According to the Delaware Supreme Court, getting caught by Facebook posts published publicly doesn’t represent a 4th Amendment violation, even if the group of people who are able to view the content includes an undercover cop posing as a Facebook friend. That being said, the public nature of a cop posing as a Facebook friend is not really an issue and there is no 4th amendment violation. The court statement [PDF] explains the situation in-detail.
“Here, the defendant-appellant, Terrance Everett (“Everett”), accepted the friend request from a detective who was using a fictitious profile. The detective then used information gained from such monitoring to obtain a search warrant for Everett’s house, where officers discovered evidence that prosecutors subsequently used to convict him.”
Everett, who is a convicted felon, is not allowed to be in possession of any kind of weaponry. However, according to his Facebook feed, there is a picture that contains cash and weapons. The court’s decision also includes discussion of privacy settings of the mentioned social network, although it shows nothing conclusive that was found by the lower court.
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Everett set his Facebook’s content to be viewable only by his friends (“Friends only”) at some point. However, that likely didn’t occur until the cop used the photos to obtain a search warrant. The court decided that the privacy settings didn’t play a role in this case, at least as far as Everett extended them. Nevertheless, a cop posing as a Facebook friend could still see the posted photos given that he was already a “friend” of the convicted felon.
Nevertheless, the detective never told the court that he had spent three years posing as Everett’s friend on Facebook in order to find a cause for a search. At some point, it rather seemed like a waste of resources, since Everett was only convicted for firearms possession.
“We reject Everett’s contentions because Everett did not have a reasonable expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake profile and other “friends” would not be disclosed. We observe that Detective Landis did not request or access the Photo directly from Facebook, the third-party service provider— a scenario that we need not address here. Rather, Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.”
This is valid for all communication platforms, as well as personal conversations. The privacy of the sender can be violated at any time by the person who receives the message/communications, despite the recipient being a cop posing as a Facebook friend. The court also added that this situation is not capable of being compared to wiretapping. The detective didn’t spy on Everett’s communications, neither was he between Everett and other message recipients. Everything that the detective gathered for the warrant was already found on Everett’s Facebook account and was visible to all his Facebook friends. That being said, any of those friends could have sent Everett’s photos to police without the violation of his privacy or a 4th amendment violation.
“One cannot reasonably believe that such “false friends” will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.
If one allows others to have access to his or her information that contains evidence of criminal wrongdoing, then that person assumes the risk that they might expose that information to law enforcement—or they might be undercover officers themselves. As the United States Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society” and “is the kind of risk we necessarily assume whenever we speak.”
Despite everything, those communications were public to some degree. The government cannot obtain different conversations that someone had with someone else without a required warrant. However, nothing notes that there can’t be a cop posing as a Facebook friend in order to gather information for a warrant, publicly. Moreover, publication of posts on Facebook is not a private act, even though the “Friends Only” setting limits its visibility to some point.
What do you think? Is this a 4th amendment violation or not? Let us know in the comments.