Defendant MONOC is a non-profit hospital service corporation dedicated to providing emergency medical services to the citizens of the State of New Jersey. Plaintiff was hired by MONOC in 2004 as a registered nurse and paramedic. In July of 2008, Plaintiff took over as President of the Professional Emergency Medical Services AssociationNew Jersey. As President of the Union, Plaintiff was regularly involved in actions intended to protect MONOC employees. For example, Plaintiff filed complaints with the Environmental Protection Agency,... reporting that MONOC's use of a disinfectant called Zimek was creating health problems for employees. In response, the EPA issued a removal order requiring MONOC to stop using Zimek. A. The Facebook Incident During the 2008-2009 timeframe, Plaintiff maintained a Facebook account and had approximately 300 Facebook friends. Plaintiff selected privacy settings for her account that limited access to her Facebook wall to only her Facebook friends. Plaintiff did not add any MONOC managers as Facebook friends. However, Plaintiff added many of her MONOC coworkers as friends, including a paramedic named Tim Ronco. Plaintiff posted on Ronco's Facebook wall, and Ronco had access to Plaintiff's Facebook wall. Unbeknownst to Plaintiff, Ronco was taking screenshots of Plaintiff's Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso.

On June 8, 2009, Plaintiff posted the following statement to her Facebook wall: An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Ho locaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice. After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that Plaintiff's comment reflected a "deliberate disregard for patient safety." ... [At this point the judge reviews Ehling's extensive disciplinary record with the MONOC. During the seven years of her employment there, she had received warning notices for lateness, and violations of MONOC policy, "including unauthorized late swipe-outs, excessive call-outs, failing to have sufficient paid time off to cover hours not worked, refusing 9-1-1 calls, and failing to submit the proper documentation for her ambulance shifts," and had started receiving disciplinary points. She also took many medical leaves under the Family and Medical Leave Act (FMLA), which allows employees to take up to twelve weeks of unpaid medical leave to recover from serious health conditions. Ehling "took five continuous FMLA leaves for five different medical conditions, and also took intermittent FMLA leave over the course of approximately two years." She would often fail to file the correct FMLA paperwork, yet MONOC granted her leave requests each time. Ehling had accrued enough disciplinary points to be terminated by 2011 when she filed this lawsuit, but her managers decided not to fire her at that time. She was terminated the following year, after going out on medical leave, informing MONOC that she would not be returning to work for several more months, and never completing the forms that would have accommodated the extension.] II. Legal Standard A. Federal Stored Communications Act Plaintiff asserts a claim for violation of the Federal Stored Communications Act (SCA). Plaintiff argues that Defendants violated the SCA by improperly accessing her Facebook wall post about the museum shooting. Plaintiff argues that her Facebook wall posts are covered by the SCA because she selected privacy settings limiting access to her Facebook page to her Facebook friends. Defendants disagree and argue that, even if the SCA applies, the facts in this case fall under one of the SCA's statutory exceptions. i. The SCA Covers Non-public Facebook Wall Posts [The SCA] ...was intended to afford privacy protection to electronic communications.. [T]he SCA was passed in 1986, and is best understood by considering ...the technology that existed in 1986, [when c]omputer networking was in its infancy. In the mid-1980s, "personal users [had just begun] subscribing to self-contained networks, such as Prodigy, CompuServe, and America Online." After connecting to a network via a modem, users could download or send e-mail to other users, access a closed universe of content, and post messages on electronic bulletin board systems (BBS's)...for a community of people. Notably, the SCA was enacted before the advent of the World Wide Web in 1990.

