MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

230 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
contents of transmissions in an emergency involving danger of death or
serious physical injury, or with a valid search warrant issued based on
reasonable grounds. 32 Exceptions are made to non-content based requests
such as subscriber information, which may be voluntarily released. 33
In Crispin v Christian Audiger, California court confirmed that the SCA
applies to all pictures, posts, messages and communications on Facebook
and other social networks when privacy settings are available. 34 The court
quashed a subpoena duces tecum issued by the defendant to Facebook and
MySpace to hand over private information or messages from the plaintiff’s
account. This decision also means that an accused in a criminal trial will
also have no access to obtain private social networking material from
potential witnesses, as the exceptions listed in the SCA are only available
to government authorities.
The only information that a social network may hand over to a nongovernmental
authority without consent is basic subscriber details. This
includes, for example, what email an account was registered under, when a
user started their account, and what internet protocol (IP) address was
used to create an account. 35 Basic subscriber information may be released
by a social network to a third party with a valid subpoena domesticated
wherever the social network is located and issued to the company’s
registered agents. While the SCA does not affect publicly posted content,
which litigators or investigators can capture on their own, it means that
any private content required for a civil trial will have to be produced by
the party who has access to it.
2. The Canadian Charter of Rights and Freedoms 36
As a practical matter in social networking cases, there will rarely be
legal significance in applying Canadian standards, including the Charter, to
gathering evidence in the US. The Charter does not ordinarily apply to law
32
Ibid § 2702.
33
Ibid § 2701.
34
Crispin v Christian Audigier, Inc, 717 F Supp (2d) 965 (CD Cal 2010).
35
An IP address is a 12 digit identifying number that is assigned by an internet service
provider (ISP) such as a telephone or cable company to a computer when it accesses
the internet and can be traced back to find the physical location where a computer
accessed the internet.
36
Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].