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Facebook The Courts Privacy Social Networks United States Your Rights Online

Facebook Posts Mined For Courtroom Evidence 191

Posted by timothy
from the objection-relevance dept.
littlekorea writes "Defense lawyers are increasingly gaining permission from US courts to mine the private comments and postings on Facebook accounts to be used as evidence during trials. The first example — noted in Slashdot in September — has given way to an avalanche of new cases — and a worrying precedent that judges consider social networking content to be public data."
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Facebook Posts Mined For Courtroom Evidence

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  • Well Yea (Score:4, Insightful)

    by satanicat (239025) on Friday January 28, 2011 @08:15AM (#35030830)

    I dunno, regardless of where you post, I've been brought up to believe that anything you submit online should be considered no more secure than whispering it into someones ear...

    • by Kjella (173770)

      Yes well, except there's a third party that you don't normally consider that is storing all those whispers. If I send a SMS, the phone company doesn't keep a copy. If you call someone, the phone company doesn't keep a recording of it. At least before when I downloaded mail the server didn't keep it, that's less relevant now though since I use a webmail host. But if you message someone on Facebook, they do keep a copy forevermore. Or at least until the recipient deletes it, which may be never.

      • Yes well, except there's a third party that you don't normally consider that is storing all those whispers.

        I thought we all learned a long time ago to assume that our conversations (and data) are stored somewhere by someone. Twenty years ago there were cases of private e-mails being read and distributed among office workers. People were even getting fired and sometimes divorced over it. That established what our expectations of "electronic privacy" should be. Now it's no different. In fact, joining a SOCIAL network, you should expect information is going to be shared. That's what a social network is.

        • by Kjella (173770)

          I thought we all learned a long time ago to assume that our conversations (and data) are stored somewhere by someone. Twenty years ago there were cases of private e-mails being read and distributed among office workers. People were even getting fired and sometimes divorced over it. That established what our expectations of "electronic privacy" should be. Now it's no different. In fact, joining a SOCIAL network, you should expect information is going to be shared. That's what a social network is.

          LIFE is a social network. I guess you should just set yourself up like some new JenniCam, since you seem to have abandoned any expectation of privacy already, but the rest of us haven't. In particular that there's such a thing as private communication. In your fucked up world there's no such thing, since every communication requires more than one party. If you've told one, you've told the world. If one person has seen a private photo of you, then everyone has.

          That said, properly issued warrants have always

          • My hard disk I consider private, the inside of my mailbox I consider private(and I don't like that this one has been eroded somewhat) but what I post on a social networking site is almost by definition not private.

            I'm shouting it to the world or at least to a big crowd of people who have every right to keep their own copies through a third party who by design has to have a copy.

            Your facebook page is not private.
            If you want something to stay private don't stick it on your facebook profile.
            It's really easy.
            If

      • Re:Well Yea (Score:4, Insightful)

        by csteinle (68146) on Friday January 28, 2011 @09:19AM (#35031544) Homepage

        If I send a SMS, the phone company doesn't keep a copy.

        Oh yes they do.

      • by rhsanborn (773855)
        The former mayor of Detroit, now a convict, Kwame Kilpatrick begs to differ:

        http://www.slate.com/id/2183399/ [slate.com]
      • They most definitely do store copies of those messages. These records can be subpoenaed and used in a trial like any other telephone records. Many, many examples exist.

        Facebook and such, I feel, should be considered public if you have any common sense. Search engines are caching this stuff, it's backed up on volumes all over the place, it's transmitted to others' computers and mobile devices.

        Especially if you are one of those who doesn't bother to have privacy settings locked down, I don't feel that we have
    • Re:Well Yea (Score:4, Funny)

      by JWSmythe (446288) <jwsmythe AT jwsmythe DOT com> on Friday January 28, 2011 @09:38AM (#35031812) Homepage Journal

            It's more like, anything you post online is as private anything you write, photocopy, and send to a few hundred people.

            I posted on my Facebook wall a little while back, that anything I write online is disinformation. I know the information is datamined. It will, at some point, be shared with someone you don't want it exposed to. There is a chance something I post is factual. It's true, right down to where my location is.

