Can Social Media Posts Be Used in a Criminal Case?

Many of us post aspects of our lives on social media without considering that our words, photos, videos, and other content could negatively affect us. If you are being investigated for a crime you have already been charged with a crime, or you are involved in a divorce or child custody case, anything you post on social media publicly could be available for anyone to find.

Individuals have lost their court cases because of something the opposing party discovered on their social media websites. Even if you think your profile is set to private, it is still possible for the FBI, local law enforcement, or prosecutors to uncover your social media posts and use them to try to convict you of a crime.

Over the past few years, police departments nationwide have recognized the potential of social media posts and videos to help them identify suspects and prevent crime. Since 2010, local law enforcement and federal agencies like the FBI have dedicated employees who know how to gather social media evidence.

In some cases, law enforcement officials will even create a fake profile and go undercover to discover criminal activity. For example, the FBI has been known to use agents to try to create profiles enticing underage girls to meet them for illegal purposes. When suspects show up, they are arrested by the FBI. There are many other ways law enforcement can use social media resources to investigate crimes and arrest suspects, including but not limited to the following:

• Monitoring a person's status updates, including the comments they make and post to a friend's wall
• Monitoring the communication in social media groups between members to look for threats or potentially illegal activity
• Monitoring social media updates to determine where a suspect was located at the time the alleged crime occurred
• Monitoring photographs or videos posted to the site, especially those that provide compelling evidence

Law enforcement agencies do not merely examine the suspect's social media pages. They may also use information provided by the suspect's friends on Facebook, followers on Twitter (now X), and fellow group members on Reddit. For example, law enforcement investigators have received information or tips from cooperating witnesses who can see the suspect's pictures or posts that may be private from public view.

Even if you have set your profile to private, law enforcement officers may use your acquaintance's profile to view your post. It isn't uncommon for a police officer to friend request or follow accused people to gain access to some of their private information and look for evidence supporting their arrest.

There is a legal argument that law enforcement using social media to pry into a suspect’s private life violates the Fourth Amendment, which protects us from unreasonable searches and seizures. In many cases, law enforcement officials can obtain private social media records after they obtain a warrant that orders the social media company to surrender the suspect's login information.

However, when investigators obtain evidence against the defendant on social media by talking to their friends or the accused, they may not need a warrant to obtain incriminating information. Public social media posts are even less protected. In a relatively recent case, a protester said law enforcement violated his constitutional rights when they ordered Twitter to give them his deleted tweets to use as evidence against him in his case. The judge ruled that public tweets are not protected in the same way that private speech is protected.

As you can see, law enforcement has significant leeway in obtaining social media evidence against defendants. If you are being investigated, or you suspect you're being investigated, it is wise to speak to a criminal defense attorney. Speaking to an attorney before your charge can help you know how to protect your private and public social media posts and how to begin preparing a legal defense and protecting yourself.

Contacting a skilled criminal defense attorney is even more important if you have already been charged with a crime. An attorney can evaluate your case and the social media evidence gathered from your pages. You may have a valid argument that the evidence was gathered in violation of the Constitution and should be dismissed.

The sooner you speak to an attorney, the sooner the attorney can develop your legal strategy. Do not hesitate to contact the experienced Charlotte attorneys at Arnold & Smith, PLLC, to schedule your initial case evaluation and learn more about how we can help you.