Note: This article was written in 2012. The law may have changed since then.
Facebook, Tool for the Prosecution Defense
Facebook – a Growing Source of Evidence
With an average of more than 150 million unique U.S. visitors every month, Facebook is the most popular social networking site and the second most popular Internet destination overall, only slightly behind Google and slightly ahead of Yahoo[1]. When the entire world is considered, Facebook has an estimated 750 million unique visitors each month[2], and the numbers are growing.
Facebook users post pictures of themselves and of friends, sometimes in innocent poses, sometimes engaged in more sinister behavior. Users profess their friendship for real life friends and family members as well as for people they have never met and never will meet. Sometimes these Facebook friends turn out to be gang members or other persons of questionable character. A user may profess his love for the wife of a murder victim, or even his hatred for the victim. Often a user’s Facebook page is splattered with semi-incriminating comments from the user and from friends he has never met. A user’s flippant comments posted in jest and momentary outbursts of fury are preserved long after the user’s emotions have changed.
The Prosecution Uses Facebook
The prosecution has discovered the wealth of incriminating evidence tucked away in Facebook pages.
On Jarrick Denewiler’s Facebook page[3], law enforcement found a picture of an officer with the comment, “Hey pig motherfucker, I’m going to get a gun, a badge and go into your house and arrest you, and then I’m going to take you and everything you hold dear and defile your kingdom, and then we will be even.”[4] The evidence aided in his conviction.
A probation officer searched a juvenile’s “Facebook page and found pictures of [the juvenile], some of which had the words “Deep C” written across them or identified [him] as “Assassin.””[5] This evidence helped support gang findings against the juvenile.
On Yonathan Ho’s Facebook page[6], law enforcement found a posting “which stated that he intended “to break” the record of killings committed on the Virginia Polytechnic Institute campus on April 16, 2007.”[7] Based in part on this evidence, Mr. Ho was arrested and charged with making criminal threats. All charges were later dismissed, but he was still irreparably harmed by the accusation.
There’s Something Seemingly Bad about Nearly Everyone
The prosecution can find something incriminating in almost any active Facebook user’s account.
Briefly consider the Facebook page of Kern County Sheriff Donny Youngblood[8]. Sheriff Youngblood has 3,400 Facebook friends including[9]:
- Jason Nelson, who sports a photograph of Osama Bin Laden as his profile picture.
- Jenny Teddleton, who was only recently released from probation for a battery conviction[10].
- Marcus Johnson, who was recently convicted of murder and of being in a criminal street gang[11].
- Sean Paul Battle, who has a long criminal history[12].
- Christopher Robert Craddock, who has at least two prior criminal cases[13].
- Russell Felix, who has a conviction for illegally carrying a gun[14]
A cursorily review of less than one percent of Sheriff Youngblood’s friends reveals more than a dozen criminal convictions along with connections to gangs and terrorist organizations. A skillful prosecutor might dig further into the Sheriff’s friend list and then make a compelling argument that the sheriff is a gang member, or the prosecutor might make obtuse implications of guilt by association.
Facebook Tries to Keep Evidence from the Defense
When a person posts something on Facebook, they usually don’t mean for it to be private. The mere fact of posting indicates a desire to share, but Facebook has taken the position that only the prosecution team is entitled to the information.
Facebook’s policy is that “Federal law prohibits Facebook from disclosing user content (such as messages, Wall (timeline) posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”[15]
Facebook’s policy is also that “a search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent State warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.”[16]
Facebook is extremely cooperative with the prosecution, and even has a webpage whereby law enforcement may request preservation of Facebook data[17].
Using Facebook to Aid in the Defense
- Become a friend
Facebook users often blindly accept “friend” requests without conducting any investigation into the potential friend. This results in some users having thousands of friends, and also gives the easiest way to gain access to information in the account. Send a “friend request” to the target account. If the request is accepted, you will be able to view most of the information in the account.
- Subpoena the user
Facebook users may download virtually the entire contents of their accounts by going to the “Account Settings” page[18], choosing “Download a copy of your Facebook data” and then choosing the “expanded archive” link. This makes the data, arguably, in the custody or control of the user, so a subpoena might be used to obtain the archive from a user.
- Obtain consent
A potential witness, especially one in custody, might provide the defense the password and grant the defense permission to access the account and obtain an archive as described above.
If the user is willing to share his data, but not access to his account, Facebook communications, such as wall posts, comments, and photographs, may be disclosed to one who has “the lawful consent of the originator…” (18 U.S.C. §2703(b)(3)) A potential witness may voluntarily give consent for disclosure of the records, but if he or she doesn’t, the fact of the refusal may allow the defense to infer that the witness has something to hide.
- Google it
Facebook doesn’t have a very powerful search function, but Google does. Google allows a person to specifically search within Facebook. Not to pick on the beloved Kern County Sheriff, but Donny Youngblood has a very active Facebook account, which makes him an easy target for a Facebook centered investigation.
