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A woman who posted comments to a Facebook group had no privacy interest in the posts, despite her belief that the group restricted access to the postings. That’s the recent decision by an Arizona-based federal court.
Carol Davis sued HDR, Inc., an architecture and design firm based on their accessing certain information from two Facebook groups – -“Ahwautakee411” and “Protecting Arizona’s Resources and Children (PARC).” HDR has designed over 275 jails and prisons. In addition to its architectural services, HDR offers its clients “strategic communications” services. These services involve gauging public sentiment and developing media campaigns to help clients manage the risks associated with proposed or existing projects.
According to Davis’ complaint, Ahwatukee411 is a Facebook group “that enables local residents of the Ahwatukee Foothills area to privately discuss issues concerning the community.” PARC is a Facebook group that was “formed to protest the construction of a highway that cuts through the Moahdak Do’ag Mountain (South Mountain) . . . [and] enables its members to privately discuss local issues.”
Both Ahwatukee411 and PARC have always been private, closed Facebook groups—meaning only group members can access and see posts made within the Groups. Both Groups require prospective members to undergo a screening process.
Ahwatukee411’s screening process is intended “to ensure that only residents (i.e., those with a vested interest in the Ahwatukee community)” can join the group. The intent of PARC’s screening process is very similar: “to ensure that largely only residents (i.e., those whose homes would be affected by the construction of the local highway) can join the group.”
Davis has been a member of Ahwatukee411 since approximately 2015 and a member of PARC since approximately 2016. According to her complaint, she privately communicated with other members in the groups. Her communications concerned topics such as “recommendations for services and debates over local issues. Davis believed she was only communicating with other Ahwatukee residents or individuals whose interests aligned with the PARC organization’s goals. Davis alleges in her complaint that since at least 2016, HDR “tracked, read, intercepted, analyzed, and otherwise wiretapped and/or accessed in electronic storage” Plaintiff’s private posts within the groups, without her consent.
The key issue for the court was whether the posts to the groups were actually private. And that determination depended on whether the posts were “readily accessible to the public.”
The court found that they were. In the court’s view, there were three reasons for this conclusion. First, membership in the groups was not overly restrictive. Presumably, the number of Ahwatukee residents was not a small number, such that the group was not similar to a more personal, private Facebook page.
The court also considered it significant that Davis was not one of the administrators of either group. The administrators had unfettered discretion about who could or couldn’t become a member. They could, for example, drop even the minimal screening processes in place. For this reason, Davis ultimately had no control over who accessed her posts. That made it tough to assert much of a privacy interest.
. Davis also had no control over how group members disseminated her posts to the Group. There was nothing to prevent any group member from sharing any one of Davis’ posts with the world at large. Again, it’s hard to say a post is private when it’s one click away from being shared with the world.
For all of these reasons, the court concluded that Davis’ group posts were “readily accessible to the public.” This finding effectively torpedoed her claims, and the court dismissed her complaint. In short, Davis learned the hard way that the terms “private” and “Facebook groups” are rarely synonymous.
Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues
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