          My fictional online persona has had me drifting around various government facilities and and other remote locations (Rachel, NV; McLean, VA; Fort Meade, Maryland; Wild Goose Chase, Woombah, New South Wales, Australia; etc). Then sometimes I give my real location. Most are virtually impossible to confirm. If I were were at the NSA headquarters, is there any expectation that a random person trying to find me could ask the guard "Is Mr. JW Smythe here?" The response would range from prolonged laughing, to detainment and questioning.

          It's not just what I say about myself either. Bouncing through various proxies around the world, if Facebook were subpoenaed for something as simple as the list of IP's that I accessed from, it would be a nonsensical pattern of locations. In a day, I may log in from Moscow, Beijing, London, Paris, New York, Los Angeles, or Brasilia.

          If I already admitted that most of what I post online is a lie, and any of it was brought up in court to prove anything about me, the judge would would get tired of any line of questioning that related to my online statements, simply because I do, and frequently repeat, that many are complete works of fiction, dressed loosely as fact.

          So ya, when I go off on a government or alien conspiracy rant, it isn't because I necessarily believe it. Maybe I do. Maybe I don't. Maybe I've considered writing fictional books, and haven't had a real inspiration to sit down and write hundreds of pages of my best bullshit^H^H^H^H^H^H^H^H fiction, to submit to publishing houses and receive the string of rejections, possibly followed by one acceptance, and then have my had word become a $9.95 paperback that I'll find in the $0.50 clearance bin in just a few years. Dejected because the publisher made so much money from me, and for all the hoops I jumped through, I only made a few thousand dollars. Sad and dejected, I sit in my beachfront shack in Cuba. I admire the waves rolling in, and beautiful women on the beach, hoping an approval letter finally comes in, while I churn out more pages of mediocre fiction, knowing that the cycle will repeat endlessly until I die in a few years, with my family not caring where I went, comfortable in the idea that I went with a smile on my face and a local prostitute riding me to my final moments...

          Or maybe, just maybe, a good bit of what I write is pure fiction. Data mine that!

      • by rjstanford (69735)

        Why? Seriously - why go to all that both to "hide" something that nobody really cares about? Why not just not post of Facebook if you're that "concerned" about it? I mean, we've most of us moved a bit beyond Junior High haven't we?

        • by ifrag (984323)
          The post is a lie... At least that's how I read it. That's the whole point isn't it? Online evidence is questionable at best and downright wrong at worst. The fact that you responded like you believed what he wrote only proves the point.
          • by JWSmythe (446288)

            You definitely got the point. I could have been lying. Since I was talking about how I lie online, it could safely be assumed that I was lying, which would then mean that either I don't lie online, or the post was complete fiction, but the fiction would mean that I told the truth. :) I'll assure you, I'm not a depressed writer living in a shack on a beautiful Cuban beach. I'm probably not at the CIA or NSA headquarters, nor Area 51. Then again, maybe I am. :)

            I think it would be hilario

      • by jc42 (318812)

        ... Sad and dejected, I sit in my beachfront shack in Cuba. I admire the waves rolling in, and beautiful women on the beach, hoping an approval letter finally comes in, while I churn out more pages of mediocre fiction, knowing that the cycle will repeat endlessly until I die in a few years, with my family not caring where I went, comfortable in the idea that I went with a smile on my face and a local prostitute riding me to my final moments...

        Heh. Very nice.

        I've long had a number of FAQs on my site, that I cycle among randomly. I've thought of adding code that picks one at random, but I've never gotten around to it.

        The one that gets me the best replies is my admission to what I'm doing here on Earth: I'm actual a visiting anthropologist, studying humans. I go in to an explanation of why it turns out there's no "non-interference" police that prevents me from openly admitting this. Experience shows that, even (especially?) when you're com

      • I went to high school there! On G'Town Pike.

    • by Xyrus (755017)

      Yep. If you don't want you're secrets to be social, don't post them to a social networking site. Better yet, don't post them anywhere on the internet. Someone, somewhere will find them, and usually it's someone you don't want to have your secrets

      You'd think that would be obvious by now.

