Can Prosecutors Use Facebook and Social Media Accounts to Find Evidence About a Crime?

It depends.

Public postings on social media are almost never protected if anyone can see the social media content simply by visiting a person’s page.  When content is made publicly available, there is no expectation of privacy.  As a result,

• The prosecution does not need to obtain a search warrant to seek this information – instead, they can simply go on social media and copy the information
• There are not privileges that might apply to exclude the content, such as the attorney-client privilege.

If social media postings are restricted in terms of who may see the information, (such that only “friends” who are “accepted” can see the content), such content may also be used for legal purposes.  The difference in this case is that the police or prosecutors may need to obtain a subpoena for access to such content.  The subpoena would then be served on the social media company, which would then need comply (to the extent that it is able to do so) with the information that is the subject of the subpoena.

As a Massachusetts criminal defense attorney, my role would be to seek to have the evidence obtained in this second scenario declared inadmissible under various legal theories.  The prosecution would likely counter with arguments that since the evidence has already been published (even if it is made available to only selected “friends”), that there is no expectation of privacy.

In the new social media/digital age, these are issues that are being decided by the courts.  As with other legal matters, there may be specific facts associated with individual rulings that may limit the scope of such rulings.

What Types of Evidence Can Prosecutors Find on Social Media?

Interestingly, prosecutors can sometimes find almost all the evidence they need to convict a person of a crime, including:

• Statements that implicate guilt by defendants. Those accused of crimes often will admit (usually by bragging) about their ability to pull off a crime on social media.

• Pictures and Selfies. In the age of selfies, what better way to capture the moment than by taking a selfie while committing a crime?  As strange as this may seem, some criminals take pictures of themselves committing crimes, and then post those photos on social media.

• For those who are too busy committing a crime to take a selfie, perhaps the next best option would be to ask a friend (an accomplice) to take a video of the crime being committed so that this video can then be shared across the Internet.  Videos of criminal acts actually have been posted on social media.

• Determining all those involved in the crime. Initially, prosecutors may only be able to identify a few of those responsible for committing a crime.  Through text messages and social media, the full range of those involved may become known.

• How and when a crime was committed. Again, through text messages, social media, and other communications, prosecutors may be able to easily put together the full details of how a crime occurred, and who was involved.

What About Non-Criminal Acts – Can Social Media Be Used in Personal Injury or Other Civil Cases?

Definitely.

There are many cases involving those who have been injured (often claiming to have been injured at work) who, shortly after “devastating” injuries have occurred, have made social media posts engaging in sports or other strenuous exercise that is not consistent with the claimed severity of the injuries.  In litigation (or at trial) when the injured person is describing the extent of their injuries, social media posts (including pictures) can be used to refute the claims that a serious injury occurred.

Does Facebook Really Care About Protecting Your Rights to Privacy?

Not when it comes to complying with subpoenas regarding criminal activities.  In these instances, it should be assumed that not only will anything posted on Facebook continue to exist in some electronic form, but also that Facebook (and other social media sites) will not hesitate to comply with criminal subpoenas.

In fact, Facebook and other large social media companies have staff to respond to such law enforcement requests, and are adept at being able to quickly provide the information requested (or subpoenaed).

Can Incriminating Evidence Be Later Deleted from Facebook and Social Medial Accounts?

While content can be publicly deleted from Facebook and other social media amounts, this does not mean that such information has been permanently erased.  In many (perhaps most) instances, such information will continue to reside on social media servers, and thus may be “retrievable” even after a person has deleted it.  When subpoenas are made for such information, they will normally request all information relating to a subject matter, which will include content that has been deleted.

It’s important to note that when social media content has been deleted in the context of criminal or civil litigation, other serious ramifications can result.  In criminal proceedings, such deletion may be construed as a “cover up” of a crime.  In civil proceedings, deletion may be construed against the person who deleted the content.

For example, in a personal injury case, a person who has deleted content (including pictures) about her condition immediately after a serious injury may have an inference against her in a lawsuit that the injury was not all that serious.

My Phone is Really Private to Me – Can Law Enforcement Obtain My Phone for Evidence?

Possibly.

As with other evidence, the police and prosecutors may need to obtain a search warrant or subpoena to obtain a phone (as well as phone records).  In doing so, they will have to prove the phone (or phone records) has some connection to an alleged crime, and will seek the court’s approval for a subpoena.   

While many people feel a special connection with their phone (and the pictures, messages, and other material contained on their phone), the fact is that the prosecution often will seek a search warrant or subpoena for a phone (and for phone records) if they have sufficient probable cause.  When this happens, a phone can sometimes be a gold mine for information needed to prove a case.

How I Help Defend Those Charged with Crimes

As a criminal defense lawyer, I will work vigorously to oppose the prosecution’s discovery efforts.  If you have been charged with a crime and need experienced criminal defense legal counsel, I would invite you to contact me.