Socially Legal: How digital footprints can become evidence

ROANOKE, Va. (WDBJ7) - How private is your social media account?
That depends on how you're using it.

Unsealed search warrants here at the Roanoke City circuit courthouse are public record. You'll find warrants for local homes, cars, businesses, phone records and even DNA. But increasingly, local law enforcement is turning to Facebook messages, private tweets, and SnapChats to determine who might be guilty.

"Even though it's private, it is still accessible, most of the time, for law enforcement," said Detective John Musser with the Roanoke County Police Department.

Increasingly that's been the case for modern investigations - relying more heavily social media to reveal evidence.

"There's always a digital footprint out there somewhere," Musser said. "And we have to figure out how to be able to get that information."

He said with increased social media use, people are also using it to commit crimes - or at least talk about them.

"It could be something as simple as photographs somebody posted," he said. "Mostly we're gonna be looking for communication between that suspect and someone else."

In a six month period last year, Facebook received more than 14,000 search warrant requests for user accounts in the U.S, alone.
And 85 percent of those requests yielded some data.

In one recent example that we reported about, Roanoke City Police requested access to a local community leader's Facebook page.
It came while searching his phone after he allegedly texted a lewd photo. But it's still unclear what police were looking for or what they found."

Other local requests seek social data to investigate drug deals, sexual harassment, and murder.

"Social media is just basically an extension of the fourth amendment," said Dr. Tod Burke, a retired Maryland Police Officer now teaching Criminal Justice at Radford University.

He said accessing social media is a new and increasingly reliable tool for officers.

"They're thinking about social media. They're thinking about, what did people post prior to the incident occurring and sometimes during an incident people are posting things that would not normally have happened in the old days of policing," he said.

Law enforcement still needs to prove the need for the data and be specific. Facebook can reject requests that are too vague or broad.

"Probable cause is probable cause whether you're on social media or not on social media," Dr. Burke said.

But as technology changes, courts sometimes struggle to catch up.

"What do they allow to provide the police to be able to get into the phones?" Burke asked of the social media companies. "And that's becoming a complicated issue because you do have a right to privacy, but again how much privacy are you willing to give up to be on social media?"

Musser said law enforcement is not required to tell people their accounts will be surveyed. But Facebook will alert users and give them a chance to legally appeal. That is unless the warrants come with court orders requiring Facebook to keep the search secret.

Between July and December of 2016, Facebook reports more than half of the data requests received from agencies came with a court order demanding secrecy.

Dr. Burke said some gray areas still exists regarding what law enforcement expects to find in a search and what they may stumble upon. Prosecuting can become tricky if an officer finds the incriminating information they didn't outline in an original warrant. Dr. Burke said it's something that is still under debate.