The use of site:facebook.com in Google limits the search to the Facebook domain. Placing a user’s name in quotes limits the search to the quoted test. Therefore, the Google search Site:facebook.com “donny youngblood” searches within Facebook for any mention of Donny Youngblood. Some of the seemingly derogatory results include:
- A site, which has five total friends, dedicated to recalling the sheriff[19]
- An advertisement for a news story, which contains dozens of derogatory comments about the sheriff[20].
- A page questioning people’s feelings about the sheriff, which also contains dozens of derogatory comments about the sheriff[21].
- A page criticizing the sheriff’s handling of an officer involved accident[22].
- Ask a Law Enforcement Officer to Get a Search Warrant
If probable cause exists to believe that someone’s Facebook account contains incriminating evidence, a law enforcement officer might obtain a subpoena for the records.
Probable cause might be easily established. For example, the Kern County Sheriff’s inmate page[23] reports that Robert Quarry was recently arrested. Suppose for a moment that Mr. Quarry is a witness against your client or a suspect in your client’s case, so you want to establish probable cause to get information from his Facebook page.
The Superior Court’s Criminal Case Information page[24] reports that Mr. Quarry has a few dozen prior cases in the county, and Facebook has one user profile that appears to be for Mr. Quarry[25]; however, that profile is private.
Using this information, probable cause could probably be established with a declaration indicating that:
- Quarry has a long criminal history involving drug use and theft crimes
- Quarry is currently facing burglary charges
- Quarry has a Facebook page, but it is private, so a warrant is required to view the contents of the page.
- Facebook users who have committed theft crimes or who engage in drug use often post photographs or video recordings depicting themselves with stolen property and/or engaged in the use of drugs.
- Facebook users who have committed theft crimes or who engage in drug use often post comments about or descriptions of their crimes.
If this information were presented to a law enforcement officer, he or she would either subpoena the records or face the possibility of explaining to a jury why he did not help obtain records that could benefit your client.
- Ask the Prosecution to Preserve Facebook Data
As noted above, Facebook has a webpage whereby law enforcement may request preservation of Facebook data[26]. The page is unavailable to the defense. If the defense informs the prosecution that a certain Facebook account contains exculpatory data and then asks the prosecution to request preservation of the account, the prosecution will, arguably, have to request the data or explain their lack of action.
- Ask the Court to Issue a Search Warrant to its Bailiff
A highly questionable tool that may be of use is a defense search warrant request. Notwithstanding the fact that California does not allow for private prosecutions[27], and that a search warrant must generally be served by a law enforcement officer[28], there appears to be no prohibition against a search warrant and affidavit being prepared by a private person and submitted to the court for consideration.
Theoretically, private counsel could prepare an affidavit establishing probable cause to search Facebook and present a proposed warrant to the court along with a request that the warrant be served by the court’s bailiff and returned to the court.
Conclusion
As with many other areas of criminal law, the Facebook odds are stacked against the defense, but the defense does have ways of bringing the playing field closer to even. The defense has ways to gain access to exculpatory evidence in Facebook, but even if the defense is unable to gain such access, it might at least put the prosecution in the position of having to explain why it let exculpatory evidence slip away.
[1] siteanalytics.compete.com, last visited July 21, 2012
[2] www.ebizmba.com/articles/social-networking-websites, last visited July 21, 2012
[3] www.facebook.com/jarrick.denewiler
[4] People v. Denewiler, 2012 WL 2928544
[5] In re E.P., 2012 WL 2511906
[6] www.facebook.com/yonathan.ho
[7] People v. Ho, 2012 WL 555480
[8] www.facebook.com/donny.youngblood, last visited July 23, 2012
[9] In an abundance of caution, it should be noted that people may share the same name and that court records are sometimes wrong, so Sheriff Youngblood’s “friends” may be innocent.
[10] People v. Jenny Carlene Teddleton, BM745194A
[11] People v. Marcus Johnson, BF126004C
[12] People v. Sean Paul Battle, MM029037A, BM527928B, BM604699A, BM625258A, BM647608A, BM648067A, BM648824A, MM053943A, and RM029078A
[13] People v. Christopher Robert Craddock, BM698178A and BM710606A
[14] People v. Russell Dean Joseph Felix, BM521571A
[15] www.facebook.com/help/?page=211462112226850 last visited July 27, 2012
[16] www.facebook.com/safety/groups/law/guidelines last visited July 27, 2012
[17] www.facebook.com/records
[18] www.facebook.com/settings last visited July 29, 2012
[19] www.facebook.com/recall.youngblood
[20] www.facebook.com/KGET17News/posts/10150699123391314 last visited July 29, 2012
[21] www.facebook.com/bakersfieldnow/posts/10150780669679935 last visited July 29, 2012
[22] http://www.facebook.com/pages/Justice-for-daniel-ace-hiler-chrystal-clevenger/198352956923019?sk=info last visited July 29, 2012
[23] www.kernsheriff.com/misc/inmatesearch/Pages/default.aspx
[24] www.co.kern.ca.us/courts/crimcal/crim_index_def.asp
[25] www.facebook.com/profile.php?id=100003687996238
[26] www.facebook.com/records
[27] Government Code §26500
[28] Penal Code §1530