Facebook fights Virginia's demand for user data, photos
The state of Virginia has backed away from its attempts to force Facebook to divulge the complete contents of a user's account to settle a dispute over workers' compensation, narrowly avoiding what promised to be a high-profile privacy battle in federal court.
On Monday, the Virginia's Workers Compensation Commission said it was no longer going to levy a $200-a-day fine on the social-networking site for refusing to comply with a subpoena from an airline that previously employed a flight attendant named Shana Hensley.
Facebook had objected to the June 4 subpoena from Colgan Air--the Manassas, Va.-based company that operates under the names United Express, US Airways Express, and Continental Connection--on privacy grounds. It said federal law prohibits divulging user data in response to a subpoena, and promised to "further litigate this issue by seeking, among other things, an injunction from the federal courts."
In principle, this isn't a novel concept: employers and insurance companies have long used private investigators to ferret out fraud and show that someone who claims to be a virtual cripple actually participates in waterskiing competitions.
Because social-networking sites offer such information-rich glimpses into a person's private life, insurers and employers have begun eyeing them. A personal injury lawyer in Elmira, N.Y., noted in July that an accident victim claiming to be severely injured was, thanks to Facebook, revealed to be playing in soccer games. An article last week in Business Insurance said that social-networking sites revealed exaggerated claims of injuries from a judo instructor, a bowler, and a rodeo bronco rider.
In the Colgan Air case, Facebook says it's happy that privacy rights prevailed. "We're pleased with the outcome and that our users' information will be protected," said Facebook spokesman Barry Schnitt.
Colgan Air, which is owned by the publicly traded Pinnacle Airlines, initially paid Hensley's disability benefits that were related to a back injury while on the job (she was diagnosed with a herniated disc that did not want surgery). After about 18 months, however, Colgan Air claimed that Hensley was not cooperating with its efforts to find her a desk job and appears to have concluded that Hensley's holiday vacation photos posted on her Facebook account would demonstrate that any back problems were not severe.
The airline's June 4 subpoena from Virginia attorney Charles Midkiff (PDF) demands "all documents, electronic or otherwise, related directly or indirectly, to all activities, writings, photos, comments, e-mails, and/or postings" on Hensley's Facebook account.
Six days later, Facebook responded, saying that the request must come from a California court, and that it was "overly broad" because the federal Electronic Communications Privacy Act (ECPA) protects the privacy of user accounts. Midkiff, the airline's lawyer, replied by requesting a "contempt citation against Facebook" from the Virginia's Workers Compensation Commission.
Randolph Tabb, a deputy worker's compensation commissioner, granted it. On August 28, Tabb held Facebook in contempt for "a failure to comply" and ordered a $200-a-day fine "until such time as compliance is satisfied by the production of said documentation."
Facebook's response to Tabb sent last week says that "users such as Ms. Hensley rely on Facebook to protect their data and vigorously enforce the privacy decisions they make on Facebook." It adds: "Courts have interpreted the ECPA to prohibit services such as Facebook from producing a non-consenting subscriber's communications even when those communications are sought pursuant to a court order or subpoena."
Put another way: unless you change your mind, we'll see you in federal court.
It worked. Tabb backed down, reversing his previous ruling and fine, and claimed that Facebook should have made the full scope of its objections clear earlier.
James Szablewicz, Virginia's chief deputy worker's compensation commissioner, said in an interview on Monday that he didn't know of any other case involving Facebook that his colleagues have faced. "I think it's a pretty good chance that this is a case of first impression for us," he said.
Privacy advocates applauded Monday's decision, likening it to Google's mostly successful effort to fend off a subpoena from the Justice Department three years ago. Jim Dempsey, a vice president of the Center for Democracy and Technology, said: "Too often, lawyers in civil cases are turning to service providers like Facebook, AOL, and Google with fishing requests. The law is clear--service providers cannot turn over content in civil cases."
Kevin Bankston, a senior staff attorney at the Electronic Frontier Foundation, said the principles are similar to the one involving Apple Computer's efforts to unmask product leakers (the case is O'Grady v. Superior Court). "We were very glad to see that the rule of law we helped to establish in the O'Grady case is being used to ensure that Facebook content is not disclosed in violation of federal privacy statutes."
