We’re living in a unique era wherein almost everyone spends a considerable amount of their time and energy online. People conduct business, pay bills, maintain relationships, and commit crimes online every day. Many internet users would be shocked to discover, however, that social media and other online platforms occupy a legal liminal space wherein the expectation of privacy is not clearly defined.
Over the past three decades, as the digital space has continued to grow, courts and lawmakers have had to do some considerable legwork to accommodate online activity into a legal framework designed by founders
who never could have anticipated the development of platforms such as Facebook or Snapchat. The truth of the matter is that social media is unlike anything James Madison could have imagined when he drafted the Bill of Rights. In particular, the Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment has long protected the people’s right to privacy by prohibiting the government from conducting unreasonable searches and seizures upon their persons, houses, papers, and effects. In order to search or seize an individual’s private correspondence (i.e., papers), the government must obtain a valid warrant or establish an exception to the warrant requirement, such as the consent of the person being searched. The Fourth Amendment’s protections are bound by a reasonable expectation of privacy. This legal standard fluctuates with society’s understanding of privacy, making it well-suited for adaptation to a technologically evolving world.
An individual’s expectation of privacy on social media largely depends upon the platform, privacy settings, sharing decisions, and other factors. By and large, the courts have held that individuals do not have a reasonable expectation of privacy on social media.
Take, for instance, a public social media account. Anything the owner of the account posts on their page is accessible to anyone with an internet connection; sometimes, others can even access the post without logging into their own account on the platform. Therefore, the individual cannot reasonably expect anything they post on the public platform to be kept private. Public social media posts have been compared to the public square, which has a long historical tradition of hosting markets, political gatherings, advertisements, and other events. If business is conducted in the public square, that business is, by simple logic, public. Courts have applied the same logic to social media posts. (People v. Harris, 949 N.Y.S.2d 590, 594 (Crim. Ct. 2012) and California v. Greenwood, 486 U.S. 35, 41 (1988), holding that police cannot reasonably ignore evidence that could have been observed by any member of the public.)
But what about private accounts? Plenty of social media platforms provide users with the option to keep their accounts or posts private. These privacy settings can limit access to a post to accounts the user is friends with, a specific list of users (sometimes referred to as a “close friends” list), or to only the user themself.
Officers are well aware of these privacy options and have gotten creative at circumventing them. One way that investigators access information posted on a private social media account is through third-parties. If a user posts something that concerns one of their social media “friends,” that friend can show the post to officers without implicating Fourth Amendment protections (United States v. Sawyer, 786 F. Supp. 2d 1352, 1355 (N.D. Ohio 2011)). We might align this example with mail correspondence. The government cannot open someone’s incoming or outgoing mail without a warrant or consent. However, if you mail a letter, the recipient can then share the contents of that letter with law enforcement. The law responds similarly to direct messaging on social media. Although direct messaging is considered private communication between parties, any one of those parties may decide to disclose the contents of that communication with law enforcement. (United States v, Meregildo, 883 F.Supp. 2d 523 (S.D.N.Y. 2012)). The boundaries of what third-parties share with the government is necessarily limited by that third-party’s cooperation. Police must not overextend the reach of consent to access someone’s social media activity, otherwise the right to privacy may be violated.
It isn’t just an individual’s actual friends that can share their social media posts with law enforcement, though. Just like undercover cops assume a false identity to gather information that individuals would otherwise not disclose to law enforcement, officers create profiles on social media with the intent to “friend” private accounts. Law enforcement’s use of covert accounts has been likened to an officer knocking on an individual’s door and requesting to come inside. The friend request, or knock, gives individuals the opportunity to consent or deny entry into their private account. Under the current law, once a social media user has let an officer’s account follow them, they no longer have a reasonable expectation that what they post is private. Whatever an officer observes and records on that individual’s social media from that point onward can be used as probable cause to apply for a search warrant or in future court proceedings. (United States v. Sawyer, 786 F. Supp. 2d 1352, 1355 (N.D. Ohio 2011) and Lewis
- United States, 385 U.S. 206 (1966), holding that an illegal search has not taken place when an individual willfully reveals information to an undercover agent).
In the case that law enforcement has probable cause to believe that evidence of criminal activity is stored on a social media page they cannot access, officers may apply to a judge for a search warrant. If the warrant is granted, officers could then compel the account’s owner or the social media platform to provide access to the account.
There’s one major takeaway from all of this information: social media is NOT private! Anything you do online will leave a digital footprint, which law enforcement have a plethora of means for tracking. Be careful with what you say or post on social media, who you become friends with, and how you select your privacy settings!
The conversation about social media and the Fourth Amendment right to privacy is still ongoing. Legal professionals, lawmakers, and regular citizens have all voiced their concerns about the lack of privacy afforded to individuals online. With an increasing amount of business, personal, religious, and political conversations taking place over online platforms, the government’s considerable ability to access these communications creates both Fourth Amendment and First Amendment concerns. Redefining the bounds of an individual’s reasonable expectation of privacy will be an ongoing challenge as technology continues to evolve and diversify. The courts will be responsible for balancing the government’s interest in enforcing the law with the people’s right to privacy and freedom of speech. Meanwhile, lawmakers can step in by passing legislation similar to the Electronic Communications Privacy Act of 1986, which restricted government access to electronic communications.
Ultimately, the reasonable expectation of privacy is a standard set by American society as a whole. Whether you believe that Fourth Amendment protections should or should not be applied to social media, it is your right and responsibility as an American citizen to share those opinions with your representatives.
If law enforcement has collected evidence from social media to be used against you in a criminal proceeding, you need an experienced criminal defense attorney on your side. Best & Brock master the ever-shifting legal landscape by staying on top of court rulings related to your Constitutional rights. For a free consultation with one of our criminal defense attorneys, reach out to our office at (423) 829-1055 or by filling out our online contact form.