Judge: Gang Members with Weak Facebook Settings Can’t Whine about Privacy

A federal judge in Connecticut has ruled that a series of alleged gang members cannot hide behind the Fourth Amendment when it comes to data they posted to public areas of Facebook.

The judge’s decision came after forty shootings led an ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) agent to search the Facebook profiles of several individuals for evidence. After finding a few suspicious things in the public sections of several pages, the agent sought a warrant in 2016 to conduct additional searches. The agent’s affidavit said it was based in part on his “review of publicly available portions of the target Facebook accounts.” After receiving a warrant from a federal magistrate judge, the Facebook searching continued, revealing “firearms, narcotics, and gang associations.” The agent sought a second warrant in 2017 and went even further.

Predictably, the individuals — who became defendants after a grand jury indictment — moved to suppress the Facebook evidence. The defendants pointed to the Fourth Amendment, which protects individuals from unreasonable searches and seizures by government agents.

In an opinion laden with gang names and terminology, Judge Michael P. Shea first examined whether the defendants had a “reasonable expectation of privacy” in their Facebook data. The judge ruled that they did not.

Because of the nature of a Facebook account, which allows users to post information privately, share information with select groups of ‘friends,’ or post information publicly, courts have held that whether the Fourth Amendment applies to a user’s Facebook content ‘depends . . . on the user’s privacy settings.’

The judge first noted that most of the defendants didn’t even admit to owning the accounts they sought to keep private. In fact, one defendant “pointedly refused to acknowledge” that the account he sought to claim was private was even his. The judge, though, had to assume the accounts were those of the defendants, since the defendants sought privacy protection in those accounts. The judge ruled:

Defendants have not . . . provided affidavits or any other facts concerning the privacy settings on their Facebook accounts or any steps they took to keep their Facebook content private. And it is not otherwise apparent from the record what, if any, privacy settings applied to those accounts.

[ . . . ]

There is a spectrum of privacy settings available on Facebook, and those settings can be tailored to specific types of communications. Yet while the affidavit in this case describes a variety of such communications — video, wall postings, messages, etc. — the defendants have done nothing to show what, if any, privacy settings governed any of the types of communications found in their accounts. Defendants have therefore not established that they had a reasonable expectation of privacy in any of the communications described in the affidavits.

 

[Image via NORBERTO DUARTE/AFP/Getty Images]

Aaron Keller is an attorney licensed in two states. He holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. During law school, he completed legal residencies in the Office of the New Hampshire Attorney General and in a local prosecutor’s office. He was employed as a summer associate in the New Hampshire Department of Safety, which manages the state police, and further served as a summer law clerk for a New York trial judge. Before law school, Keller worked for television stations in New York and in the Midwest, mostly as an evening news anchor and investigative reporter. His original reporting on the Wisconsin murder of Teresa Halbach was years later featured in the Netflix film "Making A Murderer."

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