Surveillance Society: Social Media Sites Ripe with Evidence

No matter the privacy settings, what is posted on Facebook, Twitter and the like can be used against you in a court of law.

by Chris Potter, Pittsburgh Post-Gazette / July 20, 2015

(TNS) -- Beware, Facebook users: No matter what your privacy settings, what you post can be used against you in a court of law — by an ex-spouse, someone whose car you damaged, or the government itself.

While most of the debate over online surveillance has involved anti-terrorism efforts, online activity can be used as evidence in everyday legal proceedings, too.

“We almost don’t see cases anymore without Facebook,” criminal defense lawyer Stanton Levenson said.

Frequently, he said, those charged with crimes “aren’t the least bit careful,” about what they put online. “They think that nothing is going to get back to them, and that we have privacy in this country.”

Prosecutors can use such material even if it doesn’t directly address criminal activity. Last year, a client of Mr. Levenson’s had the uncomfortable experience of being on the witness stand while a federal prosecutor read derisive Facebook comments he had made about his girlfriend, a fellow accused drug dealer. (“I love her as a friend but — did you look at any pics of her?” read one post used in court.)

“He was professing to love this girl, but then he’s talking behind her back,” Mr. Levenson said. “It couldn’t have had a good effect on the jury.”

It’s no secret that social media sites are great places to hunt for evidence. There’s even a Facebook page to handle information requests from law enforcement.

According to an online “transparency report,” Facebook received 14,274 requests involving 21,731 accounts from U.S. law enforcement agencies in the second half of 2014. That’s far more than companies like Twitter, which received just 1,622 requests in that period.

Facebook provided information for nearly 80 percent of those requests. But the practice remains controversial, especially when law enforcement casts a wide net.

In 2013, Cyrus R. Vance Jr., the district attorney for New York City’s borough of Manhattan, demanded a slew of information — ranging from photos to private messages — from 381 Facebook accounts. The government also obtained a gag order that barred Facebook from telling customers about the search warrant.

The warrant was part of an investigation that led to 134 public employees being charged with faking disability claims. Some had posted online photos of themselves engaged in activities like karate, despite claiming to be disabled.

Facebook said charges were filed against 62 of its users. But that, a Facebook attorney said, left more than 300 users “whose data was sought by the government without prior notice,” and who had no chance to challenge the intrusion.

After a judge ruled that Facebook didn’t have standing to defend its users’ privacy rights, the company provided the information. But it has appealed the ruling in hopes of limiting future requests.

Its briefs argue that the warrants “would be unthinkable in the physical world” — the online equivalent of “seizing everything in someone’s home. Except here, it is not a single home but an entire neighborhood.”

The prosecutors, meanwhile, countered that “these search warrants are not the first step in some generalized … inquiry” but “part of the culmination of an exhaustive three-year investigation.”

The case is pending before a panel of appellate judges, who heard oral arguments late last year.

For some, Facebook may seem an unlikely champion of privacy rights. Previously, the company has caused controversy by making default privacy settings more open. But the firm has also openly criticized government surveillance and has called for more transparency about its information requests. This past winter, Facebook offered new tools to help users better manage their privacy settings.

“People want control over their information, so we’re focused on building products that help people make informed decisions and better control their experience,” said a company spokesman who said the statement should be attributed to an unnamed “Facebook spokesperson."

Asked how the Allegheny County district attorney’s office uses Facebook, spokesman Mike Manko said he couldn’t comment for fear of compromising investigative techniques. But in Pennsylvania, the debate about Facebook has centered less on how government officials are acquiring social media data and more on what they are doing with it.

The American Civil Liberties Union, for example, has fought school officials’ efforts to discipline students for Facebook posts. Mary Catherine Roper, Pennsylvania ACLU deputy legal director, said another concern involves prosecutors bolstering criminal cases by using rap lyrics a defendant posts online.

“Because it’s on Facebook, it’s [taken as] a first-person statement,” Ms. Roper said. But “for a lot of people, it’s a place for trash-talking, and not meant to be taken literally.”

A case that raises such issues, involving YouTube rap videos about drug dealing created by a Philadelphia man charged with the crime, is pending before the state’s Superior Court.

Meanwhile, social media frequently plays a role in civil court proceedings.

“Whenever we meet with a new client, we always ask about their involvement with social media,” said Robert N. Peirce III, of the firm Robert Peirce & Associates. “We advise them not to discuss their case [online]. And to the extent that there is anything that may be objectionable — not as it relates to a particular case but to a person’s habits or personal views — we advise them to remove that.”

Judges have dealt with requests for access to social media accounts for years, though there has been little guidance from higher courts.

One of the earliest Pennsylvania cases, involving a race-car driver who sued over injuries stemming from a racetrack accident, produced a 2010 opinion by Jefferson County Judge John Foradora.

“Whoever else a user may or may not share certain information with, Facebook’s operators have access to every post,” he wrote. Such access, he ruled, meant users couldn’t expect their Facebook activities to be private.

In general, as Judge R. Stanton Wettick of Allegheny County Common Pleas Court wrote in a 2012 opinion, Pennsylvania judges have allowed parties access to Facebook accounts if they can plausibly argue that “relevant information may be contained within the non-public portions of the profile.” A photo posted on the public portion of an account, for example, may allow access to more private information.

Hanni Fakhoury, a senior staff attorney with the online privacy advocacy group Electronic Frontier Foundation, said judges have often granted too much access to online information. Courts have found that no right of privacy exists to material a person communicates to someone else. But privacy settings should count for something, he said.

“Secrecy and privacy aren’t the same thing,” Mr. Fakhoury said. “You might want to keep your Social Security number private even though it exists in your employer’s [human resources] records or your tax filings. And just because you turn information over to some people doesn’t mean you want to turn it over to everyone.”

©2015 the Pittsburgh Post-Gazette. Distributed by Tribune Content Agency, LLC.

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