Does the Government Violate the 4th Amendment When it Obtains Evidence From a Suspect’s Facebook Page?

Does the 4th Amendment protect information disseminated online? Can Facebook posts be used against
defendants in a court of law?

The court in U.S. v. Joshua Meregildo WL 3264501 (S.D.N.Y. August 10, 2012), addressed whether the government violated the 4th Amendment by obtaining evidence from a suspect’s Facebook page. In that case, the government applied for a search warrant for the contents of Melvin Colon’s (“Defendant”) Facebook account. The Magistrate Judge found probable cause and granted the warrant. The basis of the finding of probable cause derived from the contents of Defendant’s Facebook page.

It was significant that one of Defendant’s Facebook friends granted the government access to view Defendant’s page. Through that access, the government learned that Defendant posted messages regarding prior acts of violence and threatened new violence to rival gang members. Additionally, the government obtained evidence that Defendant posted messages seeking to maintain the loyalties of other alleged members of Defendant’s gangs. Defendant argued that the government violated his 4th Amendment right to privacy by accessing his Facebook page.

In its decision, the Court began its analysis by noting that the 4th Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searched and seizures.” U.S. CONST. amend. IV.

A person has a constitutionally protected reasonable expectation of privacy when;

1) they have both a subjective expectation of privacy; and
2) that expectation is one that society recognizes as reasonable.

The Court reasoned that generally people have a reasonable expectation of privacy in the contents of their home computers. But this expectation is not absolute, and may be extinguished when a computer user transmits information over the internet or by e-mail. When a social media user disseminates his posting and information to the public, the user is no longer protected by the 4th Amendment. However, when users utilize secure privacy settings when posting on the internet, it reflects the user’s intent to preserve information as private and may be constitutionally protected.

In this case, since the defendant set his Facebook privacy settings to allow viewership of postings by friends, the government was allowed to access them through a cooperating witness who was one of those friends. Id. at 1-2.

The Court explained that Defendant was in error when he held the belief that his Facebook profile was private to law enforcement officials. This is because Defendant did not have a justifiable belief that his friends would keep his profile private. Once he shared his posts with his friends, his friends had the right to share it with law enforcement officials. Therefore, Defendant’s legitimate expectation of privacy ended when he disseminated posts to his friends.

Accordingly, the Court held that the government did not violate his rights under the 4th Amendment when it accessed Defendant’s Facebook profile through a cooperating witness.

Be very careful what you post on the internet; Information is unlikely considered private when it is on the internet. If you want to ensure your privacy, do not post your “private” information online for anyone to see.