Social Media & Criminal Proceedings: What Is Evidence?

Today’s technology can be both a blessing and a curse. Most Americans use social media to some extent, but many are unaware that nothing they post is ever entirely private. While information may be hidden from their family and friends, in certain circumstances it can be accessed by authorities. People should generally practice a modicum of discretion in their social media postings, but if you are involved in the legal system, your information may be able to be used against you, depending on your location.

The Stored Communications Act & Government Action

It is not a new phenomenon to have the United States government mining social media for relevant data when it becomes necessary. While current law allows social media companies to turn over what is referred to as “non-content” information without a warrant (such as log files and information on an e-mail’s recipient), the Stored Communications Act (SCA), passed in 1986, grants the same level of protection of privacy under the Fourth Amendment to e-mails and other electronic communications and information as other communications enjoy. In other words, it raises the burden that a person or entity must meet before being able to view private communications.

Governmental entities (which includes prosecutors’ offices) may obtain non-content information without a warrant, requiring only a subpoena or court order. To obtain more sensitive user information, one of two procedures must be followed, depending how long the information in question has been in the storage of the service provider. If the information has been created and stored for 180 days or less, they must file a warrant. If the relevant information has been stored for longer, there are three options by which it may be potentially obtained:

  • Obtain a warrant in the usual fashion of criminal discovery;
  • File an administrative subpoena; or
  • Obtain a court order under section (d) of the SCA.

Generally, the privacy of electronic communications would be somewhat in doubt – numerous courts have held that internet service providers are analogous to telephone companies or post offices, and as such, e-mails should have the same protection as telephone records or mail, but no law has been codified to say so as of this writing. This is important because if a criminal defendant has a reasonable expectation of privacy in their social media accounts, they may not be implicated by them by virtue of the Fourth Amendment protection against unlawful searches and seizure.

Defense Counsel & Social Media

Given all the tools at the government (and prosecutor)’s disposal, defense counsel is very often at a disadvantage in terms of how to obtain evidence via social media. Professional ethics prohibit co-opting those with access to relevant social media accounts, as well as creating a fake persona to “friend” the account on one’s own. Also, third-party subpoenas are much more difficult to get, as private entities such as Facebook have more leeway to deny them if they do not come from the government. In certain instances, however, defense attorneys have managed to get social media evidence admitted into the record through ingenious or informal means, such as simply asking a witness for their relevant information. The only caveat in such instances is that admissibility is a concern – the easy fabrication of social media posts can lead to evidence being invalidated if the chain of custody is not airtight.

In addition to the federal regulations covering this topic, some states have rules on social media privacy that can cover use in criminal proceedings. Texas does not have laws of this nature; cybercrime laws exist, but as of this writing, no state-specific social media privacy laws exist.

Contact An Experienced Allen Criminal Defense Attorney

If you have been charged with a crime in Collin County or the surrounding area, you need an attorney who understands the law and your rights. The skilled Collin County criminal defense lawyers at Rosenthal Kalabus & Therrian will fight hard for your day in court, and ensure that your rights are respected. Contact our Collin County DWI lawyers via our website or by calling (972) 369-0577 to set up an appointment.


Written by: Rosenthal Kalabus & Therrian Last Updated : August 14, 2023