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No such thing as privacy

Do you have a Facebook account?

The Legal Genealogist does.

Do you have “friends” on Facebook?

The Legal Genealogist does.

Do you have what the law considers to be a “reasonable expectation of privacy” on Facebook?

The United States District Court for the District of New York says you don’t. And I don’t. And all of us who have Facebook accounts and have any “friends” there at all — don’t.

The issue came up in the case of United States v. Meregildo, a criminal prosecution brought in the Southern District of New York — Manhattan and the Bronx in New York City, and Dutchess, Orange, Putnam, Rockland, Sullivan, and Westchester Counties.

One of the defendants there is a fellow by the name of Melvin Colon, known on Facebook as “Mellymel Balla.” One of his Facebook friends turned government witness and let the government agents look over his shoulder as he accessed Colon’s Facebook page:

By that means, the Government learned … that Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang.1

The agents then used the information to prepare a search warrant, and a federal Magistrate Judge gave them the warrant to search all of Colon’s Facebook account and activity.2

Not surprisingly, Colon challenged the use of the evidence in court. He wasn’t arguing about the search warrant itself, mind you, but rather that the government shouldn’t be allowed to use the access of one of his “friends” to get enough of the goods on him to apply for the search warrant.3

It took the District Court all of 10 paragraphs to reject the argument. It agreed that: “The Fourth Amendment guarantees that all people shall be ‘secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ A person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable. Generally, people have a reasonable expectation of privacy in the contents of their home computers.”4

But, it said, “this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail.” And “When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.”5

So, the Court concluded:

Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. … While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. … And the wider his circle of “friends,” the more likely Colon’s posts would be viewed by someone he never expected to see them. Colon’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government. … When Colon posted to his Facebook profile and then shared those posts with his “friends,” he did so at his peril. Because Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed Colon’s Facebook profile through a cooperating witness.6

So any of your friends can hand over any information from your Facebook account (and, by analogy, any social media website where you’re sharing any information with other people) to the government, and the government can use it to prosecute you.

Now this may not seem to be a very big deal for those of us who aren’t planning on spilling our guts about our nefarious criminal schemes online, but it surely is something to keep in mind.

At least if you’re thinking of engaging in nefarious criminal schemes…


 
SOURCES

  1. United States v. Meregildo, 883 F. Supp. 2d. 523, 525-526 (S.D.N.Y. 2012).
  2. Ibid., at 525.
  3. Ibid.
  4. Ibid., citations omitted.
  5. Ibid.
  6. Ibid., at 526, citations omitted.
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