Can Social Media Affect My Criminal Case?
Social media is a significant part of most people’s lives today. The use of “snail-mail” or letters, phone calls, and even the radio appear to be steadily declining. Today, social media is where many people get their news, connect with friends, find employment, and shop for fun or necessity. As of 2023, there were approximately 4.9 billion people using social media worldwide, with that number set to rise to approximately 5.85 billion by the year 2027.
Social media has infiltrated most people’s personal and professional lives. While social media has certainly contributed positively to society by making people feel more connected, quickly raising awareness about certain issues, or allowing access to a wealth of information, it is important to understand the negative implications of social media as well. Specifically, it is important to know how social media accounts, posts, or other activity could be used in a criminal case either against you or to your benefit.
How Can Law Enforcement Use Social Media in Criminal Cases?
During the process of a criminal investigation, law enforcement may be able to search or monitor a suspect or witness’s social media activity and use it to their advantage. For the majority of social media platforms, creating an account or browsing others’ accounts is free and accessible to all. Law enforcement officers are no exception. Furthermore, under certain circumstances, law enforcement may be able to obtain a subpoena or court order to access and search a person’s phone, other device, and social media accounts.
Depending upon the certain facts of a criminal case, social media material could be used to assist a criminal investigation. Much social media content is date stamped, time stamped, or even tracked by location. Therefore, one way law enforcement may use an individual’s social media activity could be to place them at a certain location at a certain time. Law enforcement could also use social media searches to determine whether two individuals know each other or have some kind of relationship. Additionally, law enforcement could use social media checks to determine a potential motivation behind an alleged crime or discover evidence that establishes intent to commit a crime. Finally, and importantly, law enforcement could use social media connections and content between two or more individuals to learn more about their relationship, interactions, statements to one another, and other information that could be used to confirm or corroborate criminal activity; or, could be used to undermine or call into question the veracity of a criminal claim.
What Charges Could Result from Social Media Evidence?
Not only can social media be used as evidence in criminal investigations, some social media activity in and of itself could constitute a crime. Some examples of potential crimes that could be committed through the use of social media include Terroristic Threats or Unlawful Intrusion.
Terroristic Threats
Under Neb. Rev. Stat. § 28-311.01, a person commits terroristic threats if he or she threatens to commit any crime of violence:
- with the intent to terrorize another,
- with the intent of causing the evacuation of a building, place of assembly, or facility of public transportation, or
- in reckless disregard of the risk of causing such terror or evacuation.
A terroristic threat “may be written, oral, physical, or any combination thereof.” State v. Tucker, 17 Neb. App. 487, 496 (2009). Therefore, if an individual creates a social media post with a written message threatening to commit a crime of violence—such as an assault or any other use of physical force—against a person or property, they may be at risk of being charged with Terroristic Threats. Terroristic Threats is a Class IIIA Felony and carries a maximum possible penalty of up to three years in prison, a $10,000 fine, or both.
Unlawful Intrusion
Under Neb. Rev. Stat. § 28-311.08(3), it is unlawful for any person to knowingly and intentionally distribute or otherwise make public an image or video of another person’s recorded intimate area that would otherwise not generally be viewable to the public without that person’s consent. This Nebraska offense is a version of Unlawful Intrusion and is classified as a Class IIA Felony. It carries a maximum possible penalty of twenty years imprisonment. Therefore, if an individual makes a secret recording of the private area of another without their knowledge and consent, and thereafter posts such video or image on social media, they may risk being charged with felony Unlawful Intrusion.
What Should I Do to Protect Myself from Social Media Being Used Against Me in the Future?
In order to protect yourself from ever being in a situation where your social media activity could harm your freedom or reputation and risk criminal charges, you should be careful about what you post, share, or like on social media. It can be important to refrain from sharing or discussing personal matters on social media, and you should never post or discuss a pending legal issue or case on social media without first consulting with an experienced criminal defense lawyer.
While you may think simply deleting harmful content could prevent such material from being used against you, that is not often the case. Law enforcement often has the capacity to subpoena records—even “deleted” records—from social media companies and gain access to posts, comments, messages, or other activity over long period of time. More importantly, once a person knows or reasonably should know that some type of formal investigation or proceeding is underway, it may be considered a crime to delete, remove or alter social media evidence. Tampering with or concealing evidence can be charged as a felony offense in the State of Nebraska.
If you have already been formally charged with a crime, posting or talking about the allegations against you or your opinions about those allegations on your social media accounts can be detrimental. You should not post about or discuss your case with anyone without first consulting with a criminal defense lawyer. Often, even if someone has been formally charged, the investigation or case is still considered “pending”. Therefore, any new information that is relevant to the allegation and posted on social media could still be used as evidence against them.
In Nebraska, for a social media post allegedly written by a defendant to be used against them in court, the State simply needs to establish sufficient evidence that the post came from the defendant. In some cases, this can be proven by circumstantial evidence such as proof that the account associated with the post bore the defendant’s name and the written content contained information distinctive to the defendant. See In Re Guardianship of Kayn M., A Child Under 18 Years of Age. Cecelia G., Appellant, v. Annetta M., Appellee., No. A-23-128., 2023 WL 8401760, at *5 (Neb. Ct. App. Dec. 5, 2023).
What Should I Do if Someone Has Accused Me of a Crime on Social Media?
If you are under investigation for criminal charges, or are currently facing charges, contact Berry Law’s team of experienced criminal defense attorneys to see how they can help you protect your rights. No matter the level of criminal charge, a conviction could result in significant formal consequences like fines, probation, or incarceration. A conviction could also lead to informal consequences like the loss of your employment, family, and good reputation. The legal system and the laws in your State are complicated. It is important to obtain legal representation and rely on a criminal defense lawyer who has knowledge, training, and experience handling matters similar to yours.
