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Judge orders turnover of woman's deleted Facebook posts

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A New York state judge has ruled that a woman's deleted postings on Facebook and MySpace must be turned over to a company fighting allegations she suffered “permanent injuries” that have prevented her from living an active lifestyle.

Last week's decision from the Supreme Court of New York's Suffolk County said that under the state's court rules, Kathleen Romano had no reasonable expectation that the information she posted to restricted parts of the social networking sites would remain private, even if she had previously deleted it. Because the postings may contradict claims she made about the injuries she sustained, they are fair game under New York's discovery procedures.

“The information sought by defendant regarding plaintiff's Facebook and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence,” Judge Jeffrey Arlen Spinner wrote. “In this regard, it appears that plaintiff's public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.”

His order grants the defendant "access to plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information ... in all respects."

The case is the latest reminder that, contrary to assurances from Facebook and other services, the online scribblings we leave are long lasting and can't always be restricted to a set number of friends. Facebook in particular has sought to assure users they can delete postings or accounts and can control who gets to see various user content.

But as Santa Clara University law professor Eric Goldman notes here, Facebook's privacy policy is anything but clear.

It states that “Removed and deleted information may persist in backup copies for up to 90 days, but will not be available to others.”

It goes on to warn that information may live on in various forms, including content shared with other users or Facebook applications. Then, there's the caveat that, “We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook.”

Parsing the legalese, it would seem that deleted posts might eventually escape a court's reach, provided enough time passes between the time they are deleted and the time the discovery request is made. But then again, maybe not.

As we've said before and Goldman says again:

“This case only tells us what we already knew – never post anything online that will be inconsistent with the story you're planning to tell others. The inconsistent material can surface even if the post is made in a non-public venue and even if you delete it later.” ®

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