You might think that the information that you post on Facebook is private. You might think that the information that you post on Facebook is public. But if you think that the information you post on Facebook is somewhere in between, it turns out that you are correct. Some information can be obtained and used against you for different purposes without much protection. Other information may be harder to obtain, and if obtained improperly, may be excluded as evidence. Let’s take a look at the various issues surrounding the dissemination of information in social media, and how the law deals with them.
The overall theme is that the law is very antiquated when it comes to dealing with social media such as Twitter, Facebook, and MySpace. This is because the law moves very slowly, while these platforms seem to move at an ever quickening pace.
United States Supreme Court Chief Justice John Roberts put it aptly:
“[Saying that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items] is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”
Riley v. California (U.S. 2014), p.26
Civil Versus Criminal Matters
First, we must distinguish criminal cases from civil cases. In criminal matters, the criminal defendant is protected by the Fourth Amendment of the Constitution as well as by Article I, Section XI of the Indiana Constitution. One of three (3) conditions must exist prior to a search by police officers: a) The police officers must obtain a search warrant, or; b) the suspect ‘consents’ to the search, or; c) probable cause exists to lead the officer to a reasonable suspicion that items subject to the search will contain evidence of specific criminal conduct. In this article, we are not discussing whether such social media information may be obtained and used in civil matters. We are only dealing, here, with the criminal process of evidence gathering.
A ‘Reasonable’ Expectation of Privacy
In order for your Fourth Amendment (or Art. I, Sec. XI) right to attach, there must be a ‘reasonable expectation’ that the communication is private. I won’t go into the terms of art or what this means in each case the U.S. Supreme Court has decided, but basically, this means that in order to be protected, the evidence to be collected must be secure enough to give its owner the expectation that it would not be viewable by the general public. (A good analogy is that if you leave your windows open facing a nearby sidewalk, you probably don’t have a reasonable expectation of privacy in those room(s) facing the windows.)
The courts have determined that you do not have a ‘reasonable expectation of privacy’ with general public Facebook posts or location identifiers such as check-ins. (See generally, Shmidt, Lisa A., Social Networking and the Fourth Amendment: Location Tracking on Facebook, Twitter, and Foursquare, and Vogel, Peter S., Your Fourth Amendment Rights Don’t Apply to Facebook).
However, such a ‘reasonable expectation’ has been found to exist with regard to emails and ‘private’ electronic correspondence. (See, Ohm, Paul, “Court Rules Email Protected by Fourth Amendment”, and National Public Radio, “Your Digital Trail: Does the Fourth Amendment Protect Us?”)
The Sixth Circuit of the United States Court of Appeals ruled in U.S. v. Warshak, 631 F.3d 266 (6th Cir 2010) that emails have a reasonable expectation of privacy and are therefore protected under the Fourth Amendment of the United States Constitution, even though they are first shared through internet service providers (ISP’s) prior to reaching the recipient(s). Strangely, however, the Sixth Circuit did not invalidate the actions of the state in the particular case, because the government relied in ‘good faith’ upon the authority granted by The Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq. The Court went on to strike down relevant parts of the Act, reasoning that the Act went too far in allowing the government to obtain emails by subpoena of the prosecuting attorney, rather than by search warrants approved by a court of law based on probable cause.
What Does this Mean for Facebook?
In short, I believe that private messages sent via Facebook would be afforded protections under the Fourth Amendment (and Art. I, Sec. XI of the Indiana Constitution), while status updates, check-ins, and GPS locators would not. Because private messages enjoy a similar–if not identical–expectation by both the sender and recipient, they would be afforded the same protection as if they were emails. Therefore, for the government to search your Facebook private messages, I believe a warrant would be required before such evidence could be used in a court of law.
If this has happened to you, and you fear criminal prosecution for information the government has found on Facebook or other social media, please call SFT Lawyers for a FREE CONSULTATION. Our experienced team of Lake and Porter County criminal defense attorneys can assist you throughout Northwest Indiana. (219) 841-5683.
READERS PLEASE NOTE: The courts have not yet dealt with this specific issue, and it is unknown what the ‘official’ legal status of such communications is. This article is not a prediction of any outcome of any particular case; this article is intended strictly for entertainment purposes ONLY, and is not intended, nor can it be construed as legal advice. Please seek the advice of a licensed Indiana criminal defense attorney if this or a similar situation has happened to you.