Legal Tech Keynote by Mark Howitson of Facebook-Social Media and eDiscovery

by Cary J. Calderone Esquire

I had the pleasure of listening to Mark Howitson (aka Howey), Deputy General Counsel of Facebook, Inc. deliver the keynote address on Day 2 of Legal Tech. He started off with some staggering facts about Facebook:

1. Currently, ½ of all Americans over the age of 14 use Facebook.
2. 350 million users have logged into Facebook, in just the last 30 days.
   

If you think this social networking thing might just be catching on, you are right!

Howey came to Legal Tech to talk about Social Media and eDiscovery or, as he described it, dealing with Social Media and the information that he provides for discovery requests. He divided his presentation into two responsibilities of managing data at Facebook:

1) Social media and discovery

• Social media is going to be all around us-There is already an application (Forceware) that uses the iPhone GPS to provide live location reporting
  
• The technology is everywhere
  
• The technology is here to stay

Howey mentioned things he can't and won't do. He distinguished between when the law “allows” disclosure versus what it “requires” for civil discovery and this is a critical distinction because Facebook is dealing with huge volume.

In this regard, Howey relies heavily on the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA) CA 18 USC 2701 for wire intercepts, and Section 2702a for “covered provider,”“remote computing,” and “electronic communications services.” He noted that there is an issue of when Facebook may provide information to a requester under Section 2702b and the substantial legal necessity of having “lawful consent.” Customer Records would be covered by Section 2702c for example, if a subpoena is asking about User X and all communications. In that instance, even with a subpoena, Facebook can only give basic subscriber information.

Howey is “itching for a fight” as he wants user information to be declared “content” and therefore completely protected from disclosure. The SCA was created in 1986 so Howey believes it is time that the Federal Court clarifies the rules with case law that involves present day fact patterns and current technology.

He discussed the Colgan Air case involving Workers Compensation (WC) for a flight attendant. The WC appeals board sanctioned Facebook $200 a day for not providing the data about the flight attendant to Colgan Air but the appeals board later backed off because they recognized that Facebook was never provided the required consent.

Howey really had the audience pondering the question of what is “lawful consent?” For example, was compelled consent of parolees adequate under the SCA? And what about students subject to random drug testing?

There was also a case from Bozeman, Montana where job seekers were wrongfully required to list their social network screen names so they could be searched! And he talked about another case in Houston where they where the interviewers asked for the interviewee's Myspace password in order to review their Myspace page. The interviewee sued and won.

He believed the way to circumnavigate this law would be for a interviewer to ask the applicant to, “be my friend on Facebook?” This would appear to be a lawful approach as long as it is not coerced.

2) Managing Discovery at a Communications Company

• We now live in a world with chat and Wikis which need policies written and enforced company-wide.
• Howey described the basic tenets of discovery when it came to corporate material, which is a “yes” for discovery, versus personal material and items protected by the SCA, which would be a “no.”
• There are still some gray areas, like email notification about Facebook communication which is residing on your computer system. Is it covered by SCA or not?

As a basic precaution to protect your privacy, he mentioned, “don't connect your business email to your Facebook account.”

When it came to the second item, “Managing all this Content” he had the following suggestions:

1. Fee arrangements with law firms
2. Single discovery counsel for all firms (I found this interesting but would really like to know how this could work given conflicts of interests and competition amongst law firms)
3. Flat fees that delineate responsibility
4. Companies first need to cut a deal with their outside counsel.

He mentioned some innovative firms and thought it was “insane” to pay law firms full freight. Howey also believed that the days of rooms full of people and monitors doing document review should end. He championed leveraging technology to keep costs down.

One of the high points of the entire conference for me was that Ms. Zubulake of the seminal eDiscovery decisions was in the audience. I have personally been involved in many debates about the correct pronunciation of her name. To his credit, once Howey found out she was in the audience he asked her. It turns out the first syllable sounds like “zoo” and the last syllable rhymes with “cake.” Lawyers and judges who read this may now rejoice!

On balance, Howey gave a very fun and informative keynote. He provided some answers and supporting authority and most definitely raised awareness to many of the critical issues going forward with eDiscovery and Social Media.