Can your Facebook profile be used against you in a court of law?
Ah Facebook, Zuckerburg's pet project that serves to unite 1/10 th of the entire planet virtually through simple (though effective) digital posts. And posting on Facebook is safe enough right? Some people have even described it as therapeutic. So what's the danger in posting to Facebook? Well, if you ever get dragged into a courtroom, you'll quickly find that your Facebook profile becomes your worst enemy.
Let's take the case of Kathleen Romano. Her case is just one example of the hundreds of personal injury cases that have been ruined by nonchalant Facebook posting. While Kathleen sat down and worked at her desk at the Stony Brook Medical Center, her office chair suddenly collapsed. As a result Kathleen sued the chair manufacturer, Steelcase, claiming that the defective chair had led to crippling back injury, confinement to her home, loss of income and depression. Steelcase's lawyers, being smart, took to social media digging up fairly recent photography of Kathleen smiling in front of her home and generally being an active person. In response, the court demanded that Kathleen turn over more privately held photos and posts on her Facebook profile. As of early 2015, Kathleen's case is still stuck in litigation.
In the case of a wrongful death suit in Virginia, the defendant and his lawyer were fined a combined $722,000 after trying to surreptitiously deceive the court. After a freight truck tipped over and landed on his wife, the plaintiff (the widower) sued both the driver of the truck and the trucking company over emotional trauma due to the loss of his spouse. However, when lawyers for the defense asked for Facebook records from the widower, the widower declined. Instead the widower and his lawyer proceeded to delete the widower's profile and everything on it. (Apparently, the widower had a recent picture on his Facebook timeline where he was wearing a shirt that says "We love hot moms.")
Precedents: Legal Status of Facebook Privacy Settings
To better understand how and when your Facebook data can help or destroy you in a courtroom, we must understand the relationship between Facebook and your data (the data you put on Facebook itself). Luckily, the answers to these questions can easily be found in the terms of service agreement that all Facebook users agree to (yet never read), when they first create an account.
According to to Facebook's terms of service, Facebook members definitely own the IP (Intellectual Property) that is uploaded to the social network. However, this "ownership" comes with a few strings attached. First of all, if you agree to Facebook's terms and conditions, no matter what privacy settings you have, Facebook has a right to use the data for marketing and advertising (as long as the data is still on Facebook). In fact the only way to prevent Facebook from using your data for marketing and advertising is to delete you account (take data off Facebook). However, what about all those pictures you shared with your buddy before your account Surely those photos can't be used by Facebook. Wrong again. Assuming your friend is still active on Facebook, those shared photos are on that person's timeline and hence still on Facebook.
Well then what's the use of having privacy settings? Here is the difference between deleting your account (profile information) and changing you privacy settings on Facebook. Without deleting you account (small exception being the content you share with friends before doing so), Facebook can use your info for marketing and advertising. Without the correct privacy settings however, Facebook can basically do anything with your data. Zuckerburg could print hundreds of photos of you, cover his house in them and the burn down said house.
How concerned are you about privacy when using social media?See results without voting
Facebook Terms and Conditions in Action
So let's see an example of Facebook's service policy in action. Just last year, a U.S. Federal Court made a landmark decision on what could be classified as private on a person's Facebook profile. The case involved an alleged gang ringleader, Melvin Colon, who made regular threats to Facebook friends in order to incite violence and cement loyalty among his fellow gang-members. The prosecution, needing access to Melvin's private Facebook posts, enlisted the help of his Facebook friends; most of whom had access to all his posts, a few of which the Facebook threats were directed towards.
Yet Melvin's messages to other Facebook friends are technically private messages right? How can they be admissible in court without any objection? Well the Federal Court got around this little argument by stating the following:
"Colon's legitimate expectation of privacy ended when he disseminated posts to his "friends" because these "friends" were free to use the information however they wanted -- including sharing it with the government."
The judge in the case would later go to compare the situation to warrantless wiretapping of a phone call (where police the participation of someone is "in" on the call itself.)
***Major Update: Facebook & The Supreme Court***
Back around the beginning of June 1, 2015; the Supreme Court made a landmark decision regarding the legal status of Facebook posts, their admissibility in court and their ability to bring about a conviction. It all started with a family man named Anthony Douglas Elonis who used Facebook the psuedonym "Tone Dougie." With this Facebook account, Tone Dougie posted self-created rap lyrics describing violent and graphic involving this spouse, his co-workers, local school children, local police and law enforcement.
Elonis' employer, being extremely concerned by his social media postings, contacted the Federal Bureau of Investigations (FBI). FBI agents acknowledging the Elonis may pose a very serious risk began to monitor his activities.
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