If you have been accused of a crime and have a case pending, you might be wondering if your social media accounts and photos can be used against you. They can, in certain circumstances. Knowing what law enforcement can and cannot use against you can help inform you on what to review and whether to keep your social media accounts up at all. Whether your private accounts require a warrant to observe could mean the difference between evidence adverse to your case or such evidence not being allowed into consideration.

Hogan Eickhoff Attorney Help Determine If Social Media Can Be Used In Criminal Case

An attorney can help educate you on the laws and regulations that are followed in your state to ensure that by exercising your freedom of expression through social media, you are not also giving law enforcement evidence to use against you.

The Stored Communications Act Covers Electronic Communications

The Stored Communications Act (SCA) has established both protections for your electronic communications and paths to access for law enforcement. Is your social media an electronic communication? While the SCA was established in 1986, long before Facebook, it does establish definitions under which your social media will fall. The SCA defines an electronic service provider (ECS) as any service that provides the user to send or receive wire or electronic communications. While a tweet might not sound entirely like the definition, it is nonetheless under the definition.

Recognizing that your social media is not entirely private is important and could impact your case.

Congress Has Passed Laws to Allow for the Sharing of Your Information

While you might think that the contents of your social media accounts, if they’ve been marked private, can only be viewed by those parties you so desire, think again. In a recent study published in Duke Law & Technology Review, titled “Reasonable Expectations of Privacy Settings: Social Media and the Stored Communications Act,” the true limits of your privacy are explored. Through the Stored Communications Act, the SCA, Congress established additional protections to private communications that are stored by third parties, however, the protections are not absolute. It was written in 1986, and as you can imagine, it did not envision the technology that is in place today and naturally did not mention social media.

Your Social Media Accounts Can be Accessed by Law Enforcement

While the SCA was established to protect your personal information that is facilitated by third-party technology providers, as reported by Science Direct, it also outlined a process through which law enforcement can force the disclosure of these records by the provider. Through the SCA, information was classified into categories, with the various categories having different levels of protection and varying methods through which law enforcement might try and access your information.

If you are being tried for a crime and your social media is being used against you, the use of an experienced attorney can mean the difference between the evidence being admitted against you or kept out of court. The use of third-party communications as evidence is allowed in certain circumstances, but specific processes and rules must be adhered to in the collection of evidence, and a lawyer knows how to determine what was collected in line with the rules and what was not.

The More Private Your Information, the Greater the Standard of Proof

If law enforcement is trying to access your social media content to use as evidence, the level of privacy of the information will determine the legal method the police must use. Whether a subpoena, court order, or search warrant is required will depend upon the level of privacy that the information is thought to possess. Your privacy is protected by the Constitution, and often, the burden of proof on behalf of law enforcement to require disclosure of such information will increase as the level of privacy rises.

You have a Constitutional right to your privacy, and as information is more private, the burden of proof on law enforcement rises to gain access. A well-informed attorney can determine whether the methods used are correct.

An Attorney Can Help You Keep Your Social Media Safe

If you have a criminal charge pending, the potential of your social media being used against you is something to address, and an attorney can help. Consulting with an attorney who understands the importance of social media as evidence will keep you ahead of the curve. Reach out to a local attorney today and ask how they can help keep your social media out of your case.

The following Frequently Asked Questions concerning social media content being used as evidence will help you ask the right questions when you speak with an attorney.


Can the police access my private accounts without my permission?

The police can at times access your private accounts without your permission, but they must follow certain procedures when doing so.

If I have incriminating photos up online, can they be used against me in court?

If your accounts are public and you have incriminating photos that law enforcement can access, they could potentially be used against you as evidence.

Do I have a right to privacy in my online communications?

Americans have a right to privacy under the Constitution, and law enforcement must show sufficient cause to compel disclosure of your private information.

If my Social Media Provider Shares my Information, can I protest?

Whether or not third-party electronic communications providers are allowed to give private information to law enforcement without the user’s authorization is a central consideration of the Stored Communications Act, and the best answer is that it depends on the circumstances. An experienced attorney can advise you as to how the law applies to your specific facts and circumstances.

Call Us Today to Speak with an Appleton Criminal Defense Lawyer

If you have been accused of a crime, it’s in your best interest to contact a lawyer as soon as you can. To schedule a free case evaluation with a member of our team, call Hogan Eickhoff today at (920) 450-9800 or contact us online.