With the rise of social media has come a panoply of societal changes. The very fabric of social relations has altered, so that now we can literally remain in contact with our friends and family continuously throughout the day. With over 2 billion people on Facebook, it is no surprise that the criminal justice system has adapted to include in criminal cases the treasure trove of evidence contained on social media platforms.
So Much Data
And it really is a treasure trove for police officers. According to Justin Murphy, in his article, “Social Media Evidence in Criminal Proceedings: An Uncertain Frontier,” the amount of data on social media is astounding. Since 2006, social media activity has skyrocketed, increasing by 356 percent. To give a sense of the daily statistics, Twitter maintains 140 million tweets each day, and in a single minute, Facebookers circulate nearly 680,000 content items.
The sheer density of data makes warrants so much more powerful than in cases where they are used to obtain phone-call information. Think about it: a single subpoena or warrant can lead to, not only the person’s Facebook wall, but the photos they’re tagged in, their ID and account information, and increasingly, locational data. Think about all the times Facebook seems to know where you’ve been – and Google and Apple know even more about your location history.
Thus, police officers can use a person’s Facebook profile to identify a suspect, and they can even post a picture of a suspected person to see if anyone on the network has seen them. What’s more, cops can mine a person’s profile for case-related details, sorting through comments, pictures, private messages (in some cases), pages of friends and family, and anything else that might help close a case.
Police officers aren’t the only ones who have access to this domain. Criminal defense lawyers may also use social media to gather exonerating evidence. However, the balance tips in favor of the prosecutor, as defense attorneys aren’t allowed to access a person’s private page by creating a fake account or by asking someone else to do it. Conversely, the police are allowed to fabricate accounts, or potentially access information by other means. Both police and defense attorneys can usually get a warrant or subpoena to obtain social media evidence
Police can sometimes avoid getting a warrant by utilizing provisions in the Stored Communications Act, according to which a law enforcement officer may force social media companies to hand over data if the situation constitutes an emergency.
Many law enforcement departments use social media to gather evidence. According to a survey involving 1,200 law enforcement professionals, 80 percent of participants use social media as a tool in police investigations. Moreover, local police departments, particularly departments with fewer officers, use social media the most.
According to former crime analyst, Samantha Gwinn, social media will only become more prevalent: “[A]s law enforcement personnel continue to participate in formal training and gain an increased comfort level with the power and scope of social media, as well as its limitations, the value it provides will continue to rise.”
Take, as an example, the case of Melvin Colon. A suspect in a crime, he found himself subject to legal violations of his privacy. Why legal? Because, in his case, the police searched his data only after one of his friends granted them access to his private information. According to the judge, this was kosher because “Colon’s legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted — including sharing it with the government.”
First, it’s important to highlight that you are not legally permitted to delete incriminating evidence on your social media account. In a civil case, this would be called “spoliation of evidence.” This means, if you are a suspect, you might not be able to disable your account, change privacy settings or delete content.
As for the practicality of submitting evidence to a court? The social media content needs to be authenticated. This process varies depending on the state, but generally speaking, if the original content generator is not available, a close friend or associate might be able to testify to the authenticity of the evidence. Federal court procedures will soon change, as the new amendment to Federal Rule of Evidence 902 will expedite the process of authenticating digital evidence.
In short, it’s a good idea to be mindful of how you use social media, especially if you have reason to believe that the police will be searching your page in relation to a criminal case. If you or someone you know is in need of criminal defense, please find an experienced attorney in your area.