Can Police Use Facebook in Criminal Investigations?

Courts allow police to capture and preserve any shared messages, updates and photographs obtained from a suspect’s social networks to use as evidence. The U.S. Supreme Court ruled against an expectation of privacy for digital content you chose to share publicly; or even with one friend.

Thus, in many situations police do not need to have probable cause, or a search warrant to legally obtain your posts from a social site.

The Rules of Evidence in Massachusetts allow digital communications into evidence so long as they’re authenticated and linked to the suspect, which is as simple as matching account identifiers such as an IP Address.

Admissibility of digital content is not cut-and-dried, however. As courts across the country struggle to keep up with innovations in the tech sector, they’ll continue to evaluate admissible evidence on a case-by-case basis whenever a challenge arises.

Facebook Content in Court

Facebook writes on its website that it will cooperate with law enforcement in certain emergency situations through a formal process it has streamlined over the years. The social network also certifies its user data as regular business records (required for authentication); and it publishes an annual report of government data requests that you can view here.

*Important* Even if your posts are set to be seen by “friends only,” there is still no legal expectation of privacy in most cases.

 

It’s also common for courts to accept copies of original content into evidence. So a screenshot or camera shot of someone’s public post or message that is then printed out will generally be accepted, as long as it is validated before trial.

Police on Facebook

Online community policing is not only very effective, it’s also extremely efficient. Within minutes of posting to their Facebook page, police departments garner tips and leads from their page followers that often result in an arrest.

Other investigative methods on the platform include:

  • Detectives create fake accounts to friend suspects, or else they’ll use a personal Facebook account to befriend a target.
  • Police monitor the posts and online activities of users in high-risk areas, a practice called predictive risk policing.
  • Applying for emergency access to solve crimes in progress. Facebook will always work with police when children are in danger.
  • Obtaining user records through subpoenas and warrants.
  • Facial recognition tactics – Surveillance video frames can be uploaded and quickly matched to a Facebook profile picture to ID a suspect.
  • Locating suspects via the platform’s “Check in” feature.

Be wary of accepting someone’s friend request when you’re not 100% sure who it is. Officers aren’t required to be honest when conducting investigations and once they’re in your network, they’ll have instant access to everything you do.

Facebook on the Defense

Using Facebook and other social networks to gather information isn’t limited to law enforcement. Defense attorneys have found inflammatory statements made by testifying police officers that prove to be very helpful in their client’s defense.

When an involved officer has posted biased opinions or unbecoming material to a social platform, those items can be shown to a jury at trial.

If an officer or other state’s witness has posted such content to social media, it can be used to damage their credibility in the minds of the jurors. And any evidence of prior misconduct found online is also fair game.

You and your defense attorney can thoroughly explore this tactic. In federal cases, the prosecutor may already have this type of exculpatory evidence and your lawyer is entitled to receive it during discovery.

Civil Use of Social Media Evidence

Civil courts see by far the majority of social media evidence. One reason is that the Rules of Evidence are more lenient in civil matters than they are in criminal cases.

Social behaviors are also more naturally linked to civil disputes, such as those resolved in family courts. Users of social media should also know that evidence used in a criminal proceeding is almost always allowed into civil trials on the same underlying event.

For example, a Facebook video post by a defendant showing their participation in vandalizing a property that prosecutors used in criminal court can later be used by a plaintiff in the civil suit for damages.

Some of the top legal areas using social media evidence in civil courtrooms are:

  • Child custody hearings –Evidence to support claims of improper parenting such as drug and alcohol use while supervising children.
  • Divorce proceedings –To uncover assets, hidden wealth or income and infidelity.
  • Worker’s Compensation –To find evidence (photos) of fraudulent claims.
  • Personal Injury cases – To find evidence supporting negligence or claims of recklessness.
  • Underage offenses –Evidence of underage alcohol consumption or sex offenses. Colleges and schools also use sites like YouTube and Facebook to investigate policy violations by students.

Social Media and No Contact Orders

Social sites like Facebook make violating “no contact” orders very easy. No-contact or “stay away” orders are called restraining orders in Massachusetts, and they are granted in a family or civil court.

However, once a restraining order is violated it becomes a criminal matter. But does interacting with someone on Facebook constitute contact? The answer isn’t always clear because there are several ways to interact on social networks, such as through private messaging or public commenting.

Either way, if your online communication is perceived as threatening by the protected person, you could be brought up on charges for criminal harassment, stalking and violating a no-contact order.

CONCLUSION

Current legal doctrines on digital privacy are trending against the user, and increasingly in favor of police or government agents. Judges justify weaker application of the Fourth Amendment with the following logic:

  1. You don’t own your stored communications. The tech company /service provider does. Thus, you can’t reasonably expect to have autonomous control over them.
  2. You lose any reasonable expectation of privacy the minute you decide to share the communication with another person.
  3. The value of the content to the government’s case can outweigh any potential for prejudice the evidence may have in court.

However, several defense strategies can prevail. For instance, free speech arguments can be successful in suppressing digital evidence. A Mass judge recently ruled in a defendant’s favor because the prosecution’s Facebook evidence wasn’t specific to the unlawful acts of violence that render speech unprotected.

Constitutional search and seizure laws only protect private citizens from government agents, such as police. Fewer laws restrict individuals. Plus, in civil disputes people can hire private investigators and attorneys to help uncover admissible evidence.

Take care never to post anything online that you wouldn’t want your mother or child to see. No matter how tight your privacy settings, always assume that what you transmit to sites like Facebook will ultimately be out of your control, and available for anyone to use against you.

If you believe your Facebook activities might be used against you in court, contact my office today to set up an appointment for a free consultation: 978-452-1116.

Attorney Gregory Oberhauser

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Gregory Oberhauser is the ONLY attorney in Massachusetts to be distinguished as an ACS-CHAL Forensic Lawyer-Scientist by the American Chemical Society!

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