Giving Police Access to Your Social Media Accounts:  Must You?

Giving Police Access to Your Social Media Accounts:  Must You?

Social media accounts help friends stay in touch, allow people with common interests to connect, and provide a forum for individuals to express their opinions. Social media users may not realise that their accounts can also be a source of information to police investigators. While it is in the public interest to solve crimes, privacy interests may be threatened when the police obtain access to social media posts and private communications.

A rather notorious example of police who overstepped the boundaries of privacy occurred in 2015, when the NSW Police Force hacked the private Facebook account of a Sydney man who allegedly posted “indecent” information on a private Facebook page. Police were apparently upset that the man posted a fake picture of a scantily-clad Miley Cyrus being spanked by an NSW officer.

After four months of surveillance on the private page, the police arrested the man for using a carriage service (the internet) to offend the police and for publishing an indecent article. When a Magistrate pointed out that the police committed a crime by hacking a private page without obtaining a warrant, the charges were dismissed.

The NSW Police refused to accept responsibility for their illegal conduct. Instead, they asked the Magistrate to excuse officers from testifying about the surveillance, arguing that it would be contrary to the public interest to reveal their investigatory methods. The magistrate rejected the request with this terse observation: “Police methodology doesn’t permit the police to commit crimes, it’s as simple as that.”

If the NSW Police failed to understand the relationship between social media and the right to privacy, there is reason to suspect that ordinary Australians might not know when the police are entitled to obtain access to their social media accounts. Fortunately, while the law is still a bit murky, clear guidelines are beginning to emerge.

Social Media Posts and Tweets

A Parliamentary study (pdf download) discusses dozens of cases in which Australians have been charged “using a carriage service to menace, harass or cause offence” because of social media posts, tweets, and other digital communications. Many of those examples are commonly known as “cyberbullying” offences. Others involve attempts to solicit sexual activity with a minor or to scam internet users with a fraudulent scheme.

When criminal threats or admissions of criminal conduct are posted on a Facebook page for everyone to read, it is difficult to argue that a social media user has a right to privacy. Social media users should always exercise caution when they post in a public forum. Even if a post is later deleted, once a public record of the post has been made, it is usually possible to find it in the public domain.

When information has been posted or tweeted to the public, the police and prosecutors are generally allowed to use it as evidence against the person who posted it. “Think before you post” should be the rule for anyone who might be tempted to post or tweet an incriminating statement or an angry message that might violate the law.

The situation is different when individuals send private messages through Facebook or Twitter, or when they set their privacy settings to prevent public access to social media posts. When internet users take steps to prevent the public from seeing their communications, the police are not necessarily permitted to view them without authorisation.

Police Access to Private Social Media Information

If the police ask you to see private information on your social media page, you can say no. When the law requires the police to get a warrant to obtain private information, the police are not permitted to coerce your consent to access the information by threatening you with arrest if you fail to grant access. Any time you are asked to cooperate with the police in a way that might hurt your own interests, it is wise to obtain legal advice before you answer.

Keep in mind that when you make a social media page available to a stranger, you might be making it available to the police. For example, suppose you get a “friend request” from Jack Wilson. You don’t know him, but he has a friendly face, so you give him access to your social media account. If it turns out that Jack Wilson is a name invented by a police officer, any information the officer gleans from your page can be used against you. The fact that the officer asked to be “friended” while using a fictitious name probably won’t matter, since you willingly gave a stranger access to your page. (A more difficult question would be posed if the officer misappropriated the identity of one of your actual friends.)

Social Media Warrants in NSW

As a general rule, the police cannot search your computer or mobile device for emails, social media posts, or other digital information without your consent unless they first obtain a warrant. To obtain a warrant, the police must convince a court that they have a legally sufficient reason to search your device for evidence of a crime.

The police are not required to tell you in advance that they are seeking a warrant. If the police obtain a valid warrant, you cannot lawfully prevent them from executing it, which might involve seizing your computer or mobile device so that it can be searched by a police technician.

The police can also search private pages on your social media accounts by obtaining a warrant that will be served on the provider of the social media site you are using. Social media providers must cooperate with the warrant if it was lawfully obtained. If the provider feels the warrant is overly broad, it might challenge the warrant in court. Again, however, you might not learn that the warrant exists until the police finish their search.

Other Private Information

Internet service providers (ISPs) maintain a wealth of information about internet users, apart from the information that a user chooses to post online. An ISP might keep records of browsing history (a list of websites visited), websites from which information was downloaded, emails sent and received, IP addresses you have used, and geolocation data.

For example, if you use a mobile device to access the internet, your ISP will have a record of the cell tower to which you connected, creating a footprint of your approximate location at the time you logged on. Police are increasingly using that data (although not always accurately) in their attempt to place suspects near a crime scene.

In most cases, the police need to obtain a warrant to access information that is truly private (such as the content of emails). When the police seek data that does not necessarily represent a private communication, the law is less clear. Individuals who are concerned that the police may have violated their privacy rights should seek legal advice.