As our society is now living in the so-called “Internet-age,” courts have struggled to adapt traditional principles of privacy law under the Constitution to the modern, vacillating idea of social media. In a 2012 case, United States v. Meregildo the District Court for the Southern District of New York held that where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment.1 The court reasoned that while the defendant “undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private.”2 Access to the defendant’s Facebook profile formed the core of the Government’s evidence of probable cause supporting its application for the search warrant.3
In a unanimous decision authored by Judge Denny Chin for the U.S. Court of Appeals for the Second Circuit, the three-judge court affirmed the lower court’s ruling to admit the evidence.4 In his four-page scant opinion, Judge Pauley diametrically shifts the course of what could have been a-new-age workable Fourth Amendment jurisprudence. Despite the fact that the government sought out and obtained a warrant, rather than subpoenaing Facebook for the information,5 this type of intrusion should still be considered in contravention of the Fourth Amendment. The fact that the defendant took the initiative and consciously placed safeguards on his information in the form of privacy settings shows that he did indeed have an expectation of privacy and, in light of the era we live in, a reasonable one at that.6 Further, by taking affirmative actions to add privacy settings, the defendant clearly intended to preserve his information as private.
Given the rapid increase and dependency of younger generations upon social media networks, such as Facebook, a new challenge has arose in defining a “reasonable” right of privacy under the Fourth Amendment. Left open are many questions including: how do privacy settings and restriction to access of information interplay with one’s expectation of privacy on their Facebook? Whether or not the outcome of this case would have been different had the government had no informant and instead initiated the “friending” of the defendant? Does this fear of government access to social media pages chill speech in violation of the First Amendment? Until the elements of privacy settings in social media are further clearly defined, beware what you post, your “private” information may not be so private.
- United States v. Meregildo, 883 F.Supp.2d 523 (S.D.N.Y. 2012).
- Id. at 526.
- Id. at 526.
- Mark Hamblett, Circuit Says Facebook Posts Were Properly Used as Evidence, N.Y. L.J. (May 12, 2015), available at http://www.newyorklawjournal.com/id=1202726114182/Circuit-Says-Facebook-Posts-Were-Properly-Used-as-Evidence?slreturn=20150728150801.
- See People v. Harris, 36 Misc. 3d 868, 874 (Crim. Ct. 2012) (A subpoena sent to Twitter does not violate the Fourth Amendment because “the Fourth Amendment does not protect information revealed by third parties.”).
- Meregildo at 525.