There seem to be a couple of keen differences in these two cases- in the CA
case, the discovery request appears to have been issued on the hosts
(Facebook and/or MySpace) where in the NY case, it was issued on the client.
 I think this is why the SCA was used to figure into the decision in CA.

This was unusual seeing as another CA Case (Quon v. Arch Wireless) which
made it to the Supreme Court, had the opposite decision on text messages...
essentially that the SCA had no bearing, but primarily because there had
been a policy issued and signed stating there should be no expectation of
privacy.

I seriously doubt there will be a broad ruling issued by the Supreme Court
on these issues- even the Quon case won't serve as a precedent in anything
other than a case with the exact same conditions.

There is too much up in the air about who does what and how it's done when
it comes to this type of content.  It's not the same as what the SCA was
written to cover and unless something else is passed that covers how social
content is managed and stored (which is a moving target anyway) requests
will continue to be challenged. 

Eventually users will get smart and either not put things 'out in the wild'
they don't want seen or in cases like both of the ones discussed here
involving employees/employers, policies will be written, signatures will be
required, and employers will have much clearer guidance on what they have
access to.

Even this recent discussion as to whether an employer can use content found
on Facebook or in Blog posts as a means for selecting or reprimanding
employees is continually coming into question.  http://bit.ly/gk0g0Y

This quote seems to hit the nail on the head.

" Matthew S. Effland, an attorney with Ogletree, Deakins, Nash, Smoak &
Stewart, said he knows of no decision so far "that says using this
information is a violation of some employee’s rights, but the law is
notoriously slow to catch up to technology. I very much see this becoming an
issue in the future." "

Talk about "It Depends" !

Larry
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[Yes, it's really me =) ]

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