Seizing Social Media Information in a Criminal Case

We have discussed on Slaw the mandatory disclosure of information from Facebook pages in civil litigation, and the disclosure of FB passwords to prospective employers. I do not believe that we have discussed the disclosure of information from FB in the course of a criminal investigation.

A German court has recently ordered disclosure of the content of private messages and pictures from a suspect’s FB pages. A write-up of the case appears in International Law Office.

Is this just another search warrant for a computer? Would courts where you are have any difficulty with an application for such a warrant? (There has been a lot of press in Ontario lately about a computer search being a search of a place not the search for a thing. The request has to be properly framed.)

The German court seems to have directed the order to Facebook itself – in Ireland, where FB controls its European operations, and then to California. The report makes it sound as if FB was not readily complying, though it’s not completely clear.

I think we have noted the US cases about whether law enforcement authorities can require someone to provide them with a decryption key for the person’s computer. Held so far: border crossing authorities can so compel; general police cannot. No US Supreme Court ruling yet. Is a password any different from a decryption key? Does it matter if law enforcement can do indirectly – get the material from the web host or social media company or cloud computing provider – what it may have trouble doing directly? Or is a warrant a complete answer to such concerns?

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