United States District Judge William Pauley addressed the issue of whether a defendant in a criminal case has a reasonable expectation of privacy with regard to their Facebook posts. According to the United States Constitution, the Fourth Amendment provides that, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
As interpreted by Judge Pauley, “generally, people have a reasonable expectation of privacy in the contents of their home computers, but this expectation is not absolute and may be extinguished when a computer user transmits information over the Internet or by email.”
Judge Pauley’s opinion is based off of a case involving a gang member who was arrested in 2011 for his involvement in a racketeering enterprise. The defendant gang member posted numerous references to his prior acts of violence, threatened acts of violence against rival gang members, and messages seeking to ensure gang loyalty. Judge Pauley stated that the defendant’s “legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted–including sharing it with the government,” which one such friend did.
Judge Pauley noted that the issue of whether the “Fourth Amendment precludes the government from viewing a Facebook user’s profile absent a showing of probable cause, depends […] on the user’s privacy settings. Postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected.”