Subsequent to the rise and proliferation of the Internet since the mid-1990s, there has also been the corresponding development of online social media Web sites intended to facilitate information-sharing, personal and group communication, and professional networking.
These include Facebook, Twitter, Myspace, YouTube, LinkedIn, Plaxo, Instagram, Google+, and even Pinterest. These and other sites like them enable and promote connections between individuals based on personal and professional affiliations, employment backgrounds, and shared interests.
Social media sites provide those in one’s designated circle of “friends,” or “connections,” with variably detailed information regarding personal history, education and professional background, and living circumstances. In some instances, they further provide a fully archived and easily accessible personal time line of activity and events, with up-to-the-minute information regarding where the user is and who she or he is with. All of this is generally determined by what individuals choose to share, how much they interact with the site, individual user security preferences, or the security settings provided for users by the site.
Because social media sites are accessible from all manner of computers and wireless devices, including smartphones, they make information-sharing and networking both global and instantaneous. However, not everyone is conscious of, or attentive to, what they are sharing. Moreover, many social media users are unaware of whether their information, however limited, is visible privately or to everyone with an Internet connection.
As those familiar with social media can attest, there is a tremendous amount of information available on user profiles. The nature and extent of this information, as well as the way that social media sites can passively document and timestamp specific user activity, has made it ripe for exploration and use as evidence in criminal investigations. In addition, it has potential value as evidence in courtroom proceedings.
Evidence is a legal concept, referring to items and information gathered in association with an investigation. Specifically, it refers to statements, testimony, writings, objects, and anything else that may be offered to prove or refute the existence of a fact. Any fact or finding gathered in relation to a legal proceeding is considered evidence until a judge says it is not. For instance, documentation of a factual event may exist, such as a taped interview or a written confession or an exclusionary test result. However, a judge may determine that it is not admissible for any number of legal reasons; consequently, that fact and any related documentation may not be considered by the jury as evidence at trial.
In the United States and around the world courts have held that facts and information gathered from social medial sources are admissible as evidence under a variety circumstances. However, some of these involve ethical concerns.
Social Media Evidence: Investigative and Forensic Utility
Criminal investigators, attorneys, and judges have regular use for evidence gathered from social media. This includes typed comments, messages to third parties, photos, videos, and information regarding “friends” and “connections.” Therefore, criminal investigators are known to routinely collect the following types of digital evidence as part of a digital package related to victims and suspects alike: cell phones (e.g., calls, chats, address book, global positioning system, photos, video, and Web browser history), laptop/desktop (e.g., e-mail, Skype calls and chat logs, other chat logs, documents, address books, browser history, photos, and video), personal Web sites, recent browser history, and social network activity (e.g., Facebook, Twitter, YouTube, MySpace, blogs, dating Web sites, and other personal subscription Web sites).
As a consequence, social media evidence has been used for the following general investigative and forensic purposes:
- To establish suspect background information
- To confirm relationships between suspects and codefendants
- To confirm relationships between suspects and victims
- To confirm relationships between suspects and witnesses
- To establish suspect time line information in relation to suspected criminal activity
- To establish victim background information
- To confirm relationships between victims and witnesses
- To establish victim time line information in relation to criminal complaints
Social media evidence has subsequently been admitted in court for some of the following specific purposes: (1) to evidence the violation of a no-contact order, by virtue of comments, messages, and even a Facebook “poke”; (2) to evidence similar evidence of stalking and harassment related to behavior; (3) to evidence misconduct during criminal proceedings by any parties involved (e.g., jurors posting to Facebook during trial, prosecutors “friending” attractive victims or witnesses, and parents bad-mouthing each other online to family members during divorce proceedings); (4) to provide a suspect alibi, demonstrating where the suspect was and what he or she was doing as documented by social media; and (5) to evidence suspect confessions, either from written comments, from images posted of stolen merchandise, and even from video of the crime posted to show off suspects’ activities to others.
