investigation – Attorney Evan Brown

In the same week that news has broken about how Amazon is assisting police departments with facial recognition technology, here is a decision from a Pennsylvania court that held police do not have to turn over details to the public about how they monitor social media accounts in investigations.

The ACLU sought a copy under Pennsylvania’s Right-to-Know Law of the policies and procedures of the Pennsylvania State Police (PSP) for personnel when using social media monitoring software. The PSP produced a redacted copy, and after the ACLU challenged the redaction, the state’s Office of Open Records ordered the full document be provided. The PSP sought review in state court, and that court reversed the Office of Open Records order. The court found that disclosure of the record would be reasonably likely to threaten public safety or a public protection activity.

The court found in particular that disclosure would: (i) allow individuals to know when the PSP can monitor their activities using “open sources” and allow them to conceal their activities; (ii) expose the specific investigative method used; (iii) provide criminals with tactics the PSP uses when conducting undercover investigations; (iv) reveal how the PSP conducts its investigations; and (v) provide insight into how the PSP conducts an investigation and what sources and methods it would use. Additionally, the court credited the PSP’s affidavit which explained that disclosure would jeopardize the PSP’s ability to hire suitable candidates – troopers in particular – because disclosure would reveal the specific information that may be reviewed as part of a background check to determine whether candidates are suitable for employment.

Pennsylvania State Police v. American Civil Liberties Union of Pennsylvania, 2018 WL 2272597 (Commonwealth Court of Pennsylvania, May 18, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012)

The government suspected defendant was involved in illegal gang activity and secured the assistance of a cooperating witness who was a Facebook friend of defendant. Viewing defendant’s profile using the friend’s account, the government gathered evidence of probable cause (discussion of past violence, threats, and gang loyalty maintenance) which it used to swear out a search warrant.

Defendant argued that the means by which the government obtained the probable cause evidence – by viewing content protected by defendant’s Facebook privacy settings – violated defendant’s Fourth Amendment rights. The court denied defendant’s motion to suppress.

It held that where Facebook privacy settings allowed viewership of postings by friends, the Government could access them through a friend/cooperating witness without violating the Fourth Amendment. The court compared the scenario to how a person loses his legitimate expectation of privacy when the government records a phone call with the consent of a cooperating witness who participates in the call. It held that defendant’s legitimate expectation of privacy ended when he disseminated posts to his Facebook friends because those friends were then free to use the information however they wanted, including sharing it with the government.

Photo credit: Flickr user Poster Boy NYC under this Creative Commons license.

Tag: investigation

No Fourth Amendment violation when government looked at Facebook profile using friend’s account