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With increasing frequency over the last few years, we have heard about law enforcement agencies’ use of social networks to investigate crimes and prosecute suspects. In the past, we have blogged about criminals using social networks in furtherance of criminal plans. Other commentators have covered use of social networks by attorneys as evidence while defending tort suits, in divorces, and in selecting jurors. But we now turn to a discussion of the use of social networks by law enforcement agencies in investigating suspects and crimes.
University police seemed to be at the vanguard of this investigatory trend–probably because of the early and widespread use of social networks by undergraduate students–often to investigate drinking violations. But state, local, and federal law enforcement are increasingly using social networks to investigate and gather evidence of serious crimes including murder and cyber bullying, and also to locate suspects. One statistic indicated that over 900 police departments and sheriff’s offices had Facebook pages. On the federal level, the DOJ has encouraged investigators to utilize social networks in investigating crimes and witnesses, as evidenced by a justice department memo (PDF) obtained by a legal advocacy group. (For an interesting look at how police in the UK are being trained to track killers using Facebook and Twitter, see here.)
However, the advent of this new investigative tactic is accompanied by questions regarding Fourth Amendment protections afforded to suspects and their posts. Is law enforcement’s warrantless use of a social network to glean information about a suspect an intrusion on the suspect’s Fourth Amendment protection against unreasonable searches? The simple answer is that it depends on the suspect’s reasonable expectation of privacy, in accordance with Justice Harlan’s famous two-prong test enunciated in Katz v. United States (US 1967) (Harlan, J., concurring), later adopted by the Court. The inquiry hinged upon (1) whether the individual had a subjective expectation of privacy; and (2) whether society found this expectation reasonable. The Court concluded that a suspect who entered a phone booth, closed the door behind him, and made a phone call had a reasonable expectation that his words were private. The Court thus held that an eavesdropping device installed without a warrant on the outside of the phone booth constituted an unreasonable search, even despite not being a physical intrusion.
While a number of cases further developed this doctrine, the Court has never determined the reasonableness of a search, if it is a search, of a user’s social network page or posts. One must wonder how competently the Court, often criticized for its detachment from new technology, would decide the merits of such a case and interpret societal expectations of privacy on social networks. Just last year, Justice Breyer, during a lecture at Vanderbilt University Law School, lamented his confusion stemming from the movie, “The Social Network.” See here for a discussion of Breyer’s comment in context, and for relevant remarks from other justices on the Court that indicate unawareness of complexities introduced by new technologies.
Nonetheless, Fourth Amendment protections are determined on a case-by-case basis, and certain factors, such as privacy settings, age of the user, and content of the posts, would likely guide the Court. For instance, if a suspect broadcasts inculpatory information on his or her public Twitter page, he or she likely has no reasonable expectation of privacy and the Court would probably apply the public vantage doctrine in determining that the search was reasonable. As Justice Harlan noted in Katz, “[C]onversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”
Public broadcasting of inculpatory information on a social network is the easier case. But how would a court determine each individual’s subjective view of the privacy afforded by the social network? And what if a law enforcement officer is only able to access the information because he or she is undercover, posing as a fictitious Facebook member? The aforementioned DOJ memo, perhaps presciently, begs this very question: “If agents violate terms of service [of Facebook], is that ‘otherwise illegal activity’?” Facebook’s “Terms” page states, “You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.” It seems therefore that undercover agents are violating the Facebook Terms. Moreover, does this Terms page, perhaps often overlooked by users, affect the expectation of privacy a user can expect with regard to undercover agents posing as Facebook members?
In sum, there are many unanswered questions related to privacy issues and Fourth Amendment protections, and this post only scratches the surface. Courts will likely lag behind the new law enforcement techniques, as is always the case. One thing seems sure: Law enforcement will increasingly use social networks to investigate suspects and crimes. So, JETLaw Blog readers, please remember to use discretion when posting evidence of your illicit criminal activity on a social network, because you never know when that attractive “user” is going to get you booked.
– Michael Dearington
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