Social Media Monitoring by Feds.

Investigators can review publicly accessible social-media content without needing to involve the platform’s disclosure process. When conducting public-records research, investigators can use open-source intelligence (OSINT) tools to collect public timelines, identify comments and likes, and trace connections between users. As a result, anyone who publishes content publicly on the Internet, regardless of the platform, can expose themselves to scrutiny during federal criminal investigations.

Beyond collecting publicly available information, officers may seek access to restricted content. This often involves creating undercover accounts or engaging with platform users. Through these methods, investigators can sometimes view, collect, or download content behind privacy settings or walls that otherwise prevent public access.

Federal criminal investigations can involve any person in a variety of roles. These include:

• Defendants and other accused individuals (such as co-defendants, acquaintances, and associates),
• Targets of the investigation,
• Victims,
• Witnesses, and
• Any other individuals whose information is relevant.

With these groups in mind, investigators may monitor social media accounts of individuals and organizations alike.

The material provided in our resource center does not specifically discuss the FBI’s social-media monitoring practices. This suggests that the FBI monitors social media similarly to other federal law enforcement agencies (or even in ways that have not been fully documented or disclosed).

Investigators have a great deal of discretion regarding the methods and timing of their surveillance operations. As a result, they can choose to approach suspects at any time, but they can also choose to continue monitoring them for as long as they want without ever revealing themselves. Social media surveillance is just one of many tools that federal agents may use to gather evidence without alerting the subject of their investigation.

How Do Investigators Reach Private Messages, Account Records, or the Person Behind a Post?

• Platforms that maintain private messages, account-holder information, IP addresses, login information, and other data records may disclose different categories of information in response to warrants, court orders, subpoenas, consent, or other legal process authorized by law.
• In California, investigators seek access to this data using warrants issued under the California Electronic Communications Privacy Act (“CalECPA”) or the federal Stored Communications Act.
• Providers of internet services, mobile telephone services, and other computer-related services can also be compelled to provide customer records that link an anonymous post or account to a physical device, computer, or internet address.
• Cooperating witnesses and other individuals can facilitate federal investigations by sharing screenshots, screen recordings, account information, and other forms of documentation that they obtained through legitimate means.
• They may also share screenshots of private group chat discussions and other forms of social-media data obtained from other users.
• Federal agents can seek access to archived photos, private messages, and account-holder information via warrants to platforms like Facebook, Instagram, Snapchat, and X (formerly Twitter).
• They can also seek similar information via warrants to app providers and website operators.
• Recipients of private messages and other private communications can also share the information they receive with investigators.
• Recipients can share the content of messages, as well as screen-shots of the message thread.

All of the above are examples of the different ways in which federal agents and investigators can collect data through social-media monitoring. There are others, as well. However, as discussed above, each of these methods involves a certain set of legal and practical limitations. Furthermore, there are other federal laws that regulate the use of these methods in criminal investigations as well.

The same concerns regarding authorship, authenticity, admissibility, and privacy apply when using these tools for social-media monitoring as well.

Spodek Law Group states its position plainly on its own front page: we owe loyalty to only you.

Do Prosecutors Review Social Media Before Federal Charges Are Filed?

Prosecutors read reports about the public content of a suspect’s social-media posts or profiles, and they can use online activity as evidence to support the government’s charges. Some examples of how they use this evidence include:

• Identifying behavioral patterns or habits
• Substantiating criminal conduct
• Proving intent or preparation

These are just two examples of what federal prosecutors can do with evidence they collect through social-media monitoring. They can also use it to support charges in a variety of cases, including those involving:

• Specific threats to individuals or groups
• Online harassment, online assault, stalking, or other similar conduct
• Membership in or leadership of gangs or street gangs
• Driving under the influence (DUI) or other alcohol or drug-related offenses
• Theft, such as stealing property or identity, and other financial crimes

The digital evidence in these cases can support the government’s theory of guilt or allegations in an indictment. However, it can also support the defendant’s version of events, raise challenges to the government’s claims, or demonstrate an affirmative defense.

Federal prosecutors are not required to present evidence to a grand jury before filing criminal charges. However, in many cases, they use the grand-jury process for investigatory purposes as the same or similar to how they use it in other matters. This is to support the government’s determination to seek an indictment against a person for a violation of federal law.

In this scenario, the grand jury will only see the evidence that the prosecutors choose to share with them. While this may put a defendant at a disadvantage, it will also put the government at a disadvantage if they rely solely on social-media evidence that does not support their theory of a crime.

What Must the Government Establish Before Social-Media Evidence Carries Weight in Court?

Social-media evidence is just one type of digital evidence that may play a role in a federal criminal case. Depending on the circumstances, it may bear on matters of identity, motive, opportunity, state of mind, or one of several other relevant factors. However, the evidence must meet certain requirements to carry weight in court.

1. Authorship

If the social-media content in question is a post or a direct message, the first thing the government must establish is authorship. This means that the content must be linked to the account or device of the alleged author, in order for it to serve as proof that a specific person published the specific statement in question. If you are facing federal charges, this will be an important factor in your case. If social-media content may establish your identity, motive, opportunity, state of mind, or some other factor relevant to your guilt or innocence, then prosecutors will need to meet the standards for establishing authorship.

2. Authenticity

Once authorship has been established, the next step is establishing the content’s authenticity. If the social-media content is not clearly an exact copy of the content stored on the platform, for example, if it is a screenshot, then prosecutors may have to prove that the content has not been edited or altered in any way. This proof could rely on metadata hashes, records of custody, or audit trails from the platform. While these tools provide additional security, they are not always completely fool-proof.

3. Privacy

When the federal government uses a search warrant to collect private social-media data, it must show probable cause in court. While such warrants are common, this is an area of contention in criminal litigation. For example, a defendant might argue that they have a privacy-related objection to a broad search that collects months or years of material unrelated to the suspected criminal activity.

4. Attorney-Client Privilege

Attorney-client privilege is one of several key areas that need to be addressed when dealing with social-media evidence. Direct messages on social media generally do not receive attorney-client protection. They are generally not subject to the same expectations of confidentiality that apply to email communications. While there are some exceptions, communications between clients and lawyers on all digital platforms should be viewed with caution.

5. Evidentiary Weight

Finally, what investigators are permitted to collect is a separate legal question from what carries weight as evidence. While prosecutors may be able to collect a broad range of digital evidence through social-media monitoring, the evidentiary weight of any given piece of evidence will depend on its relevance, authenticity, and other factors. Challenging the weight of the government’s evidence will be an important part of the defense process.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.