and before the introduction of the web browser in 1994. "Despite the rapid evolution of computer and networking technology since the SCA's adoption, its language has remained surprisingly static." Thus, the "task of adapting the Act's language to modern technology has fallen largely upon the courts." ....[T]he SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. Facebook wall posts that are configured to be private meet all four criteria. First....[t]o create Facebook wall posts, Facebook users transmit writing, images, or other data via the Internet from their computers or mobile devices to Facebook's servers. Thus, Facebook wall posts are electronic communications. Second, Facebook provides its users with the ability to send and receive electronic communications, including private messages and Facebook wall posts. Accordingly, Facebook is an electronic communication service provider. Third, Facebook wall posts are in electronic storage. ...When Facebook users post information, the information is immediately saved to a Facebook server. When new posts are added, Facebook archives older posts on separate pages that are accessible, but not displayed. Because Facebook saves and archives wall posts indefinitely, the Court finds that wall posts are stored for backup purposes. Fourth, Facebook wall posts that are configured to be private are, by definition, not accessible to the general public. ...Facebook allows users to select privacy settings for their Facebook walls. Access can be limited to the user's Facebook friends, to particular groups or individuals, or to just the user. The Court finds that, when users make their Facebook wall posts inaccessible to the general public, the wall posts are "configured to be private" for purposes of the SCA. ....Because Plaintiff in this case chose privacy settings that limited access to her Facebook wall to only her Facebook friends, the Court finds that Plaintiff's Facebook wall posts are covered by the SCA. ii. The SCA's Authorized User Exception Applies in this Case ....The authorized user exception applies where (1) access to the communication was "authorized," (2) "by a user of that service," (3) "with respect to a communication... intended for that user." Access is not authorized if [it] was coerced or provided under pressure." In this case, all three elements of the authorized user exception are present. First, access to Plaintiff's Facebook wall post was "authorized." The undisputed evidence establishes that Ronco voluntarily provided Plaintiff's Facebook posts to MONOC management without any coercion or pressure. Caruso testified at his deposition that Plaintiff's Facebook friend Ronco voluntarily took screenshots of Plaintiff's Facebook page and either emailed those screenshots to Caruso or printed them out for him. This information was completely unsolicited. Caruso never asked Ronco for any information about Plaintiff and never requested that Ronco keep him apprised of Plaintiff's Facebook activity; in fact, Caruso was surprised that Ronco showed him Plaintiff's Facebook postings. Caruso never had the password to Ronco's Facebook account, Plaintiff's Facebook account, or any other employee's Facebook account. ... Plaintiff alleged that Defendants gained access to her Facebook page because a "member of upper management summoned a MONOC employee, who was also one of Ms. Ehling's Facebook friends, into his office" and "coerced, strong-armed, and/or threatened this employee into accessing his Facebook account on the work computer in the supervisor's presence." After discovery, it became clear that this was not the case. Instead, the evidence reflected that Ronco voluntarily shared this information with Caruso. Plaintiff now surmises that Ronco must have shared the information for "compensation.

or privileged treatment or a really good deal." But this theory does not make sense in light of MONOC's management structure. Ronco never worked in a division that Caruso oversaw, and Caruso never had control over Ronco's pay or bonuses, so Caruso was not in a position to offer Ronco any sort of benefit. Furthermore, Plaintiff's theory is pure speculation. Plaintiff did not depose Ronco because Ronco was "traveling in an RV" and no longer worked for MONOC. ...Thus, the undisputed evidence shows that access to Plaintiff's Facebook wall post was authorized. Second, access to Plaintiff's Facebook wall post was authorized "by a user of that service." A "user" is "any person or entity who (A) uses an electronic communications service; and (B) is duly authorized by the provider of such service to engage in such use." It is undisputed that Ronco was a Facebook user: Plaintiff acknowledged that she added Ronco as a Facebook friend and posted on Ronco's Facebook wall. Third, Plaintiff's Facebook wall post was "intended for that user." Based on the privacy settings that Plaintiff selected for her Facebook page, Plaintiff's wall posts were visible to, and intended to be viewed by, Plaintiff's Facebook friends. On June 8, 2009, when Plaintiff posted the comment about the museum shooting, Ronco was one of Plaintiff's Facebook friends. Thus, the post was intended for Ronco. In conclusion, access to Plaintiff's Facebook wall post was authorized by a Facebook user with respect to a communication intended for that user. Therefore, the authorized user exception applies and Defendants are not liable under the SCA. B. Invasion of Privacy A claim for invasion of privacy under New Jersey law will succeed if a plaintiff brings forth evidence showing that (1) there was an intentional intrusion "upon the solitude or seclusion of another or his private affairs," and that (2) this intrusion would highly offend the reasonable person. ... Plaintiff alleged that Defendants gained access to her Facebook page because a "member of upper management summoned a MONOC employee... into his office" and "threatened this employee into accessing his Facebook account." Now that discovery is complete, it is clear that there is no evidentiary support for these allegations. The evidence does not show that Defendants obtained access to Plaintiff's Facebook page by, say, logging into her account, logging into another employee's account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else. This may have been a violation of trust, but it was not a violation of privacy.

Do you think Ronco did the right thing in sharing Nurse Ehling's wall posts with his supervisor? Once MONOC had access to the postings, do you think it did the right thing?