A recent article details how police and prosecutors are increasingly using Facebook photos and posts as evidence in criminal trials. Armed with smartphones, nearly everyone documents their entire life online these days, so it should be no surprise that people accused of crimes do too.
The most frequent way police and prosecutors try to get this information is by going through Facebook itself. From the article:
Facebook received 14,274 requests involving 21,731 accounts from U.S. law enforcement agencies in the second half of 2014.
Facebook has challenged the requests in court, and lost, mainly because Facebook lacks “standing” to argue that a user’s right to privacy would be violated. Only the person whose rights are violated can challenge it in court. Essentially the courts view Facebook as an uninvolved third party, without the ability to challenge the warrants in court.
It’s pretty clear that the courts, when applying the laws we have, still don’t have a clear idea of what to do with something like Facebook. It’s helpful to think about two scenarios: one where the prosecutors are trying to get information from Facebook, and one where they’re trying to get information the old fashioned way.
Scenario 1: You post a series of photos on Facebook. In it are pictures relevant to the court case, specifically one that shows you in a very incriminating scenario. The prosecutors then ask the judge for a warrant to pull those photos down from Facebook’s servers, so that they can use the pictures as evidence at the trial.
Scenario 2: Your family sends out one of those cheesy “What’s Our Family Up To” letters over Christmas to your friends and family. Printed on it are pictures relevant to the court case, specifically one that shows you in a very incriminating scenario. The prosecutors then ask the judge for warrants for each person’s house to search for the letter, so that they can use the pictures as evidence at the trial.
Imagine the outrage if a judge was to grant warrants for everyone’s house, instead of just letting the police search Facebook. It may be that courts will change their minds and make it harder to get information from Facebook, but in the meantime remember – just making something “private” on Facebook doesn’t mean the police and prosecutors can’t get it and use it against you.