how that information can be misused and twisted out of shape to present in what ever light people can use to their advantage. So face book, myspace et al, a really bad idea unless you simply want to put up a completely non personal digital illusion of yourself and present yourself in the best possible light. New online business prospect, the creation and maintenance of PR=B$ on line profiles, you too can now be like the rich and greedy pseudo celebrities, where publicists create an illusion to hide the venal self serving worthless reality.

Do you also know that you can also use that illusory personal profile in court cases to your advantage, as long as it is suitable and carefully prepared over an extended period.

Re:With all due respect to our Canadian neighbors (1)

saiha (665337) | more than 5 years ago | (#27197715)

He should have had a Digg facade where his persona was an angry troller to counteract any "happy" that was on facebook.

Re:With all due respect to our Canadian neighbors (1)

mdwh2 (535323) | more than 5 years ago | (#27200679)

Heh - indeed, it would be funny to see this backfire. Imagine him revealing a load of depressing emo poetry and suicide notes. He'd get triple damages!

Re:With all due respect to our Canadian neighbors (1)

Orion Blastar (457579) | more than 5 years ago | (#27200971)

That sounds like my online profile, minus the emo poetry. Just depressed statements, trollings, suicide notes, fake suicides, and not being able to enjoy myself because I get angry responses to my Slashdot, etc postings.

Re:With all due respect to our Canadian neighbors (4, Interesting)

icebike (68054) | more than 5 years ago | (#27198065)

Well said. But bear in mind:

If the loss of enjoyment of life refers to what we all suspect it refers to, and the "vic" brags about banging every hot bod in town to his private friends it goes directly to credibility, and possible perjury.

The private pages are not necessarily the same as the public facade pages. The public pages amount to public statements.

The private pages amount to a private discussion in the lobby of a hotel with friends.

If they differer the vic has a problem.

Far too many people jump into the meat market of web 2.0 thinking it will make the cool, relevant, and part of the in crowd.

Re:With all due respect to our Canadian neighbors (1)

Jurily (900488) | more than 5 years ago | (#27198463)

it is a fabricated digital facade, a impression you wish to create of yourself to be viewed by others be they strangers or friends.

Yes. Just like the one he's trying to create in court.

Re:With all due respect to our Canadian neighbors (3, Interesting)

vux984 (928602) | more than 5 years ago | (#27198649)

The reality is though that facebook is not about your or anybody else's life, it is a fabricated digital facade, a impression you wish to create of yourself to be viewed by others be they strangers or friends.

vs the fabricated facade he and his lawyers are trying to present in court?

Everyone knows everyone in the courtroom is projecting an image they want bought.

If the the facade he offers up when not in court are much more caveleir about his accident, or are even contradicts the claims he's making in court, that should count against him.

Like the cliche about the guy who shows up in court in a wheelchair because 'he can't bear the pain of even walking' yet the insurance investigator catches him on the following weekend moving a fridge and playing ball hockey.

Or better still catching him bragging about the Swiss Alps skiing trip he's going to take with his 'soon to be paid out' settlement.

Do you also know that you can also use that illusory personal profile in court cases to your advantage, as long as it is suitable and carefully prepared over an extended period.

Yes. Of course. The criminal mastermind is truly hard to catch. Most criminals, however, aren't masterminds.

Re:With all due respect to our Canadian neighbors (1)

Leiterfluid (876193) | more than 5 years ago | (#27200567)

Seriously, though. Anything you share with third parties, even to a limited audience, can no longer be considered private. And somehow I doubt that his "close friends" were only his doctors, his lawyers, and his clergy. The privacy argument is a bullshit argument.

Re:With all due respect to our Canadian neighbors (1)

westlake (615356) | more than 5 years ago | (#27201465)

The reality is though that facebook is not about your or anybody else's life, it is a fabricated digital facade, a impression you wish to create of yourself to be viewed by others

The same could be said of the self image you create off-line.

People are careless. People are vain.

The more complicated and hastily improvised the lie the more likely it will expose some inconvenient truths.

Re:With all due respect to our Canadian neighbors (1)

packeteer (566398) | more than 5 years ago | (#27197695)

I think the lawyer is looking for the guy to say "oh man I am about to sit the pants off this sucker and go retire somewhere nice." I don't think they are going to try and decide how bad he REALLY felt based on what emoticons he used.

Re:With all due respect to our Canadian neighbors (1)

Beardo the Bearded (321478) | more than 5 years ago | (#27197999)

Or if he's got pictures of himself enjoying life.

"Oh, you're smiling in this photo. Clearly, watching your kids get run over didn't affect you at all."

Re:With all due respect to our Canadian neighbors (2, Insightful)

nurb432 (527695) | more than 5 years ago | (#27199161)

Sure, public information is fair game Watching you mow your grass, or cruise the mall.

But what abut watching you in your house? That is private. Why is this not also private ? The 'its on the public internet so live with it' argument shouldn't apply as you specifically marked it private.

Its not much different then reading others emails 'because its on the internet'...

Re:With all due respect to our Canadian neighbors (1)

Anonymous Brave Guy (457657) | more than 5 years ago | (#27200207)

But what abut watching you in your house? That is private. Why is this not also private ?

Because it is directly relevant to a case being heard in a court of law.

I'm a firm believer in privacy rights and limiting government powers to investigate someone arbitrarily. However, for any justice system to function effectively, there must be some means of investigating the truth or otherwise of a claim as part of due process. In most of our countries today, this happens via a case being heard in court, and we give that court special privileges that Joe Public does not have so that it can carry out its duties.

