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Cops and Lawyers Go Social To Find Evidence

Posted by Goldberg Noone Abraham | May 06, 2013 | 0 Comments

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We've all seen the numbers – everyone in the world uses social media, and if you don't, well, there just may be something wrong with you. OK, that may be slightly exaggerated, but it is true that millions use social media – and I mean every day, several times a day, in multiple posting and tweeting venues – to stay in touch, and read and talk about what's going on in their world.

Turns out what everyone has said from the beginning remains true – if you don't want the world to know about it – or let's say, law enforcement officials – just stay the heck away from your keyboard. Police and other investigative organizations have taken to social media in a big way, and consider it to be a veritable gold mine of information that can prove very useful during a criminal investigation.

While cops may feel this innovative new investigatory technique reaps big rewards, the practice does bring into play some important legal privacy concerns. Here's the bottom line – social media outlets provide the ideal platform for the application of the Miranda warning that says “whatever you say can and will be used against you”.

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Online Privacy and The Fourth Amendment

Our country's Constitution contains the Fourth Amendment, which protects us against “reasonable search and seizure” by government agencies. But does that apply to something you may have posted on Facebook or Twitter? What if police find a piece of information within your social media that could implicate your involvement in a criminal activity? Does the Fourth Amendment still protect you?

Reasonable search and seizure is supposed to be governed by the caveat known as “probable cause”. That means the cops aren't supposed to be allowed to search your home, car or person unless they have pretty good reason to believe they should. And a review of case law shows us that any protection against unlawful search and seizure is only applicable in a context where an individual has a reasonable expectation of privacy. Here's an example. If you and your buddy are having a conversation in your home, it seems reasonable you would expect that to remain private. But, if you and your buddy take it to the streets and start chatting in the corner coffee shop, would you still consider that conversation private?

The same applies to your social media content. A court may have a different opinion as to whether your online postings are private if you make them available for anyone to see, as opposed to if you have taken the steps to adjust your account settings to ensure that only specific groups of people can read your posts. Your Fourth Amendment rights come into play here, allowing the police to imply that they have every right to use what you may have posted against you if they need to, because you plopped it on the internet and shouted it to the world.

We should also point out that it's not just the police who use social media as a source for finding incriminating evidence. Let's say you're being sued in a court case, and there's a witness who testified against you. That witness may spout off on his Facebook page about something that contradicts what he just said in court the day before. A skilled defense attorney will invest the time poking around in cyberspace to find that, and use it to blast holes in the witnesses' credibility.

It's as simple as what you've been told ever since you started sharing your innermost thoughts with your “friends” and “followers” – if you think what you're about to post could someday come back to make your life a living hell, by all means think before you click.

The World Wide Web is a crazy thing, all right. Some good, and some not so good. Think about exactly who can see what you are posting to social media, including all of the reactions and interactions it generates. Do you know what your privacy controls are set for, or do you even care? Sometimes what may appear as an innocent posting could have far-reaching legal consequences down the road.

If you think someone is using your social media content to accuse or implicate you in any kind of criminal activity, you should talk to a criminal defense attorney at Goldberg, Racila, D'Alessandro & Noone, LLC. It won't cost you a thing to sit down and talk about what you're going through, and how to best defend your constitutional rights. Give us a call at 239-461-5508…or message us on Facebook.

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