From Click to Clank: Social Media and Criminal Investigations

The gift and curse of technology advancement has made its way into the criminal justice system. In a generation where almost nothing is left private, social media sites have created a new frontier of evidence for criminal investigations.  Justin P. Murphy and Adrian Fontecilla of Crowell & Moring’s Washington, D.C. office took an in-depth look at social media evidence in criminal proceedings.  A Bloomberg Law report that summarizes their larger study and law review article reports some remarkable statistics:  “Social media use in the United States alone has increased by 356 percent since 2006.  Currently, 52 percent of Americans have at least one social media profile, more than one billion people use Facebook actively each month and Twitter has over 140 million active users posting 340 million Tweets a day.”

               

With social media being such an incredibly important part of people’s lives, it is no surprise that law enforcement personnel are flooding to the internet to get a better insight on criminal suspects and activity.  Social media sites can equip law enforcement with an abundance of information about a person.  To compare, “when a phone company responds to a government subpoena or search warrant, it may provide call or message logs.  In contrast, when a social media company such as Facebook responds to a government subpoena it provides the user’s profile, wall posts, photos uploaded by the user, photos in which the user was tagged, a comprehensive list of the user’s friends with their Facebook IDs, and a long table of login and IP data.”

               

This amount of access by law enforcement raises significant constitutional issues of privacy and the right against self-incrimination.  But how much of what is posted online is actually private?  The over-simplistic answer:  not much.  Courts have decided that once information is posted to a social media site, the speaker has given up his right against self-incrimination.  Allowing friends and others to see such statements opens the door to views by law enforcement.  Similar to family and friends serving as cooperatives in regular criminal investigations, friends and family can serve as informants on the internet, sometimes giving law enforcement access to their social media information to view the often incriminating evidence of the suspect.

               

In New York, Melvin Colon posted photos on his Facebook that showed him flashing gang signs.  These pictures were public; however, he set his privacy settings to only allow his Facebook “friends” see more incriminating information, which included references to past threats and crimes against others.  Police officers were able to access his account by gathering information from one of his Facebook friends.  A federal judge in the case ruled that 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.”

               

Law enforcement agencies are now allowed some flexibility in requesting social media information that is not readily or publicly accessible.  The Stored Communications Act allows government agencies to compel social media sites into sharing personal information about citizens.  The outdated Act, which was passed in 1986, has left courts grappling with the question of how to determine whether the SCA applies to the different features and levels of information that can be obtained on a social networking websites.  There is a distinction made between personal e-mails that, like phone calls, have been deemed extremely private and social networking sites which, by their nature, are public insights into the personal lives of all who use them.

Different sites have taken various stances on whether information about users should be shared with the police.  Twitter has been one of the most boisterous opponents to sharing user information with government agencies.  In a major case prosecuting one of the Occupy Wall Street protestors, Twitter refused to share the protestor’s tweets saying that all users own the rights to their tweets and their Fourth Amendment rights cannot be infringed upon.  In this case, the posts were not made public by the defendant and therefore were covered under the Fourth Amendment’s right against unreasonable search and seizure.  Twitter has taken their policy a step further, insisting that they will let users know of any requests for the user’s data.

               

Social media evidence is not limited to just information that incriminates suspects.  Social media and issues with its overuse have even made its way into the courtroom where more and more jurors are using social media to both voice opinions about trial and gather information about the suspect and sentencing information:  “During trials, jurors can pollute the pool and disrupt proceedings. Some have been caught tweeting during testimony, polling Facebook friends for input on the verdict, even mocking judges during trials. The use of social media has resulted in dozens of mistrials, appeals and overturned verdicts in the past couple of years.”

               

Given the vast information that can be gathered from social media investigations, it seems like websites like Facebook and Twitter have become goldmines for law enforcement agencies.  The reality is that there are some downsides to all of the access, even for police officers. The amount of information that police officers can go through can raise some doubts on what is authentic and what is fake.  Courts are left to decide if there are ways to authenticate a user’s information to link them to incriminating statements.  Police officers face the issue of having personal accounts themselves.  In an FBI report titled “Social Media: Establishing Criteria for Law Enforcement Use,” Robert Stuart raises these issues. Stuart acknowledges that social media has been of great use to police departments but says that some First Amendment rights to free speech can be raised for police officers who are not able to separate their personal from professional personas online.  For instance, “government entities can restrict the speech of their employees under certain circumstances, such as if the expression interferes with or compromises the mission of the department or brings into question the professionalism of the officers or the agency.”

               

Finally, the question remains, how do defense attorneys react to the new arena of information that can be raised against their clients?  Defense attorneys are at a unique disadvantage because the Federal Rules of Evidence don’t allow for defendants to use social media in the same ways that the government can because they don’t share the same access to go through publicly available social media evidence:  “Ethics opinions issued to lawyers in various states have established that a defendant’s lawyer may not ’friend’ or direct a third person to ‘friend’ another party or witness in litigation in order to search for impeachment material or exculpatory evidence.”  Defendants also have a harder time subpoenaing information about witnesses because they have to pursue such matters through non-party discovery pursuant to Federal Rules of Evidence.

               

Once information has been obtained by law enforcement, there is still the issue of admissibility.  Courts are still taking various positions on what information is private and what may be self-incriminating information.  As the law continues to form around this issue, defense and government attorneys should advise their witnesses not to post incriminating information on social media that could lead to impeachment.  Defense attorneys especially should advise their clients against any public information pertaining to any criminal conduct to help protect against any information being used against them in future criminal proceedings.  Attorneys should also take note to their own personal personas on social media profiles to make sure they are not breaking any laws or rules of professional responsibility.  Police officers should follow suit to make sure that, in the end, trials and criminal proceedings are not adversely affected by information found on the internet that may be unreliable or unclear.

Erica McKinney
Staffer, Criminal Law Practitioner

Photo by Matthew Bowden on Wikipedia.