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Social Media as Evidence in a Criminal Case

Posted by Alan Eisner | Jul 24, 2017

Social Media as Evidence in a Criminal Case
Information obtain from social media frequently becomes relevant in a criminal prosecution as evidence of either guilt or innocence.

Balancing the Rights of the Accused Against the Privacy of Social Media Users

Social media has evolved into a major form of communication in our society. It has revolutionized how we communicate in our personal and professional life by instantly sharing information with family and friends.

Every year, individuals place more and more of their private information onto social media sites such as Facebook and Instagram.

As you might expect, such information frequently becomes relevant in a criminal prosecution as evidence of either guilt or innocence.

Social media evidence includes:

  • photographs,
  • status updates,
  • an individual's location at a specific time, and
  • direct communications to a defendant's social media account.

The relevant evidence might be a conversation between an accuser and an accused, or even photos or video of the alleged crime taking place.

The information available from social media providers can be staggering. When a telephone company responds to a subpoena or search warrant, they typically provide call or text message logs.

In contrast, when a social media company, such as Facebook responds to a subpoena, it will provide the user's profile, post, photos uploaded by the user, photos where the user was tagged, a list of their friends, and a table of login and IP information.

For the government, obtaining such evidence is simple – they can easily obtain a search warrant compelling disclosure of the information from the third party social media companies. For a criminal defendant, however, the story is much different.

Federal Stored Communications Act - 18 U.S.C. § 2701

A criminal defendant seeking disclosure of information stored on the servers of social media sites faces an almost insurmountable barrier, the federal Stored Communications Act (18 U.S.C. § 2701), or SCA.

The SCA establishes guidelines for companies like Facebook and Instagram which prohibit them from “divulging” their user's information to third parties, even in response to a subpoena by a criminal defense attorney.

In fact, in the absence of the user's consent, the only mechanism for obtaining the information is a search warrant from a government entity; and defendants have no ability to compel the prosecution to seek a warrant if they do not wish to do so.

Due Process and Confrontation Clause Challenge

Several challenges to the Stored Communications Act  have been litigated in California and the federal courts.

In Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, several criminal defendants argued that the SCA, as applied to them, was unconstitutional as it denied them the right to due process and to confront the witnesses against them, among other rights.

The SCA, they argued, denies criminal defendants access to potentially crucial exculpatory evidence. The Court of Appeals disagreed, rejecting each of the defendants' constitutional claims.

It explained that there is no general right to pretrial discovery for criminal defendants, and that due process cases governing disclosure of information (such as the well-known Brady line of cases) simply prevent the government from withholding information it already possesses, but do not require the government to assist in obtaining the information in the first place.

The Facebook, Inc. decision is currently under review in the California Supreme Court.

A Ray of Hope: Juror Number One

Another California Court of Appeals decision does give criminal defendants some hope of obtaining social media information from third parties.

In Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854, a juror suspected of misconduct was ordered by the court to grant the consent required under the SCA for disclosure of his Facebook postings. 

The court received information that the juror had been posting about the case under deliberation in violation of the court's orders. 

The juror initially refused to disclose his Facebook postings, citing the SCA's privacy guarantees.

Citing Flagg v. City of Detroit (2008) 252 F.R.D. 346, a civil case involving discovery violations by a municipality, the court reasoned that Juror Number One had “constructive possession” of his social media information – i.e. while Facebook actually possessed the information sought by the court, the juror had the ability via the SCA's consent provision to obtain it at will. 

The court determined that it could order the juror to consent to disclosure of the juror's information by Facebook just as if it was actually in the juror's possession.

The Juror Number One court's approach was novel, and has not been successfully employed in the context of a criminal defendant seeking disclosure of social media information from witnesses or victims. 

However, the reasoning of that decision may someday form the basis for such a challenge. 

In the meantime, the plain language of the SCA – which unambiguously prevents compliance with defense subpoenas – and the Facebook, Inc. decision rejecting the constitutional claims against the Stored Communications Act leave criminal defendants at a distinct disadvantage. 


Unless a criminal defendant succeeds with a challenge based on Juror Number One's consent rationale, or the California Supreme Court overrules the court of appeal in the Facebook case under review, the language of the SCA leaves a defendant's pretrial ability to obtain potentially critical social media information in the sole discretion of the government. 

If the prosecution does not choose to obtain critical social media evidence via search warrant, it is doubtful that a criminal defendant will ever be able to obtain it.

For more information about social media evidence in a criminal case, contact a top-rated Los Angeles criminal defense attorney at Eisner Gorin LLP at 877-781-1570.

About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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