Social media sites such as Facebook, Twitter and Instagram are changing more than just how we communicate with friends and family. It is changing the way law enforcement and criminal defense attorneys handle their cases as well.
The Oak Brook police department, for example, posts alerts on its Twitter and Facebook pages in real time, alerting followers to descriptions of suspects and vehicles to be on the lookout for. Law enforcement routinely comb suspects’ social media sites – many of which are wide open to the public – for evidence that could point to commission of the crime or fulfill the reasonable suspicion necessary to obtain a search warrant.
Law enforcement also uses social media in sting operations to catch child predators, having undercover cops pose as underage children in online chat rooms or other groups and arranging meetups. And a suspect’s updates can pinpoint his location to a specific time and location, which could help put him in the vicinity of the crime or, in the case of a defense attorney, could provide an alibi.
But while social media is changing the way police, prosecutors and criminal defense attorneys obtain evidence and conduct their investigation, the evidence is still subject to scrutiny and must be collected in accordance with the same rules of criminal procedure that apply to other evidence.
Access to social media accounts. For example, law enforcement could not hack into your social media sites. If they want access to non-public information, they need to obtain a search warrant or have your consent to access the sites. If you have a shared account with another person – many husbands and wives share Facebook accounts, for instance – the other person could consent to law enforcement’s access of the account.
Hacked accounts. If the police find photographs or other evidence that tends to show the suspect was responsible for the crime, computer experts must be called in to examine the evidence to determine if it could have been posted by somebody else. Did the suspect have access to the social media site at the time the photo, status or other evidence was posted? Does somebody else have access to the account? Could the time stamp or location designation have been altered? Could the incriminating evidence have been posted due to spam?
On the other hand, social media sites give law enforcement the potential for unparalleled access to a suspect’s information that may seem sneaky, but are nonetheless legal.
Facebook friends. If your page is private, law enforcement can set up a fake profile and request to be your friend. If the friend request is accepted, law enforcement can use anything on your page as evidence without the need for a search warrant, because you invited them to look.
Off-site entry. Have you ever gotten a call from somebody claiming to be your computer’s technical support, asking for access to your computer to fix a “bug”? Law enforcement could try to access your computer that way as well, which could give access to your social media passwords. This may be considered legal access to your information, even though you wouldn’t have given them permission if you’d known who they really were, similar to if you allow a police officer into your home.