To substantiate allegations of an affair, often in a divorce one party will want to see the message content from the opposing party's Facebook and other social media accounts. Unfortunately, message content is extremely difficult to obtain directly from Facebook or other social media sites via a civil subpoena. And the law in this area, particularly in Georgia and the 11th circuit, is unsettled.
The Stored Communication ActThe federal Stored Communication Act (SCA), 18 U.S.C. section 2701 et seq., governs the circumstances under which electronic data service and storage providers may disclose a customers substantive electronic data (content of messages, pictures, etc.). The SCA generally prohibits an electronic communication service (Facebook, Linkedin, Myspace, etc.) or a company providing remote computing services (Google, Yahoo, etc.) from knowingly divulging to any person or entity the contents of any communications maintained or carried by the service provider. See, 18 U.S.C. section 2702(a).
The statutory exceptions to this general prohibition are codified in sections 2702 (b) and (c) of the SCA and include (1) co-operation with law enforcement and (2) circumstances where the customer or subscriber or the recipient of an electronic communication has issued his or her lawful consent to the release of this information.
Accordingly, if an attorney in a Georgia divorce serves a civil subpoena upon a social media site or an internet based email service to obtain the content of stored messages or emails, without the consent of the customer or the receipient of the emails in quesiton, the service provider will object to production under the SCA. The service provider will take the position that these records should be sought from the customer directly through proper civil discovery methods, specifically requests for production of documents. (And most courts recognize the customer's privacy right in this information and his or her standing to object to any such subpoena as well.)
For example, on its website, Facebook takes the position that the SCA does not allow private parties to obtain account contents directly from Facebook via a civil subpoena. Rather, it notes that this content can be obtained via the customer's use of the Download Your Information tool in the settings menu. However, Facebooks states that it may provide basic subscriber information (not content) where the requested information is indispensable to the case, and not within a partys possession upon personal service of a valid, federal, California or California domesticated subpoena and after notice to the people affected.
Best Practices to Obtain Message Content in Light of the SCAIn light of the SCA, if you are seeking to obtain message content, you should first immediately instruct the opposing party or counsel to preserve the all partys social media information, specifically message content, and all electronic information relevant to the action. See, O.C.G.A. section 24-14-22. This is known as a non-spoliation demand. (Under Georgia law, if relevant evidence is deleted or destroyed, there is a presumption that such evidence would have been harmful to the spoiler. See, Phillips v. Harmon, 2015 WL 3936826.)
Second, you should immediately issue detailed and specific requests for production of documents upon both the opposing party and any non-party (a suspected boyfriend or girlfriend for example). This discovery should request the production of all message content maintained the social media account during specific times. And you should further instruct the producing party to utilize the download information service provided by the social media site (Download Your Information in the context of Facebook for example) and produce all documents and information obtained in the download.
After you have received the production, if you feel that the producing party has not complied in good faith, you can seek an order instructing the party to consent to the production of content directly from the social media site via a civil subpoena and/or seek a specific order from the Court requiring production directly from the social media site in light of the consent. (Any such order must be carefully drawn.)
For more information and authority in this area, see the ABA publication "Social Media Evidence - How to Find It and How to Use It".