Farrell Miller, St. John’s University School of Law Class of 2012, is the author of the fifth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. He writes on why Facebook users are not entitled to constitutional privacy protections…

The battle between Facebook’s business objectives and the public’s apprehension over lost privacy is ubiquitous. Facebook rolls out an innovative way to sell users’ information and the public tenders its riposte. However, with our focus on this advance and retreat narrative, we must question whether we have lost sight of another important consideration: to what extent does increased Facebook privacy unwittingly protect criminals?

Among the users to benefit from Facebook privacy was 33-year-old serial sex offender Peter Chapman. In 2009, he “friended” 17-year-old Ashleigh Hall on Facebook using a false account that featured a profile picture of a handsome shirtless teen. Chapman messaged Hall and convinced her to meet up. When Chapman arrived to pick her up, he pretended that he was the father of the boy she had corresponded with. Once inside the car, Chapman strangled, raped and murdered Hall. Afterwards, he dumped her naked body in a nearby farmer’s field.

While it is impossible to know with certainty, had officials been able to access Facebook information without jumping through legal hoops, Ashleigh Hall might still be alive. Facebook has facilitated — albeit unwittingly — sexual harassment, pedophilia, cyber-bullying and murder, among many other crimes, in cases like Hall’s and others. Unquestionably, law enforcement officials have a legitimate interest in greater access to Facebook user information in order to save potential victims, stop ongoing criminal activity and to solve and prosecute past crimes. However, the leading interpretation of Fourth Amendment privacy law unduly restrains law enforcement officials and leaves the public unprotected from online predators. Currently, if officials need to obtain restricted Facebook information, they must first obtain permission in the form of a warrant.

The Supreme Court has held that government action amounts to a Fourth Amendment search if the subject of the alleged search had an objectively reasonable expectation of privacy. Because Facebook users do not have a reasonable expectation of privacy in information published to the site due to the site’s overwhelmingly public and social nature, Fourth Amendment privacy rights should not be implicated when officials utilize Facebook information to thwart a crime.

In analyzing whether there is a reasonable expectation of privacy, the Court has focused on three main factors: (1) the nature of the place allegedly searched; (2) steps taken to keep the place private; and (3) the amount of intrusion experienced.

Facebook should not be considered a “private place.” In Oregon, police did a warrantless thermal scan of a defendant’s home to determine if there was an illegal marijuana-growing operation inside. The Supreme Court held in Kyllo v. US that the warrantless scan was a Fourth Amendment search requiring a warrant because it enabled officers to detect what was within the home.

On the other hand, the Supreme Court has afforded much less protection to places not within the home. In the case arising out of Kentucky, Oliver v. US, the government trespassed on a resident’s field to view a marijuana crop that was otherwise out of sight. The Court held that this action was not a search in part because the open field was so dissimilar to the home. Unlike a home, an open field is neither an “enclave” nor a “setting for those intimate activities that the [Fourth] Amendment is intended to shelter.”

Facebook is less like the Oregon resident’s home and more like the open field in Kentucky. First, Facebook is unlike a home due to its size alone — the site has half a billion members. Second, on Facebook privacy norms that one would employ in the home are suspended or ignored. Indeed, the indiscriminant friending phenomenon, which is prevalent on Facebook, has no analogue in the home where entrance is usually strictly proscribed to unknown individuals. Finally, Facebook is a place for sharing; there is an inherent assumption that users intend to publicize their information. Moreover, while users include each other by sharing media, the home’s main purpose is to exclude (e.g., inclement weather, intruders, and animals).

Furthermore, steps taken to keep a place private are not always enough to garner constitutional protection. In another California case, US v. Ciraolo, an industrious marijuana gardener built two opaque fences to shield his plants from the intruding eye. Police officers requisitioned an airplane and flew over the property in order to take pictures of the grow operation. According to the Supreme Court, because the marijuana could be viewed “publicly” — from navigable airspace — the landowner had no expectation of privacy, and accordingly no Fourth Amendment search had occurred. Like the California landowner, Facebook users may erect barriers to viewing, but they are still showing their information to some portion of the public, even if it is just their “friends.”

Even assuming a restricted network, online content is subject to false friends. In 2010, using the military’s secure SIPRnet, Pfc. Bradley Manning turned over 260,000 classified State Department cables to the website WikiLeaks. If the most sophisticated military in the world is unable to keep its users from sharing classified cables, why should Facebook users be entitled to an expectation of privacy? Indeed, there are entire websites, independent of Facebook, where users retransmit funny or embarrassing Facebook posts. Moreover, Facebook’s privacy policy explicitly countenances this type of action in stating: “you understand that information may be re-shared or copied by other users.”

Because Facebook is an inherently public medium, government action in that realm is not overly intrusive. In one recent Supreme Court case, a government employee, using his employer-issued pager for personal messages, surpassed the allotted text messages, prompting the employer to perform an audit. The Supreme Court noted that the audit was not overly intrusive because the defendant could have easily opted for a more private way to communicate. Similarly, Facebook users have many other options of communicating over the Internet; however, they affirmatively choose to use a service that is much less private than email for instance.

The scene is not hard to imagine: tweens from across the country posting status updates from the steps of the Supreme Court: “Keep your hands of my Facebook!” However, we must be vigilant less an important part of the Facebook narrative — privacy measures unwittingly aiding criminals — will remain completely hidden.

Farrell Miller is a senior staff member of the Journal of Civil Rights and Economic Development. He has previously interned with the Federal Public Defender for the Western District of Washington, at Fasulo Shalley & Di Maggio in federal criminal defense and at the Kings County District Attorney’s Office.

Suggested citation: Farrell Miller, Exhibitionists Demanding Privacy: Facebook and the Constitution, JURIST – Dateline, September 26, 2011, http://jurist.org/dateline/2011/08/farrell-miller-facebook-privacy.php.