Nicole Black
BridgeTower Media Newswires
I’ve written extensively in the past about the ethical obligations of lawyers who seek to obtain evidence using social media. The specific issues addressed in that context are irrelevant for the purposes of this column, but of note is that all of the ethical opinions on the topic of lawyers mining social media for evidence differentiate between publicly available information and that which is only accessible behind a privacy wall. In other words, the rules are different when lawyers or their agents seek to connect with someone online via a social network in order to view posts that can only be viewed by a person’s connections or “friends.”
But what happens when law enforcement officers seek to do the same thing — obtain social media evidence that can only be accessed behind a privacy wall? One of the more interesting issues to consider is whether the conduct constitutes a search, and if so, does “friending” someone in order to view information behind a privacy wall — in the absence of a warrant — violate the Fourth Amendment?
That very issue was addressed in Everett v. Delaware, No. 257, 2017, (online: https://courts.dela ware.gov/Opinions/Download.aspx?id=273550). The question asked of the court was: “When a person voluntarily accepts a ‘friend’ request on Facebook from an undercover police officer, and then exposes incriminating evidence, does the Fourth Amendment protect against this mistaken trust?”
In this case, a police detective created a fake Facebook profile and eventually sent the defendant a “friend” request, which was accepted. The detective then monitored the defendant’s Facebook account for 2 years, viewing it one to three times per week. The defendant had a number of violent felony convictions and was thus unable to possess firearms. Shortly after he posted a photo to Facebook that included firearms, among other items, the detective applied for a warrant to search the defendant’s home, which was granted. The subsequent search resulted in evidence that was later used to prosecute the defendant for numerous felonies. The defendant was convicted after trial and this appeal challenging the constitutionality of the original search of his home was filed.
In reaching its decision, the Court applied a two-step inquiry. Its first task was to ascertain whether the Facebook monitoring violated the Fourth Amendment or Article I, Section 6 of the Delaware Constitution. If so, then its remaining task was to determine whether the information remaining provided a neutral magistrate with probable cause to issue a search warrant — after removing the tainted evidence from the warrant affidavit.
The Court did not reach the second step of the inquiry since it concluded that the defendant did not have a reasonable expectation of privacy when he shared information with people that he chose to make his Facebook friends. The Court explained that the defendant “assumed the risk” that one of his “friends” might be an undercover officer:
“(T)he Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntary disclosed such information might turn out to be an undercover officer or a ‘false friend.’ One cannot reasonably believe that such ‘false friends’ will not disclose incriminating statements or information to law enforcement — and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.”
In other words, caveat emptor: social media-users beware. The lesson to be learned is to only share information with your online “friends” that you would readily share with a law enforcement officer. After all, as I always say, better safe than sorry!
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
