Facebook, Crime Prevention, and the Scope of the Private Search Post-Carpenter

Authors

Connor M. Correll, University of Georgia School of Law

Publication Date

2022

Abstract

The Fourth Amendment of the U.S. Constitution protects people “against unreasonable searches and seizures.” The private search doctrine provides a notable exception to the Fourth Amendment, providing that the government may reconstruct a search previously performed by a private party without first obtaining a warrant. The U.S. Supreme Court developed the private search doctrine prior to the advent of the internet; however, modern technology has changed the way that individuals live. What was once done entirely in private is now done alongside ever-present third parties, such as cell phones and virtual assistants.

Facebook and other social media sites complicate Fourth Amendment jurisprudence even further. Facebook collects a vast amount of information from its users, which total over 300 million in the United States alone, in order to run its platform. While some of this information, such as content posted on a user’s timeline and lists of pages a user “likes,” is available to other Facebook users, other information, such as cookies, network and device information, and GPS location, is available only to Facebook.

What happens if Facebook voluntarily discloses user information to law enforcement, either to help solve a crime or to prevent possible commission of a crime, without law enforcement first seeking to legally obtain that information? Two recent U.S. Supreme Court cases, United States v. Jones and Carpenter v. United States, provide the Court with a pathway to protecting this information under the Fourth

Amendment. In Jones, a “shadow-majority” of the Court concluded that individuals maintain a reasonable expectation of privacy in the aggregated sum of their public movements revealed by GPS monitoring and are therefore afforded Fourth Amendment protection. The Court in Carpenter cemented this reasoning by holding that individuals maintain a reasonable expectation of privacy in years of location information compiled by wireless carriers and that wireless carries violate the Fourth Amendment when they provide that information to the government absent a warrant.

This Note argues that, based on the reasoning of Carpenter and Jones, individuals maintain a reasonable expectation of privacy in social media information that is not otherwise viewable by other users and that this information should therefore be afforded Fourth Amendment protection.

Recommended Citation

Correll, Connor M. (2022) "Facebook, Crime Prevention, and the Scope of the Private Search Post-Carpenter," Georgia Law Review: Vol. 56: No. 2, Article 6.
Available at: https://digitalcommons.law.uga.edu/glr/vol56/iss2/6