It has been said by parents all over the country to their teenagers using the Internet and posting on social media sites: presume that everything you post can be seen by everybody and that it will be seen forever. Nevertheless, as social media use has exploded over the past decade, teenagers and adults alike continue posting updates, photos and videos that may come back to bite them. Sometimes, it is merely embarrassment. Other times, and with increasing frequency, social media posts are being used as evidence to put people behind bars.
Standard Operating Procedure for Cops and Prosecutors
It has become almost standard operating procedure for Texas law enforcement agencies, like their colleagues across the country, to scour social media sites to solve criminal cases or gather evidence to be used in prosecutions. A July 2012 survey of more than 1,000 federal, state and local law enforcement agencies by LexisNexis Risk Solutions revealed that 83% of the respondents are using social media, particularly Facebook and YouTube, to further their investigations.
Social media websites contain features and information that can provide police and prosecutors with such valuable information as:
- A suspect’s location,
- What a suspect was doing in the days and hours leading up to the crime,
- Potential witnesses or accomplices, and
- Background information on the witness and suspect
In addition to using social media to identify pieces of evidence that will help prove their case, law enforcement agencies use the tool to organize public outreach efforts and solicit tips on unsolved crimes. Many police departments have their own Facebook pages and Twitter accounts and use these avenues to relay important public safety information to the public. The Galveston Police Detectives and the Houston Police Department both have Facebook pages on which they regularly post pictures, video and other information in their efforts to find leads and suspects.
Sometimes, such posts come from the defendant while other times they may come from a friend’s page or the account of a total stranger. Furthermore, everyone with a smartphone can take pictures of events as they happen and upload them to social media sites.
Of course, there are also those who convict themselves as a result of their obliviousness and zeal to post their exploits online, like the Houston bank tellers and their friends who brilliantly posted “I’M RICH!!” on Facebook shortly after their branch was robbed in 2011.
No Reasonable Expectation of Privacy
A number of courts have ruled that social media postings are not private, even when users adjust their privacy settings to shield their page from public view. In one case, prosecutors obtained incriminating evidence against the defendant through a cooperating witness who happened to be Facebook “friends” with the defendant. When the defendant asserted that his 4th Amendment rights were violated, the court said that “[The Defendant’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.”
Facebook and Twitter’s privacy policies warn users that the purpose of the sites is to share information, and that the public can view the posts on the sites. Prosecutors and police can and do obtain the court orders, subpoenas, or search warrants necessary to obtain subscriber information, history, and content from social media networks.
Social media users must understand that anything they post on social media websites can and will be found and used against them in a criminal investigation and trial.
This article has been prepared by Mark A. Diaz for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.