Arresting Development: Facebook Searches and the Information Super Highway Patrol

Abstract

Does the right of the police to search an arrestee’s person and vehicle include the right to rifle through and clone all the content on his smartphone’s Facebook account?

Social networks may be the furthest thing from the minds of those placed under arrest — especially those booked for minor traffic offenses punishable by fines. But for those handcuffed near their smartphones, the social-networking site may seismically shift the balance between their privacy and the police’s investigatory power. As the most frequented stop today on the information super highway, Facebook has mushroomed civilian traffic, but also has escalated the highway patrol policing it, albeit away from public view. The privacy shift can be attributed, in large part, to the Supreme Court’s outdated Fourth Amendment jurisprudence and Congress’s failure to update federal privacy laws to consider methods of modern communication tools.

In this article, I conduct an empirical analysis of the ways that lower courts have allowed or barred a government search of an arrestee’s cellular phone (or other mobile electronic device). I demonstrate that these decisions suggest little hope of suppressing a post-arrest Facebook search, despite running afoul of principles underlying any exceptions to Fourth Amendment-search rules. I conclude that even if a search triggers federal privacy laws or avoids the myriad holes in the Swiss cheese of Fourth Amendment jurisprudence, the digital architecture of social networking punctures any hope that such investigations can be challenged under existing criminal-procedure rules.

Keywords: Facebook, social networking, search, search incident to arrest, privacy, First Amendment, free speech, free press, surveillance