Social Media and Privacy in Court: Why Your Personal Accounts Aren’t Off Limits
Social Media and Privacy in Court: Why Your Personal Accounts Aren’t Off Limits
Ever worried about using your personal social media accounts for work-related purposes? Maybe you should. In December 2024, United States Magistrate Judge Ona T. Wang of the Southern District of New York granted a motion compelling Open AI to produce direct messages belonging to certain employees who used their personal phones and X.com accounts for work purposes—a ruling that raises significant questions about the boundaries between social media and privacy in the workplace.
Background
As a backdrop, the case is Daily News, LP et al v. Microsoft Corporation et al, 1-24-cv-03285, in the Southern District of New York. This case is one of the few that depict the frictional issues naturally arising with the advent of AI. Specifically, use of others’ intellectual property to train machine learning algorithms.
Just like people, these revolutionary programs like ChatGPT process and analyze data in order to learn and grow in their capabilities. This, of course, requires data. But what happens when this data belongs to someone?
In this case, the relevant data used by Defendant OpenAI was millions of published news articles. These articles are the intellectual property of publishers who are understandably peeved at the company’s capitalizing on their copyrighted works without compensation.
Privacy Considerations
Incidental to this suit arose the issue of whether the Plaintiff Authors could compel OpenAI to produce direct messages sent on X.com belonging to certain employees who used their X.com accounts for work purposes.
OpenAI attempted to refute this discovery request by hanging its hat on California Labor Code § 980, which reads, in relevant part: “An employer shall not require or request an employee or applicant for employment to . . . disclose a username or password for the purpose of accessing personal social media . . . access personal social media in the presence of the employer . . .” or “divulge any personal social media,” subject to limited exceptions.
The Court, however, noted that the purpose of § 980 is to prevent employers from asking for and maintaining continued access to employees’ personal social media accounts as a condition of employment. The Court stated: “Nothing in the statute suggests that OpenAI cannot ask for, collect, and produce in discovery messages sent by their employees for work purposes just because those messages were sent via social media—to hold otherwise would allow California companies to permanently hide otherwise discoverable messages from litigation by sending them on so-called ‘personal’ social media accounts, and would stymie federal litigation.” Daily News, LP et al v. Microsoft Corporation et al, 1-24-cv-03285 (SDNY Dec. 2, 2024) (Ona T. Wang).
In order to promote judicial economy and operation, the Court found it necessary to make these direct messages discoverable, lest it provide a sanctioned hiding place for otherwise discoverable business communications.
Labor Statutes, Privacy, & Discovery
California Labor Code § 980 is not the only of its type, as social media privacy laws related to employment have become common among states. Over half of the states have some form of social media privacy laws that often prohibit employers from asking for any personal social media access information.
The intersection between these laws and discoverable information in litigation, however, is still a somewhat novel area. The Daily News Court noted that no cases had yet addressed the question of whether § 980 prohibited an employer from producing, as part of discovery in federal court, messages related to their work that were sent by an employee from their social media account.
But now that the floodgates are open, it is likely every state with a similar statute will soon hear a case considering a similar question. Therefore, it is important for both litigators and private parties to understand their state’s rules regarding this expansion into what can be discoverable.
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This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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