In my first post on the legal issues,
I discussed the public's expectation that their social networking
information is private. Here, I will move on to the challenges
presented by the lack of legislative or judicial law pertaining to use
of social networking information in civil and criminal proceedings.
(See Social Networking - Legal and Ethical Issues for Lawyers and Investigators).
There are two primary sources of legal authority to rely on in
analyzing the protection of social networking information. The first is
the 4th Amendment rights against unreasonable searched and seizures,
premised on the doctrine of a person's reasonable expectation of
privacy. The second arises from the Electronic Communications Discovery Act of 1986. ECPA was enacted to extend government restrictions on wire taps from telephone calls to include the transmission of electronic data (email), although the restrictions were never extended to stored
electronic data that had not yet been read by the recipient. The
standard to obtain a warrant under the 4th amendment is probable cause,
but under ECPA, the standard is much lower. Originally, the prosecutor
need only state that the information sought was "relevant" to a civil
or criminal matter without stating any facts to support that claim.
Later, the standard was raised to require at least a minimal factual
basis for relevance, but is still substantially lower than probable
cause.
The protections afforded by ECPA were weakened by the U.S. Patriot Act.
Among other things, the Act increased the ability of law enforcement
agencies to search telephone, e-mail communications, medical,
financial, and other records, eased restrictions on foreign
intelligence gathering within the United States and the expanded use of
National Security Letters which allows the FBI to search telephone,
e-mail, and financial records without a court order. Prosecutors and
attorneys have primarily relied on ECPA standards to seek social
networking information because of the lower standard to show cause.
At this point, two distinctions should be made. First, it is easier
to obtain a warrant to search social networking sites in a criminal
investigation than it is to obtain a subpoena in a civil case due to
the greater importance of prosecuting crimes over seeking civil
remedies. That being said, even in criminal cases, only the
prosecution can obtain a warrant. And while the prosecution has the
duty to turn over any evidence they obtain to the defense attorney, if
they believe they will find exculpatory evidence, it was asserted at
the conference that they will simply then not seek to obtain the
evidence.
Second, as I discussed previously, there is a difference between
"transactional information" and "content." While transactional
information generally only requires a subpoena, "content" requires
obtaining a warrant, since content carries a higher expectation of
privacy. However, as we have seen, the 4th amendment right that
protects against searches where there is a reasonable expectation of
privacy does not necessarily apply in the electronic information
landscape.
So the question remains: what body of law applies, and how does a
law intended to regulate telephone and email interception apply to the
acquisition of social networking information? The world of online
interaction and social membership sites creates a new environment which
old legal doctrines,even those directed at email, do not address. This
is true not only of the legal standards required to obtain the
information, but also of the unauthorized conduct to do so (to be
discussed further in Part 3). For example, computers forensics provides
a method to obtain information that was intentionally deleted from a
hard drive. Web analytics and other tools aggregate data across many
networks that is easily accessible. And then, when all else fails,
there are always deceptive practices. The truth is we reveal personal
information to an almost endless audience when we participate online
through the digital footprint we leave. Neither legislative or judicial
decisions have addressed the standards required to obtain admissible
evidence in these environments.
As an example of how legal opinions are emerging, there is an
excellent discussion of a recent trial court decision in a podcast
entitled The Fourth Amendment and Email.
Here, the judge ruled that no one can have a reasonable expectation
that their emails are private due to the digital footprint they
create. Rulings like this must, and will, continue and go up on appeal
to begin to create judicial precedent on these issues.
As this is being written, the House Judiciary Committee is considering HR3845, which would amend the Patriot Act. For an up-to-date review of that process, visit the Electronic Frontier Foundation website, or follow them on Twitter @eff.
Lawyers and governmental agencies across the country are using social
networks as a source of information on a daily basis, as a matter of
course. Given that the legal parameters of such use are something akin
in justice in the Wild West, this area of law needs to be defined and
regulated. Now.
