Is social media information subject to Fourth Amendment protections? Yes and no. Find out if and when law enforcement personnel can access information from social platforms like Facebook and Instagram.
Most people don’t give much thought to posting an update to Facebook or sharing a picture on Instagram, that is until they consider who might access that data. The realm of social media is by its very nature public, making it difficult to argue the need for a warrant to obtain socially shared information. People should be aware of when and how law enforcement personnel can access their information for an investigation.
The short answer to “Can police get investigative facts about me without a warrant?” is yes, they can. Any information you provide to social media that is not expressly marked as private is available to the public, law enforcement included. What about social media information that is shared privately or to friends only? Police may be able to access this information without a warrant as well, so long as the viewing occurs through the use of a cooperating informant or other account that the suspect has “friended” or otherwise allowed access.
Police will need a warrant if they want to obtain authenticated copies of the suspect’s social media information. This warrant must be presented by police to the social media company responsible for the account in question. Many social media companies have policies that inform users when their information is being requested.
Katz v. United States and Warrantless Searches
Katz v. United States (389 U.S. 347) is a case from 1967, long before the age of social media. However, the ruling has direct implications for social media privacy. Katz found that the Fourth Amendment protection against warrantless searches does not apply to information that a person knowingly exposes to the public. The Fourth Amendment does apply, however, to information that an individual attempts to preserve as private.
Three of the world’s largest social media platforms – Facebook, Twitter, and Instagram – all require that law enforcement provide a subpoena or valid warrant in order to access a user’s information in connection with an investigation. Warrant requirements can be easy for both police and the courts to ignore.
Even if you attempted to conceal information from the public, as was stated in Katz, there is still a chance that law enforcement personnel can access your information without a warrant. For example, some courts have decided that any information shared on social media, even shared with friends, could be accessed without a warrant because there was never any guarantee that the friend would keep that information private.
Moral of the story? Be careful what you share.