See also search warrants, authorisations to intercept communications, and similar things that (in sane countries without the excessive government powers of arbitrary investigation) require a court order, but are legal with judicial oversight.

Re:With all due respect to our Canadian neighbors (1)

nurb432 (527695) | more than 5 years ago | (#27200293)

I still disagree. It was marked private by the owner, it should remain as such. Any thing less borderlines on self-incrimination which is prohibited here in this country.

Now, if its public facing pages, by all means use it in court.

Re:With all due respect to our Canadian neighbors (1)

Anonymous Brave Guy (457657) | more than 5 years ago | (#27200863)

I don't think your position is unreasonable in itself; after all, if we had the ultimate ability to invade privacy by reading minds, would we want to allow that as evidence in court, and if so, with what safeguards about anything else that might be encountered while collecting evidence? However, in this case, it sounds like the guy is arguing that he's suffering in some way that isn't necessarily externally observable, so if you can't look at evidence relating to his private thoughts, it's hard to see how it's fair to side with him in the case...

Re:With all due respect to our Canadian neighbors (1)

penix1 (722987) | more than 5 years ago | (#27200269)

It's called discovery and both sides are entitled to it. If discovery is found to not be pertinent, then that discovery is discarded as non-responsive. That doesn't mean you can hide discovery and in fact if you do things can go heavily against you for spoliage. This goes doubly for corporations such as Facebook:

http://www.law.com/jsp/article.jsp?id=900005516406 [law.com]

Re:With all due respect to our Canadian neighbors (2, Funny)

MrNaz (730548) | more than 5 years ago | (#27197475)

Are you telling me that my conclusion that Slashdot members are actually anthropomorphised vegetables is unfounded?

Re:With all due respect to our Canadian neighbors (3, Funny)

pbhj (607776) | more than 5 years ago | (#27200239)

I was trying to think how an anthropomorphised vegetable would reply so I could make a witty retort, but I couldn't.

I'm not sure if that means I did or not.

The mind of a vegetable is too complex.

Re:With all due respect to our Canadian neighbors (1)

Beachboundme (1500875) | more than 5 years ago | (#27197921)

Innocuous and Meanlingless parts of our daily lives might need to be rethought, revamped....Which is to say that people might begin to be more responsible and thoughtful about the vocabulary flying out of their mouths in all arenas. Kids mean every word they say. Most adults don't claim ownership for anything they say. The global community might benefit from a little more ownership and personal responsibility in the long run. Let's not hide and create B.S. in such a crowded world, yes?

Re:With all due respect to our Canadian neighbors (0)

Anonymous Coward | more than 5 years ago | (#27198635)

Is there not a fine line separating on the one hand the admirable acceptance of personal responsibility (on-line persona and/or real-world life) and the implicit court- and lawyer-enforced personal censorship on the other? Will creativity be stifled in the on-line world? Will there come a time when, as noted in a post above, personal publicists are hired to put forward the very best squeaky clean and highly polished image at the expense of fact and personal expression? Will there come a time when no one can tell the difference between the good, the bad, the ugly, and the outright douche bags on line? That time seems almost here. Just like in real life. Ummm . . . personal publicists hired by everyone to micro-tailor the best image possible . . . smell a lucrative business opportunity there. . . Slashdotters, everyone up to a little creative writing? Oops, a little *more* creative writing?

Re:With all due respect to our Canadian neighbors (0)

Anonymous Coward | more than 5 years ago | (#27198661)

uhhh yeah, like what he said

Current Mood: Screwed (0)

Anonymous Coward | more than 5 years ago | (#27197277)

Employment : Never.

You have:
A: Exposed yourself on the internet,
B: Been spotted drinking,
C: Poor choice in background images,
D: All or none of the above.

Re:Current Mood: Screwed (0, Offtopic)

Hurricane78 (562437) | more than 5 years ago | (#27197391)

Why would any independed person work for the idiots that run pretty much every single company out there??
Who wants to realize the ideas of others and be a passive tool that will fade into irrelevance, with all the credit going to them, when they get a lucky hit, or you forced them to work on one of your ideas?

Nah. I am *very very happy* that I am self-employed, or however you call that in English, when you do not have to do what any boss or client tells you. (I happen to have the luck of having people who like to pay money for what I like to do. And I recommend to anyone, to find these things too.)

Re:Current Mood: Screwed (1)

timmarhy (659436) | more than 5 years ago | (#27197643)

thats nice for you while it lasts. but as you said, it's luck, so not many people are going to be so lucky.

Re:Current Mood: Screwed (0)

Anonymous Coward | more than 5 years ago | (#27197705)

Nah. I am *very very happy* that I am self-employed, or however you call that in English, when you do not have to do what any boss or client tells you. (I happen to have the luck of having people who like to pay money for what I like to do. And I recommend to anyone, to find these things too.)

Well thats all well and good, but what happens if the next guy you, uh, meet happens to be undercover vice????

Re:Current Mood: Screwed (1)

WCguru42 (1268530) | more than 5 years ago | (#27198279)

... when you do not have to do what any boss or client tells you.

That first part makes sense but I'm intrigued by how you manage to have a business where you don't listen to your clients.

What about emails between friends? (2, Funny)

Anonymous Coward | more than 5 years ago | (#27197281)

Can the courts require that relatives and friends turn over data to the court? Why not just require every contact the suspect or defendant has turn over "pertinent data including email, voicemails, contact lists, letters, bank accounts and personal ties?

If I ever got in trouble Kevin Bacon would go down.

Re:What about emails between friends? (3, Funny)

saiha (665337) | more than 5 years ago | (#27197721)

By "friends", do you mean people I've raided with on WoW?

