Ahh, the good old days. And by good old days I mean the days when our every move wasn’t chronicled and saved for posterity on social media. Scarier yet, sometimes we are not even aware that such cataloging of our lives is even occurring. These are the images that come back to haunt my clients, whether immediately or years into the future. The worst part is it is not only embarrassment my clients face, although that is often very much the case. It is legal consequences. That is because social media is evidence and may be admissible in court.
“Eh,” you might be thinking, “Internet sites get hacked all the time. I’ll just say the images are fake.” Bad idea. Social media, like other forms of evidence, is subject to the same rules of authentication. No more, no less. The standard to admit that Facebook or Instagram photo of you using drugs or the selfie you took at a party where a crime occurred, thereby placing you at the scene, is not high. A criminal lawyer needs only to show that the evidence is relevant, authentic, an original writing, not unnecessarily prejudicial or probative, and not hearsay.
Now, at this point, the wheels in your head may be turning, and you believe that if you only delete those images or incriminating statements from your social media accounts, they will be gone forever. Not so. Unfortunately for you, once you publish information on the Internet, a history is created, despite any efforts you make to remove it. Which means if you make attempts to destroy such information, you potentially face sanctions for doing so. Similar to other forms of evidence, there is a duty to preserve electronically stored information if it is foreseeable that the information will be relevant to ongoing or future litigation.
Even if you do not deliberately destroy electronically stored information but, instead, innocently deleted any at some other point in time, that information is still discoverable and may be admissible according to the evidence rules described above. Facebook, for example, offers users the option to download the entire history of their account. On Facebook, users can retrieve entries made to their timelines, uploaded images, and which posts they have given a “like,” even if they no longer like that post anymore.
What users may not realize is that Facebook also keeps track of other discoverable information, such as which IP addresses they use to log into their account, ads they click, and much, much more. Regardless of whether or not you deactivate your account, the information remains. Other social media platforms, including Twitter, offer similar functions for downloading stored data. The Internet, in other words, is watching you, even when you are not aware it is.
When using social media, it is important to ask yourself, “Would I be comfortable with anyone seeing my posts?” And by anyone I am talking about your family, your friends, current employers, future employers, clergy, your spouse (even if you have not met him or her yet), and, most consequentially, the police, a judge, and a jury. If you are not, then err on the side of caution.
Of course, when it comes to social media and the difficulty policing its use and abuse, it is possible to be photographed and tagged in a post without your knowledge or consent. Though this can create an uncomfortable situation for you now or far down the road, it can also implicate you in criminal activity in the same way as if you published the image yourself.
If you find yourself involved in illegal activity as a result of your presence on social media, contact a criminal attorney immediately. The laws surrounding how electronically stored information can be used either against or in support of you are complicated, and only a lawyer who is skilled and knowledgeable in this area will be able to apply the information to your advantage or minimize your exposure (no pun intended) as a result of it. There is a reason the Internet is also called the web. If you are not careful, it will trap you.
Attorney Frank Walker of Frank Walker Law is a National Top 100 Criminal Defense Lawyer and Personal Injury Attorney with offices in Pittsburgh Pennsylvania and Morgantown West Virginia. Attorney Walker is also a member of the National College for DUI Defense, Super Lawyers and qualified as a Pennsylvania Death Penalty Defense Attorney.
If you or someone you love are facing criminal charges or seriously injured in an accident in WV or PA, contact Attorney Frank Walker immediately at 412-532-6805, 24 hours a day, 7 days a week for aggressive and experienced Criminal Defense or Representation following a serious accident or injury.
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