Social Media Posts Used During an Investigation

Can Your Social Media Posts be Used During an Investigation?

Almost everyone has at least one social media account today. Although there are privacy settings on some social channels (i.e. Facebook) the connections propagate automatically outside the normal realm of someone’s personal network. Think of it this way. A social post can be compared to dropping a pebble into a pond, in this case the internet. Rings on the water’s surface spiral outward and outward, way past the point of the pebble’s entry point. When applied to a “private” post on a social media channel, what is deemed “private” could be shared by a user within the “private” network who doesn’t have privacy settings on their account. As a result, a “private” post has the potential to become public knowledge.

The Power of a Post During an Investigation

During an investigation, police officers, employers, landlords, academia and the public seek information to strengthen their case. Through social media channels, an unprecedented access to personal information now exists. If obtained legally, such information can be used during a legal proceeding to:

  • Establish or discount an alibi
  • Depict personal character traits of an individual
  • Strengthen key points of evidence

What does this mean? What is entered on social media sites now has the potential to become public record. This can be good news or bad news depending on the viewpoint. However, using a social media post is a matter of privacy rights and extenuating circumstances.

Social Media Privacy Rights Aren’t Clear Cut

When it comes to social channels, it is important to know when a post is considered private and when it is not. This is easier said than done. Since 2012, privacy laws in the US regarding social media channels have been a bone of contention. There are federal protections in place, such as the First Amendment, but sometimes the scope is misunderstood. This is where state law comes into play. What one state deems within the realm of the law, another state may uphold the opposite stance, and yet another state may not establish a stance either way. Make sure to identify and understand your state’s laws regarding the privacy of social media posts.

To understand how confusing this situation can get, consider if an employee complains about an employer on a social post. Sometimes the employee’s rights are protected and sometimes they are not. According to the National Labors Relations Act an employee is protected. However, what if the employer is in the private sector? This is where the line of privacy can be blurred. You might ask if the First Amendment’s right to free speech would cover the employee, but the First Amendment does not mention what the stance is for private employees, only that it allows the individual to express themselves without the constraint of government. In this case, state and federal employees are protected under the First Amendment, but a point can be made that a privately employed worker is not covered.

What’s the solution? The best course of action in regard to social media posts for an employer in the private sector is to have a clear social media policy in place. For the employee, the best course of action is to post with caution to make sure not to set themselves up for disaster.

Still confused? Join the club! Follow these next steps if you are still unsure of your privacy rights regarding a social media post:

  • Check into your state’s law regarding privacy and social media posts
  • Follow up with your organization’s legal department or a legal specialist to understand your rights
  • Find out whether your organization has a social media policy in place, if not, establish one ASAP
  • Contact a professional investigative firm when considering whether a social post is able to be utilized for legal matters

Overall, it is important to mind the immense reach of a social post in today’s digital world. What is thought to be private might not end up private: user beware.

SACS Consulting Can Help Navigate Social Media

Whether you have a need for an investigator, would like to establish clearly stated social media policies for your organization or train employees on your social media policies, SACS Consulting has the expertise to navigate these ambiguous waters. Call us at 330-255-1101 to speak with one of our investigative or human resource professionals today!

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