    • The analogy I heard is that anything you send via email (and I suppose this generalizes to Facebook, Twitter, etc.) is as secure as if you wrote it on a postcard and sent it to the recipient.

  • a worrying precedent that judges consider social networking content to be public data.

    Aren't they?

    • ...but can they be used as evidence?

      In a courtroom one must take an oath to tell the truth, the whole truth, and nothing but the truth. The standards for a social network are considerably lower in regard to accuracy.

      • by w_dragon (1802458)
        Yes, but they aren't using them as sworn testimony (I assume). There's no reason not to treat them the same as a letter or diary that is entered as evidence.
      • Re:Public they are (Score:5, Informative)

        by Richard_at_work (517087) <.moc.liamg. .ta. .ecirpdrahcir.> on Friday January 28, 2011 @08:43AM (#35031106)
        Forensic traces at a crime scene dont have to swear an oath either, and they can be used in court as evidence - you seem to be misconstruing testimony and evidence.

        Its quite simple - if the network in question can provide enough information to suggest "this account posted this text on this date from this address" and the lawyers can provide enough corroborating evidence to allow a reasonable person to accept that as a truth, then its good enough to be used in a court. If you dont want it used, dont post it - or dont allow a third party to hold it.
        • so now the plan is

          1) murder person
          2) immediately use your smartphone to remote desktop into your home computer, 4 hours drive away
          3) post "OMG, so wasted LOL" with a pre-prepared (and timestamp rigged) pic of yourself doing tequila shots to facebook
          4) alibi?

          • so now the plan is

            1) murder person
            2) immediately use your smartphone to remote desktop into your home computer, 4 hours drive away
            3) post "OMG, so wasted LOL" with a pre-prepared (and timestamp rigged) pic of yourself doing tequila shots to facebook
            4) alibi?

            Well, I hope you never get accused of a major crime because you just crapped all over one defense strategy and also opened the door on malice aforethought...

            • even worse, i dont have a facebook account at all, now where will the defense get me an alibi?

              Also, i dont live in the US, so whatever US judges are doing doesnt directly concern me

          • by peragrin (659227)

            Your smartphone will leave logs/ traces that contradict your statements. Remember the phone and the towers it connects to are logged.

            Better to drive 2 hours away setup a laptop with a script to log you in and upload your information at a preset time(it can be off by 15-20minutes). Steal a car do your crime ditch first car near crime scene. Have an accomplice drive you back to the laptop/car and party for real.

        • by mangu (126918)

          if the network in question can provide enough information to suggest "this account posted this text on this date from this address" and the lawyers can provide enough corroborating evidence to allow a reasonable person to accept that as a truth, then its good enough to be used in a court

          Normally courtroom evidence needs to do more than "suggest".

          Things posted in a social network are somewhat equivalent of an unsigned typewritten text. The best you can assume is that this was written in a specific machine, not that it was written by its purported author.

          Also, as in any informal document, you cannot assume that it was intended to be interpreted as the truth. People have been writing fiction, have been writing under pseudonyms for thousands of years and it has never been a crime to do so.

          If p

      • In a courtroom one must take an oath to tell the truth, the whole truth, and nothing but the truth. The standards for a social network are considerably lower in regard to accuracy.

        In general, the cases cited employ social-networking-derived evidence to impeach the credibility of plaintiffs. That is, defendants are comparing plaintiffs' statements and testimony made as part of legal proceedings to statements (and other evidence) they've posted on social networking sites.

        The legal value of this information (as presented in the article) varies. It ranges from the somewhat plausible (one defendant claimed a serious injury cost him "the enjoyment of life", but described online a fis

      • ...but can they be used as evidence?

        "Mr. Jones, you testified that Mr. Smith has never been to Las Vegas, and he has never met you. However, Mr. Smith's facebook page indicates that on April 15th he was in fact in Las Vegas, meeting with you. Is this true? Remember, you're under oath."

    • Re:Well... (Score:4, Insightful)

      by Abstrackt (609015) on Friday January 28, 2011 @08:29AM (#35030960)
      No, private comments aren't public data.
      • by gsslay (807818)

        If the court can subpoena the data it makes not one iota of difference if its public or private. It can be used as evidence.

