While there may be a lot of evidence
hidden within one’s social media account, a lot of evidence can be found just
by looking at what is made completely public. There are many examples where
evidence found on social media has been very valuable to a case. Some cases
specifically involve posts made on a social media site and those posts are the
main evidence. Other cases are not directly related to social media but post made
on social media are still useful. Overall, social media sites offer a whole new
area to discover evidence.
Recently, a judge ruled that people
can allow investigators to go through their friend’s Facebook profiles. This
makes information only available to friends, also available to investigators.
Should investigators be allowed to have this access to look for evidence? Just
because you set your privacy settings so that only your friends can see your
profile does not prevent those friends from showing your profile to others.
There are several cases which are
defining social media privacy in court. One case is McMillen v. Hummingbird Speedway, Inc. that involved postings on
a plaintiff’s Facebook page that contradicted their claims for damages. Just
looking at the public portion of the plaintiff’s Facebook page showed that he
had exaggerated his injuries. There could have been even more evidence in
private conversations. Another case is Zimmerman
v. Weis Markets, Inc. In this case, the plaintiff tried to recover damages from
injuries in an accident with a forklift. On the plaintiff’s Facebook page,
pictures were found of him wearing shorts after the accident when he claimed he
was too embarrassed to wear shorts because it showed his scar on his leg. He chose
to put these pictures on Facebook and make them public, so they were found and
used against him. These are just two cases where evidence was found on social
media that significantly contributed to a case.
Although
many people are aware that they should not post things that can be used against
them, there are still people who give investigators things to discover on social
media. As of April 19th, social media evidence played a role in around
700 cases. Facebook and MySpace were the most used, followed by LinkedIn and
Twitter. Social media is allowing more and more people to get caught for the
crimes they commit. It is interesting that MySpace is still such a large
contributing factor to evidence even though it is not as widely used anymore. With
all the evidence available on social media sites, the question becomes how far
an investigator is allowed to go to recover that evidence. Should they be
allowed to obtain usernames and passwords to discover it all?
I think that if someone makes a portion of their social media page, whether it is facebook, myspace, twitter, etc., it should be allowed to be used against them in court. Anyone is able to see that information so it should be able to be submitted as evidence. On the other hand I don't think investigators should be able to log on as other people in order to see parts of someone's social media page.
ReplyDeletePeople should be smart enough to know not to post things that contradict what they have said in court while a case is ongoing. If they aren't smart enough their lawyer should at least advise them not to post on facebook while the trial is taking place. These days people can find out anything they want about people through the internet that people need to be especially careful about what they are posting when they are part of a court case or are in the public eye.
I don't think investigators should be able to obtain usernames and passwords to discover it all. That seems like an invasion of privacy. If someone makes that information public then by all means it is fair game and should be allowed to be used by investigators and/or the opposing counsel.
Social media may be new and public in nature, but that doesn't mean there shouldn't be guidelines in how it is used as evidence. There are varying levels of "public." When it comes to social media. For example, some people set up their facebook account so that only "friends" can view it because they don't want it to be public. This is similar to carrying on a conversation via e-mail. The fact that courts treat everyone's account as public information doesn't mean that it should be treated that way or that people should be forced to assume that everything they post on facebook is ultimately public. People should be allowed to participate in social media and be protected at the level they are "promised" by the provider.
ReplyDeleteI think it is great that more guilty people are being caught because of social media; however, I think that social media is fundamentally the same as other forms of information protected under the fourth amendment. If we can throw out valid evidence that was obtained illegally in criminal cases then the same laws should apply to social media. It is ultimately evidence, and can be misinterpreted and misused just as other forms of evidence; therefore, there should be guidelines to follow in its use. If people are promised on a legal basis that their posts will be as private as their settings dictate, then is it not illegal to violate that promise? I admit that although it is fundamentally the same as other forms of communication (such as e-mail) it is also quite different and may require additional guidelines and interpretations when it comes to its use within the law.
