If you’re one of those people (i.e., if you’re a human being) that just glosses over the privacy settings for your social media platform, you might want to read US v. Meregildo, 11 Cr. 576 (WHP) (S.D.N.Y., Aug 10, 2012). Judge William H. Pauley III refused to suppress the government’s evidence obtained through viewing a Facebook profile. The “Memorandum & Order” is only four pages long (page five is a one-sentence conclusion), so you should click on the link above and read it.
The defendant, Melvin Colon, had a Facebook account, and he didn’t enable strict privacy settings. The result was that all of Colon’s “Facebook ‘friends’ [could] view a list of all of [Colon’s] other Facebook ‘friends,’ as well as messages and photographs that Colon and others posted to Colon’s profile.” One of Colon’s Facebook friends (“witness”) decided to cooperate with the police and allow them to view the contents of the witness’s account, which included a lot of information from Colon’s account due to Colon’s settings. As a result, the police learned that “Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang.” This formed the basis of probable cause, and a magistrate granted the search warrant.
The Court’s Analysis
The court noted that while people have a reasonable expectation of privacy in their home computers, they lose it when they transmit information over the Internet or by e-mail (citing United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004); Guest v. Leis, 255 F.3d 325,333 (6th Cir. 2001)). If Colon had adjusted his privacy settings to restrict public access to the information, he might have had an argument under the Fourth Amendment (i.e., a “reasonable expectation of privacy), but because he “disseminate[d] his postings and information to the public, they are not protected by the Fourth Amendment.”
Presumably because of the use of technology, the court analogized this to allowing the government to listen in on a phone conversation when the person on the other end of the telephone line consents to the call, which was allowed in United States v. Barone, 913 F.2d 46,49 (2d Cir. 1990), but in my opinion, that’s not even the strongest analogy available because the audio from phone calls aren’t available to the entire public. This is probably an even easier case than that (though I haven’t read Barone in about a decade). Posting publicly to Facebook is more like placing an announcement on an electronic billboard on interstate highway I-95. It’s using technology, and it’s a public announcement. To be honest, though, I feel the use of technology is a red herring here anyway, as this is really no different than the police simply talking to the witness and asking, “What do you know?” If the witness has incriminating information, then the police are just doing good police work to get it. Regardless of where the best analogy lies, the point is that this is an easy case.
There are two important caveats to this analysis. First, this was a district court case in New York and thus doesn’t apply to you unless you live in that district. However, I fully expect this to be how most courts rule on this issue, and even if you don’t agree with that prediction, you must recognize that there’s a danger that your district court judge will rule this way. Second, it’s important to note that the Court recognized there could exist theoretical fact patterns that made the government’s actions illegal. The point was simply that law enforcement going through public Facebook data shared on the internet voluntarily is not, in and of itself, inappropriate.
What Should We Have Learned?
For me, the moral of this story is broader than criminal law. Neither the judicial courts nor the court of public opinion will allow you to be as lazy or stupid as you think you have a right to be. If you don’t read the fine print or take the time to protect your information, you have no right to complain when it’s made public. If you insist on engaging in social media, you have two choices, and both require a modest work ethic and moderate amount of intelligence:
- Restrict access to your Facebook information to people you’ve already “friended,” and “friend” (as a verb) only people you actually know; or
- Watch what you post (i.e., always asked yourself whether what you’re posting could be embarrassing, controversial, or incriminating), and use “lists” to restrict certain information to a limited viewing audience.
If that’s too hard, delete your account(s) or accept the consequences. Ignore Meregildo at your own peril.
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