    • Re: (Score:3, Informative)

      Not in the European Union:

      ARTICLE 8

      1. Everyone has the right to the protection of personal data concerning him or her.

      2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

      3. Compliance with these rules shall be subject to control by an independent authority.

      • some other legitimate basis laid down by law

        That's a legal loophole big enough to drive an articulated lorry through.

    • Re:Public (Score:4, Insightful)

      by TaoPhoenix (980487) <TaoPhoenix@yahoo.com> on Friday January 28, 2011 @08:45AM (#35031124) Journal

      Well,

      I'd consider "private" comments behind logins and passwords and invite-only friends lists to be "private". I'd think it is the same category as when you're not supposed to be recording people's phone calls - Facebook is succeeding getting people to "open up" because it's "private".

      If courts are going to go all miranda on your "private" posts, then there's another ratchet in the big engine of the police state.

      • by jeff4747 (256583)

        Did you think your friends could not be compelled to testify against you?

        There's only 3 people you can talk to who can't be forced to recount the conversation in court: Your doctor, your priest and your spouse. Posting on Facebook never granted new privacy rights.

        • by bsane (148894)

          Exactly. People may be more prolific on FB than say writing old fashion letters to friends, but both could be used as evidence in court. The only change I see is that FB posts are easier to find and subpoena, but the privacy of the conversation hasn't changed at all.

        • Actually, it's just two: your spouse and your lawyer. Your conversations with your doctor and your priest may be private, or may not, depending on how a judge rules. Be careful out there.
    • by Culture20 (968837)
      Not really, and the judges seem to actually be thinking of the conversations as private but non privileged conversations (unlike with your lawyer or your priest). Which is what they are.
  • Helpful tip (Score:3, Informative)

    by JamesP (688957) on Friday January 28, 2011 @08:16AM (#35030846)

    Treat all information posted on social networks as public

    It is anyway, after a court order, or a systems invasion, or a dodgy employer.

  • by boxwood (1742976) on Friday January 28, 2011 @08:20AM (#35030880)

    how is this different? Oh wait it isn't.

  • by Haedrian (1676506) on Friday January 28, 2011 @08:21AM (#35030888)

    "As you can see your honour, the defendant is innocent.

    This comment "I'm innocent" posted this morning has received 100 likes already.

    I rest my case"

  • by rwv (1636355) on Friday January 28, 2011 @08:24AM (#35030920) Homepage Journal
    If you don't want some kind of information to be made public, don't post it on the Internet. Even if all your privacy settings are selected correctly in Facebook (so only friends can see your posts), there is no guarantee that one of your friends won't "re-tweet" (or whatever the kids are calling it these days) your personal information.
    • This is true.

      However, there's a bit of a differencve between an authorized user (your "friend") divulging your private communiques in a public forum, and some unauthorized third party reaching in from the outside and taking them. What's being discussed here is that latter case, not the former.

      • by jeff4747 (256583)

        It's a court. They are not unauthorized. They can authorize themselves.

        • They're personal-injury lawyers, who are unauthorized, requesting and recieving court-compelled authorization from the account owner. The question is less about authorization and more about whether it's proper for the courts to be compelling these authorizations.
    • by Asic Eng (193332)
      That's good advice to implement, but that can't be a basis for a legal position. It's sensible to use a high-quality lock on your front door, but if you use a cheap easy to break lock, the cops still need a search warrant.

      If the content is set to private, then it's sufficiently protected so that a court order should be required.

  • Can someone other than the person I am conversing with, read this exchange? That is to say, is this conversation readable by more than just the people taking part in it? If the answer is yes, there is a good chance this is not private data. That's my way of looking at it at least.
  • This isn't about publicly available information, it's about information you can't see unless you're on a person's friend list, or even private messages between two people. The defense attorneys are getting courts to compel the plaintiff to sign a form allowing them access, then attaching them to subpoenas. Still don't see what the big deal is, though, this is information that in online form you'd just get through a subpoena anyway.
  • by MikeRT (947531) on Friday January 28, 2011 @08:41AM (#35031080) Homepage

    I have to wonder how daft some of these commenters and commentators are if they believe this is new. If you're a 15 year old girl and your little brother reads your diary and notices that you confessed to filing false rape charges against your neighbor, his defense counsel could seize the diary as evidence if the brother told them about it. There is no "right to privacy" under the constitution in this respect. You have a right to not incriminate yourself. You have a right to not be subjected to overly broad or general searches and seizures. You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

    I'm all in favor of making it tough for the police to get initial access to the data. I can't believe anyone would be worried that this would happen in the middle of a trial in front of a jury.

