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Can your Facebook profile be used against you in a court of law?

Updated on July 17, 2015

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.

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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?

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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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    • kahlouche profile image

      Freedom of the sea 

      15 months ago from Algiers

      This is a very good article, thanks for taking the time to write it.

    • Shyron E Shenko profile image

      Shyron E Shenko 

      3 years ago from Texas

      Justin, very good information you have given us and it is appreciated. I know a lot of stuff that is going on in my town that is being posted on fb and several law-suits filled in regard to the postings.

      My advice is: If you can prove that it is true and you don't care who gets angry, post it, otherwise think before posting.


    • SmartAndFun profile image


      4 years ago from Texas

      I don't think it is technology that is the problem here -- it is these not-so-bright criminals who use technology, and they are causing their own problems. For whatever reason, some criminals feel entitled. They seem to believe they have some sort of "right" to get away with stealing and defrauding their fellow man. They seem to feel entitled to privacy when they make public statements on popular social media platforms that anyone and everyone has access to. They get caught and whine "that's not fair" when their own very public posting gives them away. Not too smart.

    • kj force profile image


      4 years ago from Florida

      It is such a shame that social media has gotten so out of hand...once you hit post, you are a " Target ".. However.. it's like anything else, if you don't want info out there. don't post it, write it or talk about it...anything today is ALL about the $.

      I fear " technology " will be the demise of Mankind....

      Very well researched and compliments.

    • Justin Muir profile imageAUTHOR

      Justin Muirhead 

      4 years ago from New York

      So true SmartAndFun, unfortunately one of the core motivations for being in a gang are bragging rights. and what better way to brag than post your activity on social media so all your friends can see.

    • SmartAndFun profile image


      4 years ago from Texas

      Yes, of course your FaceBook photos, written posts and other activity can be used against you in a court of law. If you have something to hide, keep it hidden -- do not post it on the worldwide web. Even if FaceBook policy stated that all your activity was private, FaceBook would still have to turn over all your posts to law enforcement if law enforcement went through the proper procedures and asked for it. Law enforcement can also ask the phone company for all your texts and calls, too, and the phone company must turn over all the records if the proper channels have been followed. Law enforcement can also enter your home if they have a proper search warrant.

      I am not a lawyer but my husband is. He is a criminal prosecutor specializing in gang crime. His unit, along with the police gang unit, continually monitor public FaceBook pages of suspected gang members. You wouldn't believe the stuff they post publicly. It is like those stories you read about in the newspaper where a guy holds up a bank but writes the stick-up note on his personalized stationery, complete with his name and address.

      I have a friend whose grandmother was targeted by a gold-digger. When the grandmother passed away, the gold-digger's private messages from FaceBook were used in court to show that he fraudulently tinkered with her will in order to collect her inheritance.

      If you're going to be a criminal, you need to learn to be discreet, leave no paper (or electronic) trail, and stay hidden. People who want to break the law need to think of the consequences before they choose their life of crime. If posting FB pics of themselves working out at the gym is important to them, they need not defraud their insurance company by lying about being an injured invalid.


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