No such thing as privacy
Do you have a Facebook account?
The Legal Genealogist does.
Do you have “friends” on Facebook?
The Legal Genealogist does.
Do you have what the law considers to be a “reasonable expectation of privacy” on Facebook?
The United States District Court for the District of New York says you don’t. And I don’t. And all of us who have Facebook accounts and have any “friends” there at all — don’t.
The issue came up in the case of United States v. Meregildo, a criminal prosecution brought in the Southern District of New York — Manhattan and the Bronx in New York City, and Dutchess, Orange, Putnam, Rockland, Sullivan, and Westchester Counties.
One of the defendants there is a fellow by the name of Melvin Colon, known on Facebook as “Mellymel Balla.” One of his Facebook friends turned government witness and let the government agents look over his shoulder as he accessed Colon’s Facebook page:
By that means, the Government learned … that Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang.1
The agents then used the information to prepare a search warrant, and a federal Magistrate Judge gave them the warrant to search all of Colon’s Facebook account and activity.2
Not surprisingly, Colon challenged the use of the evidence in court. He wasn’t arguing about the search warrant itself, mind you, but rather that the government shouldn’t be allowed to use the access of one of his “friends” to get enough of the goods on him to apply for the search warrant.3
It took the District Court all of 10 paragraphs to reject the argument. It agreed that: “The Fourth Amendment guarantees that all people shall be ‘secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ 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. Generally, people have a reasonable expectation of privacy in the contents of their home computers.”4
But, it said, “this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail.” And “When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.”5
So, the Court concluded:
Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. … While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. … And the wider his circle of “friends,” the more likely Colon’s posts would be viewed by someone he never expected to see them. 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. … When Colon posted to his Facebook profile and then shared those posts with his “friends,” he did so at his peril. Because Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed Colon’s Facebook profile through a cooperating witness.6
So any of your friends can hand over any information from your Facebook account (and, by analogy, any social media website where you’re sharing any information with other people) to the government, and the government can use it to prosecute you.
Now this may not seem to be a very big deal for those of us who aren’t planning on spilling our guts about our nefarious criminal schemes online, but it surely is something to keep in mind.
At least if you’re thinking of engaging in nefarious criminal schemes…
SOURCES
If I allow a government agent to listen in on a phone conversation (e.g., via speakerphone), can the agent then use that information to obtain a search warrant on the other party in the call?
It depends on the state you’re in. In some states, having ANYONE listen in on a conversation without the permission of everyone in the conversation is illegal without already having a warrant. In other states, as long as you consent to have the agent listen in to a conversation where you’re a participant, then it’s fine.
Well, if agents can listen over your shoulder while you’re on the phone, then looking over your shoulder while you’re on the Internet should be OK, too.
They can always listen in to your side of the conversation if you allow it. The issue here of course is that what they were doing was the equivalent of listening in to the other person’s side of the conversation. The court said that was fine and since this is a federal case, state law doesn’t apply.
Well, that’s why I asked about listening to a phone conversation via speakerphone (that’s both sides of the conversation). Is it or is it not allowed? Whatever applies there should apply to viewing someone’s communication via Facebook, or any other method of communication via the Internet.
Kate, again, all I can say is it isn’t always allowed. Some states do NOT allow that. Others do.
The conclusion makes sense to me. Common sense says that anything you transit electronically is no longer in your control and may be seen by anyone (or at least more than the intended recipient(s). The standard rule “will this make your grandmother blush?” is a good one to live by when sharing anything electronically. If you wouldn’t say something publicly by the water cooler, why would say it across any electronic medium? It astounds me that there are people who believe that items sent electronically have no danger of being shared.
In addition to that, I guess the real issue that is being addressed here is permission. Given what I’ve already said above, the friend had right to view the information. There is no law regulating who else he can share that information with. Similar to passing around an indiscreet photo among a bunch of friends. People may not like the fact that it was the government who was the “friend” in this instance, but as long as the government obtained permission, without coercion, then legally I don’t see how it is any different from any other situation.
The issue really comes up because in some states you couldn’t let the government listen in to a phone conversation you were having with someone else with the government then being able to use what the other person said against that person. Here, the court said you CAN let the government see what the other person shared with you, regardless of what the other person intended. I think this is the right decision, but then I’m a former prosecutor…
I think the distinction with a phone conversation is that it is private between two people. If one person allows the police to listen in on the conversation without the other’s knowledge (and without a warrant) then they are violating that person’s right to privacy. However, once the two people are off the phone there is nothing stopping the other person from sharing the information with whomever they like. The only difference is that with a letter on paper or the internet there is direct proof that the original person shared the information and in the case of the phone call it is second hand. (How’d I do? Should I go to law school?! lol)
Even if you WOULD say it at the water cooler (presumably to a small group who might not hear you), that doesn’t mean it’s smart to put it online for your friends (and their friends — or their parole officers) to see!
Common sense says to me that one’s communication with others is private, irrespective of the medium used – phone, Internet, tin can, ink and paper, air molecules. I fail to see why transmitting something electronically makes it automatically “out of your control”, but transmitting it by ink and paper makes it in your control. If one allows others to access the communication (e.g., by whispering too loudly by the water cooler or by sending a message to a public Internet forum), that’s another matter.
Actually, if you send a letter to someone else, pen and paper, and the other person chooses, he or she is perfectly free to hand it over to the police. The laws about the phone conversations exist solely because of the means of communication.
Personally I believe it was the right decision, because Facebook, by nature, is a public means of communicating. Yes, I realize that you can have it set to go to only your friends, etc. However, I believe that the FB message are, by design, meant to be private. Of course, once you tell someone something, via electric, written or verbal communication, it will most likely be share, and maybe not with the people you want it to be shared with.
I agree that it was the right decision.
But what if there is incriminating information in messenger between to people? Is there an expectation of privacy in messenger?
The issue isn’t whether there’s an expectation of privacy but whether the courts are prepared to recognize people’s subjective expectations as reasonable. Don’t know if this has been fully litigated, but it’s a lot safer to assume that you can’t plan the perfect crime in any format online and expect to get away with it. 🙂