Victims of Rape and Sexual Assault
In cases involving accusations of rape and sexual assault, law enforcement investigators will establish and collect the digital package discussed above in relation to criminal suspects. Conversely, defense investigators and attorneys will conduct the same digital work-up of the complainant (also known as the victim). They will scour posts, images, videos, and relationship status to identify any evidence of falsity or contradiction with respect to the complaint. They will also investigate the complainant’s pre-and post-offense behavior to determine her or his activities prior to an alleged attack, as well as any emotional impact.
For example, a complainant may state to police that she was sober on the night of the attack. Further still, she may state that since it occurred she has been unable to leave her home for fear of her own safety. Upon investigation of the complainant’s social media postings by the defense, the opposite may be confirmed. The defense’s investigation may reveal social media photos of the complainant drinking that very night at a time immediately prior to the alleged attack; and it may further reveal similar evidence of the complainant going out to bars, drinking, and partying heavily in social settings in the days immediately following.
When this kind of evidence of alleged victim behavior, and by extension character, is discovered in relation to social media, it may not always be admissible. This is especially true in cases of rape and sexual assault. The judge may rule that such evidence is a violation of state rape shield laws, and may therefore exclude it in part or altogether. In these cases, the defense has an ethical responsibility to abide by judicial rulings and not seek to introduce the evidence in an inadvertent or “accidental” manner. However, the defense also retains the ethical responsibility to challenge any exclusions of evidence on appeal should the need arise.
Civil Rights and Privacy Concerns
If personal social media accounts are set to display information publicly, then that information may be rightfully sought out and gathered by law enforcement agents investigating criminal matters. However, the moment that a privacy barrier is encountered, such as the need for a password, then the need for a search warrant comes into play. In order to get a search warrant, law enforcement must know what constitutes a crime, be able to establish whether that crime has been committed, and be able to establish whether there is probable cause for a search or an arrest. The thresholds for probable cause vary from state to state and, realistically, from judge to judge.
However, under the U.S. PATRIOT Act, federal agents are permitted to write and execute their own search warrants (without a judge) when national security is argued to be at issue. This means there is no external oversight under such conditions. It bears noting that the vast majority of such search warrants have been written in relation to drug investigations, not national security issues like terrorism, which would seem to contradict the intention of the PATRIOT Act.
Ethical criminal investigators, therefore, have an obligation to protect the civil rights of citizens by understanding and acknowledging when a search warrant is needed, by understanding the concept of probable cause and not working to contravene it, and by refraining from writing search warrants that contain false or misleading information in order to invoke the relaxed legal requirements of the PATRIOT Act when it suits them.
Some law enforcement agencies have established what may be referred to as “social media units” or “Facebook units.” Their purpose is to investigate the evidence related to criminal activity that may be found in relation to social media, as already described. However, some also serve an additional purpose: surveillance.
Surveillance of suspects and suspect groups.
It is considered ethically dubious for law enforcement agents to “friend” or “connect” with someone via social media under false pretenses (e.g., for the purposes of surveillance). It is also generally a violation of social media site contracts to set up an account using fake information. However, this does not stop it from happening. Law enforcement agencies have routinely been found to engage in social media surveillance of various political organizations, social organizations, and even religious organizations—often in violation of their civil rights.
Surveillance of government employees.
Law enforcement agencies very often engage in social media surveillance of their own employees. This is done to identify any negative comments about the agency, any disclosures of confidential or sensitive information, and any improper relationships, affiliations, or communications. In recent years, more than a few law enforcement employees have been disciplined or terminated for violating agency policies related to one or more of these concerns on social media.
Individual social media activity has tremendous value to investigative and forensic matters. Law enforcement and officers of the court are therefore correct to seek it out as evidence for potential use at trial. The ethical challenge, as with anything else, is to gather such evidence lawfully and to admit it appropriately—without violating individual civil rights, victims’ rights, or related legal prohibitions.
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