Define “Private”

Published On November 4, 2012 | By MoniqueE2E | Digital Journalism


Are We Willingly Giving Up Our Fourth Amendment Rights?

By Monique Gaudin

How private are your “private” settings on Social media? Photo by: Monique Gaudin

By posting and uploading onto social media platforms, are we aiding in diminishing our Fourth Amendment right?

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Former Las Vegas reporter Al Tobin, now working as a criminal defense investigator warned; By posting very personal information about themselves, people are waiving their right to privacy. Nothing is private when you put it where everyone can read it, see it, watch it, or listen to it.”

As internet-tech lawyer Venkat Balasubramani posted in a June, 2012 article on cases against “shoulder surfing,” referencing Moreno v. Hanford Sentinel; “You have to wonder how “private” users expect their communications to remain when they post to Facebook. Regardless of the privacy settings, which may restrict immediate availability of the post to a limited group of Facebook friends.”

Legal cases involving social media are becoming commonplace. Whether used in the defense, or as the cause, litigation cases flooding the headlines range from; employment issues, defamation, Civil Rights violations and murder.

The National Law Review posted in an October article from Risk Management Magazine; “Social networking’s impact on our culture has also transformed effect on the legal landscape itself, with new causes of action cropping up and online activities by a company or individual in one state sometimes leading to a court in another state asserting jurisdiction.”

Mr. Tobin adds that the use of social media has absolutely made it easier to legally gain very useful information aiding in capturing, or convicting accused criminals.  It makes it easier for authorities to locate the accused criminal. People in general, in particular young people, put amazing amounts of personal information on their Facebook pages. Everything from who they live with to where they work, as well as names of friends, family and associates. All that information makes it easier for law enforcement to locate them and interview other witnesses they have told what they’ve done.”

This week Facebook is asking that the District Court of Northern California drop a $15 billion privacy suit accusing the company of secretly tracking the Internet activity of its users after they log off, while releasing privacy education for new users on October in response to the September 21, 2012 released audit report from Irelands Data Protection Commissioner in assuring Facebook compliance with European privacy laws.  There are currently 22 legal complaints against Facebook for privacy violations in Europe.  The California suit state; “a violation of federal wiretap and stored communications laws.”

In comparing the monitoring, or tracking, of a person through social media versus electronic eavesdropping, Mr. Tobin delineates; “A social media post is information the person generally put out there about himself. It may be misleading. It may even be a lie. But the person has voluntarily posted the information himself. With electronic eavesdropping, the target of the eavesdropping has no idea he is being monitored, that his phone conversations are being monitored and for the most part recorded.  Electronic eavesdropping, if it is done legally is done with authorization from a state or federal judge and only granted after the police/FBI have shown there is cause to do so.

Do you know who is monitoring you? Photo by: Monique Gaudin

Joshua Merigildo lost his case against the United States in the New York District Court this past August in stating a violation of his Fourth Amendment Right when the government suspecting him of gang activity, used his friends Facebook page to monitor his. The court held; “Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990) (finding that a person does not have a legitimate privacy expectation in telephone calls recorded by the Government with the consent of at least one party on the call.)”

When posting, uploading, emailing or tweeting, whether “privately” or “public,” think about your audience, known, and unknown.  Keep in mind as stated in the article title from Risk Management Magazine; “Social Media Can Lead to Litigation.” And when in litigation, will you have a legal expectation for protection under your Fourth Amendment rights.



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