It is no secret that government agencies mine social networking websites for evidence because, even without having to seek a warrant from the court or issue a subpoena, there are troves of social media evidence publicly available. A majority of government agencies are active participants, contributing content and soliciting information through social media.
Given the amount of information publicly available and the avenues that the government has to seek out such information, the government often does not even need a search warrant, subpoena or court order to obtain social media evidence.
But, government agents can, and do, go further than defense counsel is allowed in pursuing social media evidence for a criminal proceeding. To bypass the need for a search warrant, government agents may pierce the privacy settings of a person’s social media account by creating fake online identities or by securing cooperating witnesses to grant them access to information
In United States v. Meregildo, for example, the defendant set the privacy settings on his Facebook account so that only his Facebook “friends” could view his postings. The government obtained the incriminating evidence against the defendant through a cooperating witness who happened to be Facebook “friends” with the defendant.
The defendant moved to suppress the evidence seized from his Facebook account, arguing that the government had violated his Fourth Amendment rights.