Police Increasingly Use Social Networking Sites for Evidence

In the information age, electronic social networking has become almost a way of life.

Every day, millions of users log in to update their online profiles, share content with friends, and explore a diverse array of applications. Together, these users share 30 billion photos, links, posts, and other types of content monthly - a tremendous amount of information.

The intended audience for most of this content is friends or online acquaintances. However, others have been unable to ignore the veritable gold mine represented by sites like Facebook and MySpace: police organizations throughout the world have also plugged in to benefit from the free flow of social networking information to investigate criminal activity.

While some champion this innovative policing strategy, the use of evidence pulled from social networking sites by law enforcement raises some troubling privacy concerns. For those whose cases involve a social media element, the ensuing legal issues can prove highly contentious.

The Fourth Amendment and Internet Privacy

The Fourth Amendment to the United States Constitution protects "against unreasonable searches and seizures" at the hands of government agents. Today, this protection extends to many forms of electronic "searches." Normally, an officer conducting a valid search must have probable cause, a standard that requires a factually based probability that a crime has been committed and that evidence is likely to be found in the area of the search.

In the courts, there is also a preference that law enforcement officers obtain a warrant before searching whenever possible. If an illegal search is conducted (one in which there was no probable cause or the search was otherwise illegal), any evidence that is discovered is inadmissible in court.

The protections granted by the Fourth Amendment can be quite broad. However, not every action police officers take on social networking sites amounts to a search. Case law establishes that the protection against unlawful search and seizure only applies in contexts in which citizens have a reasonable expectation of privacy.

For example, you would almost certainly enjoy a reasonable expectation of privacy during a conversation conducted in your home; absent probable cause, government agents could not listen in and use the evidence obtained in such a search. On the other hand, were the same conversation to take place on a busy street corner, it is likely you would not have an expectation of privacy, since you could easily be overheard by any bystander.

Those aspects of Facebook or MySpace pages open to the public are analogous to the street corner conversation; the police may exploit such information liberally, as there is no protected privacy interest in content made widely available to the public. Most social networking sites allow users to restrict access to their information and provide optional privacy control settings.

By establishing a privacy firewall through personal settings, users can likely bring their Facebook information within the realm of Fourth Amendment protection. But, those who leave content open to the public also make it easily available to the authorities.

How Social Networking Content is Used in the Justice System

There are many ways in which the police and others involved in the legal system use tools social networking sites provide. In investigating crime, one of the most obvious boons for police is when a user publicly posts directly incriminating content (for example, a photo depicting underage drinking, a marijuana bong or a weapon).

Other common tactics used by investigators include using online content to establish a suspect's location at a given time or to track down leads on a victim or suspect (friend lists open to the public give officers a ready-made roll of people to contact who may have clues).

Facebook and similar sites have been used by the authorities in everything from the mundane to murder cases. And, the trend is on the rise: as reported by the USA Today, a survey from the International Association of Police Chiefs found that more than a third of participating law enforcement agencies routinely search Facebook and other social networking sites in their investigations.

Police, however, are not the only potential beneficiaries of widely available information on the internet: defense attorneys can also use content posted publicly on social networking sites. This information can become invaluable in rebutting an alleged victim or impeaching (in other words, discrediting) the testimony of a witness. With the proper investment of time, a competent defense attorney can often mine a witness's social media page for information that can determine whether their story really holds up.

All things considered, it is rarely a good idea to post anything on the internet that is potentially incriminating, regardless of your security settings or who your friends are. Keeping such content to yourself may be the best way to avoid social networking legal entanglements.

As added insurance, you should always be familiar with your privacy controls, keeping them set at a level you are comfortable with. If you have been arrested or believe that you may be investigated or implicated in a crime and that evidence may be found in any social network post, contact a criminal defense attorney. Your attorney can assess your case, and will use the tools provided by the information age to your advantage. Information gleaned from Facebook and MySpace can have a critical effect on the success of your criminal defense and it is essential to ensure that social networking content is working for your case rather than against it.

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