Law enforcement pulled another surprising move recently in the case of Melvin Colon, an alleged gangster from the Bronx, when cops convinced one of his Facebook friends to let them have access to Colon’s page.
As a result, cops secured photos and posts that helped to indict him for gang-related racketeering, murder, and drug charges.
Colon fought the indictment, brandishing his Fourth Amendment right to privacy and arguing that he had a legitimate expectation that his friends would keep his posts about rival gang members and threats of violence to themselves.
Wrong, said U.S. District Judge William H. Pauley III in an order dated August 10. “Colon’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,” wrote the judge.
The judge’s finger-quotes around “friends” shouldn’t be lost on anyone: With this ruling, Judge Pauley joins a growing cadre of jurists around the country who are giving law enforcement greater and greater leeway in their use of social media to gather evidence against people accused of crimes. The upshot? Social media “friends” can betray you in just about any way you can imagine, because your privacy settings are basically irrelevant.
Troubles Go beyond Gangsters’
But this case is also troubling to lawyers who work at the intersection of technology and social media because of the implications of what’s next for law enforcement, who seem to be growing bolder in their use of social media.
“If law enforcement were to hack into someone’s account without a search warrant, that is clearly illegal,” points out Hanni M. Fakhoury, a staff attorney with the Electronic Frontier Foundation in San Francisco. “On the other hand, if a genuine ‘friend’ of a suspect were to show officers what that suspect was doing on social media, there is no Fourth Amendment problem.”
“The trickier situation is officers creating fake profiles and pretending to be someone they’re not in order to find information on a suspect,” he explains. “While law enforcement routinely go undercover, there’s something more intrusive about doing so in a social media situation.”
That’s because social media can alleviate the risks and resource-devotion required for cops to go under deep cover to get the real goods on suspects. “Social media enables the officer to learn much more about a person relatively cheap and easily,” Fakhoury says. “While the Fourth Amendment may not provide protection, this may be an area where legislative action is required to require some judicial oversight into these practices.”
Social Media “Third Parties” Raise New Questions for Courts
The law still needs to catch up to the technology, since judges are still laboring under standards set by laws passed to deal with snail mail and email, neither of which raise exactly the same problems as communications sent via social media channels.
Asked what it would take to push the balance away from law enforcement and toward users’ privacy in social media, Fakhoury says, “It would take a case that involves incredibly sensitive information being turned over to the government without a search warrant before we can start to see courts re-examine this idea.”
In the mean time, he points to a concurring opinion by U.S. Supreme Court Justice Sandra Sotomayor in a case earlier this year in which she indicated that “the idea that data loses its constitutional privacy protections when turned over to a third party [like Facebook] was ‘ill-suited’ for the digital age we live in, where reams of data are constantly being handled by third parties.”
“[Sotomayor] went on to note that secrecy shouldn’t be a prerequisite to privacy, and I think that is the crux of the issue,” Fakhoury says. “Once courts start to question this ‘third-party doctrine’ and start appreciating the privacy risks at issue, they will hopefully start to rule the other way.”
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