I think that in the case of the investigator being allowed to view another's facebook account through a "friend," that this is not much different from a friend allowing the investigator to view an e-mail (except of course that much more could be found via facebook). I just don't think we should accept that we have to relinquish our privacy rights when it comes to social media. We should be allowed to participate at the level our settings dictate.
I think the most critical point when deciding how far to analyze and use the social media posts of a someone in a setting of court comes down to - Intent. For example, if one has set their facebook settings so that only friends can see stuff, then an investigator that is not a friend on facebook should be seen as being locked out of the information. On the contrary if everything in someone's account is public and an investigator can access it without any extraneous steps, then it might be reasonable to consider the information valid evidence for a case in court. I would have to imagine the accusition of username/password is akin to a a serious violation of privacy similar to that of posing as someone else with forging of signatures, etc....
ReplyDeletePeople are now realizing that public posts are very public, and thus I think people will begin to be as careful on social media as they are with their personal interactions. Parting shot...if people create virtual lives on sites like Second Life, could their created virtual self become useful evidence of how they would respond in a situation/character/morals if the current trajectory is continued.....?
I do not necessarily agree that the extent to which one makes their social media account private should completely dictate how it is used in courts as evidence. If the information was obtained through access of someone else's account who had access to your information, then I believe that the evidence it provided would be just as valid (such as in the case of an investigator that is given access through the account of a friend). To say otherwise, I feel would be similar to telling a group of friends that you committed a crime and then saying that the information was intended for their ears only so reporting what you said to the authorities wouldn't hold any validity in court. Obtaining information by accessing someones account that has access to yours is not the same as hacking an account or obtaining the information illegally or in violation of your privacy settings, but rather using someone who you gave access to your limited public forum to relay information to others. Though your social media account may give you some legal rights to privacy, I think that these rights are probably much more vague and limited than most people may think- and I do not think that they override the fact that all forms of social media are a public forum to some extent.
ReplyDeleteI would say yes. Social media has never been and will never be private. It's purpose is to share information with others and the internet. To act like it's private only in court settings would promote a double standard. Additionally, the cases that I have heard of in examples of social media being used as evidence have always sought to discover the truth in the controversy, rather than invade privacy. Many people exaggerate or lie in court to increase the value of their law suit. When social media contradicts what someone has said in court, that should be presented. All who use social media should feel free to express themselves to their peers, but that doesn't mean they should be protected when the information they post online contradicts their testimony in court.
ReplyDeleteDepending upon the personal privacy settings of the user and the overall privacy terms of the social media site, the degree to which evidence may be gathered on social media accounts differs only in the extent to which the law must be used in order to obtain such information. More simply, it is not a matter of whether or not the information in question may actually be "searched and seized" - for it is, and should be so due to the public nature of the account itself - but rather, what measures must be taken by investigators to ensure that such "search and seizure" is reasonable and within the confines of the law.
ReplyDeletePosts on social media sites are just as susceptible to evidentiary digging as are items located in ones car or own home, given that the procedures involved in their extraction are enacted according to the parameters of the Fourth Amendment - which in some cases may necessitate the obtainment of a warrant or subpoena. However, those who fail to adjust their privacy settings accordingly, thereby making their posts public and easily obtainable to the "reasonable person" place themselves in the same scenario as those who throw away physical evidence, leaving it on the public sidewalks for collection, relinquishing all ownership and rights to privacy regarding its contents in the process.
Finally, although one may adjust the privacy settings on their social media accounts to their fullest extent, if the site itself contains sub-clauses within its privacy terms and statements that denote the ability of investigators to obtain access to their information with or without legal warrant, such information should and is still legally admissible as evidence in a court of law. Ignorance of the privacy terms of a specific site is no defense, just as ignorance of the law does not constitute a legitimate defense. Upon clicking "accept" you, in essence, may be signing away your privacy rights, exposing all you post to everyone who wishes to see it, despite efforts to deter them from doing so.
I think that investigators should be able to use the same tools online that they use in the real world. For example, it is illegal for investigators to enter your house/place of residence without a warrant, even if you are renting an apartment. For example, Facebook officials shouldn't be able to grant access to the private parts of your profile to law enforcement officials because in real life your landlord cannot let the police into your house if your doors are locked, windows shut, etc.
