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Ask the Law Prof.
By David A. Bailey
It’s hard to deny that Facebook and the other social networking sites have had a profound impact on the world.  The ability to keep up with old high school friends and relatives who live far away is merely part of the allure of social networking.  Many businesses are actively marketing their products and services via Facebook and the like.  Some have even predicted that yellow page advertising will one day be a thing of the past.
As with other forms of technology, the benefits of social networking sites should be balanced with the risks that come with them.  For example, I recently learned that pictures you post on your Facebook page contain data that can be interpreted to tell someone where you took the picture.  That may or may not be a big deal to you.  However, if you have children it might give information to child predators that could be used to locate your child.  Scary stuff.
Adults who use Facebook sometimes need protection as well, usually from themselves.  For some reason, many people will post things on their Facebook page or Twitter account that might come back to haunt them in the future.  For example, police and prosecutors across the nation are getting valuable evidence to use in the prosecution of criminal defendants.  It’s not entirely clear whether law enforcement is required to have probable cause and obtain a warrant before getting the information from your Facebook page.  The issue under a Fourth Amendment analysis is whether a person has a reasonable expectation of privacy in what they put on their Facebook page.  Legal scholars are hotly debating this topic every day.  Some scholars argue that under the Third Party Doctrine you have no reasonable expectation of privacy.  The Third Party Doctrine basically states that if you give information to a third party, then you have no reasonable expectation of privacy.  Their argument is that you are effectively giving the information to the people at Facebook because they have the ability to view even “private” messages you send to your friends.  Other legal scholars argue that the Third Party Doctrine should not defeat your reasonable expectation of privacy because you are merely communicating through Facebook, much like using a telephone.  Since it is unclear how a court might rule on this issue, criminal defendants should be extremely cautious about what they put on Facebook.
Even non-criminals need to be careful about what they put on Facebook.  Civil litigation lawyers (like me) are having a field day with what we can get on social networking sites to help our clients (and use against the other side).  For example, people involved in personal injury cases are often cross-examined in court with pictures taken from their Facebook showing them engaging in sports and other physical activities which they claim they cannot do anymore due to the accident.  Parents involved in custody battles are being impeached with photos of partying  and other embarrassing behavior.  A Connecticut judge recently ordered a divorcing couple to exchange passwords to their social networking and dating sites.  I can only imagine the wealth of information that the lawyers will obtain once they have the passwords for the other side in their hands.  This is a trend that is likely to continue, in my opinion.
I’m not a psychologist, so I don’t have an explanation as to why people seem to lose their good-judgment filter when it comes to posting on social networking sites; however, it is abundantly clear that they do.  The best legal advice any lawyer can give you is to be extremely careful what you post.  Ask yourself:  “Would I be embarrassed if my preacher saw this post or this picture?”  That would be a good place to start.  Of course, if you’re involved in a personal injury case, you might also want to leave out the pictures of you water skiing with your church youth group as well.  ;)
If you have a legal question that you’d like to see me write about in this column, I invite you to submit it to me via my website  Click on the “Ask the lawyer” tab and fill out the form.