A Rutgers study examining the use of social media as evidence in criminal prosecutions in New York city finds its use undermines public defense attorneys and the clients they most often represent, defendants of low socioeconomic status.

“Our research,” said lead author SC&I Associate Professor of Communication Jeffrey Lane, “shows how law enforcement access and cooperation with social media companies (i.e., unwelcome, hidden third-party data collection) and the secondary uses of these data as criminal evidence generate adverse, unequally distributed consequences (i.e., criminal charges, convictions, and records) for social groups already disadvantaged in the system.”

 The study, “Defending against social media: structural disadvantages of social media in criminal court for public defenders and defendants of low socioeconomic status” by Lane, Fanny A. Ramirez, Ph.D.’18, and Desmond U. Patton, was published in the journal  Information, Communication & Society.

“The implication of our findings and recommendations are significant,” Lane said, “given that estimates that 80 or even 90% of criminal cases include digital evidence of some sort, including everything from GPS coordinates, to the metadata of a file, to photographs posted on Instagram.”

Lane said his initial interest in exploring how social media evidence is used in criminal cases stemmed from research he conducted while writing his award-winning book “The Digital Street.” He found that between 2011 and 2014, in Harlem, there was a was a concentration of gang indictments that drew heavily on social media.

"I wanted to know what it’s like to defend against prosecutions that are backed by social media evidence, and what it feels like to be a defendant realizing that your social media posts, even some from years prior, are being used against you.”

“I noticed that evidence, pulled from the defendants’ social media accounts, was being used in youth cases and in gang cases. And this led me to wonder if social media is also a factor in adult cases and in different kinds of legal cases, not necessarily gang cases. I had also begun to see very clearly that Meta typically complies with court orders and requests to turn over evidence to law enforcement. And I began to question the impact of their cooperation on the defense, specifically on public defenders and their clients. I wanted to know what it’s like to defend against prosecutions that are backed by social media evidence, and what it feels like to be a defendant realizing that your social media posts, even some from years prior, are being used against you.”

Another focus of this study stemmed from Lane’s interest in understanding what happens when Americans sign up for social media accounts and just automatically click “yes” to comply with the end user agreements, thereby unwittingly agreeing to share their data with law enforcement through “opaque, unwanted data collection practices that happen passively behind the scenes when social media users accept end-user license agreements and cookies.”

“Most people typically do not understand or even read these agreements,” Lane said, “and even the full agreements don’t explain their highly consequential downstream consequences, which can shape access to lending and health care, vulnerability to credit scams and identity theft, and life chances broadly.”

Further, the United States currently does not have any federal, state, or local laws that limit how law enforcement can use social media. “We found,” Lane said, “that the current application of the Stored Communications Act (SCA), which exempts law enforcement from the same privacy protections that other third parties face when they want to access user data, unfairly favors law enforcement and prosecutors because under the current SCA, social media platform companies are not legally obligated to cooperate with public defenders.”

To collect data for this study, Lane and his co-authors interviewed public defenders working in criminal courthouses across the five boroughs of New York City and they examined supplemental documents (e.g., testimonies) the public defenders provided them that related to the cases they discussed during interviews.

Lane and his co-authors discovered that search warrants, asymmetrical cooperation, and prejudicial evidence lead overwhelmingly to these inequities.

“We found,” Lane said, “first, that judges typically sign off on overly broad search warrants. It is very common for these search warrants to provide the full lifetime of the defendant’s social media accounts and all of their contents, including a lot of information that is not relevant to the cases at hand. Second, social media companies only work with law enforcement so public defenders are shut out. Third, law enforcement can pick the evidence they want to highlight, and, in some cases, they select evidence that most plays to negative and often racial stereotypes of the defendants. For example, they will introduce into the evidence just the one or two pictures out of thousands that make the defendant look the most anti-social or the least credible.”

To help “balance the power as social media enters the courts,” Lane and his co-authors recommend “three practical legal reforms to update laws and legal practices to better protect online privacy and to account for technologies that did not exist during the legal training of many judges or attorneys and were not anticipated in 1986 when the SCA was enacted.”

“Social media companies should be compelled by law to cooperate with both sides or neither side,” Lane said. “Of course, these companies need to comply with current laws, but our findings suggest that in criminal cases, both sides, the prosecution and defense, should have equal access to the evidence provided by social media companies.”

The three are: judges should require law enforcement to specify the type and timeline of social media data sought in a search warrant; more equitable laws concerning access to digital evidence are needed to level the playing field for law enforcement and public defenders; and the inclusion of admissibility protocols and disclaimers on admitted materials need to become standard practice in the criminal justice field.

“Social media companies should be compelled by law to cooperate with both sides or neither side,” Lane said. “Of course, these companies need to comply with current laws, but our findings suggest that in criminal cases, both sides, the prosecution and defense, should have equal access to the evidence provided by social media companies.”

Discover more about the Communication Department at the Rutgers School of Communication and Information on the website. 

Photos: Top: Pavel Danilyuk for Pexels. Bottom: Cottonbro for Pexels.