Facebook, Crime Prevention, and the Scope of the Private Search Post-carpenter

• Publication year: 2022

Facebook, Crime Prevention, and the Scope of the Private Search Post-Carpenter

Connor M. Correll
University of Georgia School of Law

Facebook, Crime Prevention, and the Scope of the Private Search Post-Carpenter

Cover Page Footnote
J.D. Candidate, 2022, University of Georgia School of Law; B.S., 2018, Wingate University. The author thanks Professor Thomas E. Kadri for his advice regarding this Note and Kassidy Correll for her love and constant support.

FACEBOOK, CRIME PREVENTION, AND THE SCOPE OF THE PRIVATE SEARCH DOCTRINE POST-CARPENTER

Connor M. Correll^*

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The Fourth Amendment of the U.S. Constitution protects people "against unreasonable searches and seizures." The private search doctrine provides a notable exception to the Fourth Amendment, providing that the government may reconstruct a search previously performed by a private party without first obtaining a warrant. The U.S. Supreme Court developed the private search doctrine prior to the advent of the internet; however, modern technology has changed the way that individuals live. What was once done entirely in private is now done alongside ever-present third parties, such as cell phones and virtual assistants.

Facebook and other social media sites complicate Fourth Amendment jurisprudence even further. Facebook collects a vast amount of information from its users, which total over 300 million in the United States alone, in order to run its platform. While some of this information, such as content posted on a user's timeline and lists of pages a user "likes," is available to other Facebook users, other information, such as cookies, network and device information, and GPS location, is available only to Facebook.

What happens if Facebook voluntarily discloses user information to law enforcement, either to help solve a crime or to prevent possible commission of a crime, without law enforcement first seeking to legally obtain that information? Two recent U.S. Supreme Court cases, United States v. Jones and Carpenter v. United States, provide the Court with a pathway to protecting this information under the Fourth

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Amendment. In Jones, a "shadow-majority" of the Court concluded that individuals maintain a reasonable expectation of privacy in the aggregated sum of their public movements revealed by GPS monitoring and are therefore afforded Fourth Amendment protection. The Court in Carpenter cemented this reasoning by holding that individuals maintain a reasonable expectation of privacy in years of location information compiled by wireless carriers and that wireless carries violate the Fourth Amendment when they provide that information to the government absent a warrant.

This Note argues that, based on the reasoning of Carpenter and Jones, individuals maintain a reasonable expectation of privacy in social media information that is not otherwise viewable by other users and that this information should therefore be afforded Fourth Amendment protection.

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Table of Contents

I. Introduction....................................................................790

II. Facebook's Collection of User Data.........................793

III. Background on the Fourth Amendment..................797

A. DEFINING A "SEARCH" UNDER THE FOURTH AMENDMENT............................................................797
B. THE PRIVATE SEARCH DOCTRINE..............................798
C. THE UNCERTAINTY OF THE STORED COMMUNICATIONS ACT..........................................................................800
D. THE INFLUENCE OF TECHNOLOGY ON THE FOURTH AMENDMENT AND THE PRIVATE SEARCH DOCTRINE.. 802

IV. Excluding the Private Search Doctrine from Facebook Data...............................................................806

A. REASONABLE EXPECTATION OF PRIVACY IN FACEBOOK DATA........................................................................807
B. EXCLUDING THE PRIVATE SEARCH DOCTRINE FROM THE COLLECTION OF FACEBOOK DATA.....................810
C. DRAWING THE LINE: WHAT INFORMATION MAY LAW ENFORCEMENT REVIEW WITHOUT FIRST OBTAINING A WARRANT?................................................................812

