« Six-Month Retrospective of SOPA's Demise [Forbes Cross-Post, A Month Late!] + SOPA/PROTECT-IP/OPEN Linkwrap #3 | Main | Section 230 Immunizes Links to Defamatory Third Party Content--Directory Assistants v. Supermedia »
August 16, 2012
No Fourth Amendment Violation When Your Facebook "Friend" Shares Profile Information With Law Enforcement--US v. Meregildo
[Post by Venkat Balasubramani]
US v. Meregildo, No. 11 CR 576 (WHP) (S.D.N.Y.; Aug 10, 2012)
Colon moved to suppress evidence seized from his Facebook account pursuant to a warrant. He did not contest the finding of probable cause, but he took issue with the government’s methods used to procure evidence in support of its showing of probable cause. The government used a cooperating witness who was "friends" with Colon on Facebook and who provided Colon's information (pictures or posts?) that supported the warrant application. (Friends is in quotes because obviously this wasn't a very friendly thing to do). Colon argued that the government's procurement of information in this way violated his Fourth Amendment rights.
The court says that there is no Fourth Amendment protection in publicly posted information. On the other hand, if users post content to social networking sites “using more secure privacy settings, [this] reflect[s] the user’s intent to preserve information as private” and may engender Fourth Amendment protection. Colon’s Facebook profile did not fall into the second category. His profile allowed his friends to view a list of all his other friends, “as well as messages and photographs that Colon and others posted to Colon’s profile.” Because the privacy settings allowed Colon’s friends to view materials posted to his Facebook account, the court says there was no Fourth Amendment violation:
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.
In other words, when Colon posted sketchy stuff to Facebook, he did so at his peril!
I’m struggling with what to make of this one. It may be disconcerting to learn that the government can approach your Facebook friends and ask them for incriminating information about you, but that's what cooperating witnesses do. The government does this all the time and there's no reason why they can't do it online just like they do it offline.
The situation may have been different if the government prompted the friending. The court doesn't highlight this, but I think the fact that they were already friends is important. What about if the government just made up a fake Facebook profile and friended Colon? I'm not familiar enough with Fourth Amendment law to know the answers to these questions, but I’m regularly surprised at how far the government can go in obtaining information, even through subterfuge. While there are obviously limits on how far the government can go in "infiltrating" groups, even in this context, courts have given the government plenty of room. At a certain point, these efforts would bump up against the individual's right of association and chill First Amendment activity, but this isn't the easiest case to prove. In any event, those issues were not implicated here.
Of course, there’s the issue of Facebook’s privacy settings. I have long found them confounding and tough to use (tough enough that I deleted my account). Is the court saying here that if you have the default privacy settings on your Facebook profile (i.e., don’t restrict information to certain groups) then, if an informant friends you, there’s no Fourth Amendment bar to the government obtaining this information? The court’s discussion on privacy settings may have been gratuitous. Another way to look at it is that if your privacy settings are such that someone can access material through Facebook, then the government can obviously obtain this information (without a warrant) through whomever can access the information. There's nothing particularly shocking about this.
It's interesting to compare this case to the other cases where privacy settings ended up being relevant to the legal analysis. In the civil discovery context, courts regularly look to the privacy settings on your profile as one part of the question of whether this information can be obtained in discovery (e.g., Zimmerman; Romano v. Steelcase are a few of the many cases in this vein). The issue has come up in the employment context as well, where one court said that shoulder-surfing over a co-worker's shoulder could state a privacy claim (Ehling v. Monmouth Ocean) and another court rejected privacy claims based on an employer disciplining a worker's comments posted to a co-worker's Facebook profile (Sumien v. Careflite). It's worth noting that in the Monmouth case, the court said that there could be a privacy claim where an employer gains access to your Facebook profile through a co-worker, but the government can engage in exactly this conduct (at least there's no Fourth Amendment bar). Finally, in the generic privacy context, Moreno v. Hanford Sentinel is one of the early cases that said that there's no invasion of privacy where someone republishes a MySpace post that was publicly available, even it was disseminated more widely than the initial post.
At the end of the day, this case is yet another illustration that your circle of Facebook friends affects your privacy. This is just restating the obvious, but it seems like it's worth restating.
I guess we should look at the bright side. At least the government ultimately obtained a warrant, and didn’t just send Facebook an administrative subpoena requesting the information.
Jeff John Roberts: 'Friends' can share your Facebook Profile With the Government, Court Rules
Evan Brown: No Fourth Amendment violation when government looked at Facebook profile using friend’s account
NY Post: Facebook 'gang-banger' outed to feds when 'friend' turns rat
Cyb3rcrim3: Facebook, “Friends” and the 4th Amendment
The "I Didn't Understand Facebook's Privacy Settings" Argument Isn't Persuasive to Judges--Sumien v. CareFlite
Accessing an Employee's Facebook Posts by "Shoulder Surfing" a Coworker's Page States Privacy Claim -- Ehling v. Monmouth Ocean Hosp."Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"
"Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc."
Posted by Venkat at August 16, 2012 11:41 AM | Privacy/Security