Re:What about emails between friends? (1)

pbhj (607776) | more than 5 years ago | (#27200245)

It's actually an interesting question - friends 2.0 would be the people you spend your leisure time with, whether your rl friends or not.

Re:What about emails between friends? (2, Insightful)

Peyna (14792) | more than 5 years ago | (#27197905)

Typically, in the U.S at least, discovery requests must be reasonably calculated so as to result in the discovery of evidence relevant to the issues in the case. So, if you have good reason to believe that the person's e-mail, voice mail, etc. might contain something relevant to the lawsuit, you are entitled to it.

"The public has the right to every man's evidence." - Many sources, no idea which is the original.

Re:What about emails between friends? (1)

AmiMoJo (196126) | more than 5 years ago | (#27199165)

More to the point, how will they know that what the guy prints off for them is really what was on there? Say he deletes anything he doesn't want them to see - short of requiring Facebook to hand over the historical data (which they do keep), this just seems like an opportunity for the accuser to produce pages and pages of sob stories and complaints about crash related injuries.

*BSD is Dying (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27197289)

It is now official. Netcraft confirms: *BSD is dying

One more crippling bombshell hit the already beleaguered *BSD community when IDC confirmed that *BSD market share has dropped yet again, now down to less than a fraction of 1 percent of all servers. Coming on the heels of a recent Netcraft survey which plainly states that *BSD has lost more market share, this news serves to reinforce what we've known all along. *BSD is collapsing in complete disarray, as fittingly exemplified by failing dead last [samag.com] in the recent Sys Admin comprehensive networking test.

You don't need to be the Amazing Kreskin [amazingkreskin.com] to predict *BSD's future. The hand writing is on the wall: *BSD faces a bleak future. In fact there won't be any future at all for *BSD because *BSD is dying. Things are looking very bad for *BSD. As many of us are already aware, *BSD continues to lose market share. Red ink flows like a river of blood.

FreeBSD is the most endangered of them all, having lost 93% of its core developers. The sudden and unpleasant departures of long time FreeBSD developers Jordan Hubbard and Mike Smith only serve to underscore the point more clearly. There can no longer be any doubt: FreeBSD is dying.

Let's keep to the facts and look at the numbers.

OpenBSD leader Theo states that there are 7000 users of OpenBSD. How many users of NetBSD are there? Let's see. The number of OpenBSD versus NetBSD posts on Usenet is roughly in ratio of 5 to 1. Therefore there are about 7000/5 = 1400 NetBSD users. BSD/OS posts on Usenet are about half of the volume of NetBSD posts. Therefore there are about 700 users of BSD/OS. A recent article put FreeBSD at about 80 percent of the *BSD market. Therefore there are (7000+1400+700)*4 = 36400 FreeBSD users. This is consistent with the number of FreeBSD Usenet posts.

Due to the troubles of Walnut Creek, abysmal sales and so on, FreeBSD went out of business and was taken over by BSDI who sell another troubled OS. Now BSDI is also dead, its corpse turned over to yet another charnel house.

All major surveys show that *BSD has steadily declined in market share. *BSD is very sick and its long term survival prospects are very dim. If *BSD is to survive at all it will be among OS dilettante dabblers. *BSD continues to decay. Nothing short of a miracle could save it at this point in time. For all practical purposes, *BSD is dead.

Fact: *BSD is dying

Re:*BSD is Dying (4, Funny)

countvlad (666933) | more than 5 years ago | (#27197301)

2000 called, they want their troll back.

Re:*BSD is Dying (1)

Eternal Vigilance (573501) | more than 5 years ago | (#27197977)

The 90's called, they want their overused David Spade line back.

[Edit] Sorry, my mistake, that call was actually the 80's pranking the 90's, the 90's don't really want that line back. ;-)

Re:*BSD is Dying (0, Offtopic)

mysidia (191772) | more than 5 years ago | (#27197357)

This is an example of why some stuff (like Facebook private pages), should simply stay private, and courts should not be permitted access to it in any just society.

The simple fact, that random pokes and posts on walls can be plain wrong.

Much like this one. FreeBSD never had anything to do with BSDI, and it's not dying.

MacOS X market share has increased from 6% to above 8% in the past 18 months, and every copy of OS X contains BSD.

The iPhone is also a very popular handset and contains embedded Darwin-based BSD kernel.

BSD usage continues to grow, especially in countless embedded applications, including virtual appliances like SpamTitan, and enormous numbers of pfSense and m0n0wall installs all over the world.

Re:*BSD is Dying (0)

Anonymous Coward | more than 5 years ago | (#27199399)

When it comes to the subject of operating systems, most of us can agree on at least one thing, and that is the simple plain truth that *BSD is dying. But the deeper question is why? Why did *BSD fail?

Once you get past the fact that *BSD is fragmented between a myriad of incompatible kernels, there is the historical record of failure and of failed operating systems. *BSD experienced moderate success about 15 years ago in academic circles. Since then it has been in steady decline. We all know *BSD keeps losing market share but why? Is it the problematic personalities of many of the key players? Or is it larger than their troubled personae?

The record is clear on one thing: no operating system has ever come back from the grave. Efforts to resuscitate *BSD are one step away from spiritualists wishing to communicate with the dead. As the situation grows more desperate for the adherents of this doomed OS, the sorrow takes hold. An unremitting gloom hangs like a death shroud over a once hopeful *BSD community. That hope is long gone, replaced by an inconsolable despair. A mournful, plaintive nostalgia has settled in. Now is the end time for *BSD.

