Social Media and Criminal Law

Social networking websites provide a variety of ways for users to interact with each other, such as through email and instant messaging services. They have also encouraged new ways in which to communicate and share information, such as through:

• Facebook;
• Instagram;
• LinkedIn; and
• Twitter.

The popularity of social networking sites grew rapidly, as they help people stay in touch. They also help small business owners to connect with other businesses and clients, and they give people the chance to network with people whom they would not be able to meet otherwise. However, the growing popularity and mainstream use of these websites has also been accompanied by the rise of cyber crime.

Cyber crime refers to crimes committed by using computers and the internet. Also referred to as computer-oriented crime, it generally involves a computer and a network, but cyber crimes can also be committed using other devices, such as tablets and cell phones. The computer or device could either be used in the commission of the crime, or it may be the target.

Such offenses can include many different specific actions, but generally involve the theft of personal information, bank account information, and online assets. Cyber crime can be difficult to detect because of rapid technological advancements. Because of this, no one is immune from being a victim of cyber crimes. Targets of cyber crimes most commonly include, but are not limited to:

• Individuals;
• Companies;
• Organizations;
• Banks;
• Schools;
• Governments; and
• Other entities, such as hospitals.

Because social network websites receive a considerable amount of private information, there have been many concerns regarding crime and privacy. Some examples of crimes committed through these websites include:

• Identity theft, or taking the personal or financial information of someone else;
• Scams and fraud schemes involving fake profiles;
• Cyber bullying which results in emotional distress;
• Cyber stalking;
• Cyber confessions in which criminals boast about their crimes on social networking websites;
• Cyber threats, including threats of violence;
• Website hacking; and/or
• Breaking privacy and copyright laws.

How Do Social Media And Criminal Law Interact With Each Other?

Many lawyers, as well as judges, have started using information from social network websites for use as evidence in a trial. While this is considerably controversial, the general consensus is that such information can be used as evidence in court, sometimes without first obtaining the person’s approval.

If a defendant is claiming a specific defense, information obtained from a social network website which contradicts this defense can be used against the defendant. An example of this would be how employers frequently use information from social network websites against its employees in workplace dispute lawsuits.

The role of social media in criminal law is rapidly expanding and changing. Social media platforms such as Twitter and Facebook are changing how people communicate and express themselves, and these results are deep and far-reaching.

This eventually has effects for criminals and suspected criminals. When judges in criminal trials determine which pieces of evidence to accept, they have traditionally assessed factors such as authenticity, reliability, prejudice, and relevancy. However, these concepts are not always easily applied to content generated by social media platforms:

• Authenticity: Verification of identity can be difficult on social media sites. Sites can be accessed by people other than the user whose profile is shown, which could raise doubt regarding the identity of the social media poster;
• Reliability: Because photographs and videos can be doctored, and written posts can be edited and backdated, it can be difficult for judges to determine the reliability of social media posts. However, law enforcement officers can sometimes obtain this information through surveillance or interaction with the social media site that hosts the profile;
• Relevancy: Users often post playful images of themselves that are intended as jokes. However, these actions are in danger of being used as evidence of character defects and flaws. Judges must determine the relevancy of every piece of social media evidence before admitting it to trial, which means weighing the value of the evidence to the case against the potential harm that it could do to the person’s reputation; and
• Prejudice: Judges must also determine if evidence taken from social media posts is significant enough to the case to cause biases associated with the emotional reaction of the jurors. Instructions to the jurors to limit their reactions can be provided, but these are not necessarily always followed or effective.

How Can Social Media Result In A Criminal Charge?

There are several different kinds of criminal charges that can arise from social media posts, but many of these are sexual in nature. Unwanted social media posts depicting heavily sexualized content can result in investigations of:

• Sexual harassment;
• Indecency;
• Exposure; and
• Creation and/or distribution of child pornography. Revenge porn sites can be grounds for criminal charges when malicious or criminal intent can be proven.

Other kinds of violent threats can be construed as evidence if the events mentioned later actualized. Photos, tags, and videos of any kind can place people at crime scenes during the time of the crime, or implicate their involvement in a crime. Photos or videos of incriminating items may sometimes be used as evidence in court. This includes:

• Drugs;
• Illegal contraband;
• Money used in crimes; and
• Weapons.

Romance scams are often accomplished through the use of social media websites, in which the scammer pretends that they are romantically interested in their victim. Once they develop a relationship with the person, they might request their personal information which is then used to accomplish identity theft, online purchases, and other activity.

Military romance scams are a specific type of romance scam in which the scammer poses as active or military personnel. They then make connections with a victim, who is led to believe that the person is serving the country as a service person. After gaining their trust, the scammer may tell stories that they are on deployment and need money or goods sent to them; in this way, they steal money and information from the victim.

This type of scam can involve other legal issues as well. An example of this would be how it is also a federal crime to pose as a military person when not truly serving in the armed forces.

Are There Any Defenses For Social Media Criminal Charges?

Depending on which state you live in, there are various defenses against criminal charges associated with social media content.

One would be to examine and analyze the terms of service in the user agreement of the social media site that hosted the allegedly criminal content. One particularly famous case involved a parent who set up a fake social media account, and pretended to be a person who had a crush on one of their child’s peers in order to harass them. The online harassment escalated until the targeted child hanged themselves. The parent was initially found guilty, but the verdict was later overturned because of discrepancies of use in the terms of service agreement.

Another possible defense would be coercion, such as if the person is forced to post certain materials on social media under the threat of harm. An example of this would be when a person is threatened with physical harm if they do not post a gang-related picture to their social media account. Here, the court would need to review the circumstances in order to determine whether the defense is available to the defendant.

Do I Need A Lawyer For Help With Social Media And Criminal Law?

If you are facing charges associated with social media and criminal law, you should consult with a criminal defense lawyer who is knowledgeable in cyber law. An experienced attorney can help you better understand your legal rights and options, and will also be able to represent you in court, as needed.