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Lisa A. Schmidt*

In the 2012 case United States v. Jones, Justice Samuel Alito asked

whether the Fourth Amendment might extend any protection to new technology. Although the government may not track an individual through

the use of Global Positioning System (GPS) services, the Supreme Court’s past cases suggest that the same protection will not extend to new technologies like social networking. Popular social networking websites Facebook, Twitter, and Foursquare allow users to keep others aware of their location at all times, leading to the question of whether the government may track a user’s location through social networking use. The author argues that past Fourth Amendment case law warns social networking users that the government may track location through tags and check-ins, and Internet users may not have the standing to raise a privacy claim for such tracking. The author concludes that Internet users must maintain their own privacy because the government may use any public information to track their locations.



EXPECTATION OF PRIVACY TEST......................... 519 II. LOCATION TRACKING AND THE FOURTH AMENDMENT..... 521 A. United States v. Karo: Tracking Movement.......... 521 B. United States v. Knotts: Location Tracking in Plain View.............................................. 521 C. United States v. Jones: The Fourth Amendment and GPS Tracking...................................... 522


IMPLICATIONS.......................................... 524 A. Social Networking and Consent..................... 524 B. Privacy Rules...................................... 524 C. Privacy Policies and Reasonable Expectations....... 526 * J.D., Cornell Law School, 2013; B.A., Boston College, 2007. The utmost gratitude goes to my parents, the kindest people I know.


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The Fourth Amendment to the United States Constitution states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....”2 Recent Internet developments raise the question of whether this right extends to social networking. Even Justice Alito recognized the issue in his United States v. Jones concurrence, noting that social tools “will... shape the average person’s expectations about the privacy of his or her daily movements.”3 In the social networking context, can law enforcement use a photograph, check-in, or status update posted online to justify further search or 1 The descriptions of social networking websites within this Note reflect the policies and format of the websites at the time of writing. The privacy policies of social networking websites are constantly evolving and may change at any time after the researching and writing of this Note.

2 U.S. CONST. amend. IV.

3 132 S. Ct. 945, 963 (2012) (Alito, J., concurring) (“Similarly, phone-location-tracking services are offered as ‘social’ tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.”).

2012] SOCIAL NETWORKING 517 even arrest? Under current Fourth Amendment case law, most notably Katz v. United States,4 the answer seems to be yes. Justice Harlan’s concurring opinion in Katz v. United States has come to govern the standard for what qualifies as a search under the Fourth Amendment.5 In short, the Fourth Amendment applies in situations where an individual has a reasonable expectation of privacy.6 This standard cannot be satisfied in social networking. From news stories to privacy controls and even to user updates themselves, there may be no real protection from the authorities when one posts online.

This Note details applicable Fourth Amendment case law and concludes that all social networking users should be wary of the information they post online. Government officials may use public information to justify an arrest or conviction, and without Fourth Amendment protection, users may be subject to criminal liability based on personal photographs, location check-ins, or status updates posted on social networking websites.

The statistics on social networking are staggering. The most popular social networking website, Facebook, has become a worldwide phenomenon.7 Facebook allows users to share photos, status updates, their location, and other media with their “friends.”8 Facebook alone has more than one billion users, and the average Facebook user shares ninety pieces of information each month.9 Facebook sees over one million photographs uploaded every twenty minutes.10 Additionally, more than six hundred million active users access Facebook through an application on their mobile phone, and many of these users stay logged into Facebook for extended periods of time, with the mobile phone application tracking their location.11 Facebook states that it has seen over seventeen billion location-tagged posts, including check-ins to the user’s current location.12 Twitter is a social networking website that allows users to share small status updates (under 140 characters) and photos with their “folU.S. 347, 359 (1967).

5 See id. at 360 (Harlan, J., concurring).

6 See id.

7 See generally Dan Fletcher, How Facebook Is Redefining Privacy, TIME (May 20, 2010), http://www.time.com/time/magazine/article/0,9171,1990798,00.html.

8 See id.

9 See One Billion Fact Sheet, FACEBOOK, http://newsroom.fb.com/imagelibrary/ downloadmedia.ashx?MediaDetailsID=4227&SizeId=-1 (last visited Oct. 19, 2012); Adam Ostrow, What happens after your final status update? CNN (Sept. 4, 2011), http://www.cnn.


