Can Digital Content Be Used In Court?
Can Text Messages, Emails, Or Facebook Posts Be Used To Prove Threatening Actions Against Me In Court?
If investigators try to get a Facebook user's private posts or direct messages as evidence, they have to request it from the company via a warrant or subpoena. In most cases, Facebook will grant the details. However, this sort of access is not provided to criminal suspects.
A court case in California took on this problem, eventually failing to get defendants' substantial new rights, but raising the question of this disparity and its implications. In late May, the state's Supreme Court ruled that tech companies usually do not have to allow defendants access to private messages or information, in a case involving a gang killing and Instagram threats. The court said this kind of information is protected under a decades-old privacy statute.
At the same time, the court handed Silicon Valley giants a minor loss. If defendants try to use public content — any post that is not limited to a particular audience — as proof in a courtroom, platforms like Facebook or Twitter may be forced to turn it over to check it, something they didn't have to do before.
Social media evidence may be an important tool in the hands of law enforcement. In Detroit, prosecutors recently based an entire case on Instagram, Facebook, and YouTube posts against a dangerous gang that liked to brag about its exploits on social media.
The government can't just go and retrieve any social media information it needs, but it can do so without significant obstacles. For the accused seeking to access social media data to prove their innocence, privacy rights prevail. It's a question of one crucial right ruling over another: one person's right to privacy trumps another's right to a fair trial.
The new ruling leaves this challenging dispute unresolved, as the use of social media proof is only bound to become more widespread in the future.
The case
In 2013, according to his own account, a 14-year-old boy shot 19-year-old Jaquan Rice because he feared that Rice would kill him first after Rice tagged him in violent Facebook and Instagram posts. The prosecutors said they were both members of the street gangs.
His older brother, Derrick Hunter, and a man named Lee Sullivan were reportedly helping the 14-year-old. The boy was tried in the juvenile court, and the case of the two older men was referred to the adult criminal court. The decision of the Supreme Court of California applies to the latter case.
Sullivan's lawyers asked Facebook and Twitter to send texts, direct messages, and other material from the accounts of Rice and Renesha Lee, Sullivan's ex-girlfriend. The defense needed this evidence because it could be exculpatory to their client: they could demonstrate Rice's supposed threats, and that Lee, who testified against Sullivan and was the only witness to state that he was involved in the shooting, was acting out of envy. Facebook declined to hand over the content, arguing that it was covered under the Stored Communications Act of 1986, which sought to prohibit providers of electronic communications from carrying on user messages without their permission.
The verdict
The Supreme Court of California ruled that social media sites should be required to offer public posts to the defendants, the kind that everyone would reach. In order to make these posts admissible in court, it must be checked which businesses will now have to do if they serve a subpoena and if the judge decides that they are really "public". This makes it simpler for defense counsel to operate because they have been responsible for proving the validity of the public social media post they chose to use. In California, the permission of the consumer had to be sought (these laws differ from state to state).
However, the court also ruled that broadly speaking, social media platforms do not have to reveal private messages or updates to criminal suspects, even though they were intended for a large number of people — like a post widely restricted to someone's Facebook friend list. In other words, if you ever limit your audience, even if it's your 1,600 mates, it's still private. The judges referred the matter back to the lower court as to which of the posts in the case would be considered public and which would not be.
So, Can Facebook Posts be Used to Prove Threatening Conduct?
Since the decision was divided, each party proclaimed it to be a victory in the case. Sullivan's lawyer, Janelle Caywood, told Courthouse News that it was a step forward for defense attorneys who have trouble accessing public information. "This is the first blow to Facebook's stonewall on user content," she said.
Facebook told Quartz that it was happy with the decision. "The Court's opinion indicates that Facebook and other corporations have behaved reasonably in refusing to reveal personal content to the public in response to the criminal defendants' pleadings. We will continue to fight for people's privacy," said the spokesperson.
Meanwhile, a legal expert told The Recorder that it was a victory for the person whose rights had been secured.
Stephanie Lacambra, a lawyer at the Electronic Frontier Foundation, told Quartz that the victory here is actually with American prosecutors, who will continue to hold the most control over social media evidence.
Users, on the other hand, should be concerned about how easy it is for law enforcement officials to access their data, she said.
According to Facebook's annual government request survey, the company gives law enforcement access to information they request through warrants, subpoenas, or court orders 86% of the time. About 30,000 such requests have been submitted in the last six months of 2017.
If a post is private or public, investigators can get it via a search warrant. The court, Lacambra said, overlooked concerns as to whether prosecutors should be required to obtain a warrant for the contents sought by the defense.
"There is a disparity in access to the relevant evidence between the government and the accused, which can have significant consequences for the right of the defendants to a fair and impartial trial," she said.
Prosecutors have no duty to seek exculpatory information. For example, if prosecutors issue a subpoena for private posts or messages from a certain period of time, that's all defense attorneys will get, even if they know that information that could support them is in posts from another period of time.
The government is expected to hand over the exculpatory evidence to the defense once they discover it, but this is an environment full of violence. Prosecutors hiding evidence is a common concern reported by researchers.
The larger picture: can private messages be used in court?
As Andrew Cohen noted in the Marshall Project in January, the case comes down to defining 'privacy' on social media, a medium that was never contemplated by the writers of federal law and is by its very nature public." The laws controlling the Internet are out of date, and the fight to refresh them for today's realities goes far beyond the California Supreme Court.
The discussion about how to amend the 1986 Electronic Communications Privacy Act, which includes the Stored Communications Act, has been going on for years. Law enforcement authorities argue that they need unfettered access to information on social media sites to do their work, while privacy and social justice advocates caution against the government's undue control over our communications.
Whether the fight over digital evidence is resolved depends on politicians who, Lacambra said, will have to "think long and hard with constitutional law experts to hammer out a way to balance the defendant's due process rights with the protection of individual privacy." If that doesn't happen, the matter will have to be brought before the court again.