YOUR FRIENDS MAY NOT BE THE ONLY ONES FOLLOWING YOU

Federal and local law enforcement officials recently arrested 74 suspected gang members in Pontiac, Michigan, on drug trafficking and other related charges. What makes these arrests different from others is how they were caught: the arrests were based in part on evidence gathered from the individuals’ Facebook and MySpace pages. Some of the men included their gang affiliations on their profiles and posted pictures of themselves flashing gang signs and wearing gang insignia. Officers also were able to use the members’ status updates to track their locations.

The men arrested are suspected members of two gangs – the Almighty Latin King Nation and the New World Order. To date, five of them have been arraigned on federal drug trafficking charges. The joint investigation between local police and federal investigators had been ongoing for more than a year prior to the arrests.

Social Networking Sites Regularly Used in Criminal Investigations

While some may be surprised to learn that the police use social networking sites to gather evidence of suspected illegal activity, they shouldn’t be. In fact, trolling these sites for information has become a routine practice for federal agents. The US Department of Justice even has developed internal policies directing FBI agents and other federal law enforcement officers on how covert operations should be run on popular networking sites like Facebook and Twitter.

Some of the ways law enforcement officials may use information posted on social networking sites include:

• Confirming alibis
• Checking a witness’ background
• Tracking a suspect’s location
• Tracking friends and family members of suspects
• Uncovering personal and sometimes incriminating communications

The information people place on these sites can be a treasure trove for law enforcement. For example, people have placed photos of themselves using illegal drugs or posing with stolen merchandise, providing police with direct evidence of a crime. Some have even bragged about their exploits on their profiles or in their status updates. In one case, the police were able to locate a person wanted for bank fraud and have him extradited to the US-based on status updates he posted about his Mexican vacation on Facebook.

In addition to collecting information on fraud, drug, and theft crimes, the police also use social networking sites to gather evidence against those suspected of sex crimes against minors. In some cases, the police may use information from these sites to locate sex offenders who have failed to register. In other cases, the undercover agents may pose as minors online and wait for an adult to solicit sex, suggest meeting in person or send sexually explicit photographs or messages to the suspected minor – all of which are crimes carrying lengthy potential prison sentences under state and federal laws.

There are several ways the police or FBI may access information from an individual’s profile on social networking sites. They may search the sites for information that is generally available to the public or they may work covertly and create false profiles and make friend requests to gain access to information only available to friends of the account holder. Or the police may request the service provider to give them access to information kept on an individual’s profile. According to DOJ documents, some social networking sites, like Twitter, require a subpoena or warrant before they will hand the information over. Others – including Facebook – have been more willing to provide the requested information without a warrant.

Privacy Lines Unclear

While the DOJ insists that it is perfectly legal for federal agents to use covert methods to obtain information from social networking sites, others are not so sure. Several groups, including the Electronic Frontier Foundation (EFF), have raised concerns about the limit – or lack thereof – on the government’s ability to obtain information from these sites and the impact this has on an individual’s privacy rights.

The line dividing public communications from private communications on the Internet is a blurry one at best. The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. Generally, this means that the police must have a warrant prior to searching any place that an individual would have a reasonable expectation of privacy. But in cyberspace, is there any realistic expectation of privacy?

The courts are just beginning to tackle this important question, with at least one court finding that information posted on a message board that is accessible by the public not private communication. Other courts have looked at the privacy settings made by a user to determine whether the user intended for the information to be public or private.

Even so, the decisions on the lines between what is public and private in e-communications are few and far between, and for the time being, it appears that the government has broad latitude to create false profiles on social networking sites in order to gather potential evidence of a crime.

Conclusion

It always takes time for the law to catch up to technology and social networking sites are no exception. Until the courts determine where the lines of private versus public information should be drawn on Facebook and other social networking sites, the best policy is to avoid posting anything on these sites that you do not want others seeing, including the police.

If you have been charged with a crime, contact an experienced criminal defense attorney today. In some cases, evidence gathered against you from a social networking site may be inadmissible. A lawyer experienced in handling criminal defense matters can review your case and help you prepare the best possible defense to the charges.