Steve Palmer [00:00:00]:
All right, folks, Steve Palmer here, Lawyer Talk podcast. You can check us out@LawyerTalkPodcast.com check us out in the socials, anywhere you get your content.
Steve Palmer [00:00:08]:
We are probably there. For those who follow the series, we.
Steve Palmer [00:00:11]:
Do different segments, we do a breakdown. Sometimes I do Q and A where I ask or answer people's questions that they ask me on the website or in the social media. I do a what's the appeal? We're going to combine all of that today sort of in one episode because I had a topic that came up.
Steve Palmer [00:00:26]:
In my law practice and for those.
Steve Palmer [00:00:27]:
Who don't know, I'm a criminal defense attorney, been doing it for 30 years. Check me out Palmerlegal defense.com But here's what came up. And this is coming up, I think more and more and more in not only everyday, I'll call it barstool conversations, but also in my legal practice. And that is the question is this, can the police get access to your social media accounts? And by that I mean like if.
Steve Palmer [00:00:49]:
You'Ve got an Instagram account or a.
Steve Palmer [00:00:51]:
Facebook account or even Google and emails and your cell phone information, how and when can the police get access to that? And this comes up a lot, you.
Steve Palmer [00:01:01]:
Might imagine, in my criminal law practice. So say for instance, the police are.
Steve Palmer [00:01:06]:
Investigating a drug dealer and they want.
Steve Palmer [00:01:09]:
To get the drug dealer's cell phone records.
Steve Palmer [00:01:11]:
I've worked on plenty of murder cases. In fact, I was working on right now an alleged, not alleged, but there was a homicide and I'm representing somebody who is accused of it. And in the context of the police investigation, they issued warrants and or subpoenas for various cell phone records to try to trace people's location. There's another phenomenon out there called geofencing where the police will actually get, they'll call Google or call the cell phone providers and figure out what cell phones.
Steve Palmer [00:01:44]:
Are actually in the area of a.
Steve Palmer [00:01:46]:
Crime and then work backwards and try to identify people, potential suspects.
Steve Palmer [00:01:51]:
So this is a big deal.
Steve Palmer [00:01:52]:
And it raises a question. We've talked about the Fourth Amendment in other episodes here and what I love about the Fourth Amendment, what I love about this, about criminal procedure, we call it in law school. But as a very close friend of mine has described it as, it's what they can't do to you, meaning what the police can and can't do.
Steve Palmer [00:02:10]:
And now you might think, well, if I'm a law abiding citizen, what do.
Steve Palmer [00:02:13]:
I care if the police have access to all this information? I care and I am a law abiding citizen.
Steve Palmer [00:02:21]:
But I still care.
Steve Palmer [00:02:22]:
I think that we have to constantly.
Steve Palmer [00:02:24]:
Keep the government in check.
Steve Palmer [00:02:25]:
Not because necessarily of the single case where you've got a police officer investigating.
Steve Palmer [00:02:31]:
Murder, but because generally speaking, power corrupts and absolute power corrupts absolutely. That's why our founders created the Fourth Amendment.
Steve Palmer [00:02:36]:
They can't just dig through and rummage through our personal stuff and seize it without a search warrant, which is really the question here. Do the police really.
Steve Palmer [00:02:45]:
Do the police need a search warrant.
Steve Palmer [00:02:47]:
To get access to your cell phone records?
Steve Palmer [00:02:49]:
Do the police need a search warrant.
Steve Palmer [00:02:50]:
To get access to your Snapchat identity? And that's. I'm going to focus on that one.
Steve Palmer [00:02:55]:
Because it's sort of interesting.
Steve Palmer [00:02:57]:
You know, there is something, believe it or not, there's a federal law that covers it. It's called the stored Communications Act, 18.
Steve Palmer [00:03:02]:
USC Section 2703.
Steve Palmer [00:03:06]:
Which in theory gives the police access to identity type account information if they have what we'll call a subpoena.
Steve Palmer [00:03:16]:
Now, here's the distinction.
Steve Palmer [00:03:18]:
If the. If the prosecutor, say a federal prosecutor is engaged in an investigation, they convene a grand jury. A grand jury's a group of folks.
Steve Palmer [00:03:27]:
Who sit around and listen to evidence.
Steve Palmer [00:03:29]:
Of a prosecutor's investigation. Defendants don't have a right to be there. I don't have a right to be there. It's a secret proceeding.
Steve Palmer [00:03:38]:
And the grand jury can issue investigative.
