To build a case against a person suspected of being involved in a criminal offense, investigators must gather evidence linking the individual to the crime. They use various methods to do this, but one that has become more common in recent years is a social media search.
Law enforcement officials may obtain incriminating information about an individual by perusing their posts online, becoming the person’s “false” friend, getting messages from the individual’s friends and family, or obtaining a search warrant, subpoena, or other court documents. Provided that proper protocols were employed, the evidence collected may be submitted in court.
How Can Investigators Access Your Social Media Posts?
People post quite a bit of information about themselves on social media. For example, they might share videos or photos of trips or update their status with details about something they recently did or tried. However, not everything people put online discusses lawful activity. In some cases, individuals might share images or updates implicating them in illegal conduct.
And law enforcement officials are aware of this.
Investigators are increasingly turning to social media platforms to collect evidence against someone alleged to have been involved in an offense or to locate a suspect. Officials sometimes find individuals bragging about committing crimes, giving them cause to further the investigation or make an arrest. In cases where investigators have a suspect but are having trouble finding them, they might monitor social media platforms to see if the individual “checks in” anywhere.
But is it lawful for law enforcement officials to look at social media sites without a warrant to gather evidence?
For the most part, it is.
Under the Fourth Amendment, people are protected from unreasonable searches and seizures by law enforcement officials. That right generally extends to situations where a person had a reasonable expectation of privacy, like in their home.
When someone posts on social media, the privacy expectation is diminished. Communications shared online are typically done so knowing that other people will have access to it – be it friends and family or the rest of the world. Thus, the Fourth Amendment does not always apply to information publicly available on social media.
Are Investigators Able to Bypass Privacy Settings or Get Direct Messages?
Most social media platforms allow users to set up their accounts so only friends or followers can see what they post. And sometimes, individuals do not put anything directly on their feed but send private messages to others. Can investigators get that information?
They sure can. And there are multiple ways they can do this.
If a person has certain privacy features activated limiting who has access to their posts, law enforcement officials can’t bypass those settings to monitor activity. But they can do one of two things to see the posts. They could become a person’s “false” friend. In other words, they send a friend request to the individual with the sole purpose of investigating them. Once the person accepts, officials can see what the individual posts because the privacy features recognize them as an allowed viewer.
Even if the person does not accept the false friend request, officers still have ways of getting around the privacy setting. They can reach out to the people already in the person’s friends or followers list and try to get the information from them. This applies in situations concerning posts on someone’s feed or direct messages sent to another person.
It’s not a violation of the Fourth Amendment if, say, Person A shared information with Person B, and Person B shared that information with investigators. The Fourth Amendment does not protect someone when they confide in another person and that individual reveals it.
Investigators may also get any “non-publicly” shared information about or messages from a person through a:
- Court order, or
- Search warrant.
Social Media Posts Can Be Used as Evidence
Provided that law enforcement officials followed proper procedures when collecting information from social media, any evidence they get may be introduced as evidence in the criminal case. Officials must also ensure that the posts, photos, or messages are authentic, meaning that the defendant meant them seriously and not as a joke and that the defendant themselves posted or sent them.
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It is vital that anyone accused of or under investigation for a crime remain off social media for the duration of the case. Investigators can and do monitor these platforms to gather incriminating information that can be submitted as evidence in court.