Social Media in Criminal Cases: A Virtual Treasure Trove for Attorneys



In today’s digital world, we have grown accustomed to posting personal information, opinions, and photographs online without even considering the potential consequences that can result when it is viewed by unintended parties. Prosecutors and law enforcement have seized upon people’s comfort by routinely using social media sites when conducting criminal investigations.

Last summer, Facebook and the Manhattan district attorney’s office engaged in a heated legal battle over the prosecutor’s demand for the contents of hundreds of user accounts. The case centered on a group of 130 civil servants who were later indicted on charges of defrauding the Social Security system with fake disability claims totaling over $400 million in benefits. Prosecutors claimed photographs posted to Facebook showed allegedly disabled individuals engaging in strenuous physical activities such as deep sea fishing, riding personal watercraft, and teaching karate. The photographs helped support other evidence gathered by prosecutors during their three-year investigation. “ The defendants in this case repeatedly lied to the government about their mental, physical and social capabilities. Their Facebook accounts told a different story,” a spokesperson for the Manhattan district attorney said of the necessity of executing the search warrants.

Facebook argued that the demand for its users’ content violated the constitutional right of account holders to be free of unreasonable searches and seizures. For Facebook to be successful, it would first have to establish standing to challenge the warrants on behalf of its users. The deputy general counsel for Facebook argued that if Facebook could not challenge the warrants on behalf of its users and the users did not need to be informed of the search warrants, no one would have the chance to challenge potential invasions of privacy. Additionally, Facebook argued the scope of the warrants were so vast large amounts of information not relevant to the investigation would inevitably be seized.  General counsel said this was the largest request of data the company had received, and the district attorney’s office was unwilling to reduce the scope of its request to ensure less relevant information is not incidentally collected.

The Fourth Amendment of the United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” 4th Amend, Us Constitution. A moving party must first establish they have standing to claim a Fourth Amendment violation. People v. Ramirez-Portoreal, 88 NY2d 99 (1996). To have standing, the movant must have an objective or subjective expectation of privacy in the area or item to be searched. Ramirez-Portoreal at 108.

The judge in this case ruled Facebook had no standing to challenge the data request, because it was simply a repository of data, not a target of the criminal investigation. “Facebook could best be described as a digital landlord, a virtual custodian or storage facility for millions of tenant users and their information.”  The Court went on to say that once the digital information is uploaded to the users account it can be accessed from any device and from anywhere in the world. It is the individual user who ultimately decides the degree of privacy by changing their account settings, thus, Facebook has clearly delegated the issue of privacy to its users.

A savvy criminal defense attorney can use social media sites to strengthen important aspects of a case. Status updates can be used to establish an alibi or to impeach a witness’ credibility. In 2009, a 19 year-old who was charged with armed robbery was able to establish an air tight alibi because his Facebook status was updated from an IP address registered to his grandfather in Manhattan miles away from where the offense occurred. Likewise, a witness’ status updates, photographs, and messages can be used to show the individual may have a bias or prejudice that could dramatically affect the credibility of their testimony. The information may also be used to place witnesses away from the scene at the time of the crime. Digital information is especially helpful to attorneys since it is more easily authenticated, because it is often accompanied with date and time stamps on computer servers.

Your social media sites can be a virtual treasure trove of information for prosecutors and criminal defense attorneys. If there are pictures or other information on a social media site that could potentially help or harm your case, make sure your attorney is aware of their existence. While prosecutor’s have the ability to request data directly from the social media site, criminal defense attorneys often rely on their client’s to inform them of information located on their social media sites that may affect their case. In today’s digital world, it is crucial for defense attorneys to understand social media and its potential uses, inside and outside of the courtroom.

If you need a lawyer for a criminal or Federal case, call Columbus, Ohio Criminal Defense Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal issues.

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