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Aug 14 2012

If You’re A Criminal Be Careful Who Your Friends Are (Or Don’t Be An Idiot and Post About Your Crimes on FB!)

Social media’s insertion into the courtroom continues as a NY Federal Judge ruled that a criminal defendant’s Facebook posts about his criminal activity could form the bass for a search warrant into his home. Federal prosecutors got a look at Melvin Colon’s Facebook profile through the account of one of Colon’s friends, who was a cooperating witness. What they saw were messages posted by Colon referencing prior acts of violence and threatening violence against rival gang members. They also saw posted messages in which Colon sought to ensure the loyalty of members of his gang. Colon had not made his FB profile private but instead allowed “friends of friends” to see the profile as well.

“Generally, people have a reasonable expectation of privacy in the contents of their home computers,” Pauley wrote in United States v. Meregildo “But this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail.” Here, the court added, “Colon’s legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted—including sharing it with the government.”

Of course, you have to wonder about a guy who would post about criminal activity but then please remember that its the Presumption of Innocence not the Presumption of Intelligence. But this ruling has implications for folks beyond the brain-challenged. It opens up areas previously thought private just because some information was shared with others. It also becomes even more important to make your FB private as that may increase the expectation of privacy and require that the government establish probable cause before they can get into a FB or other social media profile. Because Colon had no such restrictions, this was an easy call for Judge Pauley:

Facebook—and social media generally—present novel questions regarding their users’ expectations of privacy. . . . Facebook users may decide to keep their profiles completely private, share them only with ‘friends’ or more expansively with ‘friends of friends,’ or disseminate them to the public at large.” So the issue of whether the “Fourth Amendment precludes the Government from viewing a Facebook user’s profile absent a showing of probable cause depends on the user’s privacy settings” and “postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected.”

The realm of social media presents new challenges to law enforcement, courts and citizens as it is clear that “privacy” and our “expectations of privacy” are diminishing and now may hinge on whether we click the right box on our privacy settings.

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