Facebook is not private

In the last six months or so a number of Judges have been trying to figure out what to do with Facebook accounts. Are they private? Or can the cops print them off and show them to the jury? It’s starting to look like most Judges are deciding that what you post on your Facebook account isn’t protected from the government, no matter what you think.

I don’t understand the uproar all over the internet about this. I mean, when you post something that the 2.3 billion people with internet access can look at, you aren’t trying to keep it private. This is a little like putting a message on a big sign in your front yard except a lot fewer people look at it. The principle with the sign is the same as the principle of your public posts on Facebook. If you display it to the world it is not private. Therefore, if it’s not private, the government can show it to the jury that is deciding your fate.

What’s probably confusing to some about this issue is that people think the stuff you post that is restricted to your Facebook “friends” is not public. For those of you who don’t yet have a Facebook account, Zuckerberg was real clever when he came up with the “friends” button thing. You “friend” somebody and they become a kind of virtual buddy, a computer age chum. They can see your stuff but the rest of the world can’t. There’s a fun type of secret between you and people you can’t see or touch. It’s a new kind of 21st century relationship which makes “friending” exciting and it’s real popular. A billion people using Facebook can’t be wrong, can they?

In what used to be real, human-to-human contact a friend is someone we share personal things with that we don’t want to be blasted out to the other eight billion people on the planet. On Facebook, a “friend” is just somebody we sort of got to know a little by looking at their page, or maybe we know them from real life. Either way, we decided we trust them just enough to let them look at the pictures of us doing dumb stuff at parties on our Facebook page.

So why do we think our Facebook pages are private? This is actually a really easy issue and I’m stunned that people are struggling with it. The basic concepts about how we limit the police intrusion on our real lives just extends to our fake on-line lives with Facebook. Yeah the computer thing is new but the big concept is the same.

Let me explain the part that I think is the easiest to understand. We don’t let cops walk into our living rooms and look at our stuff because we like a zone of privacy. We like to think of our homes as our castles – everybody stay out unless we invite you in. It feels good to know we can be our wiggy selves at home without someone watching us, whether you’re doing something weird or not. If you set up a Facebook page and you’re so anti-social that you don’t have any friends and you keep your page completely to yourself, then what you put up is private and the cops need a warrant.  It’s a little weird to post to Facebook so only you can see it, but that kind of privacy is understandable by your average criminal. Luckily for the police, most of us are far too narcissistic to post stuff to Facebook and not let anybody see it.

The same rule applies to regular people who don’t work for the government. It’s a crime of trespass for people to physically barge in on you without permission when you’re sitting around in your underoos and favorite superhero slippers. The same thing applies online. If a 14 year old in Nebraska figures out your password and breaks in to your Facebook account, they can get arrested for a version of computer crime that deals with unauthorized access, much like physical criminal trespass.  So far this makes a lot of sense to me and I hope you’re getting it too.

The next part is easy to understand but for some reason it really surprises people. You see, cops can stand on the public sidewalk and look straight through your wide open front window. They can stand there watching you and see what you’re doing – and then really arrest you for it. I’ve had plenty of those cases. Usually it’s a case of some college student looking up and suddenly realizing the cops are watching him smoke dope or something. Or they’re doing something utterly illegal and it gives the police probable cause to run right in and stop them. These guys are upset about it every time but I tell them it was their own fault. They displayed it to the public, accidentally or not, and some cop happened to look. End of story, you go to jail.

How do the cops get there with Facebook? If you forget to change the settings and everything is set to ‘public,’ then the cops can look at your postings just as if you left your blinds open in your front window. In fact, anyone at all can look. I wasn’t kidding about that 2.3 billion people with internet access. Most states say that the cops can do just about anything that any member of the general public can do, and that includes look at your public pictures on Facebook. I’ll wait here while you go log in to Facebook and change your privacy settings.

OK, are you done? I’m still fine with the concept of on-line privacy up to this point. It’s really just the same thing as how we interpret real life and traditional police work. After all, if some guy in Poland can type in your name and look at your public pictures on your Facebook page of you smoking dope, then the cops can do it too. You should be mad at yourself for being dumb, not mad at the cops for being smart.

It’s a natural extension that if you go on trial for drugs, then the cops can print out your public Facebook pictures of you smoking huge bongs that you displayed to the public and use them against you. They can take pictures through your front window of you smoking dope in your living room, so why can’t they use anything else that you display? You grow some illegal plants in your back yard and forgot to pull the tarp down over the sides of the old RV? Your fault, and yes I’m sure. The 160 grow lamps in your attic warm up your house like an infrared Christmas tree and the cops notice? Your fault. Our eyes can’t see infrared heat but the cops are capable of buying simple tools.

Of course if the cops have a reasonable suspicion that the game’s afoot in your kitchen, they can go get a search warrant. Then like the song says, I guess they’re gonna come in and you’re busted, down on Bourbon Street. The same thing about a warrant applies to Facebook. They don’t need to rely on luck if they have reliable info that there is evidence on your Facebook page. They just go get it with an electronic crowbar.

So now back to the tricky part about “friending” somebody. Think about the situation where you friend somebody on Facebook that you’ve known since grade school, or maybe a drinking buddy. They can suddenly look at your pictures of your kids and your vacation to Disneyland. They can also look at those pictures of your illegal activity. Maybe they would laugh, but what if they call the cops? The police can’t say that they got the info themselves and that it was publicly displayed because it wasn’t. Can they still use it against you if your “friend” gives it to them?  I’m sure this very question is getting worked into Criminal Law final exams in law schools all over the country.

Recently a gang member named Melvin Colon was on trial for a lot of bad stuff. He objected to his private Facebook posts being used against him because the posts showed he was really guilty or something like that. He didn’t want the jury seeing the truth about what’s in his dark heart when the cops aren’t around, for obvious reasons.

His Facebook posts were not public but only shared with his homies who he “friended.” The plot thickens, though, because apparently one of Colon’s Facebook “friends” wasn’t one in real life and they and showed the cops Colon’s private Facebook page. Care to guess what happened next? The cops printed everything and were now trying to use it at his trial to show this dangerous and violent, yet technologically savvy, gang member was actually a bad person and should go to prison where he can be watched 24 hours a day.

The Judge in the case made a really good, and pretty simple point. Colon had a legitimate expectation of privacy in his posts, but that ended when he hit the “send” button and shared them with his “friends” who were free to share them with the cops if they wanted to. It is a lot like sending an old-fashioned written letter with one of those ridiculously overpriced stamps, if Colon was capable of doing that. His “friends” could take those written letters straight to the cops and they could use them against Colon just like the cops could use his private Facebook page. You can read the Judge’s ruling by clicking here

I couldn’t find anything about whether Colon’s “friend” got the gang’s thank you for breaking the no-snitching rule. If Colon ever asked me, I would tell him that he should give himself a beating for clicking the “friend” button too many times.

I don’t think the result would be different if the cops had somebody “friend” Colon on purpose just to get access to this Facebook page. There’s nothing wrong with the cops going undercover or telling informants to go do stuff. They do it all the time. The courts say it’s not a violation of your privacy, just good police work.

So for all you Facebook privacy advocates, I offer some simple advice. Don’t take pictures of you doing bad stuff and post the pics on Facebook. Don’t type up any Facebook comments that could be viewed as threats to kill people. Don’t “like” gangsta crap on Facebook, no matter how bad your tastes in music and art really are. In fact, don’t post anything on Facebook that you wouldn’t mind your grandmother looking at during your trial. You follow these simple rules and you won’t have to worry so often. The lawyers won’t get paid as much, but you’ll sleep better in your bed at home instead of in prison.


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