The days of being protected against disclosure of the things you do in the privacy of your own home are over. But, in part and in most cases, you have no one to blame but yourself.
These days people post personal and otherwise “private” details online, on their social media accounts (like Facebook, Google+, Twitter, etc.) every single day, multiple times per day. Many people feel that because they restrict the people (i.e. ‘friends’) who can see those posts, they are ‘private’. And today, people don’t simply ask their best and most trusted friend the nagging personal questions they have–they ask the world-wide-web by searching on Google.com. Even more concerning for some are the text message and email conversations people have with others. What would otherwise be a verbal discussion by phone or in person is now entirely recorded by text message or email. And with cell phone cameras available to most these days, people take photos of almost everything. Those photos, text messages, emails, posts on social media and searches on Google are ALL potentially admissible evidence — in a criminal or civil court case — and are therefore discoverable (which, in court lingo, means the opposing party or prosecutor can compel the disclosure of this type of information).
Some people believe that deleting their computer’s browser history, destroying the computer entirely or deleting their phone’s text messages will destroy the messages, photos or other information. Those people are completely wrong! Your Google searches are tied to your IP (internet protocol) address which is tied to your network and can identify you, your computer, and your network account owner. Those searches are saved by Google. Your Facebook, Twitter and any other social media posts–even if you delete them–are preserved and can be obtained by subpoena or court order. The same is true for your text messages–these are not only saved on your phone, but even if deleted, they are preserved on massive storage servers by your phone carrier. Even the use of ‘disposable’ cell phones (called ‘burners’ on the street) are problematic because most people carry their phones with them at all times anyway. Once the phone number or account is known, all the communications, calls, text messages associated with that ‘burner’ phone can be located.
These days, it has become more and more common for prosecutors and civil lawyers to request and obtain subpoenas and court orders for social media account and phone data and information. With some exceptions, these requests, no matter how intrusive, are frequently granted. One Oregon woman, the victim in a criminal case, was successful in opposing some of these overly intrusive requests.
If you have been arrested and incriminating information is on your Facebook, Twitter or other social media account, you should contact a criminal attorney immediately. Likewise, if you are the victim of a crime and requests for this information have been made against you, you can and should oppose them. There are ways to oppose or at least limit the scope of these requests, subpoenas or court orders.
Similarly, if you are involved in civil litigation and believe the opposing party may have posted information to their social media accounts, or have text messages, photos, or Google search data that could assist your case, you should let your attorney know. Keep in mind one caveat though–what goes around, comes around. A request for this type of information will almost certainly result in opposing requests for your social media account, texts messages, Google search and phone data. Of course, the requesting party must demonstrate that there is information reasonably likely to lead to admissible evidence, but this standard casts a wide net. Sometimes the best form of communication is to go old school — meet in person or speak by phone.
If you or your business needs advice on the use of social media or the potential for access to text message, Google search data, social media posts and any of the issues discussed in this post, please do not hesitate to contact us at The Jacobs Law, LLC at ContactUs@TheJacobsLaw.com or 800.652.4783.