Steve Palmer [00:03:41]:
Subpoenas, or prosecutors can issue investigative subpoenas, meaning just an order from a court that looks like a subpoena for these companies to produce records. And under the Stored Communications act, that seems perfectly legit. But we've got another problem.
Steve Palmer [00:03:59]:
We've got a pesky Fourth Amendment issue. And the Fourth Amendment basically says the.
Steve Palmer [00:04:02]:
Government has to have. Have something called a search warrant to gain access to things that we have.
Steve Palmer [00:04:08]:
Or in which, I suppose we should.
Steve Palmer [00:04:10]:
Say, in which we have a reasonable expectation of privacy. Meaning we as citizens expect privacy in our homes.
Steve Palmer [00:04:18]:
We expect privacy to some degree in our cars.
Steve Palmer [00:04:22]:
We've talked about different fences around our house. And can the police have drones?
Steve Palmer [00:04:27]:
I mean, all these things implicate the Fourth Amendment. And these types of records are no different.
Steve Palmer [00:04:32]:
And the question becomes, is a subpoena enough, or should the police have to get a search warrant?
Steve Palmer [00:04:36]:
What's the difference? A search warrant requires a showing of probable cause.
Steve Palmer [00:04:40]:
What is probable cause?
Steve Palmer [00:04:41]:
Like everything else in law, you know, it's hard to define, but I know.
Steve Palmer [00:04:43]:
It when I see it. But generally speaking, it's a statement, usually a sworn statement under oath in front of A judge where a cop actually gives testimony, or an affidavit where the police write out all the reasons they think there is some evidence of criminal activity contained in those records, such that we can breach the expectation of privacy with a court order and actually get a search warrant to get to the information. I always tell people when the police are asking for consent to get cell.
Steve Palmer [00:05:14]:
Phone records or to get in your.
Steve Palmer [00:05:16]:
Phone, you just say, no, I'm not.
Steve Palmer [00:05:18]:
Going to consent to that.
Steve Palmer [00:05:19]:
Go get a search warrant and do it the right way. The police would say, wow, you're making it harder on us.
Steve Palmer [00:05:25]:
You're darn right we are.
Steve Palmer [00:05:27]:
Do your job.
Steve Palmer [00:05:27]:
And the reason we do that is.
Steve Palmer [00:05:29]:
Because the police don't always have probable cause.
Steve Palmer [00:05:32]:
And sometimes they fudge it, sometimes they.
Steve Palmer [00:05:34]:
They try to develop probable cause on something less than enough. We'll say, and when they do that, I, when I get a case, I can actually file a motion to suppress the information and have it thrown out of court because it was obtained with an invalid search warrant. I have oversimplified this and these are different topics, but the big picture is a search warrant's puts a greater burden on the police to get access to the information than a mere subpoena. And the question is, where is the law going? Well, you know, under the Stored Communications act, it would seem that police can just send an investigative subpoena and get identity information.
Steve Palmer [00:06:13]:
So the case I'm working on right.
Steve Palmer [00:06:15]:
Now involves Snapchat and it's a unique.
Steve Palmer [00:06:18]:
Social media platform messaging platform for various reasons.
Steve Palmer [00:06:21]:
But in this situation, the police simply sent out an investigative subpoena, obtained my client's Snapchat identity, and now are using the information they procured in order to prosecute my client.
Steve Palmer [00:06:35]:
The question has arisen whether that was good enough.
Steve Palmer [00:06:38]:
Should the police have instead obtained a.
Steve Palmer [00:06:41]:
Search warrant where they had to write.
Steve Palmer [00:06:42]:
Out probable cause and not simply send over a subpoena? If they should have obtained a search warrant and they didn't, why? Well, then all the information they receive.
Steve Palmer [00:06:51]:
From Snapchat in theory, gets thrown out of court.
Steve Palmer [00:06:53]:
They can't use it. If an investigative subpoena is enough, well, they can use it because it says so, I guess under the Stored Communications act. And here's where I think the law is trending. There was a case, the US Supreme Court rather has addressed this sort of in the context of cell phone records.
Steve Palmer [00:07:17]:
And cell site location.
Steve Palmer [00:07:19]:
They call it csli, Cell Site location information under. In a case called Carpenter versus the United States. And for those geeks out there, it's 138.
Steve Palmer [00:07:29]:
Supreme Court 2206 decided in 2018. And there's a bunch of progeny cases.
Steve Palmer [00:07:35]:
That deal with this. Progeny, meaning cases that came afterwards.
