Last year I wrote two blogs titled Spoliation of the Facebook Timeline and Frictionless eDiscovery; social media addicts beware…
which discussed the potential privacy problems with the new Facebook Timeline feature. Yesterday the blog site: The ESI Ninja Blog posted a blog about further developments around privacy and the Timeline feature. The below content is from that blog:
EPIC Asks FTC to Investigate Facebook’s “Timeline”
Posted on January 10, 2012 at 6:44 pm by John M. Horan
When Mark Zuckerberg unveiled Facebook’s new Timeline feature at the company’s Sept. 22, 2011 f8 developer conference, he described it as “The story of your life . . . . All the stuff from your life.” According to a Sept. 22, 2011 Facebook Blog post,
The way your profile works today, 99% of the stories you share vanish. The only way to find the posts that matter is to click “Older Posts” at the bottom of the page. Again. And again.
. . .
With timeline [sic], now you have a home for all the great stories you’ve already shared. They don’t just vanish as you add new stuff.
The Timeline announcement came toward the end of an investigation by the Federal Trade Commission into Facebook’s privacy practices, culminating in the Commission’s Nov. 29, 2011 announcement that Facebook had agreed to settle FTC charges “that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.” In general outline, the FTC said, the proposed settlement
bars Facebook from making any further deceptive privacy claims, requires that the company get consumers’ approval before it changes the way it shares their data, and requires that it obtain periodic assessments of its privacy practices by independent, third-party auditors for the next 20 years.
Three days before the Dec. 30, 2011 close of the 30-day comment period on the proposed settlement, privacy rights organization Electronic Privacy Information Center (EPIC) urged the FTC to investigate whether Facebook’s new Timeline feature complies with the terms of the proposed settlement. Echoing some of the concerns it raised in a Sept. 29, 2011 letter to the FTC regarding “frictionless sharing,” EPIC’s Dec. 27, 2011 letter to the FTC asked the Commission to: <the rest of the blog entry can be viewed here>
In a previous posting, I described the new feature in Facebook called “frictionless sharing”, a Facebook feature that will make sharing even easier by automatically sharing what you’re doing on a growing community of Facebook-connected apps. Potentially everything you do on the web could be shared on a timeline with your “friends” and any others (like attorneys) that get access to your page based, for example, on a Judge’s order for discoverable information.
The USA Today Tech section published an article titled “Facebook Timeline a new privacy test” a couple of days ago that got me thinking. From the USA Today article:
Up until now, Facebook accounts have focused on the most recent posts. With the new profile format, the most recent Facebook activities will be at the top. But as users go back in time, Timeline will summarize past posts — emphasizing the photos and status updates with the most “likes” or comments.
“A lot of people just don’t realize how much information they’ve shared in the past.”
This new timeline feature that takes much of what you have done on the internet and neatly organizes it into a timeline is a perfect target for eDiscovery. This brings up two questions; can you edit or hide items on your timeline and can you permanently delete data from your Facebook timeline? These two questions also highlight another question…if you edit your Facebook account and or remove something from your timeline, could that be considered spoliation in a legal proceeding?
Before I address the spoliation issue, let me address the first two questions.
1. Can you edit or hide items on your timeline? The answer is yes you can. From the Facebook help center:
You get to decide which stories appear on your timeline. Hover over a story on your timeline to see your options:
- (Feature on Timeline): This allows you to highlight the stories you think are important. When you star a story, the story expands to widescreen. Starred stories are also always visible on your timeline.
- (Edit): This gives you the option to:
- Hide from Timeline: This removes stories from your timeline. Note that these stories will still show up in your activity log, which only you can see. They also may appear in your friend’s News Feeds.
Depending on the type of story (ex: status update, check-in, tagged photo), you may also have the option to:
- Change the date of a story (ex: for an old photo, you can enter the date the photo was taken so it shows up in the right place on your timeline)
- Delete a post (that you posted)
- Report a post or mark it as spam (that someone else posted)
You’ll notice there isn’t a “delete” capability in the edit function.
2. Can you permanently delete timeline data from your Facebook account? As far as I can tell you can. In Facebook there is a feature called the “activity log” that is a record of all of your activity on Facebook. From the Facebook help center:
The activity log is a record of all of your activity on Facebook. So if you hide a story from your timeline, this story will still appear in your activity log. Your activity log is only visible to you. However, all of the stories in your activity log are eligible to appear on your timeline (unless you hide them from your timeline) or in your friend’s News Feeds.
The stories in your activity log are organized by the date they happened on Facebook. You can access your activity log by clicking the View Activity button on your timeline.
From the activity log you can:
- Scroll through a history of all of your activity on Facebook
- View and approve your pending posts
- Filter the type of activity you see (ex: see all of your status updates or all of the links you’ve shared)
- Choose which stories are featured on your timeline
- You can also click the button to the right of each story. Depending on the story type (ex: status update, photo, app story), you may have the option to:
- See the audience you shared
- Delete posts
- Report a post or mark it as spam
- Change the date of a story
- Remove an app from your account
So you can potentially delete items from your timeline… So this brings up my question on spoliation of the Facebook timeline; what, if anything, do organizations have to do to safeguard against altering the organization’s or employees personal Facebook timelines if pending litigation is foreseeable?
Obviously the Facebook timeline is potentially discoverable depending on the circumstances of the case. Organizations need to include the Facebook timeline in their litigation hold/eDiscovery process and to inform impacted employees of their responsibilities to protect potentially responsive information from within all of their personal accounts that could hold relevant ESI including the Facebook timeline data.
As a side note, it’s always a good practice to regularly remind employees not to mix business ESI with their personal accounts.