A few short months ago I recall debating a lawyer who passed her bar exam within the previous year. She didn’t know my background and was educating me on intricacies of search warrants and probable cause as it relates to social media and “surveillance.” After her thoughtful and error riddled description, I asked her how many search warrants she wrote, reviewed, or even read in her lengthy career as a family law attorney. Of course her answer was “zero, but…” and she continued. I never told her I had 15+ years of experience in the drafting and execution of search warrants and over a decade of experience in social media. Afterall…who was I to lecture a first-year divorce attorney.

Unfortunately her description of probable cause was not unique to her level of experience. I soon found out that Twitter and Facebook must also be getting legal advice from 1-800-Divorce Law. This was made evident by the pull-back and complete repudiation of law enforcement efforts to track and arrest criminals who were using social media in the commission of their crimes. The legal teams at both of these companies are either blissfully ignorant of the search warrant process, or know what they are asking is nearly impossible, thus overtly frustrating law enforcement.

So, to clear the air on social media surveillance, here are a few things to keep in mind:

  • Search Warrants are based on probable cause…probable cause takes time: There are very few criminal cases online which are seen, assessed, attributed and probable cause found without some form of surveillance (I’m thinking of a Facebook Live shooting or overt Twitter threat). Otherwise, law enforcement will have to surveille the suspect  and build probable cause. For example,  a case of cyber bullying will more than likely require a pattern of behavior be observed before a judge will allow a search warrant.
  • Human Trafficking is not a “one shot, one kill” type of crime. Most of the suspects use multiple social media accounts across many platforms. Until the recent purge, people like me could track them in one place and create awesome reports for prosecution.
  • During a crisis, more people tweet than call 911. Harvesting twitter data has been wildly successful in locating and assisting those in need. Of what use is a search warrant when someone is trapped in a closet during a mass shooting?

At some point we all hope the pendulum will swing back in the direction of common sense on this topic. Until then…I know a “family law” attorney who is an expert at bad information!

 

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