The Criminal Overshare: Ten Ways to Avoid Social Media Pitfalls

 In Criminal, Versus Texas Criminal Law Blog

Social Media has become a pervasive part of our modern society and has an impact on nearly every aspect of daily life.  Whether we are tweeting, instagramming, or updating our status on Facebook, social media use has become second nature.  However, the instantaneous nature of social media often leads to users over-sharing personal information that a person would not have shared in face-to-face interaction.  As a result, social media is becoming a key source of evidence for the government in criminal investigations.

A 2013 survey conducted of approximately 500 law enforcement agencies by the International Association of Chiefs of Police revealed that over eighty-six percent of the agencies used social media when conducting criminal investigations.

You’re Doing It Wrong: Examples of the Criminal Overshare

It is important to be aware that law enforcement is increasingly using social media to gather information on criminal suspects and to build their case.  The following are a few examples of cases where the defendant posted incriminating content on various social media sites that was later used against them in a criminal proceeding:

  • In Wisconsin, police issued tickets to at least eight minors for underage drinking based on photos the minors posted on social media sites. (A)
  • Colleges and universities are increasingly using Facebook to investigate violations of dry campus policies and underage drinking.
  • In Kentucky, a defendant was jailed after he posted a photo on Facebook of himself siphoning gas from a police car. (B)
  • In Washington D.C., a defendant broke into a home and stole a laptop, a coat, and money and then used the victim’s laptop to post a picture of himself to the victim’s Facebook page wearing the stolen coat and holding up the stolen money. The photo was subsequently used to secure a guilty plea.
  • In a Texas case from 2012, a victim of armed robbery identified his assailants through publicly available Facebook photos. The victim found out the names of the robbers and looked up the brothers’ Facebook pages. The victim found pictures one brother posted of himself posing with guns he stole from the victim. The detective was able to locate and arrest the brothers using the information the victim obtained from Facebook. (C)
  • An Illinois woman was arrested after she stole clothing and jewelry from a boutique and posted Facebook photos of herself wearing one of the stolen dresses.  The boutique owner posted about the stolen items on Facebook and people who saw the photos the woman posted turned the information over to the police who were then able to apprehend her. (D)
  • In Hawaii, a man was charged after posting a video titled “Let’s Go Driving, Drinking!” In the video he appeared to be opening and drinking a beer while driving. (E)
  • A 19-year-old girl from Nebraska robbed a bank and then posted a YouTube video bragging about it and the police arrived to arrest her shortly thereafter. (F)
  • On various occasions, prosecutors have used photos of suspects flashing gang signs to prove affiliations.
  • In 2008 in Cincinnati the police made several arrests and dismantled a local street gang after using social media to identify key gang members in a nine-month investigation. During the course of the investigation, the officers discovered that suspects were using social networks to talk about crimes they were plotting, set up drug deals, upload incriminating videos, and brag about offenses. (G)
  • In 2008 in Texas, a man was convicted of a gang-related murder based largely on incriminating statements and photos he posted on his MySpace page. (H)
  • Police were able to track down a robbery suspect after finding his public Facebook page and seeing that he had just “checked-in” at a strip club.  The police proceeded to the strip club, found a car in the parking lot that matched the description of what he was seen leaving the robbery in, waited for him to walk out, and then arrested him.
  • A teenager was taken into custody after committing a drunken hit-and-run and then bragging about it on Facebook.  The police were alerted to the teen’s incriminating post via a private Facebook message from another Facebook user who had seen the post in their newsfeed.
  • A Pennsylvania man was arrested and federally convicted after he posted rap lyrics on his Facebook page that contained references to killing his ex-wife, who had left him and taken their kids.  Two federal courts ruled that the man’s threatening comments on Facebook crossed the line from free speech to criminal activity. (I)
  • In 2013 a Texas teenager was arrested on Terroristic Threat charges for a sarcastic comment he posted on Facebook while arguing over the game League of Legends.  He wrote: “I’m f*cked in the head alright. I think I’ma shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them. LOL. J/K.”  The teen spent five months in prison before an anonymous donor posted his $500,000 bail.

Tim Lentz, a Police Chief from Covington, Louisiana, puts it this way, “People are not the brightest when it comes to what they post, and absolutely cases have been made by their Facebook posts and their Twitter pages.”  The truth is, updating your status, checking-in, or posting pictures on Facebook or other sites has become second nature and is more impulsive than deliberate.  This means that people often don’t pause to consider the repercussions of what they are posting until it is too late.

What social media content can be used as evidence against you?

The following is a non-exhaustive list of information retrieved from social media that can potentially be used as evidence against you:

  • profile pages,
  • likes,
  • check-ins,
  • list of friends,
  • group memberships,
  • messages,
  • tweets,
  • GPS locations,
  • videos,
  • photos,
  • tags, and
  • login timetables.

Generally, you have no reasonable expectation of privacy in information you willingly post on social media sites for the public to see.  Additionally, in criminal proceedings statements that a person makes against their self-interest are generally admissible. Even if your Facebook privacy settings restrict access to your content to friends only, law enforcement can make use of a third party informant who is authorized to access the information or they can create a fictitious profile and send you a friend request in order to gain access to your information.  The government can also view content you post on a friend’s profile if the friend’s page is public, even if yours is private.  Additionally, the government can request your content from the social network directly via subpoenas or warrants.

Ten Tips for Using Social Media Wisely

  1. Remember that the police have used suspects’ status updates on MySpace or Facebook to establish probable cause to search a location or locate individuals.
  2. If you are headed towards a trial, think about what your social media sites say about you.
  3. When you are posting a photo, ask yourself, “Is this something I want a prosecutor or juror to see?”
  4. Do not post threats on social media; such behavior is potentially actionable under the law.
  5. Be careful about the content you send in Facebook messages. Private messages are usually anything but private.
  6. Be careful about what information you include in any kind of digital or wireless communication. Text messages and emails are often treasure troves of evidence. Just because you deleted the incriminating text messages from your phone doesn’t mean the recipient did.
  7. Change your privacy preferences to the most restrictive settings on all of your social media accounts. Although setting the privacy settings for your Facebook account doesn’t completely protect your profile and content from being discoverable, it makes it harder for law enforcement to access the information without taking additional steps such as getting a warrant or subpoena.
  8. If you have a case pending against you, immediately stop posting new information on social media sites.
  9. Don’t friend people you don’t know. People aren’t always who they claim to be, especially online.  Law enforcement officers are increasingly “going undercover” on social networking sites and posing as someone looking to buy drugs or engage in other unlawful activities in order to get information on potential criminal suspects.
  10. Don’t share or post potentially incriminating photos or posts online.

It is important to remember the permanent nature of the Internet and the fact that posts or photos can often be retrieved using digital forensic tools, even after they have been “deleted” from Facebook or other social media platforms. Be aware of the fact that when you post something online, you are often sharing it with the public at large and thus have a diminished expectation of privacy when it comes to shielding it from discovery in a criminal investigation or proceeding. Following the tips above will help you to avoid assisting the government in building its case against you.


Also published on Medium.

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