Under the United States Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 357 (1967), a private citizen arguing that law enforcement violated the Fourth Amendment, in gathering evidence without a warrant, must first establish that there existed a reasonable expectation of privacy in the place searched.
Justice Harlan’s concurring opinion, that the Court’s holding applies to “electronic as well as physical intrusion into a [private] place,” suggests that a citizen may have a reasonable expectation of privacy with regard to social media.
If a citizen has his or her Facebook account set to “private,” does that person have a reasonable expectation of privacy with regard to all of its content?
Does that same citizen forfeit any reasonable expectation of privacy by sharing pictures or posts with “friends?”
Government agents lacking probable cause for a search warrant or subpoena will often gain access to a suspect’s private Facebook page through a third-party informant who is “friends” with the suspect.
In other cases, law enforcement agents have created a fake Facebook account in order to “friend” a suspect to gain access to otherwise private information.
Ethical rules likely prohibit private attorneys from accessing the social media account of a party or witness by deception or trickery.
This prohibition not only pertains to attorneys in civil litigation, but also the private criminal defense attorney defending a client against the very evidence that law enforcement obtained by deception or trickery.
Litigators challenging such tactics must be able to articulate a client’s reasonable expectation of privacy with regard to the location of information seized.
Further, even when information is seized pursuant to a warrant or subpoena, litigators must scrutinize the scope of such authority.
For example, probable cause may exist for a user’s basic account information, but not for precise location information or private messages or chat logs.
Additionally, litigators can look to various federal statutes governing whether law enforcement may compel service providers such as Facebook or Twitter to produce content and records.
The Stored Communications Act and the Computer Fraud and Abuse Act require law enforcement to obtain a warrant for certain content information.
Finally, not all lawfully obtained evidence is admissible. Making a proper record that such evidence lacks proper authentication, that it constitutes inadmissible hearsay, or that the evidence is unduly prejudicial may keep such evidence out, and is vital for later appeal.
Social media’s impact on law enforcement is serious. For help, contact FOS.