Facebook ‘em, Danno. Social media and legal evidence.

Social media occupies a firm place in our society and many people’s time. Facebook, Twitter, Instagram and other platforms have made all sorts of things easier, from checking out pictures of your friends’ dogs to creating a scandal that forces you to resign from Congress. The prevalence of social media and available technology has led to the adverse phenomenon of individuals over-sharing information about themselves. This modern hubris most often leads to ridicule or just disgust by the person’s followers. Sometimes, it leads to legal problems.

My good buddy Jesse Dill, a Milwaukee attorney who is an authority on social media legal issues, Tweeted a link that the IRS may begin checking the Facebook and Twitter pages of individuals who have questionable tax returns, with the aim to uncover evidence of higher income or lavish spending.

This follows a trend among law enforcement agencies. Police departments all over the country have been using social media in their investigations. In many cases the work is already done for them by suspects sharing information of criminal activity, from pictures of drugs, guns and money to straight-up boasts of committing a crime. One of many examples is a young man in Oregon who was arrested after posting the following status on Facebook: “Drivin drunk…. classsic ;) but to whoever’s vehicle i hit i am sorry. :P”. One of his friends notified the police after seeing it. He was arrested and charged.

Police departments in Connecticut are also using social media for investigation and to communicate with the public.

So how can the police do this? What about Fourth Amendment protections? The answer is pretty simple. Social media posts are largely public statements: the poster is not making them with any expectation of privacy. The Fourth Amendment protects people when they have a reasonable expectation of privacy. A person who is posting something for others to see is likely not exhibiting any expectation of privacy for that statement and even if he or she were, it would likely not be held to be reasonable. In the Oregon case, the poster was reported by two of his followers, so there was not even any government action that caught his post.

A few years ago in Wisconsin, a girl named Jenny began Facebook friending students at the University of Wisconsin-LaCrosse. Jenny was really a police officer who used her new friend status to find pictures of her underage friends drinking. The students were called down to the police station–not arrested–voluntarily went and were ticketed for underage possession of alcohol. These types of sting operations are a little dicier Fourth Amendment-wise because it is the police who initiated the contact, but again, the stung party was free to reject the investigator’s request. These and more elaborate police actions will likely be litigated more going forward but it will not likely lead to greater Fourth Amendment protection.

Facebook at least has some privacy protections compared to other social media. It does not take much effort to find YouTube videos of people engaging in illegal activity. When I was in college, before Facebook became the dominant photo sharing platform, people used other websites such as Webshots, Shutterfly and Worldisround to share their pictures, which tended to show college social activities of dubious legality. Although there were not full profiles to tie pictures to someone, they were completely open to anyone looking online. The point to remember is: you never know who is looking.

It also is not just law enforcement that is using social media. Opponents in civil cases often use social media to find things out about their opponents. This is very common in divorce cases. It is also common in personal injury cases–defense attorneys and insurance companies look for evidence of plaintiffs doing physical activities that would indicate their injuries are not severe. Employers may also be checking up on their employees. Due to the admission by a party opponent rule in evidence, it is not difficult to admit statements of a civil opponent into court.

For all of the concerns about government intrusion into privacy and the rapidly eroding Fourth Amendment, people are their own worst enemies. Individuals routinely waive their protections under Fourth and Fifth Amendments by volunteering information to the police and just about everyone else. I now emphasize to my clients that while they have the right to remain silent, that right does not protect what they willingly reveal to other people in conversations or online, and that they must be careful.

Look for DeMatteo Law on Facebook and Twitter. I assure you that all of our posts are legal.


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