Social Media in the Courtroom: What is Admissible?
Uncle Ben warned Spider-Man, “With great power comes great responsibility.” Our social network activity similarly generates limitless potential and mammoth responsibilities. Besides bridging the gap between cultures, social media offers both unexplored terrain and worrisome perils from a legal persepctive.
Facebook provides a “check in” option, which discloses not only your location but also how far away you are and where you’ve been lately. Snapchat allows a user to share a photo with another user and then have that photo disintegrate into cyberspace. These alternate realms of reality allow people to show who they think they are and who they want you to think they are. The metes and bounds descriptions of our cyber property interests are blurred. But to what extent? Until now, the judiciary seemed ill-equipped to deal with issues presented when someone was charged and later convicted based on information — photos, comments, public statements — shared virtually. Should a defendant’s social media presence be admitted into evidence? Read on and find out.
Social Media in the Courtroom
Inquiring into evidentiary issues requires a snapshot of criminal procedure jurisprudence. There are certain advantages and good policy reasons for accessing social media evidence used in criminal proceedings. Photos, for example, can be uploaded quickly and shared within seconds. They can alert authorities to crimes in progress, those about to be committed, or those already commissioned. Moreover, Police Departments now manage Twitter accounts, which highlight their day-to-day victories, reminding citizens to trust that they are on patrol. But when did these technologies become social norms? We all want to be protected, but at what cost?
When did technology become an issue in criminal proceedings?
Until recently, the government consistently retrieved any information from third parties without a neutral and detached magistrate issuing a warrant. The groundbreaking decree came in 1971 when the Supreme Court decided that recording conversations between an individual and agents, via a radio transmitter and without a warrant, did not violate the 4th Amendment of the United States Constitution. However, this was decided in a time when social media didn’t exist, or at least where speaking face to face was not uncommon:
Social media use in the United States alone has increased by 356 percent since 2006. Currently, 52 percent of Americans have at least one social media profile more than one billion people use Facebook actively each month, and Twitter has over 140 million active users posting 340 million Tweets a day.
Every minute, social media users create massive amounts of data: Facebook users share 684,478 pieces of content; Tumblr blog owners publish 27,778 new posts; YouTube users upload 48 hours of new video; Foursquare users perform 2,083 check-ins; Flickr users add 3,125 new photos, and Instagram users share 3,600 new photos. In addition, there are hundreds of other social networking websites, each catering to a different demographic.
With new ideologies come new rules to constrain them. The Supreme Court tackled the technology and privacy issues head on after wrestling with Riley v. California, after a defendant’s phone was searched without a warrant. In Riley, the Defendant was stopped for a traffic violation, which resulted in his arrest. Upon searching the defendant pursuant to the incident to arrest exception for searches, the police officers removed his phone from his pants pocket. Based on photos and videos found within the phone, the state sought an enhanced sentence for gang association. The Supreme Court Majority had this to say:
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
The Court did not uphold the warrantless search of Riley’s cell phone; however, the Court was reluctant in transcribing a per se rule, and instead recognized circumstances in which data retrieved from a cell phone would be necessary to combat an unforeseen exigency. Thus, although the incident to an arrest exception would not suffice for searches of a defendant’s cell phone, the Court reserved its discretion as judicial intermediary.
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of crim- inal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost…
The critical point is that, unlike the search incident to arrest excep- tion, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.
Authorities reacted to the strong presence of social media and the intertwined privacy interests at stake by referring to the Stored Communications Act (“SCA”). Congress enacted the SCA in 1986 in response to breakthroughs in technology. Although we all have inherent reasonable expectations of privacy, this Act construed our right to be secure in spatial terms. Therefore, it did not apply to our expectation of privacy in an online context. One of the SCA’s subtleties provides that instead of procuring a warrant, a relatively heightened standard, government authorities need only a subpoena and and prior notice. United States v. Warshak rejected that idea from applying to e-mail searches; thus, it represented a preceding touchstone to the Riley decision.
But have we given the government the right to infringe on our once-secure privacy rights? It seems after 9/11, the State enacted statutes expanding the rights to government intrusion, and limiting those inherent to American citizenship. Statutes, such as the USA Patriot Act and the Homeland Security Act, paved the way for the State’s unbridled infringement into our interests. Although Riley was decided in June of this year, it marked somewhat of a shift in our country’s criminal procedure jurisprudence. For once it seemed the Court might start protecting our privacy in light of technology’s influx.
Social Media and Evidence Law
Can we convict someone for posting arbitrary thoughts on social media? Evidence is usually admitted if it meets the preponderance of the evidence standard, but convictions must be beyond a reasonable doubt. Allowing a jury to draw inferences based on where someone checked in or posted a picture, could be highly effective, but damaging just the same. Recognizing the potential opportunities and unforeseeable consequences remains a central issue in weighing these particularities.
