Facebook and the Fourth Amendment: Expecting Any Privacy May Be Unreasonable

The abstract of the piece lays out the author’s thesis very cleanly and clearly in a single sentence: “… [E]ven though Facebook users have privacy options to control who sees what content, this Article concludes that every single one of Facebook‘s 133 million active users in the United States lack a reasonable expectation of privacy from government surveillance of virtually all of their online activity.” Semitsu begins the piece by explaining the social and political importance of Facebook in a compelling way. To take just one example, he observes a huge percentage of matrimonial lawyers have used or faced evidence found on social networking sites in during divorce proceedings. He then explains that while people may use the privacy controls that Facebook provides them in ways that successfully mediates the information exchanges they have with other private citizens or with commercial entities, these controls have no meaning vis a vis the government. This is because literal application of the Third Party Doctrine means Facebook users can’t have a reasonable expectation of privacy in anything they post. And potentially pertinent provisions of the Electronic Communications Privacy Act may not even apply to Facebook-based communications. Therefore, as Semitsu cogently explains, “though Facebook has been justifiably criticized for its weak and shifting privacy rules,  even if it adopted the strongest and clearest policies possible, its users would still lack reasonable expectations of privacy under federal law.”

Semitsu evaluates Facebook’s architecture, its evolving approaches to user privacy, noting that Facebook users may misunderstand their actual ability to delete their accounts or keep information confidential, and that many decline to take advantage of the privacy tools that are available to them. He observes that the situation is pretty similar at other social networking sites as well. Then he launches into an extended elucidation of how the government uses Facebook as an investigative tool.  He compellingly illustrates the non-piddling possibilities by explaining how a campus police officer used Facebook to become a whiz at apprehending a University of Illinois student observed urinating in public. Facebook was deployed by law enforcement not because the crime was significant but because it is a fast, cheap and easy way to identify those suspected of extremely minor infractions, who might not have even been pursued if more resources were necessary to bring him to justice.

Semitsu lists many different Facebook disclosure fact patterns and charts the ways they intersect with existing evidence collection doctrines and practices. Examples include the use of fake profiles, voluntary disclosures, and data mining techniques. Then he provides a thorough-seeming overview of Katz v. United States, and what he characterizes as its “two step approach that looks to the reasonableness of a search or seizure” as it has evolved across time and technologies. He paints a picture of Facebook as a giant surveillance tool, no warrant required, which the government can use in a mind bogglingly creative range of ways, with almost no practical constraints from existing laws.

He finishes with the requisite normative component, a plan to reconfigure the law so that Facebook is more like a phone booth, in terms of the associative reasonable expectations of privacy its users can have. I like the idea of starting with real space norms that are fairly clearly understood, and trying to build them into an electronic environment a lot.  (Well, obviously I would). His proposal might have benefited from a more thorough taxonomy, in terms of how the laws would be modified and how they would, in turn, interact with Facebook and each other. But like the rest of the article, it provides a jaunty yet terrifying account of how clueless most Facebook users are with respect to the diminution of our Fourth Amendment rights online. While we lobby for social networking tools to give us more control over our profiles,  and debate the transparency or lack thereof with which corporate actors track us or collect and use our personal information, we barely notice that Facebook leaves us almost completely vulnerable to searches and seizures triggered by invasive but mostly invisible government surveillance. Semitsu’s clever article brings this squarely to our attention.

A couple of  concluding qualifiers. First, I do not know Junichi P. Semitsu but after reading his USD Law bio I definitely hope to meet him some day. Here is an excerpt:

In his spare time, he recently served as the embedded blogger for the Dixie Chicks, appeared as a contestant on Who Wants To Be A Millionaire?, and won the title of “Funniest Lawyer in San Diego” at the San Diego Volunteer Lawyer Program’s LAF-Off (Lawyers Are Funny) competition.

Funny is good! So are law professors that do important work but do not take themselves too seriously.

Second, I am not an expert in Fourth Amendment law, to put it lightly, so there may be errors or omissions that escaped my notice, though I didn’t find any through a bit of spot checking or from consultation with better versed colleagues. I found the article to be very well written and well sourced (again with the caveat that I am not well placed to know whether he cited all the important Fourth Amendment literature that he could have). Semitsu has a fresh, accessible and engaging voice. I learned a lot from reading this article.