By Hayes Hunt and Brian Kint
The SCA gives prosecutors a distinct advantage when it comes to obtaining information from social networking sites. For example, 18 U.S.C. § 2703 allows governmental entities to compel social networking sites to provide the content of electronic communications through a warrant (if the content is no more than 180 days old) or through either a warrant or a court order (if the content is more than 180 days old). The law requires that the government notify the social media user if the information is to be obtained through a court order. The law provides an exception to the notification requirement, however, if the government can show that notification could result in a risk to someone’s safety, flight from prosecution, destruction of evidence, intimidation of potential witnesses, or an investigation being jeopardized. As a result, defense counsel may have difficulty obtaining any information from social media sites, while law enforcement officials, under certain circumstances, may be able to obtain the information without the user even knowing.
Facebook’s position regarding nongovernmental access to user content highlights this disparity.
Originally published in the December 2013 issue of The Champion.