V. Answering Potential Criticism...................................814

VI. Conclusion....................................................................817

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I. Introduction

Since becoming available in 2004, Facebook has come to hold an important, almost indispensable place in the lives of millions of people in the United States.¹ Facebook has fundamentally changed the ways that we communicate: what used to be done by letter, email, or even face-to-face conversation is now often done by posting to a "friend's" timeline or sending them a private message through Facebook Messenger.² Accompanying this communication revolution is a seismic shift in technology that has made it easier for Facebook to monitor its 302 million users in the United States.³ Facebook collects a vast amount of information from its users—ranging from posts, messages, and basic information provided when users create their accounts, to network and device information, cookie data, and recent activity—to provide a better experience across its platforms.⁴ While some of the information that Facebook collects is available to other users, such as content posted on timelines and lists of pages "liked" by users, many types of information are not available to other Facebook users.⁵ The information available to users includes content such as recently read articles, active sessions, and pages and user profiles recently viewed, among other forms of information.⁶

Facebook also provides some of the user information that it collects to law enforcement.⁷ Some policies are intended to protect

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those at risk of self-harm: Facebook's current suicide prevention policy allows users to report posts that may indicate that a user is contemplating self-harm; trained members of Facebook's Community Operations team then review these reported posts and can connect the users to mental health resources.⁸ In addition to receiving reports from users, Facebook uses artificial intelligence to provide help to those users who need it.⁹ When a Facebook team member or computer algorithm determines that an individual is at imminent risk of self-harm, Facebook contacts first responders and police to conduct a wellness check on that person.¹⁰ Other policies are linked to criminal behavior: while Facebook does not have such a robust reporting procedure for criminal behavior, the site does provide information to law enforcement to "help them respond to emergencies, including those that involve the immediate risk of harm, suicide prevention and the recovery of missing children."¹¹ Facebook may also supply police "with information to help prevent or respond to fraud and other illegal activity, as well as violations of the Facebook Terms."¹²

What happens if Facebook voluntarily discloses user information to law enforcement, either to help solve a crime or to prevent the possible commission of a crime, without law enforcement first seeking to legally obtain that information? While Facebook claims that it is attuned to privacy concerns,¹³ Facebook and other social

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media giants are keenly aware of their ability to keep communities safe and advance social interests by providing law enforcement with certain user information.¹⁴ One need only look to the debate surrounding allegations of social media sites censoring conservative speech on their networks—in particular, over revoking Section 230 of the Communications Decency Act¹⁵ and former President Donald Trump's ban from nearly all major social media platforms¹⁶ —to see a recent example of technology giants wrestling with the idea of what their role in society should be.¹⁷ Thus, there is a need to

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determine what information, if any, a social media company such as Facebook can disclose to law enforcement absent a warrant.

Based on reasoning from recent U.S. Supreme Court cases, this Note argues that individuals maintain a reasonable expectation of privacy in social media information not otherwise viewable by other users and that such information thus ought to be afforded Fourth Amendment protection. This Note starts by exploring Facebook's data collection policies and Fourth Amendment jurisprudence, specifically focusing on how the U.S. Supreme Court has dealt with technology developments. Next, this Note argues that there is a reasonable expectation of privacy in non-public social media information in two parts: First, this Note demonstrates that data collected by Facebook provides a wealth of information that can be used to gain insight into significant parts of an individual's life. Second, because Facebook is such an indispensable part of many users' lives, and because Facebook collects information even when an individual is not using Facebook at a given time, this Note explains that individuals cannot avoid having their information collected and potentially distributed, short of deleting their accounts. This Note then proposes a bright-line rule for when law enforcement should need a warrant to view this information and responds to potential criticism of this approach.

II. Facebook's Collection of User Data

Facebook collects individual information to provide a better experience for its users across its platforms, including Facebook, Messenger, Instagram, WhatsApp, and other products.¹⁸ Facebook collects user information, such as content that is shared with other users and basic information that individuals provide when they sign

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up for an account.¹⁹ This basic information includes data such as locations where pictures were taken and dates that files were created.²⁰ In addition to the information that other users, particularly a user's "friends" or "followers," may view, Facebook collects more obscure information that "friends" and "followers" cannot access. This hidden information includes the types of content that users...