• Vicky Cheng

Is the Fourth Amendment ready for the internet: Accessing the social media evidentiary goldmine


A woman takes a selfie at Black Lives Matter Plaza in Washington, D.C. during the presidential inauguration. Luke Sharrett, https://www.vox.com/recode/22295131/social-media-use-pandemic-covid-19-instagram-tiktok

Digital communication traces back to as early as 1844 when Samuel F.B. Morse sent a series of dots and dashes from Washington, D.C. to Baltimore. Using electricity to send a series of codes signalling letters of the alphabet, Morse’s invention shrunk the geographical distance between people. The average American has become more than familiar with such a phenomenon since the start of the pandemic. As of April 2021, Pew Research Center reported roughly seven in ten Americans use some form of social media to stay connected and updated. That statistic equates to approximately 80-percent of adults ages 18 to 49 and 70-percent of those ages 50 to 64. Social media sites, from Twitter and Reddit to YouTube and TikTok, have become a social lifeline and a way to get new information about the pandemic across the world. Social media is more relevant than ever before, for better or for worse.


Over the past year-and-a-half, history was unfolding, at least in part, online. The Black Lives Matter movement achieved record turnouts. Rioters raided the Capitol on Jan. 6. Conspiracy theories proliferated across the country, spreading misinformation about politics, lockdown measures, mask-wearing, and vaccine safety, and threatening global public health. Therefore, to the government and law enforcement, social media sites and messaging platforms have become a one-stop-shop for criminal investigations and evidence. However, current interpretations of the Fourth Amendment do not do enough to adequately protect people’s privacy interests in this digital age. From photographs to status updates to location information, social media users create massive amounts of data every minute. Unlike a phone company that provides call or message logs in response to a subpoena or search warrant, a social media company like Facebook provides user profiles, posts, photos in which certain users were tagged, friends lists, and IP data in response to a government subpoena.


Even without a warrant or subpoena, an abundance of social media evidence and potentially incriminating information is publicly available. Government agencies take advantage of this fact and actively participate online, contributing content and solicitating information. In pursuit of social media evidence, government agents can bypass the need for a search warrant or subpoena, and pierce a user’s privacy settings, by creating fake online identities or securing cooperating witnesses to grant them access to the information. The New York government used this method to obtain incriminating evidence against the defendant in United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) (holding that there is no reasonable expectation of privacy for comments posted on a personal Facebook page, even if the page’s privacy setting is “Friends only”). As more government agencies formally train their personnel to search for and collect social media evidence, these intimate traces of one’s digital footprint will proliferate criminal proceedings. The interpretation of the Fourth Amendment with respect to the internet should protect people’s privacy interests from unreasonable government monitoring, access, and searches and seizures.


Currently, federal law provides that, in some circumstances, the government may compel social media companies to produce evidence without a warrant. The process and circumstances are governed by the Stored Communications Act (SCA). Since its enactment in 1986, the Act has not been amended to reflect society’s heavy use and dependence on new, more intimate technologies and electronic services like social media. Courts have been left without guidance to determine how and when the SCA applies to the varying features of social media services. The SCA allows the compulsion of non-content records by a subpoena or court order. When content records are compelled, the SCA provides different levels of statutory privacy protection based on how long the communication content has been in electronic storage. In 2010, the constitutionality of the SCA was challenged in the Sixth Circuit in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). The court held, “to the extent that the SCA purports to permit the government to obtain [the defendant’s] emails warrantlessly, the SCA is unconstitutional” because “email has become ‘so pervasive that some persons may consider it to be an essential instrument for self-expression, even self-identification.’ Considering the fundamental functional similarities between email and traditional forms of communication, “it would defy common sense to afford [email] lesser Fourth Amendment protection.” The protections providing for the unconstitutionality of warrantless email seizures should similarly be applied to more ubiquitous social media content because that content is arguably a greater form of “self-expression” and “self-identification.”


Defendants face more significant obstacles than the government when seeking exculpatory evidence from social media companies. First, defendants and their counsel cannot freely dig for publicly available social media evidence, like the government, because of ethical concerns. Second, defendants face additional hurdles when seeking a third-party subpoena, which include overcoming social media privacy settings, obtaining court orders and pursuing non-party discovery under Federal Rule of Criminal Procedure 17. Further, although social media is subject to the same rules of evidence as paper documents and other electronically stored information, it is unique because social media evidence can be easily manipulated and falsified, which creates hurdles to admissibility not faced with other evidence. Thus, it is important for defense counsel to track in detail each step of the collection and production process, and to consider how user authenticity can be determined. Ultimately, counsel can only do so much to ensure procedural fairness to the defendant because any measures taken extend only as far as the scope of the Fourth Amendment that is tolerated. Therefore, recognizing the changing role and nature of social media use and its generated content, the Fourth Amendment should adapt to meaningfully prevent unreasonable searches and seizures and protect people’s privacy interests.

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