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Social Media in the Courtroom: Evidence, Hacking, and the Issue of Free Speech

July 9, 2014

As social media becomes an increasingly widespread method of communicating with friends and family, conducting business, and sharing news, it also appears more frequently within the context of the law.  For quite some time now, material from social media has been used as evidence in investigations and lawsuits alike.

Evidence gathered from a defendant’s social media accounts can include photographs, status updates, tweets, geographical whereabouts, and even private messages.  The use of social media posts as evidence should come as little surprise; phone calls, emails and text messages have long been included in lawsuits as admissible evidence, and thus, citing incriminating material gathered from social media appears to be the next logical step.  Further, because so much of the information posted to social networks is publicly available, investigators often bypass the need for a subpoena or a search warrant.  Social media sites are often far less “private” than users believe, and the effect of incriminating posts can weigh heavily on the outcome of a lawsuit; for example, an individual seeking compensation for a broken leg will likely lose out when opposing counsel presents recent Facebook photos of the plaintiff dancing or running a marathon.

While the use of social media as evidence is obviously growing in scope and significance, many of the legal issues that arise around these relatively new networking sites are forcing courts to venture into uncharted waters.  For example, a court in Ireland recently fined a man €2,000 for defacing his ex-girlfriend’s Facebook page from within her account, which many view as a form of hacking.  The man had been able to access her account through her phone, and while logged into her account, posted an offensive status update.  In an unprecedented ruling, the Irish court charged him under the country’s Criminal Damage Act 1991, which is typically applied to disputes involving physical property damage.  Similarly, in the United States, the equivalent charge would also be something more closely related to vandalism, rather than cybercrime. The case is emblematic of the widespread uncertainty facing judges when it comes to handling very new types of crime using old laws.

This becomes especially difficult when the question of free speech arises.  In the United States, free speech activists are concerned about heavy government regulation of online sharing, and whether taking these steps will infringe upon people’s rights.  Similarly, enacting US federal laws could potentially open up the sites themselves to liability for what their users are posting, which would also force these companies to confront the free speech issue.

As Facebook posts and tweets are constantly being used as evidence, and user behavior is at the core of unprecedented legal decisions, it becomes obvious that the extensive use of social media among the masses will simultaneously raise free speech questions and expand the need for clearer legal guidelines.