U.S. District Judge Williams Pauley III of the United States District Court for the Southern District of New York ruled last week that your Facebook privacy settings may trump your Fourth Amendment rights – and negate the need for a law enforcement agency to get a warrant before accessing your Facebook photos and other files.

The judge seems to indicate that other investigators — such as employers, private investigators working for an insurance company, or parties to a lawsuit — might be able to get around disclosure rules and the need for a warrant by the simple expedient of asking one of your Facebook friends to show them your page.  If the “friend” shows them something that gives them probable cause for a warrant, they can get one — and use the information against you in court. 

What bothers me about Judge Pauley’s ruling is that it’s a kind of fishing license for investigators who, in the past, couldn’t go looking for something until they knew what they were looking for — the “probable cause, supported by Oath or affirmation” mentioned in the 4th amendment.  (So before they can search my home, someone has to swear that I have something illegal in my home — they can’t just come in and poke around my house, or my computer.  Until now.)

Asking my friends to show them my Facebook page — and maybe applying pressure, as in “Do this or we’ll come after you, too” — so they can search for probable cause is a novel new idea.  I believe in the Constitution. It’s the only thing standing between us (the People, always used in capital letters in that most beautiful document) and anyone who wants to become a tyrant or enforcer of rule by fear.

The Case Before Judge Pauley

For generations, courts have held law enforcement to very high standards when it comes to 4th Amendment rights – and, although the Patriot Act and its warrantless surveillance of U.S. citizens eroded those rights, most Americans were still fairly safe in assuming that they had a reasonable expectation of privacy so long as they attempted to maintain their privacy. And, until now, setting computer permissions and passwords was supposed to be all that was required to establish an “expectation of privacy” for Internet users.

In the case before Judge Pauley, a self-described “gangsta” named Melvin Colon was arrested after police found evidence on his Facebook page — which he had set to allow “friends of friends” to view his photos and posts. 

Colon’s legal team argued that Colon thought his privacy settings created an “expectation of privacy”, and that police needed a warrant before viewing them.  Instead, police used the data on the Facebook page to  arrest Colon — and searched his home pursuant to the arrest, which led to the evidence that convicted him.

It’s hard to argue with Judge Pauley’s central ruling in the Colon case:

“Colon’s legitimate expectation of privacy ended when he disseminated posts to his friends because those friends were free to use the information however the wanted – including sharing it with the Government.”

Anyone who thinks that what they transmit on a wireless device or post online is truly private is fooling themselves.  But the Judge’s ruling also delves into the various levels of Facebook privacy settings. The Judge concludes that the Fourth Amendment argument could have merit, but it depends inter alia (among other things) on the user’s personal privacy settings.

“When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. However, postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected,” Judge Pauley wrote.

So does that mean that if I tighten my privacy settings, from “friends of friends” to just “friends”, I have an expectation of privacy? Probably not.

“Here, Colon maintained a Facebook profile in which he permitted his Facebook friends to view a list of all of his other Facebook friends, as well as messages and photographs that Colon and other posted to Colon’s profile…Where Facebook privacy settings allow viewership of postings by friends, the Government may access them through a cooperating witness who is a friend without violating the Fourth Amendment.”

 I am not arguing that having a witness show them evidence of an illegal action wasn’t probable cause to get a warrant  (and neither did Melvin Colon or his lawyers).  I’m just firmly convinced that the order of events was wrong.  Evidence first, warrant second, search third, and arrest fourth — not Facebook page, arrest, search.

Why it Matters to the Rest of Us

To those who say that only an idiot would post evidence of illegal activities on Facebook, my argument is this.  We all post things on Facebook that could get us in trouble.  A 15-year-old’s ability to judge how appropriate conduct or comments are is notoriously lacking.  But the consequences of this ruling may be dire for people who never commit crimes.

Here’s an example.  I was injured by a texting and driving woman who hit my car at high speed.   Since the accident, my injuries have prevented me from doing many things that I could do before the accident — like walk down the front steps of my house without help, or type a blog post without hand splints.  

Under Judge Pauley’s reasoning, her insurance company could find one of several hundred “Facebook friends”, and offer them a financial incentive to let them browse my Timeline — or even find one of their own employees on my friends list and force them to comply. 

Thanks to Timeline, it could appear that a photo taken months BEFORE the accident but posted AFTER the accident showed me committing insurance fraud.  This shifts the burden of proof onto me, and I have to prove when and where the photo was taken.  (For the record, the only photos of me posted on Facebook after the injury show the outcome of the injuries…including me and my walker on vacation in New York, hand splints and all, the new railings on my front steps, and the other accommodations we’ve had to make since the accident.)

Most of us need never fear being investigated for a criminal act.  But nearly all of us will wind up being investigated by somebody at some point.  Maybe as part of a background check for a security clearance or job, or perhaps as part of a civil lawsuit, a divorce, or an insurance claim. 

And then there’s the chance of being sued in a dog-biting case. I know of one case already where a plaintiff used a Facebook posting of a 25-pound Cocker Spaniel playing with a chew toy captioned “My vicious baby! LOL” in court papers in an attempt to prove that the owner “knew that she was harboring a vicious animal and considered the animal’s propensity for violence to be humorous.” 

The aging dog in this case (who goes by the name of Powderpuff) is a sedentary, sweet dog who had bitten a 12-year-old boy attending a party for her family’s son. The boy was mercilessly teasing her even though she had retreated from the yard to the house and was in her own bed at the time. One snap, which barely broke the skin, and then the dog hid under a chair. 

The boy’s parents sued the dog’s owner for $50,000 for “pain and suffering”, and demanded that the dog be put down. Thankfully, the judge ruled that the family pay for the child’s medical care — which they’d already offered to do — and that they kennel the dog before throwing another party at their home. 

In this case, the boy’s parents were Facebook friends with Powderpuff’s owners — but under Judge Pauley’s theory, the insurance company or the family could have asked anyone to snoop on the Facebook page and then use the resulting “evidence” in court.

But it made me wonder:  what’s hiding in my timeline that can come back to bite me someday?  What’s in yours?  Judge Pauley’s ruling makes me determined to find out!