Social Media Searches and the Reasonable Expectation of Privacy

By Mund, Brian | Yale Journal of Law & Technology, Annual 2017 | Go to article overview

Social Media Searches and the Reasonable Expectation of Privacy


Mund, Brian, Yale Journal of Law & Technology


Table of Contents  I. Introduction II. Privacy and Social Data     A. The Fourth Amendment     B. Exceptions to the Reasonable Expectation of Privacy        1. Third-Party Doctrine        2. Voluntary Consent III. Social Data and Government Intelligence Gathering     A. Publicly Shared Social Data     B. Intelligence-Gathering on Private Networks        1. Sharing Information with the Government        2. Covert Government "Friends"     C. Third-Party Doctrine: A Chink in the Armor IV. Revisiting the Scope of Reasonable Expectation of Private Social Data     A. Special Considerations of Privacy for Private Social Media     Data        1. Intrusive Social Media Monitoring        2. The Chilling Effect of Surveillance     B. Distinguishing Government Intelligence Tactics        1. Surveillance Capacity        2. First Amendment Rights        3. Power Differential V. Conclusion 

I. Introduction

Everyday conversations amongst friends--the sort that traditionally constituted private speech--now transpire over social platforms like Facebook, Twitter, and LinkedIn. However, unlike traditional "offline" conversations, online social conversations leave a lasting digital footprint. As such, social platforms create a trail of digital evidence of an individual's behavior. With users of social networking sites increasingly sharing their life experiences online, social platforms may contain an extensive record of information documenting an individual's activities, preferences, and opinions. Moreover, this rise in social sharing of personal information has been accompanied by a misguided sense of security that information shared within personal social networks will remain private. This assumption of data privacy is not necessarily correct. To the contrary, under the current legal framework, information shared within private networks is not protected from greater circulation.

Information shared on social platforms may offer a valuable resource to government investigators. For example, some individuals actually confess to committing crimes to members of their social network. (1) Other social data can help the government understand motives, track potential threats, create associative links, confirm alibis, or provide prosecutorial evidence. While government searches of information are generally limited to reasonable searches supported by probable cause, the government has ways to access vast amounts of social data without triggering the "search" threshold. Social networking platforms such as Facebook, Twitter and LinkedIn allow for data sharing within a closed social network. When users publish social content, they share that content with the other members of the private network.

This Note focuses on the reasonable expectation of privacy in the communications posted on private social media networks and the accompanying Fourth Amendment protections against intrusive government searches. An exploration of the extant case law shows that social media users have no reasonable expectation of privacy in their social media postings--even if users communicate their information behind password-protected pages. As such, courts allow the government to search private social media information without applying Fourth Amendment protections. The law treats these "private" social pages as deserving the same protections as if they were publically posted on the Internet. Therefore, courts allow the government to search private social media information without any legally cognizable privacy protections. This doctrinal stance creates the troubling reality that law enforcement officials can and do engage in "covert friending" operations. (2)

I argue that the Fourth Amendment requires a greater degree of privacy protection for social media data. Judicial and legislative activity provides indicia of a willingness to reconsider citizens' reasonable expectation of privacy and reverse an anachronistic equation of privacy with secrecy. …

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