As social media platforms continue to grow, their prevalence in the courtroom does as well. According to the Pew Research Center’s “Social Media Use in 2021” upwards of 70% of adults in the United States have at least one active social media profile. Because of this plethora of information freely disseminated online, law enforcement officers are using social media for investigative purposes. Whenever something is communicated through the internet it is stored and can be discovered later. Even stories, while they may “disappear” after a period of time, they may be captured and preserved. Yet many continue to share freely on social media with the misguided presumption that it is an outlet for freedom of speech. In many cases, sharing content in the moment can lead to oversharing or accidently posting something you should not. Even if the post is deleted before anyone becomes aware, that post never truly disappears. It may seem common knowledge that influencers and celebrities can face public backlash when sharing with the public, but the consequences of posting content on social media still exist with a modest follower count.
Some aspects of social media are protected by your right to privacy. However, the privacy you may be afforded is not necessarily extended to the information shared with others. The court in United States v. Wesley held that posts shared with only a few followers are not restricted to that audience only, since the defendant’s “legitimate expectation of privacy ended” when sharing posts with their friends “because those ‘friends’ were free to use the information however they wanted—including sharing it with the government.” See (United States v. Wesley, No. 3:17-CR-171 (MPS), at *1 (D. Conn. July 17, 2018)). The court does require evidence that it is reasonable to conclude the incriminating post was made by or at the request of the accused. See People v. Kent, 81 N.E.3d 578 (Ill. App. Ct. 2017). However, the court does not specify what elements are required to prove authorship, simply stating that it “will always depend on context.” People v. Kent, 81 N.E.3d 578 (Ill. App. Ct. 2017) quoting Vayner, 769 F.3d at 133.
When a defendant shares on social media activities that are illegal, the court considers these postings as indicative of “a heightened level of flagrant disregard for the law.” See United States v. Ballard 12 F.4th 734 (7th Cir. 2021). In United States v. Briggs, law enforcement officials were watching defendant’s social media for several months prior to applying for the search warrant that ultimately returned the necessary evidence to convict Briggs of drug trafficking. See (United States v. Briggs, Criminal No. 2:20-cr-00206-JMG (E.D. Pa. Mar. 10, 2021)). Law enforcement looked at the defendant’s Instagram posts, through this social media investigation, along with more traditional methods, law enforcement officials were able to gather enough evidence to establish the relationship between defendant and known dealers. This allowed officials to obtain probable cause for a search regarding the defendant’s own involvement in illegal activities. This case explains some of these posts were visible to law enforcement directly, but other posts were shared with law enforcement through an informant that had access to view the defendant’s social media because they were “friends with” or “followed” the defendant’s account. See (United States v. Briggs). Although police did not have direct access to some of the post it was still admissible as evidence. Dividing the line between what is visible to what groups of followers or friends is most important with respect to subpoenaing social media records. See United States v. Wesley, No. 3:17-CR-171 (MPS), at *1 (D. Conn. July 17, 2018).
If you are currently out on bond awaiting a criminal trial or on probation for a criminal charge, your social media may be watched even more closely. Posts that share your location with other users can lead to a violation of travel restrictions. Posts, comments, or messages that link a defendant to a protected person can also lead to a bond violation or violation of probation. Pictures or posts shared by defendants on social media may even provide probable cause for a search warrant. In State v. Carlton Council, the court upheld a search based on information obtained from a post on social media. The appellant in the case was cohabitating with his girlfriend while her son was on juvenile probation. The juvenile posted a photo of himself holding an assault rifle to social media prompting a search of the residence that uncovered materials leading to charges for the appellant. See State v. Carlton Council, 2017 Ohio 9047 (Ohio Ct. App. 2017).
Some use social media for their business to generate interest in a brand, while others seek to become “influencers” and use their platform to market themselves. Many maintain an account to keep up to date on what is going on in the world or to stay connected with friends that would otherwise lose touch. Whatever your reason for utilizing the plethora of platforms available to you, keep in mind that whatever you share may be used against you in court.