The Evolving Role of Social Media in Criminal Cases

ALBANY, NY, October 15, 2012

Every year, online social media outlets such as Facebook, Twitter and YouTube continue to widen the net of information people in New York can share and communicate with each other.

As social media's reach has increased, law enforcement is increasingly turning to it in order to solve crimes. Consequently, federal agencies and police departments keep boosting budgets and training efforts geared specifically towards mining social media for clues that will lead to arrests. In fact, social media has become a key investigative tool. Ordering social media companies to shut down a certain user's page or to archive certain information when it is relevant to an investigation has become a routine practice of law enforcement.

And as official use of social media information expands, the debate on privacy issues has grown -- particularly when it comes to the exact methods and practices used by law enforcement in obtaining and using social media content in criminal investigations. The Electronic Communications Privacy Act, the federal law that outlines the rules about how law enforcement is allowed to obtain electronic information, requires law enforcement to obtain a warrant to access certain information. But the law was passed in 1986, and many privacy advocates contend that it is outdated when applied to social media.

Another concern is that according to a survey conducted by the International Association of Chiefs of Police, only 48.6 percent of law enforcement agencies actually have a policy outlining the rules for how personal social media information can be legally obtained. Without firmly established policies, the rules on how social media information can be obtained and used in criminal investigations can be confusing. As a consequence, law enforcement agencies often obtain evidence without court orders.

Many social media companies have their own policies governing how law enforcement can retrieve a user's information. Facebook, for example, provides information in emergency situations, or in order to prevent fraud or other illegal activities. In all other instances, Facebook requires a subpoena to access account holder information, and a warrant that shows probable cause is required to access other user content.

The rising use of social media in criminal investigations has a number of implications for New Yorkers accused or suspected of committing crimes. One is that social media users who take to Facebook to brag about a crime they committed make that content easily retrievable by law enforcement -- and the users will likely be arrested for committing that crime. Another implication is that with confusing rules about how social media information can be legally obtained it is possible that social media users' privacy can be jeopardized when law enforcement collects and uses information against them or shuts their pages down.

If you have been arrested or charged with a crime because of something posted on a social media channel, speak with an experienced criminal defense attorney. If the information was not properly obtained, then any evidence against you might be admissible.

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