There's an ironic ending to this story. Julie Heiden, a Virginia personal injury lawyer representing the former flight attendant, Shana Hensley, said in an interview on Monday that the subpoena won't be necessary after all.
"We agreed to sign a release," Heiden said, meaning a document that authorizes Facebook to disclose the contents of Hensley's account to her former employer. "Shana has executed the release...She has nothing to hide."
Update 9/15/2009: Colgan Air spokesman Joe Williams says: "As you might expect, we do not comment on pending litigation."
Declan McCullagh is a contributor to CNET News and a correspondent for CBSNews.com who has covered the intersection of politics and technology for over a decade. Declan writes a regular feature called Taking Liberties, focused on individual and economic rights; you can bookmark his CBS News Taking Liberties site, or subscribe to the RSS feed. You can e-mail Declan at declan@cbsnews.com. 
then the network friend thing wont work
Yup, now if the shills can understand this concept we won't have to wade through their crying about the EU.
If that company has an issue with an employee - deal with it - with her.
Lazy-assed lawyers and "investigators" should be able to prove fraud without using Facebook.
It all could have been avoided if the woman had simply cooperated with them putting her in a desk position. Was she too good for that role, given the prior glamorous life of a pretzel-pushing seatbelt instructor? Was it getting in the way of her fabulous vacation? People try to skirt the system all the time, and there's nothing to praise about a victory that craps all over the hard, legitimate work of everyone else who has to carry these loser.
***? The woman has the same rights as the rest of us-even you. How about I ask cNet news for your home address so I can come visit?
You're in an awful hurry to give away my right sunder the law, and in quite a rush to convict this woman of insurance fraud without a shred of evidence. You can't protect my rights by giving away another's!
Why should FB make life easier for other corporations at the expense of its users?
Thanks to cyberspace we're more vulnerable than ever before. It's providers like Facebook and Google who are now at the forefront in protecting us from our "keepers". Let's continue sponsoring those that protect us from "the Watchmen".
For a refresher:
http://consumerist.com/5150175/facebooks-new-terms-of-service-we-can-do-anything-we-want-with-your-content-forever
It would have set a terrible precedent if companies were forced to hand over data in a civil case such as this. If this case had gone through it would effectively give companies the right to read any and all personal data of yours that was stored by another company. For example, suppose that somebody at work made an allegation that you were a racists were sexually discriminating against them, if this case had gone through it could have given your company the right to trawl through your private email, or maybe even your ISP records.
"Point of further contention. Kentucky, Massachusetts and Pennsylvania are also Commonwealths, not States."
That is not true. Commonwealths are also states. Like I stated earlier, if they are not states, then the Constitution would prevent them from having any electoral college votes for President & Vice President as well as loss of representation in the Congress. They would be just territories of the federal government like Washington D.C.. That's why the 23rd amendment had to be enacted for anyone living in D.C. to vote for president. Our Constitution was setup by the states for the states. It expressly states what powers the federal government has and what the states are restricted by.
I have no idea where this idea that Commonwealths are states came from, but it just goes to show how bad our government schools are when teaching our system of government.
I can tell you are not an employee of the Great Commonwealth of Virginia, cradle of liberty. Otherwise you would have already been indoctrinated by your boss on the superiority of a commonwealth form of governance. And, that Virginia has been, and always shall be referred to as a commonwealth rather than an accursed state. We may have lost the War of Northern Aggression and reluctantly rejoined the hated Union, but we shall take out our frustration on unsuspecting social networks.
I'm from northeast Tennessee, so I understand about the War of Northern Aggression. But, just because some states don't want to be called states, they are still by definition states. But like Renegade Knight said, "A rose by another name..."
- by exboyfriend October 3, 2009 4:58 PM PDT
- Well well well...the dirt we find on the people we've dated! Now this is a good one! This woman did get injured - however, she's been living large ever since! Just do a search on Shay Hensley - this is her nick on many sites and you will see that she preaches about health and wealth to others... yet she is sucking money from the insurance company and her sugardaddy, residing in a number of States, and is far from being disabled! I would never trust this woman again...and hopefully her karma is catching up!
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