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