It is undeniable that social media has become a pillar of modern-day society. According to Georgetown Law, 91 percent of today’s online adults use social media regularly. Due to the rise of social media, law enforcement heavily relies on this new platform to identify suspects, track criminals, and uncover facts about a case.
The police may now use their own social media platform to identify suspects. Police will often post a picture of a suspect on Facebook to have the public help ID the person. Police can also legally create fake accounts to gain viewing access to a suspect’s private account or their friends and family’s accounts.
In addition, social media is often used by police to uncover details of a case. Looking through a suspect’s profile, the profiles of the suspect’s friends/family, comments made by the suspect, private messages, and more, can all help uncover details of the crime. The important details that can be discovered through social media include, co-conspirators, witnesses, victims, motives, among others.
On the other hand, criminal defendants may also use social media evidence to defend themselves in criminal cases. A criminal defendant’s lawyer can use social media as evidence to look through the public accounts of the victim, and friends or family of the victim, for any exonerating information or to catch the alleged victim or witness in a lie. However, criminal defense lawyers are limited to certain restrictions that the police are not. For example, ethical rules prohibit a criminal defense attorney from “friending” someone or having a third-party “friend” someone to gain access to a private profile.
Remember, even if your social media accounts are private, the police may still gain access to them, and they often do so. Usually, the police will need a warrant, subpoena, or court order, but not always. Once there is sufficient evidence accumulated by the police of criminal activity, the police may obtain a subpoena or warrant or court order to compel Facebook, Twitter, or Instagram to hand over private access to your account. If the police get a warrant or subpoena for your private account, any aspect of that account (including private messages) can be used in court to attain a conviction against you.
In certain circumstances, federal law provides that the government may not even need a warrant or subpoena to obtain social media evidence. The Stored Communications Act (“SCA”) governs this area of law. However, criminal defendants do not share in this privilege. So, it may be harder for a criminal defendant to obtain social media from a private account because a subpoena or court order will be required.
Admissibility of Social Media Evidence into Criminal Court
Admissibility of evidence means whether the judge will allow certain evidence to be used in the courtroom to sway a judge or jury. For example, evidence that is not admissible includes prejudicial evidence, irrelevant evidence, and inflammatory evidence, among many others. Also, electronic evidence, such as social media, must be authenticated. To be authenticated means it must actually be what it is supposed to be (e.g., if you are trying to admit evidence of an online photo of the victim, it must actually be that, and not a picture of, say, a random person).
Social media evidence is admissible in a criminal case the same way any other electronic evidence would be admitted. However, there are several obstacles created by the unique nature of social media, such as the way social media can easily be forged or manipulated or even deleted. If social media evidence has a chance that it was forged or manipulated it will likely not be admissible. On the other hand, even if it is deleted, it could still be admitted.
Additionally, when admitting social media evidence, it is helpful to have a witness with personal knowledge of such evidence. This supports the authenticity and that it was not forged or manipulated. Having a personal knowledge witness to the social media can also help a case where the post was deleted.
No Fourth Amendment Right to Privacy of Social Media
Finally, it is very important to note that you do not have a reasonable expectation of privacy in regards to your social media account, even if your account is on a private setting. Courts all over the United States have continued to reject the idea that litigants have a Fourth Amendment right to privacy of their social media account (private or public). The theory behind this notion is that even though your account is private, you are still sharing your social media with a number of people. In other words, a private account is still public to certain people.