The Fall of the Fourth: The Evisceration of the Fourth Amendment by Social Media Searches

The collection of evidence by police from suspect’s social media accounts is unchartered waters for the Fourth Amendment. Because the internet isn’t a physical place, the boundaries of what constitutes a “search” are hard to find. While the admissibility of social media evidence has been settled through various rules for authentication, the constitutionality of the collection of evidence generally appears to be less settled. Most recently, the Supreme Court ruled in Riley v. California that police may seize a cell phone incident to an arrest, but must have a warrant to search that cell phone.
In some cases, authorities are using fake profiles of people that suspects may know, and thus reasonably believe they are allowing this person, not someone else, into their private online world. One such case involves a suit filed against the DEA by Sondra Arquiett, who claims that the DEA created a fake Facebook account using photos, they got from her cell phone pursuant to a 2010 arrest. Some of the photos DEA agents seized and used to make the fake profile included ones of Ms. Arquiett in her underwear and photos of her young son and niece. The fake profile was used to “friend” and communicate with Arquiett’s real friends, who were believed to be involved with drug activity. The case was settled in January 2015 for $134,000, and the DEA has not admitted any wrongdoing. The DEA argues that Arquiett “implicitly consented” to the use by “granting access to the information stored in her cell phone and by consenting to the use of that information to aid in an ongoing criminal investigations.”

Facebook made waves recently when it sent a letter to the DEA in October 2014, in which it explained, in no uncertain terms, that creating fake accounts violates their terms of use, and that government organizations like the DEA were no exception.

Despite the fact that courts may give police or prosecutors the green light to use fake accounts, social media sites are pushing back in a big way.Facebook made waves recently when it sent a letter to the DEA in October 2014, in which it explained, in no uncertain terms, that creating fake accounts violates their terms of use, and that government organizations like the DEA were no exception. The letter formally asked the DEA to “cease all activities on Facebook that involve the impersonation of others.” Facebook is not the only one making a fuss about turning over user’s communications. In 2012 Twitter also fought challenged a subpoena by NY prosecutors in a case against an Occupy Wall Street protester. In dismissing the motion to quash, the judge emphasized that Twitter lacked sufficient standing because under Twitter’s privacy policy, the defendant had granted Twitter the “’worldwide, nonexclusive, royalty-free’ right to distribute his messages, which were all publicly available.”
It appears that some scholars agree with this result. Orin S. Kerr, professor of law at George Washington University and expert on digital searches and seizures says that, under current law, Facebook probably does not have a right to challenge warrants for their customers. The non-physical nature of an online search deprives the searched of the ability to challenge the search before it happens.Outcomes like this eviscerate the power of the Fourth Amendment. In an age where sharing a piece of your private world is the cost of doing business, where communion with others requires that you share part of your life online, there appears to be less and less Fourth Amendment to go around. Some may argue that people choose to share online, but the option remains to keep life private offline. They are correct. But to do so would be to hermitize yourself, at times cutting yourself off from the opportunity for fellowship and communal support. Perhaps this is a part of the trade that people make in exchange for connectivity with the growing world, but the effects on quality of life that such a trade may carry should be considered as a matter of public policy.