I'm not overly concerned (5, Insightful)

LKettle (1492341) | more than 5 years ago | (#27197307)

From what I understood from this article, and a surprisingly poorly written one for a newspaper imo, is simply that their private facebook postings maybe relevant to a civil court case, and they'll have to provide them to the other side.

I don't see any problems here. In reading groklaw over the years I was surprised at the level of disclosure IBM and SCO had to provide eachother, whole servers of data were exchanged.

The moral of the story and a good example in the article: If you're on disability and post pics of yourself skiing on your facebook, even only visible to 'friends', don't be surprised if it comes back to bite you in the ass.

Re:I'm not overly concerned (1)

Shadow of Eternity (795165) | more than 5 years ago | (#27197329)

This is pretty much what I thought. A friends-only posting somewhere is no more inherently private than a conversation had between friends without anyone else present.

Re:I'm not overly concerned (1)

Mad Merlin (837387) | more than 5 years ago | (#27197407)

This is pretty much what I thought. A friends-only posting somewhere is no more inherently private than a conversation had between friends without anyone else present.

Actually, it's substantially less private. Most in person conversations aren't digitally recorded and kept until the end of time.

Re:I'm not overly concerned (1)

machine321 (458769) | more than 5 years ago | (#27197577)

Most in person conversations aren't digitally recorded and kept until the end of time.

Sure they are. They have to be, since not all calls go through that AT&T box.

Re:I'm not overly concerned (1, Informative)

Anonymous Coward | more than 5 years ago | (#27197429)

From what I understood from this article, and a surprisingly poorly written one for a newspaper imo

This is the Toronto Star. While it happens to be the largest newspaper in Canada by circulation, this is only because Toronto is the largest city.

The Star is a left-wing paper that has been bleeding money for years. The Star has been a dedicated supporter of the Liberal party for years. The only reason the Star hasn't gone bankrupt is they also own Harlequin Enterprises, which publishes trashy romantic fiction.

Re:I'm not overly concerned (3, Funny)

icepick72 (834363) | more than 5 years ago | (#27197611)

Well "imo" doesn't constitute a well written comment in my opinion... so now you're even with the newspaper.

Ya well (5, Insightful)

Sycraft-fu (314770) | more than 5 years ago | (#27197375)

If you post it online, you should assume anyone can see it. None of these minor protections like "friends only" are any sort of serious impediment. Online is where things go to be seen by the world. So, if you aren't comfortable with it getting out, don't post it. That's not to say you can't make use of privacy settings, just don't count on them to keep everyone out.

If something is private, keep it off websites and other such things. If something is really private, keep in encrypted and/or stored in a secure location (like a good safe). If something is really, really private, don't have a record of it at all, keep it just in your head.

Re:Ya well (0)

Anonymous Coward | more than 5 years ago | (#27197669)

So, I suppose anything I throw in the garbage is property of the world because I pretty much threw it outside where everyone in the world can see it, eh?

Re:Ya well (3, Informative)

nextekcarl (1402899) | more than 5 years ago | (#27197729)

Yeah, and there have been cases about just this already (maybe not Canada, but here in the US) from what I recall. I think it was decided (IIRC) that once it that once it hits the curb it becomes fair game. Of course, IANAL.

Re:Ya well (0, Redundant)

DarkOx (621550) | more than 5 years ago | (#27199047)

yes that has been more or less legally established!

Re:Ya well (1)

saiha (665337) | more than 5 years ago | (#27197737)

While that is true, it greatley decreases the usefulness of the internet. While I don't know if there is a way to avoid it, continuous demanding (and subsequent acquiescing to the demand) of data is harmful to society.

Re:Ya well (1)

HoustonB (1499767) | more than 5 years ago | (#27197841)

You are ignoring p2p networks like FreeNet, where files are encrypted and highly fragmented with the intention of guaranteeing anonymity - to facilitate free speech in oppressive regimes like China and to a lesser extent the USA.

In the USA for example a court can compel you to provide a decryption key, failure to do so resulting in contempt of court charges. There is little plausible deniability for something the authorities pull from your safe.

Re:Ya well (2, Insightful)

icebike (68054) | more than 5 years ago | (#27198109)

In the USA for example a court can compel you to provide a decryption key, failure to do so resulting in contempt of court charges.

I don't believe you have that part exactly correct.

The only case I am aware of involved Border searches of a laptop, where the suspect cooperated and volunteered SOME information but balked at providing the decryption key.

Once you waive your right to refuse self incrimination you can not un waive it for certain acts only.

When asked what's on your lap top the best answer is to simply plead the 5th and refuse to answer anything more. Don't show your soft porn and then expect to hold back the good stuff.

IANAL, but that is essentially what I read in the MSM on this issue.

Re:Ya well (1)

HoustonB (1499767) | more than 5 years ago | (#27198423)

I agree that one cannot switch course midway and as per the Oliver North case, it is best to adopt the 5th from the get go.

My reply to the original post was aimed at: "If something is private, keep it off websites and other such things. If something is really private, keep in encrypted and/or stored in a secure location (like a good safe)."

Keeping things encrypted or in a safe location (like a safe) is inadequate.

I agree with only the final sentence: "If something is really, really private, don't have a record of it at all, keep it just in your head."

The United States Supreme Court has squarely held that the Fifth Amendment privilege deflects any official compulsion to answer incriminating questions until after immunity has been granted.

In the case of a private key, the immunity is extended only to the content of the key itself. So if the key is comprised only of digits then the immunity is not worth much. On the other hand if the key is "iKilledMyMother01.12.1972", then that is what the immunity covers, it does not also include the content of any incriminating files that one has possession, custody or control over.

Re:Ya well (2, Informative)

icebike (68054) | more than 5 years ago | (#27198471)

> In the case of a private key, the immunity is extended only to the content of the key itself.

