Social Media and Privacy Are Now in a Relationship, and “It’s Complicated”

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Of the 7.2 billion people on this planet, just over 3 billion are active internet users, and 2.1 billion people have social media accounts, including everything from the social networks of Facebook, Google+, and LinkedIn, to the ‘quasi’ social networks of Snapchat, WhatsApp, Twitter, and many others. As social media has grown, it has adapted to the market, becoming truly mobile with the development of smartphones and wireless networks. As a result, we have created a complicated relationship with social media; and this relationship becomes even more complex when the legal system becomes a third party to our ‘public’ and ‘private’ interactions with social media.

And because we send massive amounts of data over the internet, especially via social media applications and programs, it seems self-evident that the legal system, especially the government, will eventually insert itself into this relationship and become entangled in all these interactions. This myriad of data creates a potential goldmine of evidence for both attorneys and courts to sift through. Consider this comparison: when a phone company responds to a government search warrant, it hands over a call or message log; on the other hand, when a social media company responds to a search warrant, it may provide countless forms of date and information, including the user’s profile, posts/statuses, notes, private messages, account activity, uploaded photos, photos the user is tagged in, location/check-in information, the user’s friend list, and a huge table of login and IP data.

Your “Public” and “Private” Relationship with Social Media

Anything we share publicly is accessible to, well… the public, which includes former spouses, current and potential employers, the government, and, of course, the legal system. Therefore, from a general standpoint, public interactions with social media run the risk of being used against you in some manner, legally or otherwise. For example, an attorney handling a child custody case may casually flick through the Instagram account of a client’s ex-boyfriend only to find multiple pictures of the ex-boyfriend holding drugs and guns. Of course the attorney will now save these photos for use in trial, as they would cause any judge to pause and carefully consider the health and safety of the child.

Even if you delete or remove a posting or picture, the data is still available for a very long time – it doesn’t immediately disappear. For example, your deleted profile or picture can live on in archived or old versions of websites; it can exist via the comments you’ve made on other people’s pages; or the data may have already been saved or shared by your friends.

But what if you have your social media profiles and accounts set to private? Even then, the information can be made available to both the government and the courts. For example, in United States v. Meregildo, 2012, the defendant’s Facebook privacy settings were set to “friends only,” but the government was able to obtain evidence through a cooperating witness who was one of the defendant’s Facebook “friends.” Beyond such tactics though, search warrants and subpoenas will also often make “private profiles” available to the government.

In addition, self-regulated privacy settings, such as Facebook’s privacy settings, are not generally recognized by the courts with regard to pre-trail discovery of relevant information and evidence, thus the courts will often require such “private” information to be available to opposing parties. Sometimes this can be done in a unique manner, for example in Barnes v. Cus Nashville, 2010, the Magistrate Judge expedited discovery of photographs, their captions, and comments by creating a Facebook account for the parties to “friend” for the sole purpose of reviewing the information in camera, and promptly disseminating relevant information to the parties.

The Social Media/Legal Cycle

Because our legal system is constantly striving to uphold our notions of truth, justice, and fairness, it continues to grapple with the best methods for handling social media profiles, messages, posts, etc. This is especially true in light of the constant technological innovations and upgrades we see on a daily basis. It is an interesting cycle.

First, individuals, including criminals, use social networks to communicate and broadcast our activities. Second, some of these communications and broadcasts lead to civil and criminal proceedings, or are used in ongoing proceedings. Third, attorneys advocate on whether these communications and broadcasts should be allowed in the proceeding, and how they should be used. Fourth, judges then develop different approaches for handling the communications and broadcasts. Finally, coming full circle, the judges’ decisions prompt individuals to change the social media habits, and develop new social media tools and networks, such as Snapchat. Yet, as we recently learned, our confidence in the privacy and deletion of data sent through Snapchat was based on a false pretence of security and privacy (the photo or message is accessible to the recipient more than once, and the data is not truly deleted).

Ultimately, our general relationship with social media is based on an erroneous expectation that all we do, send, comment on, and post is – at least in some form – private. We have a mistaken belief that our interactions with social media will not be used against us, while the reality is that our social media relationship is much more complicated. Our messages, posts, comments, likes, check-ins, etc. are all either shared or saved in some manner, whether by other users or the social network itself. Perhaps it is time for us all to recognize this complicated relationship, and approach it with more caution.

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