You mentioned “The privacy rights of the litigant, and third parties who communicate with the litigant, also need to be considered.” I am very curious as to how the privacy is
protected in these cases for either the litigant or their friends/followers. There is no acceptable answer here for the invasion for the friends/followers in my opinion except that they should be “hands off” unless suspects. As for the litigant, there is a gray area if the litigant did not protect themselves with the privacy setting and the information was open to anyone wanting to view their profiles and information. An example of why I take issue is that when an account is set up, media sites provide their terms for each subscriber to agree. Terms are part of the contract between the subscriber and the provider. I understand this to be binding legally between both parties, a business
contract.
For a subscriber who signed up in say 2012, their terms were as follows:
For content that is covered by intellectual property rights, like photos and videos
(IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non –exclusive, transferable sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
(Facebook Terms of Use [December 18, 2012], http://www.facebook.com/legal/terms)

With agreement to the terms and privacy setting made at the highest levels, how is
it that this contract can be broken so easily by an outside party or even Facebook? Where are the protections for the user? Let’s face it, the US government has very little in place to protect the common man. With the exception of HIPA and banking and credit information protection the rest is between the business and consumer with these types of agreements. So in the case of Facebook and other social media sites, when the privacy settings are at the highest level, then any request by litigators or the court such as photos is a “fishing” expedition and should be over-ruled unless there is a
witness that can testify who is a friend/follower.

“While the generations may disagree on the nature and limits of privacy, it is clear
that we all nonetheless expect, and, in some cases at least, require, some form
of privacy and data privacy protection.” Ess (2014, Pg 58) We all deserve to feel protected especially when we have made an agreement to terms that in any other means is considered binding.

Chris Duncan, Student
Drury University
Springfield,Missouri

Facebook Terms of Use [December 18, 2012], http://www.facebook.com/legal/terms
Ess,Charles (2014) Digital Media Ethics, 2nd Ed. Digital Media and Society Series, Polity Press