Nope, thats far too narrow.

If you are given immunity it will be transactional immunity or Use immunity.

Transactional means the testimony and any evidence obtained via the testimony can't be uses in THIS proceeding.

Use immunity means it can be used against you at ALL for any future proceedings.

It has never been suggested (except by you) that the actual digits of the key are the only thing immunized, thats just totally bogus. Immunity covers the actual testimony and any evidence derived or developed from that testimony.

Re:Ya well (0)

Anonymous Coward | more than 5 years ago | (#27198969)

Keeping things encrypted or in a safe location (like a safe) is inadequate.

It always depends on what you want to achieve. Nothing will protect you if your government goes rogue. So the only option is to prevent that case, it is stupid to prepare for that case.

If they can order you to give them the key to some safe or encrypted file that order is your problem. I can see valid reasons for that. But if you see some case where that is practiced and not justified you should do something about that, not your encrypted data.

Hiding from the government is useless. Either you prevent that they are allowed to come get you or they will get you.

Re:Ya well (1)

icebike (68054) | more than 5 years ago | (#27198089)

If you post it online, you should assume anyone can see it. None of these minor protections like "friends only" are any sort of serious impediment.

Apparently in this case the impediment is sufficient to force the vic to answer questions under oath.

I suspect cross-boarder issues prevents the Canadian court from simply getting a warrant for Facebook to produce the page, or they suspect the pages in question may be already taken down.

Re:Ya well (1)

bloodninja (1291306) | more than 5 years ago | (#27198947)

If something is really, really private, don't have a record of it at all, keep it just in your head.

That didn't work so well for the developers of Fogbank [slashdot.org] .

Re:Ya well (3, Interesting)

DarkOx (621550) | more than 5 years ago | (#27199021)

Exactly right, its like mother always said never write something down unless you expect others to read it. Anytime you record anything anywhere on any medium you invite the possibility someone else will view it. If that is not ok then don't record it; encrypted or not.

Re:Ya well (1)

DarkOx (621550) | more than 5 years ago | (#27199033)

Part of me thinks all this encryption software poses a certain danger. Most users my self included are not cryptography experts. How can we be sure sound practices of around key management, avoidance of enciphering known texts such as control information are being used? Even encryption does not mean its automatically safe to go writing down any old secret.

If you don't want it viewed by others don't write it down.

Re:Ya well (1)

AmiMoJo (196126) | more than 5 years ago | (#27199177)

The parent makes a good point. If you write something down, in a letter, email, memo or anywhere, it can be later used for/against you in a court of law.

Re:Ya well (0)

Anonymous Coward | more than 5 years ago | (#27199185)

If you post it online, you should assume anyone can see it. None of these minor protections like "friends only" are any sort of serious impediment./p>

If access controls aren't relevant, then the entire contents of your hard drive are "posted online" every time you connect to the Internet. Access controls do matter, and if they are ineffective, then the problem is that they are ineffective, not that the person was foolish in putting them online.

Net escapism (1)

Aerynvala (1109505) | more than 5 years ago | (#27197405)

I don't know about this guy, but when my life is being crappy I tend to escape to the net. So online I'll appear happier than I would in person because I'll be consciously focusing on doing things that don't remind me of the crap I'm going though. *shrugs* Of course, if I'm in the middle of a lawsuit I'm not going to be a moron and post things on the internet that would contradict what I'm suing for.

Re:Net escapism (1)

GravityStar (1209738) | more than 5 years ago | (#27197741)

Agreed. Instead of posting "Jesus H. Christ, my head hurts, I can barely move my shoulder anymore and just now my wife needed to help me to the toilet." I would post something like "Yaaaay, let's go and have some fun tonight!"

Bitching about how crappy your life is or has become isn't really something you do on a social networking site, unless of course you want pity.

Discovery (5, Informative)

Kirijini (214824) | more than 5 years ago | (#27197419)

Duh!

Its called discovery.

I don't know about canadian laws, but in the US, any documents relevant to a lawsuit can be sought a party to the suit, even from non-parties from facebook, and this can be backed up by a court with a subpoena.

Its all in the Federal Rules of Civil Procedure.

F.R.C.P. 26(b)(1): "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense"

F.R.C.P. 34(1)(a): "A party may serve on any other party a request within the scope of Rule 26(b) ... to produce ... any designated documents or electronically stored information"

F.R.C.P. 45 covers subpeonas.

Basically, the rules are: if its relevant to the suit, and not privileged (like spousal privilege or 5th amendment self incrimination rights), it can be sought by a party. Even private letters to friends. That this information was published to friends on an online service probably means that any privilege the material had was waived.

If you have evidence, you may be compelled to produce it. This shouldn't shock anybody - our justice system won't work without it. Whether or not it's "private" doesn't matter except as provided in the rules or protected by law as "privileged" material.

Finally - its right there in the facebook privacy policy: "We may be required to disclose user information pursuant to lawful requests, such as subpoenas or court orders, or in compliance with applicable laws."

Re:Discovery (5, Interesting)

Shihar (153932) | more than 5 years ago | (#27197457)

I really don't see why this is news worthy myself. So a court ordered someone to hand over private documents... this happens all the time. The fact that it is stuff posted on the quasi private Facebook doesn't really change much. If the government demanded that Facebook hand over its entire database to search for terrorist, I would be concerned. The fact that someone who is being sued is getting their Facebook page opened up as apart of normal evidence gathering is unremarkable.

People... if you are breaking a law, don't post it on Facebook and assume that the magic of the internet will keep it from the authorities.

