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Facebook Posts: Government Intrusion And The Fourth Amendment


criminal appeals fourth amendment and government intrusion

U.S v. Meregildo

The United States District Court

883 F.Supp.2d 523

Decided on: August 10, 2012

 Facebook Posts Not Immune To Government Searches

Summary: Defendant was indicted for racketeering in aid of murder and drug trafficking. The Government viewed Defendant’s Facebook profile through the Facebook account of one of Defendant’s “friends” that was a cooperating witness. Defendant moved to suppress the evidence and presented a Fourth Amendment challenge to the Government’s use of the defendant’s own Facebook posts obtained through a cooperating witness who was one of Defendant’s Facebook “friends” and had given the Government access to view his Facebook profile. The United States District Court denied Defendant’s motion and held that the Fourth Amendment does not protect a social media user who disseminates his postings and information to the public.

See Also: Reasonable Suspicion: Police Must Possess A Sufficient Level Of Knowledge With Specific And Articulable Facts In Order To Conduct A Stop And Frisk

Issue: Whether the defendant has a reasonable expectation of privacy under the Fourth Amendment and whether the Government violates that privacy under The Fourth Amendment when it accesses his Facebook profile by permission of his Facebook “friend” in order to obtain evidence in the form of defendant’s own Facebook posts.

Holding: The United States District Court held that whether there is a Fourth Amendment violation depends on the users privacy settings.  When a social media user disseminates his postings to the public, the Fourth Amendment does not protect them.  However, postings using more severe privacy settings reflect the user’s intent to preserve information as private and may be Constitutionally protected.

Where a Facebook privacy setting allows viewership of postings by “friends”, the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment.

Facts: Defendant was indicted for racketeering in aid of murder and drug trafficking. As part of a grand jury investigation in the Southern District of New York, the Government applied for a search warrant for the content’s of Defendant’s Facebook profile on probable cause. The Judge issued a warrant and the Government viewed Defendant’s Facebook profile through the Facebook account of one of Defendant’s “friends” that was cooperating witness. Defendant moved to suppress the evidence and presented a Fourth Amendment challenge to the Government’s use of a cooperating witness who was one of Defendant’s Facebook “friends” and gave the Government access to view his Facebook profile. The United States District Court denied Defendant’s motion and held that the Fourth Amendment does not protect a social media user who disseminates postings and information to the public.

Legal Analysis: The United States District Court held that whether there is a Fourth Amendment violation depends on the users privacy settings.   When Colon posted to his Facebook profile and then shared those posts with his “friends”, he did so at his peril.  Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed his Facebook profile through a cooperating witness.  The United States District Court held that Defendant’s Fourth Amendment right was not violated when the Government viewed Defendant’s Facebook account through Defendant’s “friends” Facebook account that was a cooperating witness.

 Facebook is a social networking service and website that allows registered users to create a personal profile, add other registered users as “friends”, join interest groups, and “tag” photographs with names and descriptions.  The scope of personal information that can be part of a registered user’s profile is virtually limitless; including contact information, lists of personal interests, photographs and videos.

      Where a Facebook privacy setting allows viewership of postings by “friends”, the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment, United States v. Barone, 913 F.2d 46, 49 2d Cir. 1990. In this case, Defendant believed that his Facebook profile would not be shared with law enforcement and had no justifiable expectation that his “friends” would keep his profile private.  The United States District Court held that the wider his circle of “friends” on Facebook, the more likely his posts would be viewed by someone he never expected to see them.

Defendant’s expectation of privacy ended when he disseminated his posts to his “friends” because those “friends” were free to use the information however they wanted, including sharing it with the Government.

The Government learned, inter alia, that Defendant had posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Defendant’s gang. The United States District Court held that the Government sought to seize information related to the scheduling of meetings among members of the racketeering enterprise, drug trafficking activity, and weapons. This description was sufficiently particular to allow the Government to examine the files it received from Facebook without violating the Fourth Amendment. The United States District Court denied Defendants motion to suppress evidence seized from his Facebook account.


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