Judge Orders Sex Plaintiffs to Hand Over Cellphones, Online Accounts
CREDIT: Shutterstock: Andrey Burmakin
A judge has ordered nearly two dozen women who are participants in a lawsuit alleging unlawful sexual harassment to hand over their cellphones, as well as login information for their email accounts, blogs and Facebook and other social-networking accounts.
The order was issued so that the defense may access photos, posts, emails, text messages and chat logs it deems relevant to the case.
The court order, issued by federal magistrate Judge Michael Hegarty in U.S. District Court in Denver on Nov. 7, cites as examples several items that were found on the Facebook profile of plaintiff Wendy Cabrera.
Cabrera was employed at an HoneyBaked Ham Company store in suburban Highlands Ranch, Colo., but was fired in 2010.
In September, the federal Equal Employment Opportunity Commission sued HoneyBaked Ham, alleging that Cabrera was fired for complaining that manager James Jackman had propositioned female employees, fondled them and commented on their appearances.
According to the court order, between 20 and 22 women have since joined the lawsuit as plaintiffs.
The court order notes that Cabrera's Facebook account included statements indicating that she expected to see financial reward from the case; a photograph of Cabrera wearing a T-shirt emblazoned with an obscenity she had claimed was offensive to her; writings on her post-employment situation and demeanor; and "self-described sexual aggressiveness."
"Should the outcome be different because it [the information] is on one's Facebook account [instead of stored elsewhere]?" the judge wrote in the order.
"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," he wrote.
"It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others."
The order requires that all plaintiffs joining in the EEOC lawsuit hand over "any cellphone used to send or receive text messages from January 1, 2009 to the present," as well as "all necessary information to access any social media websites" and "all necessary information to access any email account or web blog" used by the plaintiffs since Jan. 1, 2009.
The order elicited an outcry from technology blogger Eric Goldman.
"Requiring disclosure of passwords should be completely off the list," Goldman wrote. "Apart from the fact that this results in disclosure of or access to the entire contents of the account (including information that is not relevant or information that is covered by the Stored Communications Act) it may result in unwitting changes to the account."
Hegarty admitted that courts are only now figuring out how to grapple with the "thorny and novel issues" the Internet and social media bring up, but maintained that the intrusion was a necessary one, Sophos' Naked Security blog reported.
To mitigate concerns of snooping and meddling, Hegarty will put the data production work into the hands of a forensics expert.
Contrary to a widely held belief, the information you give to and store on third-party servers is not protected against unreasonable search and seizure as outlined in the Fourth Amendment outlines.
Unlike documents you have in a safe, which you own and are in possession of, documents stored in a cloud or remote server, such as Facebook photos, tweets and instant messages, are not protected by the Constitution.
"It doesn't necessarily matter if you thought you were handing over the information in confidence, or if you thought the information was only going to be used for a particular purpose," Supreme Court precedent dictates.
Once again, this case illustrates the unfortunate truth that what people do online isn't private. If you believe something you post online may land you in hot water or be used against you in the future, simply don't post it.
The manner in which users store information online does not enjoy the same protections as the information stored physically in homes or offices, and that's something worth remembering.