Re:Discovery (3, Informative)

MicktheMech (697533) | more than 5 years ago | (#27197691)

I agree, this seems very normal. It might have caught my ire if they tried getting the data from a third party (e.g. Facebook), but they're going through a party to the action with the discovery process. The system is working as intended. Nothing to see here, move along.

Re:Discovery (3, Insightful)

GrantRobertson (973370) | more than 5 years ago | (#27197483)

I agree. This is a non-story. Some people just can't get over the notion that "cyberspace" is a separate dimension where the only reality that exists is the one they want to exist. As much as I love the internet, it is only a means of communication. Vastly complex communication, but communication nonetheless. And it is subject to the same laws that already govern communication between individuals or groups.

Seperate reality? (1)

phorm (591458) | more than 5 years ago | (#27198125)

Well, my question would be, if you had been writing a bunch of letters to friends/family/etc, could the supeona those in a civil trial

The internet *is* a different reality, but not necessarily in a good way. In real-life, every little thing you do isn't as likely to be logged away waiting for somebody to dig up the sordid details of your life...

Re:Discovery (1)

BlueBoxSW.com (745855) | more than 5 years ago | (#27197699)

Thank you for saving me a lot of typing. :-)

Re:Discovery (1)

Torodung (31985) | more than 5 years ago | (#27198123)

But not if you have self-incriminating evidence. You can't be compelled to provide that under fifth amendment protections. Discovery be damned.

The really relevant problem is once it's on Facebook's servers, it's no longer you being compelled to give the evidence, it's Facebook.

Sounds like the perfect end run around the fifth amendment.

Don't put anything you wouldn't want the whole world to see into "the cloud."

--
Toro

Re:Discovery (2, Insightful)

Paradise Pete (33184) | more than 5 years ago | (#27198395)

But not if you have self-incriminating evidence. You can't be compelled to provide that under fifth amendment protections. Discovery be damned.

This is a lawsuit, not a criminal trial. No protection.

Re:Discovery (1)

MicktheMech (697533) | more than 5 years ago | (#27200329)

That protection doesn't exist in Canada.

Re:Discovery (1)

icebike (68054) | more than 5 years ago | (#27198149)

Did you read the story, or even the summary?

1) its in Canada, not the US. So grandstanding post of FRCP means nothing.

2) Nothing is being subpoenaed. He is being asked to testify about what he had in his pages, not to produce those pages.

I don't know if Canada has the equivalent of the 5Th amendment, but this tactic would never work in the US. They can go for the originals and subpeona facebook, but you can't make the man testify against himself.

In Canada, it appears that he CAN be made to testify against himself.

Re:Discovery (2, Informative)

canajin56 (660655) | more than 5 years ago | (#27198317)

Canada does have a 5th amendment equivalent. You cannot be compelled to testify at your own trial, at least not to anything related to the charge. However, if issued a subpoena for somebody else's trial, you must give testimony, even if it implicates you in a crime. That testimony cannot be used against you in another trial though. Unless its a trial for perjury, of course.

But this person is not being charged with a crime. And he won't be, not unless something on his facebook page show's he's outright lying under oath. What it might do is look bad. But even in the states I don't think the 5th protects you from being compelled to give testimony that might damage your civil case! "You say you are miserable all the time" "yes" "Here you are dancing in a youtube video. where you miserable then?" "FIFTH!" I don't think so...

Re:Discovery (2, Interesting)

icebike (68054) | more than 5 years ago | (#27198401)

> I don't think the 5th protects you from being compelled to give testimony that might damage your civil case!

The fifth only applies in criminal cases. However, if you are forced to testify in a civil case and thereby lay the groundwork for a follow-on criminal case (fraud, say) you can demand a "use immunity" hearing, preventing any use of the testimony or related evidence derived there from in subsequent criminal cases.

Criminal cases usually go to trial first in the US, precisely because the state does not want the evidence spoiled by blurting it out in a civil case with or without a use immunity.

In Canada, it appears that there are even stronger protections. You could confess to murder in traffic court and maybe get away with it. At least that's how I read it, but again IANAL.

http://en.wikipedia.org/wiki/Section_13_of_the_Canadian_Charter_of_Rights_and_Freedoms [wikipedia.org]

So .... ? (0)

Anonymous Coward | more than 5 years ago | (#27197435)

This is a civil case. There is no protection against self-incrimination. Almost anything is discoverable.

The plaintiff isn't allowed to go on a 'fishing expedition' but, as long as the desired evidence might be relevant, the defendant has to produce it. This case is no different.

The only communication that is protected is that with one's lawyer or priest. Close friends on Facebook certainly don't count as protected.

Re:So .... ? (1)

tomhudson (43916) | more than 5 years ago | (#27197661)

The only communication that is protected is that with one's lawyer or priest. Close friends on Facebook certainly don't count as protected.

What if his lawyer is among the "friends", and privileged communications were taking place in a setting where only people who were giving him advice (his lawyer) and other privileged support (his psychologist) had access to them?

The defendant can plead that. (0)

Anonymous Coward | more than 5 years ago | (#27197791)

The plaintiff can demand discovery but the court doesn't have to grant it. If the court doesn't think the evidence is relevant or if the court does think the evidence is a protected communication, the court won't order that the evidence be produced.

Discovery can be used as a way to harass a defendant and the courts are aware of this. I have seen at least one case where one company sued another and demanded discovery of trade secrets. The defendant made the case that the discovery was a 'fishing expedition' and the judge agreed. Sadly, though, the technique often works and defendants settle because they can not afford the lawyer bills. In the case I mention, the loss of the trade secrets would have put the defendant company out of business.

