Search and Seizure Law

Search and Seizure Law and Policy (Social Media) Generally, police do not need a warrant to search in a public forum such as the street or a park. Anything that is in plain sight, plain smell, or plain hearing can be used by police officers to gain probable cause for an arrest. So if a person is soliciting prostitutes on the street (plain sight), smoking marijuana in a park (plain smell) or discussing the exploits of a crime in a city square (plain hearing), then the officer can act. This seems like common knowledge. But what most people do not realize (or refuse to believe) is that social media sites are also public fora. They are online (which is open to public) and a person is invited to join the community (and will sign terms of agreement). Even though people may access these sites from their own smartphones or even a laptop in the dark recesses of their privately owned home- once an individual is online, he or she is in public. Thus, what a person says, writes or posts is open to the public- including the police. Basically, it is akin to going into the middle of a park or a crowded restaurant and screaming at the top of your lungs. Government Use of Social Media in Investigations Government agencies are taking advantage of people’s ease with social media. As many as 80% of police agencies are now using social media as a tool for criminal investigation and the number continues to rise. For example, the NYPD uses facial recognition technology to scan Facebook pages to look for wanted criminals or those with outstanding warrants. The NYPD has an entire unit dedicated to mining Facebook, Twitter and other social media sites. Most federal investigatory agencies also have members who mine social media sites for evidence of criminal activity. For example, the Department of Homeland Security has its own private Twitter account and uses TweetDeck to scan millions of tweets for suspected terrorist activity (though the DHS claims that it does not follow specific individuals). Any information left public on social media is undoubtedly open to investigation by police. Information that directly implicates a person can be used to arrest the person. Furthermore, social media sites such as Foursquare can used to locate individuals. There are many examples of police agencies making arrests based upon information found on social media sites. A Kentucky man was jailed for posting a photo of himself siphoning gas. A Washington D.C. man was arrested after he used a laptop that he stole to post a picture on the victim’s Facebook’s page. The picture was one of him wearing a fur coat that he had also stolen from the victim. In California, authorities brought down an al-Qaeda terrorist cell by using a undercover agent to create a virtual relationship with the defendants through Facebook and Skype. In another case, a defendant was convicted of murder based on evidence found on MySpace. Police also create fake accounts so to access a suspect’s page through the assistance of a cooperating witness who is a Facebook friend with the suspect. Furthermore, many people will accept friend requests from people they do not know in order to increase the number of friends- thus making the police’s job very easy. Criminal Investigations, Social Media & Privacy Social media sites are updated daily with billions of pieces of data including pictures, videos, locations, addresses, and [unwitting] confessions. It is a valuable source for investigative agencies, one that requires little work or effort. This is an innovative way for police agencies to their jobs, but it does raise some privacy concerns. The Fourth Amendment of the U.S. Constitution protects “against unreasonable searches and seizures.” People have the highest level of protection in their homes and on their persons. Therefore, in order to search a person or the home, police must obtain a valid warrant from a magistrate or have articulable probable cause (the same level needed to obtain a warrant). The Fourth Amendment also protects against people from warrantless searches used with new technology, such as GPS tracking, infrared cameras and other high tech implementations- even if the police are in a public forum. For example, a police officer could not use an infrared camera from the street to ‘peak’ into a home, unless the officer had a valid warrant. Any evidence obtained from a warrantless search or one proceeded upon without probable cause will not be admissible in court. But, once again, this only applies to evidence gained in areas where citizens have a reasonable expectation of privacy. Thus information made available in a public forum most likely will not have protection. Since Facebook and Twitter are public forums, there is almost no reasonable expectation of privacy- thus police can search and seize information without a warrant or probable cause. Why the Government Can Access ‘Private’ Information The government can gain access to social media information through several traditional court orders such as warrants and subpoenas. But in some instances the government can compel disclosure without a warrant (which requires probable cause). The Electronic Communication Privacy Act, which governs the protection on online information, was passed in 1986. At that time, Congress only foresaw cell phone and email communication. Thus, the