Updated July 5, 2018
As part of our criminal defense practice, we are often asked “do police need a warrant to search your Facebook page?” Obviously, this is a fairly new issue and there is limited law to give us guidance. But the underlying question is the same as in most questions about warrant requirements – did the person have a reasonable expectation of privacy?
When a person transmits information to another – by phone, email, or Facebook – the information is no longer completely private. The recipient now has access to that information and the person who sent the email or Facebook posting has no control over what that recipient does with the information. For this reason, it has long been the rule that police may always record phone calls, emails, etc. as long as at least one of the participants consents. So if a cooperating witness allows the police to record a phone call, they do not need a warrant. In the recent case of United States v. Meregildo the Southern District of New York used this reasoning and allowed in evidence that was collected from Facebook by police who had used the defendant’s Facebook friend’s account, with his permission. In other words, the “friend” allowed police to use his account so that they could view the portions of the Facebook profile that only “friends” could see.
Because of this, no one should think that their Facebook postings are somehow secret and can’t be used against them. Clearly they can, and statements (even as a joke) that could be construed to relate to participation in a crime should not be posted on Facebook.
As part of our personal injury practice, clients also have asked whether their Facebook postings could be used against them. For the same reasons as above, they usually can be used by the insurance companies and the defense attorneys to show that a person is not as hurt as they say they are. Of course, this would require a “friend” who allows the insurance companies to access their friend’s account. But more often, we have seen people post things on Facebook that are for public view (like pictures of the person playing sports), which hurt their personal injury case. A savvy defense attorney may find these photos and postings. As such, we always tell our clients not to post anything on Facebook about their case or physical conditions as they could be taken out of context and used against them later.