Re:So .... ? (0)

Anonymous Coward | more than 5 years ago | (#27197923)

If it is privileged, he doesn't hand it over and tells the other party it's privileged. If the other party disagrees, they go to the judge and try to compel discovery with a court order. (Judge may review the documents first if it gets this far). Alternatively, the party the documents are sought from seeks a protective order. Either way, if it's privileged, it's not getting handing over in discovery.

However, he may have waived privilege re: his shrink, if he is suing his shrink, or is seeking recovery for psychological damages and saw the shrink about the injuries for which he is seeking recovery.

Re:So .... ? (1)

DavidTC (10147) | more than 5 years ago | (#27198001)

Actually, no.

Confidentiality is only between the two people. If someone and their lawyer are sitting in front of me on the bus talking about their case, and I overhear them, nothing stops me from being subpoenaed and forced to testify in court as to that conversation.

Likewise, if someone is talking on facebook to their lawyer, 'facebook' is obviously keeping a record of that conversation, and can be forced to reveal it in court, even while they cannot be forced to.

Although, strictly speaking, that's actually what the court is forcing him to do, forcing him to reveal it. Presumably, if there was a lawyer involved, it couldn't do it this way, and would have to contact facebook directly.

Someone's about to say 'What about phone calls?'. Wiretapping is illegal, even by the phone company, and even if it wasn't, they still don't do it, so can't be forced to turn over records.

OTOH, the records they do have, like who you call and when, they can be forced to turn over, even records of you calling your lawyer, which technically can be considered privileged information, in that lawyers can't be forced to reveal it, but rather moot as, duh, it's easy to get from other people.

Re:So .... ? (1)

tomhudson (43916) | more than 5 years ago | (#27199361)

Confidentiality is only between the two people. If someone and their lawyer are sitting in front of me on the bus talking about their case, and I overhear them, nothing stops me from being subpoenaed and forced to testify in court as to that conversation.

Nope, bad analogy.

On the bus, there's no expectation of privacy.

When you limit stuff to only a small group, it's by definition non-public.

Confidentiality is definitely more than one-on-one - otherwise, a person couldn't talk to a legal team composed of more than one lawyer.

Re:So .... ? (1)

DavidTC (10147) | more than 5 years ago | (#27200005)

It doesn't have anything to do with an expectation of privacy. If I hear a discussion, and I am not your lawyer, I can compelled to testify as to it. It doesn't matter whether or not you 'expected' me to hear it. Now, if I behaved illegally to overhear it, such as via an illegal wiretap or trespass laws, my testimony can possibly be thrown out on those grounds, but that's not attorney privilege.

Multiple lawyers is just multiple instances of attorney confidentiality. And it's not more than one-on-one, it's that people covered under privilege don't have to reveal any of the conversation.

I.e., client attorney privilege keeps the client or the attorney from having to speak about it at all, even parts not involving the client or attorney. Multiple attorneys or multiple clients don't change anything...the conversation is privileged for all of them and they can't be compelled to reveal it.

However, it does not extend to other people who can hear or participate in the conversation, unless they are also clients or (someone involved in the converstation's) attorneys, and they can be forced to testify as to everything.

Re:So .... ? (1)

icebike (68054) | more than 5 years ago | (#27198163)

Civil or not, if it were in the US you can still plead the 5th.

After all if the content of said pages reveals that his enjoyment of life was in fine fettle after the incident, then he is committing fraud/perjury with his claim.

Did you see the Goldmans successfully force OJ to produce the knife?

Re:So .... ? (1)

Paradise Pete (33184) | more than 5 years ago | (#27198421)

Civil or not, if it were in the US you can still plead the 5th.

That's only true if by testifying or producing evidence you open yourself up to subsequent criminal charges. It can't be used simply to avoid losing a lawsuit.

Rules of Civil Procedure (3, Informative)

debrain (29228) | more than 5 years ago | (#27197543)

The Rules of Civil Procedure [canlii.org] govern this case. There's nothing new about this case, per se. Anything published on Facebook is a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding rare exceptions for such as solicitor-client privilege) by the person with control over it.

The relevant section governing documentary discovery is Rule 30. Rule 30.01 defines "document", and 30.02 places an obligation on a party to make appropriate disclosure of all relevant documents. The curious can read more about a report on electronic discovery in the Ontario Bar Association's guidelines (pdf) [oba.org] (see also OBA "e-discovery" [oba.org] ), and a e-Discovery web-site [umontreal.ca] .

I've reproduced cited excerpts of Rule 30, here:

RULE 30 - DISCOVERY OF DOCUMENTS

INTERPRETATION
30.01 (1) In rules 30.02 to 30.11,
(a) "document" includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form; and
(b) a document shall be deemed to be in a party's power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.

SCOPE OF DOCUMENTARY DISCOVERY
Disclosure
30.02 (1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

There are some interesting scenarios related to Sedona obligations, namely the obligation to not destroy or delete electronic documents once a party has been advised of the potential relevance of certain electronic documents.

Re:Rules of Civil Procedure (1)

debrain (29228) | more than 5 years ago | (#27197571)

The first paragraph would be better if it read:

The Rules of Civil Procedure [canlii.org] govern the procedure in this case. There's nothing new about this case, per se. Anything published on Facebook that is relevant to a proceeding is considered a relevant document, and the laws of Ontario oblige disclosure (even if that document was private, notwithstanding exceptions such as solicitor-client privilege) by the person with control over it.

Re:Rules of Civil Procedure (1)

icebike (68054) | more than 5 years ago | (#27198171)

If it were as cut and dried as you seem to suggest they would simply subpeona the pages.

Instead they are asking him to testify about those pages.

