S.D.N.Y.: Facebook “friend” became a CI, and defendant’s postings became PC for SW for whole account; no REP in Facebook postings not being disclosed to police

Defendant has no reasonable expectation of privacy in his Facebook postings that others could see. An online “friend” reported him to the police, and that led to a search warrant with probable cause for all his Facebook content. United States v. Meregildon, 2012 U.S. Dist. LEXIS 115085 (S.D.N.Y. August 10, 2012):

Colon does not contest the magistrate judge’s finding of probable cause [for a search warrant for his Facebook account]. Instead, he attacks the propriety of the Government’s method of collecting evidence to support that probable cause determination. More specifically, Colon presents a Fourth Amendment challenge to the Government’s use of a cooperating witness who was one of Colon’s Facebook “friends” and gave the Government access to Colon’s Facebook profile.

Facebook-and social media generally-present novel questions regarding their users’ expectations of privacy. Facebook users may decide to keep their profiles completely private, share them only with “friends” or more expansively with “friends of friends,” or disseminate them to the public at large. (See Facebook Help Center, http://www.facebook.comJhelp/privacy (last visited Aug. 10,2012).) …

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Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46,49 (2d Cir. 1990) (finding that a person does not have a legitimate privacy expectation in telephone calls recorded by the Government with the consent of at least one party on the call). While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. Cf. Barone, 913 F.2d at 49. And the wider his circle of “friends,” the more likely Colon’s posts would be viewed by someone he never expected to see them. Colon’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted-including sharing it with the Government. Cf. Guest, 255 F.3d at 333 (finding that an e-mail sender-like a letter writer-loses their expectation of privacy upon delivery). When Colon posted to his Facebook profile and then shared those posts with his “friends,” he did so at his peril. Because Colon surrendered his expectation of privacy, the Government did not violate the Fourth Amendment when it accessed Colon’s Facebook profile through a cooperating witness.