Protected private information?
I believe one could argue that this information is protected by privacy laws and is not a proper subject for discovery. It is an abuse of the process and should be sanctioned accordingly. I would have urged a motion to quash the subpoena with a request for fees and sanctions. This man, however, does not have the money to fight it. The clear objective of the lawyers here is to shut down the site because it allows a lot of mechanics to communicate at one location. Many other sites are shut down in this way. The Web has become the medium of choice for airline workers to talk to each other, but we should be aware that the Web can be a double-edged sword. The company can of course monitor what you say and even use the postings as exhibits to support their position in any lawsuit.
Now, you might think that what you write to a friend in confidence is just that — private. However, this information and your identity may be discovered by court process. In this case, I believe the lawyers were trying to determine if the union representing the mechanics was behind this man’s website and/or whether he was an agent of the union. (Answer is No to each.) They theorize that if this is the case, then they are entitled to gather this information by virtue of the fact that it might be relevant evidence in the lawsuit. The defendant in the lawsuit was the union. The website owner is only a witness since he is a mere employee of the airline.
Employees’ use of websites and the management response has already brought up new legal questions. These include the 1st Amendment’s Right to Free Speech and the Right of Privacy inherent in the 4th Amendment. The bottom line is simply this—you can’t advocate or encourage violations of court orders, ie. violations of the law.
Many lawyers seek to secure tactical advantages in a lawsuit by the use of this process. However, their actions frequently backfire. Law is often perceived to be wrapped up in technical matters, but at the end of the day, judges frequently find for the side that has acted most reasonably. So much for tactics.
What is privacy?
In an often quoted remark, Supreme Court Justice Louis D. Brandeis said that "The right of privacy is the right to be left alone." This privacy concept was recognized just before the turn of the last century. At that time, Brandeis was concerned with the intrusion by newspapers and other print media into the lives of private citizens. Back then, print media was all we had. The principles today should be the same however. Indeed, it was and is considered that the 4th Amendment to the Constitution protects against government intrusion into the private life of citizens and a general right of privacy. Moreover, the protection of the 1st Amendment is most frequently cited to protect your right to speak freely. So much for constitutional law.
What’s the beef?
The dispute centers on the alleged acts of mechanics in applying the FARs to their specific jobs. This can always result in a slowdown of work. We all know that, but for the ingenuity and flexibility of mechanics, the airlines could not operate under the crushing load of regulatory compliance. Even the FAA recognizes this fact. Everyone, from the Director of Maintenance in a 121 setting to the mechanic, has responsibility and puts his license and job on the line every day many more times than flight deck people. They should be paid more.
The tricky attempt by the big airlines’ lawyers to gain tactical advantage by the subpoena of the website data may well come back to haunt them. The result remains to be seen. The site owner has in fact provided information to the lawyers in compliance with the subpoena and removed any messages that might be construed as advocating an illegal job action.
Privacy on the website
When you send a message on the Internet, is there an expectation of privacy? Can there be with all the general access that people have? The Courts generally allow unfettered access to computer data during a lawsuit. The Federal rules, for example, allow almost any inquiry into a party’s computer data. In this case, the data is requested of a possible witness, but there really is little distinction in the cases where a good reason for the information can be shown. So much data is kept in computers that new law has developed since 1970 or so to provide for examination by way of discovery techniques in legal proceedings. The bottom line is simply this — If the information sought is relevant to the litigation, then it must be provided. There are a few exceptions that deal mostly with privileged information.
The general rule allows access to any data that bears, or that reasonably could bear on, any issue in the case. The requesting party has the burden to show that what is sought has some relevance to the subject matter of the lawsuit. This usually comes when there is an objection to what is sought or the process. But you can certainly object to the request, request a hearing before the Judge, and put forth your argument.
All other things being equal, and as long as no privileges are involved, the request to produce usually will be granted and must be answered absent your statement that it is too broad or oppressive.
What you can do
If and when you communicate with anyone in a sensitive situation, you can of course refrain from putting your name or any name on your piece. Keep in mind, however, that the origin of a message can be obtained from the Internet provider. So, even an attempt to use a pen name or no name at all, may not prevent someone from finding out who you are. Don’t advocate any violation of court orders or the law in general in anything you write. You could preface your comments with the statement:
"This is a private, confidential correspondence between the writer and the recipient, and is intended to be protected under all applicable right of privacy laws."
This sounds good but most likely won’t provide the protection you need. If no statement is included however, the door is always open for someone to argue that there was no expectation of privacy by the parties. By including the privacy statement and clearly marking it a private communication you may be able to avoid having your personal data and your name given to lawyers or at the very least make it more difficult.
The Supreme Court ruled that the Privacy Act allows recovery against the government for actual damages and not for mental or emotional distress