A federal case in the Southern District of New York, US v. Meregildo et al. (2012), should serve as a warning that what is put on Facebook is not necessarily private. Melvin Colon, a defendant in this case, had his profile accessed by the Government through one of his Facebook ‘friends’. Colon filed a Motion to Suppress evidence collected from his Facebook, which was denied.
The Government obtained a search warrant for his profile and because all of Colon’s posts and pictures were visible to his ‘friends’, they were able to simply look at his profile with the cooperation of one of Colon’s ‘friends’ and see what they needed to see. In the search warrant Affidavit, the Government specified that they were looking for “information related to the scheduling of meetings among members of the racketeering enterprise, drug trafficking activity, and weapons.” Through his profile, the Government learned “that Colon 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 Colon’s gang.”
The question at hand, which was bound to be addressed sooner or later, is Exactly how private is your Facebook profile? The Fourth Amendment of the United States Constitution guarantees that citizens shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” And historically, what is on your computer is your property, and thus protected by the Fourth Amendment. But once something is publicly transmitted online, the right to privacy is waived and it becomes available for the masses to see. Likewise, an email is considered protected while you’re writing it, but the second you hit the send button, it is not protected. The recipient may do with it what he wishes, including turn it over to the police.
The Honorable William H. Pauley III used similar logic in the formation of his Opinion for this case. He cited United States v. Barone (1990), which held that the Government may listen in on a phone conversation provided that at least one of the parties in the call consents to it. Applying that decision to this case, he held that the Government may view a Facebook profile provided that the viewer consents to them overlooking. The more ‘friends’ a user has, the greater the probability that one of them will let the Government look over their shoulder. For these reasons, Judge Pauley denied Colon’s Motion to Suppress.
Meregildo establishes a simple rule for Government access of Facebook accounts: If one of your ‘friends’ can see something, the Government can too. Just one ‘friend’ cooperating with the prosecution negates any expectations of privacy you may have had. This case should serve as a reminder: Not everything that goes on Facebook stays on Facebook.
The Honorable William H. Pauley III’s Opinion can be read here.