Whether you use it or not, we all know the impact that social media has had on today’s society. What you may not know is how police have been using social media to perform their job. Police departments across the country have been turning to social media, including Twitter, Facebook, and Instagram, to improve their reputation within communities, apprehend fugitives, and even investigate criminal acts. However, some use of social media may have legal consequences for law enforcement.
In a recent case that has garnered some publicity, a Drug Enforcement Administration (DEA) agent used the contents of a woman’s cellphone who had been arrested in a cocaine case. The contents were then used to set-up a fake Facebook account for the woman to trick her friends and associates into revealing incriminating drug secrets. The Justice Department stated that the woman implicitly consented by granting access to the information stored in her cellphone and by consenting to the use of that information to aid in ongoing criminal investigations. The woman then filed a lawsuit against the DEA agent claiming she suffered fear and emotional distress because the fake account made her appear that she was a “snitch” cooperating with the investigation, which put her life in danger.
Law enforcement agencies have often used social media to conduct investigations, particularly in the realm of child pornography; however, using another person’s real identity is less common. A person whose identity is used in this manner may have a Constitutional privacy claim against law enforcement. While the “right to privacy” is not specifically enumerated in the Constitution, a person does maintain a subjective expectation of privacy when that person has sought to preserve something as private. However, once that information is displayed to a third party, that expectation of privacy is generally washed away. In the lawsuit against the DEA above, the claim of privacy will turn on the scope of the woman’s consent and whether that information was already displayed to a third party.
While social media has played an important role in law enforcement’s abilities and effectiveness, the consequences of its use are not to be taken lightly. Coming off the heels of the recent Supreme Court case, Riley v. California, where a unanimous Court held that generally, the police may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested, social media will no doubt have a larger role to play in future civil lawsuits.
Sara Lowry is an attorney in our Livonia office where she concentrates her practice on municipal law, litigation, and immigration law. She may be reached at (734) 261-2400 or firstname.lastname@example.org.