One question is: who owns user-created content on a social network? Is it the person who posted the picture; uploaded the video; wrote on someone's wall? Or does the social network itself own this content?
What happens when a user closes her account? Is everything she created wiped off the network, or does some of it remain, perhaps on someone else's personal page? For example, if Mary had a back-and-forth public conversation with Bob, on Bob's personal page, and Mary closes her account, is the conversation erased from Bob's page? Or not? Or is Mary's part of the conversation deleted, while Bob's writings remain?
What about a court's request for evidence? Is a social network obliged to turn over data created by a user? Or does the court go to this user for the data?
There is a federal law which attempted to address some of these questions, but the law was enacted long before today's social networks existed. In fact, the law was enacted in 1986, so it predates even the World Wide Web!
As part of the 1986 Electronic Communications Privacy Act, the U.S. Congress passed the Stored Communications Act (the SCA).
The SCA defines two types of online services:
- Electronic communication services
- Remote computing services
The definitions are straight-forward:
Electronic communcation services include any service that lets users send or receive data.
Remote computing services include any service that lets the public store data or use processing services, over an electronic communications system (a network).
The SCA protects data that is stored or transmitted via electronic communciation services much more than data that is stored or transmitted via remote computing services. Congress' logic seems to have been that by placing data on a remote site, the data user has a lower expectation that the data will remain private, while data sent over an electronic communication service is more like a phone call, where the user has higher expectations of privacy.
U.S. courts are looking to the SCA to fit social networking fact patterns, and they are having difficulty applying the 2010 facts to the 1986 law.
There is much more to be said about social networking and electronic discovery, and I will address the topic in the future.
2 comments:
X0. good post. data ownership as explored here is pretty big stuff, seeing that anything you post can be disseminated to other people's profiles or pages, therefore taking on a life of its own outside of the original posting, but does that necessarily mean that the original poster owns that data, or does it belong to the pan-human experience? JP
JP: that's a good question. You have a copyright in material that you create, but what if you put it on someone else's computer? On a social network, for example... If you cancel your account with the network, are they obligated to remove all your postings? Or is that material part of the "pan-human experience"? All good questions...
Post a Comment