    • It's worrying to someone who is innocent, that they're going to get smeared all over the place with this data that may or may not be relevant to the case which is then going to be on the public record.

      You're right though, if you're in court the state has to have fulfilled it's burden of proof to look into your private life. I disagree with calling social networking "public data" unless it's accessible without logging in as that person's "friend".
    • by Nidi62 (1525137)

      You have no right to a special place where you can say...anything you want and it's all off limits to the courts.

      Unless you are married in the US, then you have spousal privilege. Although, I wonder, would that hold up if it were a private message sent on facebook between a husband and wife? Or would they consider facebook's storage of it as a 'third party", therefore voiding spousal privilege?

  • by Nevo (690791) on Friday January 28, 2011 @08:47AM (#35031144)
    Since when can the courts only use 'public' information as evidence? This whole thread is based on a flawed premise.
    • by mounthood (993037)
      It's not a "flawed premise" but an acknowledgement that the internet is changing things: People now write (or text) where they used to speak on the phone or face to face. Many political, religious and other opinions used to go unrecorded, and even now people use false (or partial) names to avoid exposing their sentiments. The courts may be playing by the same old rules, but the internet has changed what's available. Maybe the rules of evidence and exploration need to be changed for the new environment, simi
  • by gnasher719 (869701) on Friday January 28, 2011 @08:59AM (#35031268)
    This was discussed before, and again there is a deep misunderstanding what is going on.

    This is about people suing a company, for example after an accident, to get compensation. This turns into a court case, and in a court case we have discovery. In discovery, both sides have to turn over relevant information. Whether that information is private or not doesn't matter one bit. What matters is whether it is relevant to the case or not. If you went to a restaurant, and claimed that you became impotent after eating their food and sue them for damages, then some very, very private photos could be relevant to the case and would have to turn over.

    If you claim that you are unable to walk because of an accident, then the company you sue can rightfully demand that you turn over private videos that show you playing beach volleyball in the nude after the accident because it is relevant to the case. That's when the evidence is in your possession. If the evidence is in someone else's possession, then they still can rightfully demand the evidence. You have the right to refuse to help them; in that case for example Facebook wouldn't turn over such evidence, and the court would assume that the evidence that you withheld would speak against you.
    • by Hatta (162192)

      If you claim that you are unable to walk because of an accident, then the company you sue can rightfully demand that you turn over private videos that show you playing beach volleyball in the nude after the accident because it is relevant to the case.

      That is, if they know you have a video of yourself playing beach volleyball. Suing someone doesn't give them carte blanche to rifle through your collection of home movies, nor should it give them carte blanch to read your personal conversations.

  • by kronosopher (1531873) <celeron@@@netolith...com> on Friday January 28, 2011 @09:00AM (#35031282) Homepage

    About a year ago I lived in an two-bedroom apartment with two other people. My first roommate let the second move in the downstairs living room without consulting me. Eventually I agreed under the condition that the new roommate would pay us $300/mo, of which I'd receive $150. The new roommate turned out to be a total degenerate psychopath, who routinely stole from us and never paid his rent. He was also disposed to episodes of violence, rationalizing his behavior as a type of entertainment at our expense. After about 6 months and a sequence of increasingly severe incidents, I eventually drove him out.

    Both my original roommate and I decided from there that we would keep as far away from him as possible, despite having a number of mutual friends. As much as it would have been utter ecstasy to see him in jail, we came to the conclusion that he would eventually destroy himself without our help and left it at that.

