A Number’s Game
When I first made a profile on Facebook almost 10 years ago as a teenager, I quickly became obsessed with building my account. I filed out nearly the entirety of my “About” section, I added some photos, and I posted the occasional update on my profile page. However, all of these actions quickly became secondary to my primary goal, an aim which nearly all new users to a social media platform have: gaining as many friends/followers as possible.
In middle school, the length of one’s Facebook friends list was proportional to their popularity, so I, like many others, sent friend requests to everybody that I knew well, anybody who I knew about, and everyone that I could plausibly claim to have known. I quickly grew out of that habit, and have since unfriended many of the accounts who I have very little to no connection to, but to this day there are still many people who I am connected with on Facebook who I only know tangentially.
Many people probably don’t think twice about seeing a person who they only remotely know pop up on their account’s newsfeed. However, a recent story from the news, a story that has hardly received publicity, should make such people reconsider their outlook on both their friends lists and the ease with which they may be carelessly adding to it.
Terrance Everett’s Facebook Fiasco
In the early morning hours of November 4, 2015, Terrance Everett posted a photo to his Facebook account with the caption “just getting in for the night, how I sleep every night.” The picture contained a nightstand with his car keys, a lot of cash, two cell phones, a photo of Everett, and an item that he would soon regret showcasing: a handgun.
Within hours, local police executed a daytime search warrant of Everett’s home to collect DNA samples and the weapon. While it was legal for people to own handguns where Everett lived, it was not legal for Everett to be in possession of one as a result of his being on federal probation for numerous violent felony convections that he had received previously.
Within months, Everett was arrested, indicted by a grand jury, and sentenced to 15 years of high level imprisonment and six months of probation.
Unreasonable Search Or Unreasonable Expectation?
While arguing his case in appellate courts, Everett and his attorney decided not to focus on denying the events that took place. After all, making such an argument would be virtually impossible due to the online evidence. During his original trial, the Facebook photo was proven to be linked to Everett’s account, the handgun was found in his home, and the clothing that he was wearing in the picture that was on his nightstand was recovered by police during their search.
Instead of denying the obviously incriminating evidence, Everett’s lawyer focused on instead denying its admissibility in court. In what is known as the Fruit of the Poisonous Tree doctrine, evidence can not be admissible in court if it originated from other pieces of evidence that were illegally obtained.
So if all of the most incriminating evidence in Everett’s case was part of the fruit, what was the tree, and, more importantly, why was Everett claiming that it was poisonous?
As stated above, the police obtained the strongest evidence against Everett due to the search warrant that they carried out on November 4, 2015. For those who understand police investigations (or even those who merely watch them on television shows), all of this is standard procedure. However, the situation becomes legally complicated, and according to Everett’s defense team legally impermissible, when one analyzes how the cops obtained the search warrant in the first place. After all, the law requires that cops convince a judge that there is probable cause worthy of justifying the issuing of a warrant before they can legally search somebody’s property.
In his application for the warrant, the officer involved in Everett’s case, Detective Landis, wrote, among other matters, that he observed the incriminating photo of Everett “while browsing Facebook” and, given that he “was aware that Everett was a person prohibited from possessing deadly weapons,” he believed that a search warrant was justified.
The problem with this justification, as Everett’s lawyer attempted to argue, is that anybody who was merely “browsing Facebook” would not have had access to Everett’s photos, since his privacy settings were adjusted in a way that blocked access to parties that were not affiliated with Everett’s account (i.e., individuals who were not friends with him on the social media platform). Thus, they believe that Everett had a legitimate expectation of privacy when posting the photo to his account. According to court transcripts, there appears to have been some confusion related to the true extent of Everett’s privacy settings and the timing of when they were put in place, however Everett’s attorney argued that no evidence of his client’s settings being “anything other than private” was ever presented during the trial.
Nevertheless, Detective Landis was not just an average browser. Landis had in fact been tracking Everett’s account and monitoring his page “between one to three times per week for at least two years,” beginning in 2012/2013. To make matters even more interesting, even if Everett’s settings had in fact been set to the maximum level of privacy for friends only, that still would not have stopped Landis’ monitoring and detection of the incriminating photo, since Everett accepted a friend request made by Detective Landis in the process of his monitoring.
The legal complication arises from the fact that the profile that Landis received a friend request from was not a personal account made by Landis but rather a fake account made by Landis for the alleged purpose of accessing Everett’s more closely concealed content.
The Ultimate Decision
Writing the decision for the Supreme Court of Delaware (SCD) this past Tuesday, Justice Valihura summarized the legal question involved in Everett’s case in the following manner: “Everett’s claim is somewhat convoluted, but his central argument is that Detective Landis’s monitoring of his Facebook page constituted an unlawful, warrantless ‘search’ and, thus, any information seized pursuant to it must be suppressed as the fruit of the poisonous tree in violation of the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution.” The justice further characterized Everett’s contention as “a claim that Detective Landis’ Facebook monitoring violated his constitutional rights and that, without that tainted information, the search warrant affidavit did not establish probable cause.”
Despite the arguments put forward by Everett’s lawyer, the SCD concluded that Landis’ social media monitoring was not a violation of Everett’s Fourth Amendment rights even though he created a fake account and friended him in the process of carrying out his undercover work. Justice Valihura wrote that the use of the fictitious profile did not override the voluntary acts that Everett engaged when he first accepted the friend request from Landis’ fake profile and then posted the incriminating evidence for all of his friends to see. She wrote the following on this matter:
“We reject Everett’s contentions because Everett did not have a reasonable expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake profile and other “friends” would not be disclosed. We observe that Detective Landis did not request or access the Photo directly from Facebook, the third-party service provider— a scenario that we need not address here. Rather, Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.”
In short, while the Fourth Amendment prohibits unreasonable searches and seizures when there are expectations of privacy involved, no such legitimate expectation exists in situations where social media users are sharing information to those on their friends lists.
Given this decision by the SCD, fake news isn’t the only form of deception that can lead to problems for users (especially those who post incriminating content) on social media’s largest platforms.