Evidence obtained via a social network user’s public profile raises several evidentiary issues. The most prevalent being hearsay. Rule 801 of the Federal Rules of Evidence (“FRE”) defines the elements constituting hearsay:
(a) A statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
For example, Ann sends Bob a private message saying she just killed Jack with a knife. This message is arguably a “statement” and Ann is the “declarant” sending it from outside of court. Then the question is whether the prosecution is seeking to admit this evidence to prove the truth of the matter asserted. The “truth of the matter asserted” is basically that the prosecution wants the jury to draw an inference that the knife was used by Ann to kill Jack. If the message is being offered for that purpose, then the court will usually exclude it; however, there are plenty of hearsay exceptions that the prosecution can raise in response to the defense attorney’s hearsay objection. So, the prosecution could rebut the defense’s contention by arguing that the message was Ann’s admission, which the court will almost always allow in. Or the prosecution can argue that it was an expression of Ann’s state of mind.
As you can see, the breadth of information a user posts on Facebook, Snapchat, or Twitter, whether it be pictures, statuses, or comments, raises important issues. Next time you post a status update, ask yourself, is this what’s really on my mind right now? Saying one thing that means something else could implicate you.
Attorney Josh Gillan recently criticized the decision in People v. Oyerinde in the American Bar Association’s Litigation Blog. In Oyerinde, the court construed a defendant’s Facebook messages as not hearsay, but as a party admission, because he sent them to another person. “Just because the evidence was available on social media does not mean the test for a party admission changed. The judge applied the test as it would be applied to any other out-of-court statement and determined that such messages were not hearsay. The same court also admitted Facebook messages sent to the defendant and another individual under the ‘state of mind’ exception.” Further, he stated:
I imagine lawyers will soon use the rules to their advantage and argue that individuals “checking in” to locations on sites such as Foursquare are not hearsay but “present sense impressions,” and that tweets are admissible under the “state of mind” exception.
Not all Courts treat this type of evidence the same way, however. In Miles v. Raycom Media, the Court found that a Facebook page containing unsworn statements from third parties that were offered to prove the truth of the matter asserted constituted inadmissible hearsay under Federal Rule of Evidence 801. Thus, the court restricted the scope of Facebook profile admissibility.
On the one hand, we are presented with judges who may not understand the significance of our social network privacies and the public diaries we divulge. On the other we have judges willing to apply (make) exceptions to what we post, which they use to incriminate us later. I say “us” because it is our online activities and trends that shape these realities.
As we can see, courts are conflicted as to whether admitting this evidence upholds our notions of truth, justice, and fairness. It’s a cycle. First, our social network activity creates criminal proceedings because defendants also use social networks. These proceedings then generate different approaches in judges handling evidence issues. Finally, these issues lead back to defendants, which prompts changes to our social networking habits after we notice our information is no longer private. Meanwhile, the people play pawns: citizens lose privacy and people get arrested. Nevertheless, Snapchat offers grounds for alarming disagreement, debate, and policy.
Snapchat lets people share secret photos with one another, which disappear upon the recipient’s retrieval. It makes sense that a defendant may want to broadcast his new kill or fashion his new stolen watch. Using Snapchat, he can send a picture to his gang or girlfriend, showcasing that he pulled it off.
Show-offs never get away with it. In fact, when you join Snapchat, you authorize it to “process and store” the nature of your contents. So while you think the picture of that hot new bathing suit you stole and sent your boyfriend won’t be found, it’s actually being saved. Moreover, Snapchat’s policy provides that:
- In response to legal process or a request for information if we believe disclosure is in accordance with any applicable law, rule, or regulation, or as otherwise required by any applicable law, rule or regulation;
- In order to investigate or remedy potential violations of our user agreements or policies, or to protect the rights, property and safety of Snapchat, our users or others;
- In connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition of all or a portion of our business to another company; and
- With your consent or at your direction.
Many people join Snapchat because they can send and receive photos and videos that they don’t want others to see. Although we already submit some of our privacy to online networks when we subscribe, if Congress statutorily enacts that any posts on social media can be used as evidence, then people would be deterred from joining the sites in the first place. This could limit the amount of people sharing dumb photos or implicating themselves. Juxtaposed, a statute like this could offer broader criminal tactics, or it could prevent defendants from implicating themselves. A lot of Snapchat and social media in general is based on our heightened expectations that what we do, send, or comment on, won’t be available for use against us. Alternatively, what we do, send, or comment on, is nevertheless saved in case something happens. Is that fair? Perhaps social media giants operating under the false pretenses of security should be exposed once and for all.