N.D.Ill.: Viewing def’s Facebook page isn’t a 4A violation

Viewing defendant’s public Facebook is [hardly] a Fourth Amendment or Stored Communications Act claim. United States v. Khan, 2017 U.S. Dist. LEXIS 82493 (N.D. Ill. May 31, 2017):

Here, at the time of Special Agent Walther’s viewing, Defendant did not maintain any privacy restrictions on his Facebook account, and his Facebook profile was viewable by any Facebook user. Hence, Defendant possessed no reasonable privacy expectation in the information found on his Facebook page. As a result, he cannot claim a Fourth Amendment violation.

The Court need not address the merits of Defendant’s SCA claim at length. Even if this Court were to assume a violation of the SCA, federal courts that have addressed the issue have routinely held that the SCA does not provide for a suppression remedy. See, e.g., Huon v. Mudge, 597 F. App’x 868, 875 (7th Cir. 2015); United States v. Clenney, 631 F.3d 658, 667 (4th Cir. 2011) (“Congress has made clear that it did not intend to suppress evidence gathered as a result of [SCA] violations.”); United States v. Perrine, 518 F.3d 1196, 1201-02 (10th Cir. 2008) (“[V]iolations of the [SCA] does not warrant exclusion of evidence”); United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003) (“The SCA creates criminal and civil penalties, but no exclusionary remedy.”); United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (“[T]he Stored Communications Act does not provide an exclusion remedy. It allows for civil damages, and criminal punishment, but nothing more.”) (emphasis in original) (internal citations omitted). This Court follows this well-reasoned line of cases.

Defendant’s appeal to Facebook’s “Statement of Rights and Responsibilities” is equally unavailing. The operative issue is whether Special Agent Walther’s actions violated the Fourth Amendment, not Facebook’s internal policies and procedures. See United States v. Caceres, 440 U.S. 741, 755, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979) (rejecting application of exclusionary rule where executive agency violated its own internal regulations); United States v. Kontny, 238 F.3d 815, 818 (7th Cir. 2001) (“[T]he federal exclusionary rule, which forbids the use of evidence obtained in violation of the Fourth or Fifth Amendments, does not extend to violations of statutes and regulations.”); United States v. Chaparro—Alcantara, 226 F.3d 616, 621 (7th Cir. 2000) (“Application of the exclusionary rule is only appropriate when the Constitution or a statute requires it.”). Special Agent Walther’s viewing of Defendant’s Facebook page, therefore, was lawful.

The remarkable thing about this case is that the court spent three paragraphs dispatching it.