Facebook currently claims approximately one billion users, while Twitter has at least one million. And for all of those social media posts and tweets, there is an audience. That is something users should keep in mind in light of potential legal proceedings. Even though a Facebook post or a twitter “tweet” may be deleted after the fact, there are ways to retrieve that information.
Litigants are requesting to examine electronic media with growing regularity, including emails, social media information and search engine history. Very little regarding social media is private, something may users forget on a regular basis. Bottom line? If you want something to be private, don’t share it.
According to the Fourth Amendment, a litigant has a right to privacy, but whether that includes tweets and Facebook postings, which, by their very nature are to be shared socially, may depend on who is deciding at the time. In Katz v. United States. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17 (1967), the test of The Fourth Amendment is the “reasonable expectation of privacy:” whether an individual has shown that he or she seeks to preserve something as private, and whether an individual’s expectation of privacy is one that society is prepared to recognize as “reasonable.”
According to Facebook’s terms and conditions, as a user, you own the content you type into your profile and on others’ walls, but Facebook claims ownership of the content governed by Intellectual Property Rights. Photographs or videos posted by Facebook members are not generally covered by a reasonable expectation of privacy, as Facebook owns or co-owns them while they are on Facebook and for some short time thereafter.
Is your expectation of privacy when using Facebook reasonable, or can what you post be used as evidence against you? That may depend on how the judge considers the internet and privacy. If you are facing civil litigation, know that the plaintiff and defendant are typically entitled to anything that is considered reasonably calculated to lead to the discovery of admissible evidence, which is a broad definition, to say the least. The evidence does not need to be known to be relevant ahead of time, just “reasonably calculated,” which keeps the door wide open.
While something may be “reasonably calculated to lead to the discovery of admissible evidence,” it may not later be admissible in court, but there is no way to know for certain ahead of time.