ECPA was created under the belief that people would download emails, open and read it, and then delete it. Congress did not foresee a permanent record of social media sites. As a result, under the current law, if information has been posted for less than 180 days, the government needs a warrant to gain access. But, if the information has been posted for more than 180 days, then it is assumed to be abandoned (like a letter thrown in the trash). Thus, the government can compel the service provider to disclose the information with a: 1) warrant; or 2) an administrative subpoena or a court order (which does not require probable cause). The law has created a confusing contradiction. A document on your computer can only be obtained through warrant, but if it stored in the cloud or through an email service provider, then the government is only required to obtain (a less strict) subpoena in order to access it. Moreover, the ECPA does not speak to location tracking, thus no court order is needed for police to use social media or cell phone information to track individuals. Interestingly, defendants do not have the same legal abilities to access social media information in mounting their own defense, as the rules of evidence require them to obtain a subpoena to access social media sites. Furthermore, any subpoena obtained can be challenged by the user or the social media site. (This would not include information that is publically available). Finally, even if the evidence is obtained, this does not mean that it will be admissible in court as it may be dismissed for several reason, including hearsay, inability to authenticate and prejudicial history. Social Media Sites -Pushing Back After several years of customer complaints, social networks sites have begun to allow for consumers to make information private- but only 25% of user’s take the additional step of making their pages private. The question is whether the ability to make that information private now creates a reasonable expectation of privacy. But private information may not be as private one thinks. For example, Facebook will often let information that one sets as private be posted on a friend’s page which may not be private. Furthermore, lists of friends allow for police officers to track known accomplices or other persons of interest who may have information that can lead to an arrest. Additionally, the U.S. Government frequently contacts social media sites for assistance in criminal investigations and the site often comply. At the end of 2012, Google reported receiving approximately 8400 request for information from government agencies in the U.S over the last five years. Of that total, approximately 5800 were based on subpoenas, 1900 were based on warrants and the rest were other types of requests under the ECPA. Google reported that it complied with approximately 90% of all government requests. Twitter also reported approximately 700 such requests in 2011, with 75% compliance [Facebook does not provide such information] In response to criticism by civil liberty groups, social media companies are starting to add policies that they will notify a user when request for information has been made, prior to handing the information over to authorities. Social media companies have also begun to fight against government requests for user information. Accordingly, some courts [but not all] have drawn a line between protecting the privacy of some information (private posts, private messaging, private pages), while not protecting others (information that is open to the public or shared with others). The Fourth Amendment’s protection against government search and seizure is based upon “reasonable expectation of privacy.” By definition, this ‘expectation’ is based upon whether or not society wants to protect a specific realm as private. For example, the United States has decided to protect a person’s home as a realm of privacy. But, as media technology has advanced, what we as a society considered being private has narrowed. But recent cases in U.S. courts have shown that the nation is not ready to allow for all aspects of our lives to be intruded upon- just because we have the technology to do so. Similarly, as social media becomes more engrained as a part of everyday life, society may decide to protect that realm as a forum where we also have a reasonable expectation of privacy. Jason Zenor State University of New York-Oswego See Also: Carnivore (FBI), Department of Homeland Security Media Monitoring Initiative, Digital Due Process Coalition, Domestic Surveillance and Social Media, Facial recognition Technology, Search and Scrape Plan (FBI plan). Further Reading: Center for Democracy & Technology, “The Electronic Communication Privacy Act Promoting Security and Protecting Privacy in the Digital Age” Statements before the U.S. Senate Committee on the Judiciary (September 22, 2010) (available at https://www.cdt.org/files/pdfs/20100922_jxd_testimony_ecpa.pdf). Justin Murphy and Adrian Fontecilla, “Social Media Evidence in government Investigations and Criminal Proceedings: A Frontier of New Legal Issues” Richmond Journal of Law and Technology, 19, 11-31 (2013). Guidelines for Law Enforcement, TWITTER, http://support.twitter.com/entires/41949-guidelines-for-law-enforcement. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012).