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State Court Says Cop Posing As A Facebook Friend To Snag Criminal Evidence Isn't A 4th Amendment Violation

(Mis)Uses of Technology

from the of-course-it-isn't dept

Wed, Jun 6th 2018 7:51pm — Tim Cushing

Getting roped in by your public Facebook posts isn't a Fourth Amendment violation -- not even if the viewing "public" contains undercover cops. The Delaware Supreme Court [PDF] got to wrestle with an interesting question, but the public nature of conversations prevents the Fourth Amendment from being much of an issue. [h/t Eric Goldman]

Here, the defendant-appellant, Terrance Everett (“Everett”), accepted the friend request from a detective who was using a fictitious profile. The detective then used information gained from such monitoring to obtain a search warrant for Everett’s house, where officers discovered evidence that prosecutors subsequently used to convict him.

Everett posted pictures of cash and weapons. As a convicted felon, he certainly wasn't supposed to be in possession of the latter. There's a discussion of privacy settings in the court's decision, but it only shows nothing conclusive was determined by the lower court. Apparently, Everett did set his account to "Friends-only" at some point, but that most likely did not occur until after the photos used to obtain a search warrant had already been viewed.

Ultimately, the court decides the privacy settings don't really matter -- at least not as far as Everett extended them. It would have still allowed the detective to see the photos Everett posted, given that the law enforcement officer was already a Facebook friend.

Attempting to claim his privacy was violated by the three-year subterfuge, Everett's challenge partially hinged on a key omission from the detective's warrant affidavit. The detective never informed the judge he had spent three years pretending to be Everett's friend to gather probable cause for a search. If nothing else, this seems like a waste of law enforcement resources, given the only charge Everett was convicted for was firearms possession. Then again, surveillance through a Facebook account is a largely passive enterprise.

The lower court found the omission did not affect the warrant's validity and the state Supreme Court agrees. Then it moves on to address the larger issue: is a fake friend a privacy violation?

We reject Everett’s contentions because Everett did not have a reasonable expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake profile and other “friends” would not be disclosed. We observe that Detective Landis did not request or access the Photo directly from Facebook, the third-party service provider— a scenario that we need not address here. Rather, Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.

This is true across all communications platforms, including personal conversations and snail mail. The expectation of privacy the sender might have can be "violated" at any time by the recipient of the communications. Even if the recipient is a cop pretending to be a Facebook friend, the privacy of communications is only as solid as the other participant.

The court also notes this isn't even comparable to wiretapping. The detective did not intercept private communications or otherwise place himself between Everett and message recipients. Everything gathered to support the warrant was visible to Everett's Facebook friends. Any one of them could have turned the photo over to police without violating Everett's privacy. The detective's passive monitoring of a Facebook account doesn't change the equation much.

One cannot reasonably believe that such “false friends” will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.

[...]

If one allows others to have access to his or her information that contains evidence of criminal wrongdoing, then that person assumes the risk that they might expose that information to law enforcement—or they might be undercover officers themselves. As the United States Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society” and “is the kind of risk we necessarily assume whenever we speak.”

That's how it works. Communications are public, to a certain extent. The government can't access certain conversations you have with others without a warrant, but nothing says it can't pretend to be another person to be invited into incriminating conversations. Posting photos to Facebook isn't a private act, even if the settings only allow "friends" to view them. The subterfuge deployed makes it seem like more of a privacy violation than it actually is. What this should be is a cautionary tale, rather than an indictment of the Fourth Amendment's limitations. If someone doesn't want evidence of criminal activity used against them, they should probably keep that information to themselves, rather than post it on social media sites.

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Filed Under: 4th amendment, delaware, drug dealers, fake friends, social media, terrance everett, undercover

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