Facebook profiles aren’t necessarily protected by Fourth Amendment

August 21, 2012 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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A defendant cannot bring a Fourth Amendment (guarding against unreasonable searches and seizures) challenge against the government’s use of evidence seized from his Facebook profile, federal Judge William H. Pauley III of the Southern District of New York ruled on Aug. 12.

Defendant Melvin Colon was charged in 2011 with committing murder in connections with a Bronx gang’s narcotics trafficking and racketeering enterprise. During its investigation, the government sought and obtained a warrant allowing it to look through Colon’s Facebook profile, through the account of one of Colon’s Facebook friends.  

When Colon found that the government had accessed his Facebook account, he attempted to suppress any evidence obtained as a result.  

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In his decision, Judge Pauley acknowledged that the Fourth Amendment guarantees that a person “has a constitutionally protected reasonable expectation of privacy … in the contents of their home computers.” This privacy however, is not absolute.

With regard to Facebook and other forms of social media, Pauley wrote, a user’s expectations of privacy “depends on the user’s privacy settings.”  

If, for example, a Facebook user employs a more secure privacy setting of his Facebook profile, this action “reflects [his] intent to preserve information as private and may be constitutionally protected [from unreasonable search].”

Conversely, in Pauley’s words, “Where Facebook privacy settings allow viewership of postings by [Facebook friends] the government may access [a Facebook profile] though a [Facebook friend].

In other words, when a Facebook user allows his postings and other information to be seen by the public, there is no expectation of privacy. In this case, any such postings are not protected under the Fourth Amendment.   

Colon’s Facebook account allowed his Facebook friends to view items Colon posted to his Facebook profile. The government used one of these friends to access Colon’s profile and was able to view messages posted by Colon about acts of violence and gang affiliation.  

Judge Pauley acknowledged that Colon “believed his Facebook profile would not be shared with law enforcement [but], he had no justifiable expectation that his [Facebook friends] would keep his profile private.”

This is not the first time Facebook and its accounts have been sought as evidence. In February, William Wall, a magistrate judge for the Eastern District of New York, denied a motion requesting a party’s Facebook login information. In that case, Davids v. Novartis Pharmaceuticals Corporation, Novartis claimed plaintiff David’s log-in information was necessary to determine whether Ms. Davids suffered from the injuries alleged in her lawsuit. Judge Wall ruled that the information available on Davids’ public Facebook profile may be accessed by the defendants, but not her private Facebook pages.

While these two cases display an effort to distinguish between private and public information displayed on social media accounts, the distinction seem antithetical to the purpose of social media. The ultimate goal of social media is to make people ubiquitously available. Facebook describes its mission as “giving people the power to share and make the world more open and connected.” While users are able to send private messages, the majority of information transmitted via Facebook is so that others are able to view it.

Even if one chose to use Facebook for private purposes only, Facebook has problems keeping its users’ private information private. In 2010, Facebook came under fire for making its users’ information public by default.

Private social media may be an oxymoron but, in the meantime, as courts grapple with the prevalence of technology and its place in case law, social media users may need to pay closer attention to the information posted and made public on Facebook profiles.

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