    Ever since then, said individual has posted numerous messages on Facebook explicitly threatening to murder us. This culminated in a particularly threatening message last week where he stated something to the affect of "we better watch out, he's coming for us." Both myself and my former roommate have decided that despite our desire to remove ourselves from the situation, we cannot ignore it any longer and have contacted a lawyer. Our lawyer has arranged a preliminary hearing next week where we and a number of friends will testify as character witnesses and using his Facebook posts as evidence hopefully can convince a judge to incarcerate him.

    • by multipartmixed (163409) on Friday January 28, 2011 @09:08AM (#35031392) Homepage

      I don't know where you live, but in Canada, this constitutes uttering a death threat. This is a serious matter -- you call the police, they arrest him.

    • by rednip (186217)
      So, six months of passive aggressive maneuvering has driven a man from his home (a.k.a. your living room), now he's pissed; I wonder how that happened. While statistically, it's most likely that he's just blowing off steam, it's never a good idea to ignore a threatening message. However, I wouldn't count on a judge sending him to jail (unless he is already on probation). Either way, I suspect that he will hate you even worse, sorry.
  • IANAL, but emails have been subpoenable for a long time (except for lawyer-client and doctor-patient communications) and I see no reason why (say) Facebook posts would be any different. That doesn't mean that they are public, just that a judge can authorize lifting the veil.

  • Well, yeah... You sign up for Facebook and everything you post there is on Facebook's servers. Why wouldn't they allow incriminating data to be searched for by the authorities? If you do something illegal (depending on your local definition of illegal of course, which may or may not be a good definition) and you put it on Facebook of all places, there's no excuse. I'd expect decent criminals to be smart and make sure it's not so easy to be caught... right?

  • If the information is available publicly (ie.: without signing into Facebook or conning your way into a friend-request acceptance), it's public. If it's marked as private, it's private, unless permission is otherwise given by the owner(s) of said information.

    Does it really need to be more complicated than that?
  • What's worrying to me is that we are making Facebook posts 'equal' with normal language and communication.

    My sense from being 40 and using Facebook for a couple of years is that people are (like in any non-face-face posting/forum/communication) prone to posting things that they would not otherwise say.

    Furthermore, I think the "culture" of Facebook rewards provocativeness and certain amount of outrageousness. A posting of "Woke up with a headache, showered, ate a smoothie and drove to work" would be ignored

  • Dont be a MORON and brag about your crimes online.

    100% of all "hackers" that brag about their exploits get nailed.
    100% of all thieves that brag about their exploits get nailed.

    Keep your mouth shut. Cops catch crooks because the majority of crooks are stupid as a box of rocks.

    You dont write down you exploits in your memoirs, you dont tell friends, you tell nobody, you never type it, speak it or think it.

  • "and a worrying precedent that judges consider social networking content to be public data."

    Define 'public'. Meaning those you allow to see it is the more accurate, and operative, definition. Even if that is one.

    If you post on Facebook to your ONE friend, you might make a case that it's not 'public'.

    If you post on Facebook to your TWO Friends, you are on more tenuous ground.

    If you have more than TWO friends on Facebook, you are no longer so 'private'.

    Benjamin Frankline once posited:

    "Three can keep a secre

  • Enemy of the State said it best [imdb.com] for the government the only privacy that's left is the inside of your head. Maybe that's enough. I'm pretty damn sure it won't be enough once we have mind reading technology.

  • by davev2.0 (1873518) on Friday January 28, 2011 @11:10AM (#35033242)
    So many people here miss something very important. Almost anything, whether it is public or private, can be used as evidence in a trial, whether civil or criminal, if it is properly subpoenaed and collected.

    Your diary, your Facebook postings, the contents of your computer and cell phone, and your mail, it doesn't matter what it is as long as it is properly subpoenaed and collected.

    There is no story here. It has been like this for centuries. The court can order access to almost everything considered private.
  • Why is it worrying that judges consider social media content public data? If you don't want someone to know about it, don't put it on a publicly accessible website. The Internet is not a toy. It's real life.

  • OK, I can see how the prosecution might want to use this kind of information in a criminal case. Makes sense, and all that. But the Defense?

    "Oh, your honor, my client was playing Angry Birds at the time, and could not possibly have been at the scene of the crime. Yes, it was on a cell phone, but you can see he had already UnFriended the co-defendant at the time of the robbery..."

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