Law enforcement can engage in many forms of surveillance during a criminal investigation. They may obtain a wiretap for a phone line, use a “stingray” to listen to cell phone conversations, use a search warrant to search a home or business, or simply sit in a vehicle and follow the target of an investigation around the streets and highways of South Florida.
Or, they can sit at their desks and surf Instagram and Facebook pages. Posting on social media platforms has become second nature to many, and they post the record of their lives. The rise in importance of digital forensics and social media impacts criminal cases more than ever before. For anyone under investigation by the police, the potential for inadvertent disclosures of potentially incriminating information on social media is great.
Social Media as a Surveillance Tool in the Modern Digital Age
One of the most accessible and non-invasive forms of surveillance has emerged from social media companies like Instagram, Facebook, Twitter, and Snapchat because they provide a wealth of information that can be accessed with relative ease.
Miami-Dade detectives, for example, have successfully utilized Instagram to obtain photos of suspects with stolen goods, which later contributed to their convictions. In another case, law enforcement identified a convicted felon who posted images of himself handling firearms, an illegal activity for someone with serious crimes on his record. This digital evidence gathering provided probable cause for a search warrant, leading to the discovery of drugs and the subsequent charges of cocaine trafficking and weapons violations.
The Incriminating Nature of Social Media Posts
Social media platforms have become a digital diary where individuals chronicle their lives, often without considering the potential legal ramifications. For anyone under investigation or in legal proceedings, the inadvertent disclosure of incriminating information on social media is a significant risk. People often post social media content that could be interpreted as evidence of illegal activities, crimes, or associations with criminal elements.
We live in a world where practically everyone is glued to their smartphones, constantly posting, tweeting, and sharing their lives on various social platforms and media. While this can be great for staying connected, it can become a real problem if you’re facing criminal charges. Think about it: every photo, video, comment, and like is a digital breadcrumb that investigators and attorneys can use to build a case against you. It’s critical to remember that with social media, even “private” material is never really private, and the police can obtain virtually anything on those sites with a search warrant.
For example, someone might post photos of themselves at a party where illegal substances are present or share statuses that imply involvement in criminal behavior. Even seemingly innocuous posts can be pieced together by skilled investigators to build criminal cases for legal proceedings.
Social media provides evidence that includes:
- Posts: This can include text updates, photos, videos, live streams, and stories shared on various platforms.
- Messages: Private messages and conversations can contain vital evidence, even if deleted. Remember, nothing truly disappears online.
- Location Data: If your location services are on, your whereabouts and movements can be traced through geotags and check-ins. This data can be used to identify potential witnesses.
- Comments and Reactions: Liking or commenting on a post related to criminal activity can raise red flags, even if seemingly innocuous.
Prosecutors now use social media to establish connections, timelines, and even states of mind. A simple check-in can place you at the scene of a crime, while aggressive online rants could point to a motive. This is why you must be mindful of your online and social media activity. Your digital footprint can have tangible consequences in your offline life.
Legal Implications of Social Media: The Stored Communications Act
The admissibility of social media evidence in court hinges on its authenticity and relevance. Courts require that such admissible evidence be authenticated, meaning there must be sufficient proof that the social media content genuinely belongs to the accused and is unaltered. This often involves the courts obtaining a search warrant or subpoena to gain access to the data directly from the social media platform.
The Stored Communications Act (18 U.S.C. Chapter 121 §§ 2701–2713) is a law regarding voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party Internet service providers (ISPs).
The Fourth Amendment to the U.S. Constitution protects the people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” However, the protections for electronic communications under the Fourth Amendment are fuzzy due to issues related to definitions of privacy for online communications and activities and the protection of people and not places. Additionally, because online information security is up to an ISP, users typically give up any right to privacy concerns. Under the 3rd-party doctrine, the exception of consent vs. probable cause is only what’s needed for an ISP to release emails or files.
In Florida, as in other states, the use of social media for evidence collection must comply with both state and federal laws, including the Fourth Amendment; as mentioned, the definition of what constitutes a reasonable expectation of privacy on social media can be murky.
In plain speech, while private messages might enjoy some level of protection, public social media posts can be considered fair game for law enforcement.
Possible Defense Strategies For Challenging Social Media Evidence
Given the importance and potential impact of social media evidence in criminal cases, criminal defense attorneys must be vigilant in addressing it.
Authenticity and Credibility of Social Media Posts
One common strategy is to challenge the authenticity, integrity, and context of the social media content. This might involve questioning whether the defendant actually made the posts or if they have been doctored in any way.
Violation of Constitutional Rights
Another approach is to argue at trial that the social media evidence was obtained in violation of the defendant’s constitutional rights. For example, suppose law enforcement accessed private social media content without a proper warrant. In that case, the defense might move to suppress this evidence at trial on the grounds of an unlawful search and seizure.
Chain of Custody Issues
An unbroken chain of custody is crucial for untampered evidence from collection to presentation in court. This chain includes unauthorized access, which compromises the integrity of the evidence. If someone hacked or tampered with your social media account, perhaps the post(s) in question are not actually yours.
An Alternative Explanation
Your defense attorney can challenge the prosecution on the interpretation of the social media evidence. Maybe evidence was planted, multiple individuals had access to your phone or tablet, or the prosecution misconstrued the post.
Gaps in evidence can create reasonable doubt, which punts the burden of proof back to the prosecutors.
Protecting Yourself by Minimizing Social Media Impact
For individuals who find themselves under investigation or charged with a crime, there are several best practices to minimize the risks associated with social media:
- Cease Posting: It is advisable to stop posting on social media immediately. This includes not only new posts but also refraining from engaging with past content that might be incriminating.
- Review Privacy Settings: Ensure that all social media accounts have the highest level of privacy settings enabled. However, remember that even private content can be accessed with a warrant.
- Avoid Discussing the Case Online: Refrain from discussing any details of your case on social media. Even seemingly innocent comments can be misconstrued and used against you.
- Consult Legal Professionals: Seek legal advice before making any decisions about your social media activity. An experienced criminal defense attorney like Mike G Law can provide guidance tailored to your specific situation.
Here’s the key takeaway: in general, all relevant evidence is admissible, except where it’s against the law. While social media is not a clear-cut situation, protecting yourself is the best practice.
Catch a Case With Possible Social Media Evidence? Call Mike G Law For Help
Understanding the potential legal implications and adopting wise social media use practices can help individuals protect themselves in the face of criminal investigations. If you find yourself in such a situation, it is crucial to seek the advice of a knowledgeable criminal defense attorney like Mike G, who can help evaluate case details, navigate the challenges posed by social media evidence in your case, and create a robust defense during the legal process.
Don’t navigate the complexities of the legal system alone, and don’t let social media, preconceived notions, and possible misinformation ruin your life. Call Mike G today for a free case evaluation and to build a criminal defense.