Steve Palmer [00:07:40]:
There. The US Supreme Court says, no, we have a reasonable expectation of privacy.
Steve Palmer [00:07:44]:
It requires a search warrant to get access to that information. And a search warrant, of course, has.
Steve Palmer [00:07:49]:
To be based on probable cause.
Steve Palmer [00:07:50]:
What's different about Snapchat records? Well, one, if you're arguing on the.
Steve Palmer [00:07:55]:
Police side, they're just asking for identity, not location.
Steve Palmer [00:08:00]:
Two, Snapchat actually has a disclaimer when.
Steve Palmer [00:08:04]:
You sign up for the service that.
Steve Palmer [00:08:05]:
Talks about you're sort of consenting to Snapchat sharing records of if you're engaged in illegal activity as a result of that. So maybe you have a lesser expectation of privacy. The counterargument is, well, wait a minute.
Steve Palmer [00:08:21]:
First of all, who gets to decide.
Steve Palmer [00:08:23]:
Whether it's illegal activity? If the police just say it, is that good enough? And we are, in theory consenting for.
Steve Palmer [00:08:29]:
Snapchat to share records, but not for.
Steve Palmer [00:08:31]:
The police to get them. It's different, I suppose. So the question's going to arise, do we have a reasonable expectation of privacy.
Steve Palmer [00:08:39]:
In our Snapchat identities?
Steve Palmer [00:08:41]:
And again, we're going to be pounding the table and say, well, Snapchat, I don't use it, obviously, but the kids do. I'll snap you or my son, as I say, I got to snap somebody. The idea of Snapchat, as most people know, you send a message and it disappears immediately.
Steve Palmer [00:08:56]:
So there is sort of this inherent.
Steve Palmer [00:08:57]:
Understanding that you're somewhat remaining private just.
Steve Palmer [00:09:01]:
By using the service.
Steve Palmer [00:09:04]:
So this is a very interesting topic that's emerging, and I don't believe the U.S. supreme Court has actually decided this part of it definitively. The question's going to become, when it.
Steve Palmer [00:09:15]:
Comes to Snapchat, when it comes to signal, when it comes to some of.
Steve Palmer [00:09:19]:
These other sort of messaging apps where people have concealed identities, should the police be able to gain access to the true identity? And what is going to be required for the police to get access to this, your identity? We are arguing that requires a search warrant. We're arguing that we have a reasonable expectation of privacy when we use these platforms. If we wanted our identity out there, we wouldn't conceal it with a pen name or a handle or whatever you use, a username. And by creating these alternative names, we are telling the world we don't want everybody to have access to my true identity.
Steve Palmer [00:09:58]:
Now we can argue it's an interesting.
Steve Palmer [00:10:00]:
Argument to say, well, why shouldn't the government have access to that? And why shouldn't the government be able to see all this nefarious stuff?
Steve Palmer [00:10:07]:
And again, I sort of go back.
Steve Palmer [00:10:08]:
To the problem I have.
Steve Palmer [00:10:10]:
We may trust the current regime, we may trust the current police officer working.
Steve Palmer [00:10:13]:
On it, but can we trust all of them? Because, after all, they're all human and they're all subject to the whims of human frailty.
Steve Palmer [00:10:21]:
And that means we are all subject.
Steve Palmer [00:10:23]:
To potential corrupt activity. And we can all fudge things here or there because we think what we're doing is right. That's why we have the Fourth Amendment, folks, to protect against that kind of stuff. Even when people don't set out intentionally to violate somebody's privacy or to do something wrong, it happens. Trust me, it happens. I've been doing it 30 years. It happens. And it can happen to you.
Steve Palmer [00:10:43]:
So I would love to hear your comments on this, because, as I said, this is emerging.
Steve Palmer [00:10:49]:
Shoot me a comment. Shoot me a question.
Steve Palmer [00:10:52]:
If you've got a scenario you want me to cover here regarding these types of records, I'd be happy to do it. But I'm arguing, of course, that the police should have a warrant in order to gain access to anyone's private information. I don't think that's too much to ask given the Fourth Amendment and what it means in this country and the protections that we enjoy here. So check us out. Leave me a comment.
Steve Palmer [00:11:16]:
Shoot me a question.
Steve Palmer [00:11:17]:
LawyerTalkPodcast.com, a breakdown.
Steve Palmer [00:11:20]:
A question.
Steve Palmer [00:11:21]:
What's the appeal all wrapped up into one, coming at you week in and week out till now.