No Expectation of Privacy on the Internet

by M. Elizabeth Williams on Apr.10, 2010, under facebook, internet, privacy, social media

U.S. law enforcement agents are following the rest of the Internet world into popular social-networking services, going undercover with false online profiles to communicate with suspects and gather private information, according to an internal Justice Department document that offers a tantalizing glimpse of issues related to privacy and crime-fighting.

I am a huge privacy advocate, member of the ACLU, civil libertarian, and the sort of person that hates when people (such as commentors below) say “go ahead! I have nothing to hide!” when it comes to the government invading the privacy rights of others.

Having said that, I have no problem with Federal agents looking at information that individuals freely and voluntarily make public. If you post publicly online, you should have no expectation of privacy or protection from prosecution from that information. Publicly posting information online about yourself is like putting a banner up on your front yard with that same information on it — many people would do well to remember that before they post some photos and stories I’ve seen on the internet.

As far as creating “false online profiles to communicate with suspects and gather private information”, as long as that private information is being willingly provided by the suspect, this is essentially undercover law enforcement work, and it is no different than if a plain-clothes police man walked into a bar and a man he was chatting with confessed to murder. In fact, law enforcement has relied on undercover work for as long as law enforcement has existed. Think of it as the detective who infiltrates a gang and works it from the inside. The same basic rights to privacy exist for someone online and off, and you willingly give up incriminating information to someone, you’d better make damn-well sure you know who that person is.

There seems to be this strange misconception that because many people use the internet at home, that information they put on the internet is afforded the same protection as anything else they keep in their home, but it’s not.

Now, the real question would be how far are law enforcement agents going? Are they going to ISPs and websites and demanding non-public information (protected, private journal entries or emails, for example, that are not being shared with the general public or that investigator by the suspect) be provided without a warrant? If so, that’s well beyond their legal rights and an invasion of that person’s privacy — especially if it’s simply because they’ve offended in the past.

For example, I fight to defend the registered sex offender who’s offense was flashing her boobs while drunk (yes, that’s a sex offense and will put you on Megan’s Law registry, ladies) several years prior, yet her probation officer calls up Facebook and gets unfettered access to her *private*, *locked* postings without her knowledge or permission to try and find evidence that she’s violating parole. That’s a GROSS violation of privacy, as that information should only be available to law enforcement with a warrant, the same as anything out of plain sight in your car during a traffic stop or in your house.

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