ReplyDeleteIn my opinion, one should refrain from putting things into social media sites as much as they can. But one must remember, as much as your Facebook can make you look like a bad person, it can also make you look like a good person. Who knows, maybe one day someone will be charged with a crime and their social media profile will convince the jury that they are innocent?
Anything posted online should be fair game for evidence. When something is posted on the Internet it runs the risk of becoming completely public, whether or not it was intended for an audience of one or one hundred. When people send a provocative picture via text or email to one person and it ends up in the hands of many who takes the blame? The person who sends the picture or the person who willingly provides information on a social networking site should be held responsible for their posts. If an investigator can get information through various avenues then it should be admissible. But I can also see how guidelines regulating how much "digging" should be allowed would be helpful so it's not a complete "free for all."
ReplyDeleteI think that individuals using social media should be aware enough to know that anything they post, private or not is fair game and will never being completely private. That said, I think that investigators need to get a warrant for anything that is not publicly posted. If a friend comes to the police with evidence and hands hem printed pages showing a defendant is guilty or whatever it may be then that is acceptable but the investigators, i feel, should not be on someone's account searching through a friend's profile. That to me plays into another topic that we have touched on but i know will be discussed more, people using fake accounts. I'm not saying they are the same thing but I think that it is blurring some lines.
ReplyDeleteI agree with the distinction you've drawn between what is publicly available information and what is more private. If you post something publicly, anyone in the world can read it, and you should take that into account when posting things. If it's going to get you into trouble, obviously it would be a good idea not to post it. However, things like "Messages" in Facebook are designed to be private, so I definitely think there should be some sort of protocol for gaining access to those things as evidence.
DeleteI think there's a distinct line between "once you post something it's out there, it can be found" and "anything you post, even if under a privacy policy that says only certain people can see it, can be used against you in court". I find it absurd the things that juries aren't allowed to see (that don't invade privacy) because they could be biased, when they can be presented with posts on Facebook (how can this NOT be biased?). I think that if there was a public post, viewable without friendship status, the jury should be allowed to take it into consideration, and decide whether it was an honest, sarcastic, and/or damaging post. I don't see how this is any different than wire-tapping or recording someone without there knowledge, especially in the case of a Facebook chat. If Facebook gave my private posts to police as evidence in a case, I would sue them for as much as I could, and I'll be darned if my right to privacy doesn't just win that case for me. If Facebook alters their contract with the customer so that they CAN share posts with police, then that's a different story of course.
ReplyDeleteThe forth amendment protects against unlawful search and seizure of papers, person, house, and effects. these are all things that people OWN, that they have payed for. so who do you turn to in the case of something public like an internet site? Well i'm glad you asked...
ReplyDeleteOK, so there are two kinds of companies, companies that sell you things, and companies that sell you. see, face book is worth what it is worth because of YOU. Anyone that has used face book, or twitter, or you tube has agreed to be commodified, and i'm not saying that that is a bad decision but it is a decision, and one that should be made thoughtfully because when you sign in to face book then you are signing yourself over to them because YOU are face book's product.
So the way that i see it is that, you - and all the information that you put on face book or any other site - becomes their "effect."
The way i see it we a knocking on the wrong door, if the police want that information then they need to go talk to the owner of that site because that information belongs to them now.
Looking at the case of McMillen v. Hummingbird Speedway, the court decided that communications were not inherently private on Facebook, Myspace, etc. The court decided that the information was not private, and therefore publicly accessible for legal use.
ReplyDeleteHowever, in terms of a civil case, the defendent does not have the right to go "fishing" for admissable information, as stated in Tompkins v. Detroit Metro. Airport: "I agree that material posted on a “private” Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.1 Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's Facebook account." Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).
I feel though, that gaining information is different form asking for usernames and passwords. It is not acceptable for an employer to ask for social security numbers in order to check credit histories, so why should usernames and passwords, clearly confidential information, be exposed?