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6 Journal of American Law // Spring 2015 thenticity. Tese cases are discussed later. What follows is in- tended to present an overall perspective on the issues of identi- fying, obtaining, and using social media and how they are being addressed by the courts. What is Social media evidence? Te term "social media" is used as a broad descriptive um- brella for a methodology of substantive communications and storage of data. Fundamentally, social media is interaction among people in which they create, share, or exchange in- formation, ideas, pictures, and videos in virtual communities and networks. It is "a group of Internet-based applications that build on the ideological and technological foundations of the Internet and that allow the creation and exchange of user-gen- erated content." 3 Te use of social media has disrupted the more tradition- al forms of communications and storage of data with which the courts have historically dealt. In the context of litigation, social media usage is evidence—just a diferent form of evi- dence. Like all evidence, it has many uses in litigation. It can provide unfltered insight into the life of a party. It can result in creating an online journal or diary of another's life, activi- ties, and relationships that are intended to be viewed by others privately or publically. With the recent development of wear- able electronics and other tracking applications, social media sites can track virtually all of the activities and movement of people and things and provide valuable and heretofore inac- cessible information, including a person's daily physical and mental activities and health. 4 Tere are a number of constantly evolving dynamics in- volving social media. Te manner in which it is stored and distributed is a technical function developed by sofware en- gineers that thrive on developing the "next big thing" in new technologies. Te content is supplied in large part by parties and advertisers that seek to share information, which is con- tinuously expanding while at the same time becoming more personal and intrusive. Te fast-paced development of tech- nology and the ever-changing and growing amount of content is advancing faster than the law that governs it, which results in courts difering in their approach. A classic example of how social media can be used in lit- igation is for impeachment purposes. In one case, a plaintif claimed permanent injuries that afected her enjoyment of life and confned her to her house and bed, but Facebook pho- tos showed her smiling happily outside her home. 5 In another case, a party claimed to be humiliated by sexual rumors about her in the workplace, but she posted similar sexual comments about herself on Facebook. 6 3 Kaplan Andreas M., Haenlein Michael, Users of the world, unite! Te challenges and opportunities of Social Media, 53 Business Horizons, 58 (2010). 4 Social media usage by juries, attorneys, and judges, as well as par- ties, is having a signifcant impact on litigated cases. 5 Romano v. Steelcase Inc. 907 N.Y.S.2d 650 (2010). 6 Targonski v. City of Oak Ridge, 2010 WL 2930813 (E.D. Tenn. July 18, 2012). obtaining Social media evidence Te nature of social media evidence, as well as the application of federal and state privacy laws, makes it difcult to obtain via traditional discovery. Because of its electronic nature, it is relatively easy to delete or destroy although it becomes in- creasingly difcult to do so the more the social media postings have been disseminated. Obtaining it requires various levels of technical expertise and judicial oversight. It is subject to various forms of discovery, including discovery on other par- ties and subpoenas to service providers. Generally, the social media sites resist producing docu- ments or other electronic evidence for many reasons, most focusing on the user's general expectation of some level of pri- vacy and specifcally the Federal Stored Communication Act as discussed below. In most cases, it is more practical to ob- tain evidence of a party's use of social media through targeted discovery. Tis includes specifcally targeted interrogatories, depositions, and document productions. federal Stored Communications Act Te primary obstacle to obtaining this evidence from the so- cial media hosting companies is the Federal Stored Commu- nications Act (SCA), which prohibits social media websites from disclosing the content of social media usage. Tis creates major judicial headaches where the content is relevant and normal discovery statutes would otherwise allow for its pro- duction. Tese issues typically are resolved at the trial court level resulting in wide-ranging rulings and remedies. Some have argued that the SCA creates a statutory right to privacy. However, this is not the case as it states there "ex- ists no constitutional right of privacy that prohibits discov- ery sought concerning social media, nor is such social media protected by an established privilege." 7 What the SCA does is give a defned class of Web-based companies safe harbor from producing content provided by its users. It seizes upon the Fourth Amendment to the U.S. Constitution, which prevents a company from disclosing "stored wire and electronic com- munications and transactional records" held by third-party Internet service providers. Te SCA, 18 U.S.C. Section 2702 et seq., prohibits a "person or entity providing an electronic communication service to the public" from "knowingly divulge[ing] to any person or entity the contents of a communication while in electronic storage by that service." Te SCA is part of the Electronic Communications Privacy Act of 1986. A disclo- sure in violation of Section 2702 of the SCA can expose the record holder to civil liability. 8 Since the SCA was passed in 1986, it has not been amended to refect new technologies, so the courts are lef to determine how and whether the SCA applies to a particular case. In the January 2014 decision in Litigation v. Facebook Inc., 9 7 Pennsylvania Discovery Rules Pa.R.C.P. 4001, Pa.R.C.P. 4011, Pa.R.C.P. 4019. 8 Teofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. Cal. 2004). 9 Facebook Privacy Litigation v. Facebook Inc. 2014 U.S. App. LEXIS 8679 (9th Cir. Cal. May 8, 2014).