Social media helps us connect with loved ones and friends; it can even play a role in our professional lives. There are certain things we share online that we expect will remain within our friend groups — but is this expectation reasonable? This is a question that often comes up in cases where the police use social media platforms to gather evidence to build a criminal case.
These efforts are more than just a national issue, they are present right here in Chicago. The Chicago Police Department even has a specialized social media task force that monitors online activity; so does the F.B.I. In 2020, at the time of creation of the task force by the Chicago Police Department, the focus was the prevention of looting. The group would use data analytic software to search social media pages for looting activity. Based on information gathered by the task force, the state has already been able to move forward with criminal charges against those flagged as likely offenders. This is in addition to the use of social media evidence in general cases, not just those targeted by the task force.
Can law enforcement use my social media postings in an investigation?
This focus on social media to build criminal cases provides an opportunity to dig into some common questions. One of the most common is whether this is even legal. In many cases, the answer is yes. The social media platform’s policies will guide law enforcement’s use of social media as well as the law enforcement agency’s policies. This is because there is not currently a federal law that addresses this issue.
Another key factor involves the user’s settings. User’s can generally control what is public and private, however it is important to point out that a member of a private group could take a screen shot and share the information in a more public setting. That aside, law enforcement are generally able to access posts that do not have audience restrictions as these are viewed as public.
When it comes to private postings, law enforcement may gain access through informants who share the information or by using an alias. An enforcement officer could use this alias as part of an undercover investigation. Other options can include use of a warrant or court order to demand the platform or individual provide access.
Can the social media platform provide information to law enforcement?
Thus far, social media platforms are generally hesitant to openly provide access to this information. In fact, some have even proactively changed their policies to prohibit enforcement monitoring efforts. There are also protections under the Stored Communications Act, a federal law. However, as noted above, there are situations when the law requires the platform to comply with a request from law enforcement. This can occur if the subject of a warrant or court order.
It is important to note that these requests are not infallible. In certain situations, those who are the subject of these types of warrant can counter with a Motion to Quash the Search Warrant. For example, the search warrant might be overly broad, target protected or privileged communications (such as those between an attorney and client) or the application supporting the request for a search warrant might contain inaccurate or misleading information. In short, there are a variety of ways to challenge a search warrant for electronic data. Or the use of an informant or alias by law enforcement officers might provide a basis for a challenge.
How do I fight back?
Although use of social media by enforcement officers can be legal, it is not uncommon for the officers to overstep. Those who believe that evidence was obtained from their social media use have options to fight back. Some common examples include:
- Follow procedure. Police need to follow proper procedure when gathering evidence through an investigation. A failure to do so can mean the evidence is not admissible in court. As such, it is important to review how the police gathered their evidence and look for any violations under the Fourth Amendment.
- Look at the site’s policies. Procedures expand beyond the rules of the police department and court. The police will also need to abide by the rules of the social media platform as well as those under the Stored Communications Act.
These are just a few things to take into consideration when in this situation. It is possible to fight to make the evidence inadmissible, or not allowed in court. This can ultimately lead to a reduction or dismissal in charges. Attorney Darryl A. Goldberg has represented multiple clients with similar frustrations over how the state and federal law enforcement officers gathered evidence to build their case. He has filed successful Motions to Suppress Evidence and Quash Search Warrants and can use his experience to help tailor a defense strategy unique to your situation.