Social media continues to present the courts with an array of legal questions, including discoverability, authentication, and privacy protections. Southern District of New York Judge William H. Pauley III is the most recent to address social media and its interplay with the Fourth Amendment and the reasonable expectation of privacy. United States v. Meregildo, __ F. Supp. 2d __, 2012 WL 3264501 (S.D.N.Y. Aug. 10, 2012). In that case, defendant Melvin Colon moved to suppress evidence printed by the government from his Facebook account, accessed through a cooperator who was his “friend” on the ubiquitous social media network, and then used in a search warrant application. Judge Pauley evaluated the evidence — in the context of Colon’s particular Facebook privacy settings and wide-circle of “friends” — and denied the motion, deeming the evidence lawfully obtained and utilized. Id. at *2.
The Fourth Amendment & Social Media
The Supreme Court has held that “[a] person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable.” Id. at *1 (citing United States v. Katz, 389 U.S. 361 (1967)). With regard to computers and related technology, the Second Circuit has held that, while “people have a reasonable expectation of privacy in the contents of their home computers[,] . . . this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail.” Id. (citations omitted) (emphasis supplied).
Facebook presents the court with an interesting inquiry because a party can control his account privacy settings, determining who can see pictures or information posted to his “wall,” who can view his status or profile, and who can view his list of “friends.” In Meregildo, Colon had posted messages to his account detailing prior acts of violence, threatening new violence to rival gang members, and seeking to maintain the loyalties of his own gang members. Id. at *2. One of Colon’s “friends” — who became a cooperating witness — had access to all of this content due to Colon’s privacy settings — or lack thereof — and, in turn, provided the government with access to the same, which it then used successfully to support probable cause in a search warrant application.
Privacy Settings and Circle of Friends
Judge Pauley emphasized the privacy settings used by Colon on his Facebook account. He noted that “postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected.” Id. at *1 (citation omitted). Because Colon’s privacy settings allowed the cooperating witness “friend” to see messages that Colon posted to his profile, Judge Pauley held that “the Government [was able to] access them through a cooperating witness who [was] a ‘friend’ without violating the Fourth Amendment.” Id. at *2.
Judge Pauley also factored into his analysis the number of Facebook “friends” Colon had. “[T]he wider his circle of ‘friends,’ the more likely Colon’s posts would be viewed by someone he never expected to see them.” Id. As such, Colon’s expectation of privacy ended when he posted, because his wide circle of “friends” were free to share those posts, just as a friend would be free to share a written letter or email. Id. These posts were at Colon’s “peril.” Id.
While social media can be usefully harnessed to share documents, photographs, or other information, privacy settings and friend-count may play a crucial role in the legal analysis of privacy expectations. While the issue arose here in the context of gang activity, the content of social media postings has been sought in an array of civil and criminal litigations, as discussed in prior issues of this Update. Many of these cases have demonstrated that the “private” information an individual chooses to share on social media sites and networks with “friends” may one day be considered subject to discovery and legal proceedings.
Summer Associates Daniel Lennard, David Mayo, Anna Schoenfelder, and Alexander Traum.