Look Here: 4th Amendment Musings

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Status Update: The Fourth Amendment Is Unlikely to Protect Social Media Footprints
Thursday, March 30th, 2017
Look Here: 4th Amendment Musings - Apr2017

“Every man’s house is his castle” has been a concept celebrated throughout U.S. history, stemming from the colonials and their British roots. See generally Semayne’s Case, 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). The Fourth Amendment has its roots in this concept, affording people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” with no warrants to be issued without a finding of probable cause. U.S. const. amend. IV. As we all know, however, and as the Amendment clearly states, a blanket prohibition on all governmental searches is not present in the Bill of Rights, nor anywhere in the U.S. Constitution, for that matter. Our citizens are only protected against those warrantless searches found to be “unreasonable.”

Katz v. United States continues to be a leading case governing the Fourth Amendment, holding that violations must be decided under a reasonable expectation of privacy standard. 389 U.S. 347, 369 (1967). However, this standard has become more difficult to apply in modern practice as social media and online networks have permeated society at an accelerated rate. Gone are the days of the Fourth Amendment’s original purpose to protect only a person’s “castle” and effects. Instead, notions about what constitutes a reasonable warrantless search have changed dramatically, especially within the last decade, as the usage of social media has become the norm.

Although Katz was decided 50 years ago, it foreshadowed the Fourth Amendment issues presented today with the rise of online social networks, and, in fact, blindly suggested an answer to these issues. Justice Stewart, writing for the majority, argued that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Id. at 351. Each day, millions of Americans access social networking sites in their own home, or office, voluntarily exposing to the public endless, and often unfiltered, personal information. According to Katz, the Fourth Amendment does not protect the information these millions of Americans display on social media.

While Katz suggests that activity on sites such as Facebook, Twitter, and Instagram are not protected by the Fourth Amendment, there is no way the Court, nearly five decades ago, could have grasped the impact social media has had on our society today. In reality, Fourth Amendment doctrine has struggled to keep up with this online phenomenon, failing to set out a black-and-white answer to the question: Is a citizen’s activity on social networking sites protected by the Fourth Amendment? As it stands today, the answer to this question is likely in the negative, and the Supreme Court has failed to release a clear answer to guide lower courts.

During a visit to the University of Florida Levin College of Law in 2010, Justice Clarence Thomas was asked whether he believed the Court has kept up with the ever-changing technological advances. His response supports the probabilistic answer noted above, expressing that with rapidly shifting technological changes, there are no longer clear zones of privacy. “[The government doesn’t] actually have to come onto property now to look into your private affairs. . . .” Clarence Thomas, Associate Justice, U.S. Supreme Court, Address at the University of Florida Levin College of Law Marshall Criser Distinguished Lecture Series (Feb. 4, 2010).

With this statement, Justice Thomas recognized through implication that the zones of privacy are murky and unresolved. The government, without guidance one way or the other from a higher power, effectively has free reign to access a person’s private affairs through social media avenues in a way that does not violate existing Fourth Amendment principles.

Soon after Justice Thomas expressed an opinion on whether the Supreme Court has successfully kept up with technological advances, Justice Stephen Breyer chimed in, as well, in a speech at Vanderbilt Law School. Although Justice Breyer spoke about applying the First Amendment in a world with internet, Facebook, and movies like “The Social Network,” he made clear the fact that the Court has a limited grasp of current, and rapidly changing, technological developments. Stephen Breyer, Justice, U.S. Supreme Court, Address at Vanderbilt Law School (Nov. 16, 2010).

The Supreme Court still has yet to determine the bounds and outer limits of a reasonable search of a user’s social network page and posts. This silence has allowed Fourth Amendment doctrine to continuously lag behind modern-day technology, and it has given courts across the country free discretionary rein to decide the issues, when presented, on a case-by-case basis. Guidelines from the high court would be helpful in these determinations. For example, do privacy settings, a user’s age, content of a post, a user’s followers, etc., have an impact on whether or not an individual’s social networking site can be considered protected under the Constitution and require a warrant to search?

Eventually, the Court will have to examine these issues, and this fact has again been recently highlighted in a case involving GPS (Global Positioning System) tracking. In United States v. Jones, the Supreme Court held that the use of a GPS tracker to monitor a car’s movement constitutes a search under the Fourth Amendment. 132 S.Ct. 945, 951-52 (2012). Justice Alito, as part of his concurring opinion, addressed the fact that as “social tools” continue to advance, the Fourth Amendment’s interplay between social media and the average person’s expectations of privacy in his or her daily life will need to be addressed. See Id. at 963.

Additionally, Justice Sotomayor’s concurring opinion emphasized that a GPS tracker onto one’s effects is a Fourth Amendment violation because of the physical intrusion into one’s property. Id. at 954–55. The decision in Jones definitely sets out a clear ban on attaching a GPS tracker to one’s effects, but it most likely does not preclude tracking movement, or other actions, through social media websites where there is no physical intrusion into an individual’s privacy when the information is knowingly and willingly made available to the public. Again, the Court did not speak definitively either way.

While Jones once again brought to the forefront the fact that social media and technology advances need to be addressed under a Fourth Amendment analysis, a black-and-white decision has yet to be made. As of today, law enforcement agencies use social networks on a regular basis to investigate crimes and prosecute suspects because there is no real concern that such actions could result in Fourth Amendment violations.

Many, if not most, social media users are unaware that their online networking is likely not protected by the Fourth Amendment. While this might change as case law and statutory law develops, all social media users, especially our clients facing criminal charges, should be wary of the information posted online. Further, it is imperative for us, as defense attorneys, to remind our clients that their “tweets,” location check-ins, shared photos and videos, status updates, and the like are probably free game for government officials. As such, we should counsel them to take the necessary precautions to ensure that their social media accounts will not have a negative effect on the outcome of their case.