A New Jersey federal court ruled this week that “private” Facebook wall posts are covered by the Stored Communications Act (“SCA”). The SCA is a federal law that, among other things, prohibits unauthorized access of communications stored on the internet.
Deborah Ehling, a former Monmouth-Ocean Hospital Service Corp. nurse, posted comments on her Facebook wall about the paramedics’ handling of a shooting at the Holocaust museum in D.C. After the shooting, which killed a security guard, Ehling posted to her Facebook account: “An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference!” Ehling’s Facebook page had a privacy setting limiting access to only her Facebook friends, but one of her coworkers, a Facebook friend, took a screenshot of the post and sent it to the hospital. The hospital placed Ehling on paid suspension. She was later reinstated, took twelve weeks of leave and was terminated shortly after for not returning to work from her leave. Ehling sued the hospital claiming, among other things, that it violated the SCA by accessing her “private” Facebook page.
The court concluded that the SCA applied to Facebook wall posts when a user has activated his or her privacy settings. However, the court granted summary judgment for the hospital on the SCA claim based on the authorized user exception. Click here for Order. The hospital had received Ehling’s Facebook post in an unsolicited manner – from a coworker who was Facebook friends with Ehling. The employer thus did not violate Ehling’s privacy and did not violate the SCA.
Employers should be careful when mining for information about employees via social media. Asking an employee to find out information about a coworker on the coworker’s nonpublic, social media account can violate the SCA, exposing the company to potential criminal and civil penalties including attorney’s fees for plaintiffs.