Police are increasingly using social media sites such as Facebook, Instagram, Snapchat, and Twitter to investigate crimes. Privacy and free speech advocates have raised concerns that monitoring and investigation techniques could violate peoples' privacy rights, particularly if undertaken to monitor large segments of the population. So how much of the information you post on social media is up for grabs without a warrant? Not surprisingly, quite a lot.
It depends. The Fourth Amendment protects citizens from unreasonable searches by the government—but only when a person has a reasonable expectation of privacy in their information. If a person doesn't have a reasonable expectation of privacy, there's been no search and police don't need a warrant to view that information.
Several courts have looked at the question of whether people have a reasonable expectation of privacy in the content they share through, or post on, social media. Typically, the answer comes down to:
While court opinions vary, the more steps the account user takes to protect their information, the more likely the police will need a warrant.
Not usually. Courts are generally in agreement that police don't need a warrant to access public social media accounts and their contents. What a person exposes to the public at large doesn't generally receive Fourth Amendment protections. Once a person posts content that's publicly available, they lose any expectation of privacy. Police can view the information just like the general public can. (Privacy advocates, however, strongly disagree and argue this type of government surveillance raises both free speech and privacy concerns.)
(Katz v. U.S., 389 U.S. 347 (1967); U.S. v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012).)
This is the tougher question—whether police need warrants for private social media accounts and content shared privately. Court opinions vary considerably on just how private social media accounts are and whether they receive Fourth Amendment protections.
A few courts have held that a defendant who blocks the general public from seeing information and only allows access to selected individuals has a reasonable expectation of privacy in that restricted content. If a cop wants to see restricted content, they need a warrant.
Other courts have reached the same conclusion but only if the defendant was deliberate in controlling who has access to their content, such as by using a pseudonym only known by close acquaintances, controlling who can see their account and selected information, and purposely choosing certain privacy settings.
(U.S. v. Chavez, 423 F. Supp. 3d 194 (2019); Commonwealth v. Delgado-Rivera, 168 N.E.3d 1083 (Mass. 2022).)
Quite a few courts have come to the opposite conclusion, however. Defendants in several cases have lost their argument that police violated their Fourth Amendment rights by not obtaining a warrant to access content shared privately over their social media accounts. Courts that rejected these arguments found that, once a defendant shares content with anyone, even under restricted privacy settings, they give up any expectation of privacy in that content. Basically, a defendant relinquishes control over the content and can't rely on others to keep their shared content private. So, if police can get someone to share the defendant's information, it's generally fair game.
(Commonwealth v. Carrasquillo, 179 N.E.3d 1104 (Mass 2022); People v. Pride, 31 Cal.App.5th 133 (2019).)
Police have also found incriminating evidence on social media accounts by using confidential informants or by going undercover themselves. Courts have found that the Fourth Amendment does not protect information shared voluntarily with a friend, even if that "friend" turns out to be a cop or an informant.
Informant case. In the case U.S. v. Meregildo, police accessed the defendant's Facebook profile through the account of one of the defendant's friends, who just happened to be a cooperating witness. Police gained access to the defendant's posts and used that information as probable cause to get a search warrant for additional information held by Facebook. The defendant argued police violated the Fourth Amendment by obtaining information through a "friend." The court didn't buy the argument and held that once the defendant shared information with friends, those friends were free to share it with whomever they wanted, including the government (883 F.Supp.2d 523 (S.D.N.Y. 2012), citing Katz v. U.S., 389 U.S. 347 (1967).)
Undercover cop. In another case, a defendant accepted a "friend request" from an undercover police officer. The officer found incriminating evidence in photos posted by the defendant. The defendant was prohibited from possessing firearms, yet posted a picture of his nightstand with a gun and several of the defendant's personal items on it. The officer used this information to get a search warrant to seize the weapon at the defendant's home. The court held that the Fourth Amendment does not protect a wrongdoer's misplaced trust in a "friend" who turns out to be an undercover cop. (Everett v. State, 186 A.3d 1224 (Del. 2018), citing Hoffa v. U.S., 385 U.S. 293 (1966).)
Social media companies, like Meta, Snapchat, and Twitter, hold troves of personal digital data that can't necessarily be seen online, from location data and search histories to deleted content and personal account information. Some of this data is automatically generated by the company (metadata), while other information comes directly from the account holder.
The law remains in flux regarding what level of Fourth Amendment protections this "third-party" data receives. But, generally speaking, the police must get a warrant or court order to request this information from social media companies. Privacy proponents argue, though, it's much too easy for police to request this information. (18 U.S.C. § 2703; Carpenter v. U.S., 138 S.Ct. 2206 (2018).)
If you have questions regarding the privacy of your information, talk to a criminal defense attorney or a civil rights attorney. Search-and-seizure laws can vary by jurisdiction, especially in a relatively novel area like privacy rights in the digital age. Courts around the country are grappling with these issues, and lawyers must navigate a patchwork of decisions.