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Social Media, Criminal Law, And Ethics

From criminal activity shared on Facebook to evidence on Twitter feeds, social media is increasingly becoming the perfect crime-solving partner for police departments all over the world, and not just to solve the prevailing cyber crimes. Over the past decade, this ever-growing medium has proved to be an invaluable source of information for both prosecutors and defense lawyers, significantly impacting the outcome of numerous government investigations.

According to the Federal Bureau of Investigation, “such electronic information can help apprehend fugitives, single out associate suspects, link individuals to street gangs, and provide evidence of criminal activity.” Through status updates and tweets, investigators can find out criminals’ whereabouts, motives, and accomplices, or receive tips that could speed up crime-solving.

Just recently, the hours spent browsing social networks proved fruitful beyond investigators’ expectations, when they discovered how a wrong-way driver crashing into another vehicle and killing two tweeted “2 drunk 2 care” moments before the accident. In fact, driver Kayla Mendoza’s Twitter feed abounded in messages about getting high or drunk, including “Car permanently smells like weed”, “I really am so baked right now”, or “Can’t sleep without my bedtime blunt.”

Since the fatal crash, the reckless driver’s family has tried to defend her by asserting that her Twitter account was hacked. According to their statement, most of the 5,000 or so tweets – including the many that made references to drugs and alcohol – didn’t come from her. Supposedly, her account was hacked more than a year ago, and it was someone else who had been posting the incriminating updates. The parents hoped the revelation would absolve her of guilt and convince people to give her the benefit of the doubt.

Stealing Her Twitter Account Didn’t Cause the Crash

This “hacked Twitter” defense does not account for the woman’s choices and actions, however.

Here’s the one thing that everyone seems to be forgetting: Even if it were true that her account was hacked, the defense still fails to explain why she was driving on the wrong side of the road. Because that was, in fact, what caused the accident, and what led to the tragic deaths of two innocent women. And another thing: Reports say she was driving in the wrong lane for several miles before finally crashing – this wasn’t a simple lapse in concentration.

Trial by Twitter: Ethical Issues

“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” United States v. Katz, 389 U.S. 347, 351 (1976).

In other words, what individuals post on social networks is not only not protected by these websites’ user agreements, but the info posted online can also bring them into the focus of law enforcement. Although social media as a crime-fighting tool is still in its very early stages, investigators and government agents are routinely searching Facebook, Twitter, MySpace, and Instagram to obtain info about suspects, most times without search warrants.

Furthermore, many law enforcement officers are even setting up online identities and updating them every day, in order to gain access to the profile pages of potential suspects. And while all social network sites’ terms of services have exceptions when it comes to responding to legal investigations, some – including Facebook – prohibit the use of false accounts, regardless of their purpose.

So, police are breaking the law in order to protect the law. And while we’re on the subject of ethics & fairness: Sure, it’s not a new thing for courts to use evidence obtained through any legal means, but there’s a problem when people – especially teens and young adults – are held to real-world standards based on what they are posting on social profiles. Not only do few of them know that privacy on the internet is almost nonexistent, but many of them make it their goal to create entirely different personas by exaggerating or even contradicting who they are in real life.

A question arises: do we show sympathy for defendants and look at their special circumstances or ask for the punishment to fit the crime? Or perhaps we should just give people a pass when they do stupid things online? That would be nice, if it were ever possible. In reality, the web has become so integrated into our culture, that what we say and do in the virtual world is as “real” as anything we do offline. Upon posting information on social media websites, users should automatically assume that everything they say will not only surface in discovery, but it can also be used against them.

The case of Kayla Mendoza is a perfect illustration of social media put to good use by law enforcement, seeing how it gave investigators a heads-up on her state at the moment of collision. On the other hand, there’s no denying that all of those horrible tweets have caused a shadow to hang over her case and had people jumping to conclusions without waiting for the verdict first. It’s the new trial by media, and it’s something that we all need to watch out for – it might just become the new state of affairs.

Attorney Jeffrey A. Luhrsen credits his military career with the work ethic, integrity, and tenacity that drives his career as a personal injury attorney. Having garnered numerous academic awards and scholarships during college and law school, Mr. Luhrsen has continued to earn accolades throughout his career, including a Martindale-Hubbell AV® Preeminent™ Peer Review Rating, the highest rating an attorney can achieve in legal ability and ethical standards. He has been in private practice since 1998 with a focus on tort claims and insurance disputes. Luhrsen Law Group, based in Sarasota, Florida, is proud to be a family-owned firm that helps Florida families recover after serious injuries and from legal wrongs.

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