Defendant had the burden to show the extent of his privacy interest in his Instagram account. Were the parts to be evidence obtained from the private or public parts? He doesn’t show. The Terms of Service would limit it in the private part, but we have nothing. United States v. Weber, 2022 U.S. Dist. LEXIS 77321 (D.Mont. Apr. 22, 2022):
The problem for Mr. Weber in this case is a lack of information. Mr. Weber, not the United States, bears the burden of establishing he has a subjective expectation of privacy in the content of his Instagram accounts. United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999). But he has not introduced any evidence regarding whether the image and video files found on his accounts by Instagram were in public or private parts of his accounts. Nor has he demonstrated whether or not they had been shared with other users, either through a direct message or posting. All of this information is critical to a Katz analysis in this case, and, without it, Mr. Weber cannot meet his burden of establishing he had manifested a subjective expectation of privacy in the Instagram accounts at issue. See Westley, 2018 WL 3448161 at *6 (holding that defendants failed to meet their burden under Katz when they failed to provide “affidavits or any other facts concerning the privacy settings on their Facebook accounts or any steps they took to keep their Facebook content private”). This informational gap regarding the extent to which Mr. Weber sought to make the content of his Instagram accounts private prevents the Court from concluding that a search occurred here under the Katz test.
Even if the Court had such evidence, the terms of service imposed by Instagram in this case likely rendered any subjective expectation of privacy objectively unreasonable. As enumerated above, the terms of service Mr. Weber agreed to when creating the Instagram accounts at issue informed him that Instagram was monitoring his content and may provide such content to law enforcement in certain situations. Given these terms of service, the Court agrees with the United States any expectation of privacy he could have had was likely rendered unreasonable given what he agreed to when creating the accounts. In sum, Mr. Weber has not met his burden in establishing that he manifested a subjective expectation of privacy in the video and image files found on his Instagram account.