A U.S. District Court Judge in New York City has issued a ruling that, when you really think about it, should be rather blindingly obvious:
Did you know that what you say on Facebook can be used against you in a court of law? If you’re sharing something with your friends, you may as well be sharing directly with the judge and jury: A recent ruling in a U.S. federal court says that if you post something on Facebook, your friend can share that information with the police — it’s not a violation of your privacy.
Accused gang member Melvin Colon had argued in court that investigators violated his constitutional right to privacy when they viewed his Facebook profile via one of his friends’ accounts. But US District Judge William Pauley III ruled that Colon’s messaged threats and posts about violent acts he committed were not private, and indeed fair game for prosecutors. To some extent, the ruling makes logical sense: When you say something publicly on Facebook, you’re often sharing a thought with hundreds, maybe even thousands of people. There’s not much that’s private about that.
No, there’s not, what you post on Facebook, or Twitter, or any other social networking site is considered publicly disseminated for the purposes of the law even if you have restricted access to your account to only a select group of people. It’s the same situation, essentially, as if you were having a conversation with a group of your friends in your home and one of those friends went to the police and reported that you confessed to a crime. In this particular case, it appears that what happened is that the police had obtained the cooperation of one of Colon’s co-conspirators in the case at hand, who also happened to be on of his Facebook friends and, as part of convincing that person to become a cooperating witness (no doubt in exchange for lower charges or a lighter sentence as is common in these situations) they required him to let the police use his Facebook account to see what Colon was posting. When they saw that Colon was posting about the acts he’d committed in the case at issue, along with other violent acts, they applied for a Search Warrant to be served on Facebook, with the probable cause being what they had seen during the course of their investigation.
The primary objection posed by Colon’s attorney’s went not to the Search Warrant served upon Facebook, which they conceded was validly issued, but the method by which law enforcement went about establishing the necessary probable cause. However, as the Judge in this case correctly held, the method that the government used to obtain information was entirely proper given the fact that Colon had no expectation of privacy in his Facebook posts:
Colon maintained a Facebook profile in which he pennitted his Facebook ”friends” to view a list of all of his other Facebook “friends,” as well as messages and photographs that Colon and others posted to Colon’s profile. (See Def.’s Mem. of Law, Ex. F:Affidavit in Support of Facebook Search Warrant (“Facebook Aff.”) at 8-9.) The Government viewed Colon’s Facebook profile through the Facebook account of one of Colon’s “friends” who was a cooperating witness. (See Facebook Aff. at 16.) By that means, the Government learned, inter alia, that Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang. (See Facebook Aff. at 19.) Access to Colon’s Facebook profile fonned the core of the Government’s evidence of probable cause supporting its application for the search warrant.
Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46,49 (2d Cir. 1990) (finding that a person does not have a legitimate privacy expectation in telephone calls recorded by the Government with the consent of at least one party on the call.) While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. Cf. Barone, 913 F.2d at 49. And the wider his circle of “friends,” the more likely Colon’s posts would be viewed by someone he never expected to see them. Colon’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted-including sharing it with the Government. Cf. Guest, 255 F.3d at 333 (finding that an e-mail sender-like a letter writer-loses their expectation of privacy upon delivery). When Colon posted to his Facebook profile and then shared those posts with his ”friends,” he did so at his peril. Because Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed Colon’s Facebook profile through a cooperating witness.
I’ve seen several comments by people expressing concern about this decision, but it seems pretty elementary to me. One of the core tests of any claim that the 4th Amendment has been violated in a particular case is the question of whether the Defendant had a reasonable expectation of privacy in the information or item that was obtained as a result of the search. That applies as equally to the information you post online as it does to the duffle bag you placed on the back seat of your friends car, and in the case of things you post on a public network like Facebook it’s simply illogical to say that you have a reasonable expectation of privacy in information or photographs that you are freely sharing with a group of people, even if you’ve taken steps to make sure that only that group of people can see what you post. In this case, the police did nothing wrong in using the Facebook account of one of Colon’s friends to examine what he’d been posting, and as soon as they determined he was posting information that incriminated him, they applied for a Search Warrant.
Some people who have talked about this case since the decision was handed down have wondered what happens if someone’s Facebook account has been hacked and incriminating information posted there under their name. This isn’t an unwarranted concern, but I would submit it is hardly a reason to bar law enforcement from ever gaining access to a social media account if they have probable cause to support their warrant. The obvious solution to a situation such as this is that the defense would be able to seek to suppress the evidence based on fabrication, as long as they can prove that such a thing happened. If they’re unable to suppress the evidence, then they are free to present evidence at trial questioning the credibility of the evidence. This is what the adversarial process is all about.
The lesson here is very simply. Once you post something online then it can be subject to being admitted into evidence in any court proceeding you’re involved in, criminal or civil, so perhaps next time people won’t be as stupid as Mr. Colon apparently was when he essentially confessed to multiple crimes on his Facebook page.
Here’s the opinion:
