If you think that privacy settings will stop a persistent investigator from accessing your profile information, status updates, and various other types of personal Facebook data – think again.
According to a ruling by U.S. District Judge Williams Pauley III, it’s not a violation of Fourth Amendment rights for investigators to access your Facebook profile with the help of one of your friends. That’s because all of that data that you think is personal really isn’t that personal after all, according to the Judge.
Accused gangster Melvin Colon made a motion to suppress evidence that was “seized from his Facebook account pursuant to a search warrant.” Colon doesn’t argue with the probable cause used to issue to warrant, what he does object to is the method of evidence collection. Mainly, Colon “presented a fourth amendment challenge to the Government’s use of a cooperating witness who was one of Colon’s Facebook friends and gave the Government access to Colon’s Facebook profile.”
But the Judge felt that Colon had no expectation that his Facebook friends would keep everything on his profile private.
Colon’s legitimate expectation of privacy ended when he disseminated posts to his friends because those friends were free to use the information however the wanted – including sharing it with the Government.
It’s hard to argue with that. Anyone who shares private information on any social network and thinks that it’s truly private is fooling themselves. But the Judge’s argument is a little murkier when he starts talking about levels of Facebook privacy.
The Judge concludes that the Fourth Amenedment argument could have merit, but it depends inter alia (among other things) on the user’s personal privacy settings. “When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. However, postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected,” he says.
So, Colon simply didn’t take the steps to properly lock down his account, right?
Well, kind of. The Judge continues:
Here. Colon maintained a Facebook profile in which he permitted his Facebook friends to view a list of all of his other Facebook friends, as well as messages and photographs that Colon and other posted to Colon’s profile…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.
Even the most stringent privacy hounds on Facebook allow their friends to see their posts and profile – it’s simply strangers that they keep out. What would be the point of Facebook if you allowed nobody to see your content expect you, yourself? The Judge is basically saying that as long as you let one friend see what you post, that one friend can rat on you.
In short, being a member of Facebook precludes you from any expectation of privacy, in regards to the Fourth Amendment.
Social media is a new, and commonly misunderstood frontier when it comes to legal proceedings. Everyone is still trying to grasp what it all means in relation to laws already on the books. I have a feeling this won’t be the last time we see a case like this debated, and I wouldn’t be surprised to hear a completely different ruling next time.