Maybe because Facebook is located in the US, or maybe because they already hacked in and know what was there but by doing so they committed a crime, or maybe because the pages are already taken down and all they have is hear-say as to their content.

But by forcing the guy to testify they are going for self incrimination, and THAT is the wrinkle that makes this case interesting to US audiences, who find this odd without reading the article closely enough to realize its Canada.

Re:Rules of Civil Procedure (1)

Paradise Pete (33184) | more than 5 years ago | (#27198409)

But by forcing the guy to testify they are going for self incrimination

It's a lawsuit. It would be the same in the US. It happens to be on Facebook, but if instead the guy had, for instance, videos of himself doing cartwheels, and the other side found out about them, then they could demand that he produce them.

Facebook? (4, Funny)

InsertWittyNameHere (1438813) | more than 5 years ago | (#27197561)

We all know they should evaluate his porn downloads, not Facebook, to get an accurate assessment of the impact to his enjoyment of life.

Pics and tags (1)

icepick72 (834363) | more than 5 years ago | (#27197603)

That chap had better hope the most exciting pictures posted on facebook are of him crawling across the floor ...

Why stop at facebook? (2, Funny)

Requiem18th (742389) | more than 5 years ago | (#27197867)

Why stop at facebook? I want his house raided, maybe he keeps a personal diary hidden in his daughter's room, camouflaged with flower stickers, stenographically encoded in valley speak.

Re:Why stop at facebook? (1)

tftp (111690) | more than 5 years ago | (#27198107)

A personal diary may be a privileged document because of possible self-incrimination. But the court can summon his daughter as a witness and ask if her dad looked happy or depressed on a certain date; and you don't need to raid the house for that.

Re:Why stop at facebook? (1)

Atrox666 (957601) | more than 5 years ago | (#27199079)

Don't worry they are just working out the kinks in the technology and they will be able to scan your memory with machines.
Then they won't need to search your home or Facebook just rifle through your most personal thoughts.
Of course you'll be able to opt out but that will play to the jury/judge about as well as pleading the 5th in the US.

I miss the old days when people who claimed the NSA were trying to read their thoughts with machines are crazy.
What I need is a tin foil turban I can claim I can't take it off for religious purposes. It works for NSA brain scans and Illuminati mind control satellites.

Re:Why stop at facebook? (1)

DaveV1.0 (203135) | more than 5 years ago | (#27199741)

Wow, could you be anymore of an idiot?

Facebook, MySpace, LiveJournal, etc. are NOT the equivalent of a diary. A diary is a private collection of private thoughts that are rarely, if ever, shared. Those websites exist to SHARE your thoughts and feelings and are not priviledged in any way. This is no different than subpoenaing the letters he sent to his penpals or even his friends to testify as to what he has done and said to them.

They wouldn't need to raid his house to get his diary. All they need to do is subpoena it. He is obligated by law to turn it over and refusal to do so would result in contempt of court.

And, if he has discussed his enjoyment of life before and after the wreck on Facebook or some other website, then the contents of his Facebook site are material to the case.

The solution to this problem (2, Interesting)

oftenwrongsoong (1496777) | more than 5 years ago | (#27198105)

The solution to this problem is very simple. After you have an accident, you go to your social profiles and document, as accurately and as specifically as possible, exactly how the accident affected you, including the specific areas of your body that have been affected, how much each area hurts on a scale of 1 to 10, what activities you find difficult or impossible following the accident, etc. Be sure to mention the related expenses that you are incurring. To add a dramatic flair, motion to quash the subpoena that asks to see your profiles and produce them begrudgingly when your motion is denied.

Alternately you should always write your profile entirely in 1337 5p33k so that if such a subpoena should ever come, the court will have to obtain an expert witness to translate the content. |\/|y L1f3 ha5 b3c0m3 teh suxx0rz!!

Should've known better (1)

StDoodle (1041630) | more than 5 years ago | (#27198583)

First off, if he's posting about how much fun he's been having, he should have known better; more to the point, his lawyer should have warned him not to. When my mother was involved in a lawsuit many years ago, she was advised to do, basically, nothing. The problem is that not everyone is in a position where they can sit on the couch all day, and sometimes they must get up to do chores, even if it causes great pain. Unfortunately, when a PI takes video of a person doing various work (or even play; even people in pain have a psychological need to enjoy life at least a little), they tend to edit out the part where you quit every five minutes and break down, emotionally, in pain.

Privacy (1)

nurb432 (527695) | more than 5 years ago | (#27199145)

We have none.

Stay indoors and keep quiet. (1)

EWAdams (953502) | more than 5 years ago | (#27199857)

That's how you get privacy.

BTW, if Booth was a patriot, it only goes to show what's wrong with patriotism.

It's not private (3, Interesting)

Anita Coney (648748) | more than 5 years ago | (#27199201)

Under the law if you divulge secrets to third parties, they're no longer secrets. So if I write three friends about a secret, heck, even one friend, the state can subpoena those letters even though they were marked as private. The same is true of Facebook. Merely marking a Facebook page as private does not change the fact that it was used to give out information to third parties.

The only exception to this is if there is some sort of privilege. Such as when the third party is a priest or your therapist and is legally obligated not to divulge your secret. Then, there's an expectation of privacy that you keep. But if you tell your friends, it's discoverable under the law. And it's been this way for centuries.

Note to the internet generation: If you want to keep secrets, don't fricken tell anyone your secrets!

Why is this news? (0)

Anonymous Coward | more than 5 years ago | (#27201233)

Why is this even news? Attorneys routinely subpoena private documents that support their side and try to suppress documents that don't.

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