10 Aden Hepburn, Facebook Statistics, Stats & Facts for 2011, DIGITAL BUZZ BLOG (Jan.

18, 2011), http://www.digitalbuzzblog.com/facebook-statistics-stats-facts-2011/.

11 See One Billion Fact Sheet, supra note 9.

12 Id.

518 CORNELL JOURNAL LAW PUBLIC POLICY [Vol. 22:515 OF AND lowers.”13 Twitter status updates sometimes reflect the users’ random thoughts, but users also post their locations or photos in their “tweets.”14 Twitter has over 100 million active users worldwide, and the website manages an average of 230 million tweets everyday.15 While half of those 100 million users log into Twitter daily, some 40% of users do not share updates of their own, but instead merely view the tweets posted by others.16 Finally, Foursquare, a relatively new social networking platform, allows users to “check-in” to locations, providing real-time updates of the users’ locations.17 Foursquare currently has over 10 million users.18 Foursquare is also accessible through a mobile phone application, allowing instantaneous sharing of information, but many users fail to consider the public exposure of their whereabouts.19 With so many social networking website users, there is a need to protect the information placed on those websites. For example, what happens to users who do not properly manage their use of these websites? Is there any protection against the police using that information, in the form of photos, check-ins, or tags, to justify a search or even an arrest? Do users face police action based on their online postings? The Supreme Court has yet to weigh in on the Fourth Amendment’s relationship with social networking, but as technology continues to advance and as Justice Alito noted in United States v. Jones,20 the Court will have to examine these issues soon.

This Note focuses on the privacy implications of social networking activity in the context of location tracking. Facebook, Twitter, and Foursquare are all capable of tracking users’ locations while they are logged into the website, and the Fourth Amendment may not apply to this type of location tracking. This Note also discusses the Fourth Amendment 13 About Twitter, TWITTER, https://twitter.com/about (last visited Oct. 19, 2012).

14 Id.

15 Bianca Bosker, Twitter Finally Shares Key Stats: 40 Percent of Active Users Are Lurkers, HUFFINGTON POST (Sept. 8, 2011, 2:51 PM), http://www.huffingtonpost.com/2011/ 09/08/twitter-stats_n_954121.html.

16 Id.

17 Bianca Bosker, Foursquare Celebrates 10 Million Users, Reveals New Stats, HUFFINGTON POST (June 20, 2011, 6:04 PM), http://www.huffingtonpost.com/2011/06/20/foursquare-10-million-users-stats_n_880772.html.

18 Id.

19 See Some Notes on Foursquare and Location Sharing, FOURSQUARE LABS, INC., http:// blog.foursquare.com/2010/08/17/967910179/ (last visited Oct. 19, 2012).

20 See United States v. Jones, 132 S. Ct. 945, 963 (2012) (Alito, J., concurring) (noting that “phone-location-tracking services are offered as ‘social’ tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.”).

2012] SOCIAL NETWORKING 519 case law detailing the reasonable expectation of privacy standard21 and concludes that any media placed on social networking websites—including location check-ins—may be without Fourth Amendment protection, because, in the words of the Katz opinion, the social networking users knowingly exposed that information to the public.22 Thus, Government officials may use any information posted on these websites to justify an arrest or as evidence in a case against a suspect. This Note details the users’ need to remain aware of publicly viewable information on social networking websites, from photographs and status updates to location check-ins.

Part I of this Note discusses the Katz reasonable expectation of privacy standard. Part II details Fourth Amendment doctrine in the context of location tracking, including considerations of plain view movements and the use of Global Positioning System (GPS) trackers. Part III discusses various implications of the Fourth Amendment in social networking, including consent and “opting in” to the privacy rules of Facebook, Twitter, and Foursquare. This Part also addresses recent developments in several cases implicating Fourth Amendment protection in social networking use. Part IV discusses some of the foremost Supreme Court Fourth Amendment cases, specifically those involving new technology and plain view surveillance. Part V focuses on the Supreme Court’s development of the “pretend friend” doctrine. Lastly, Part VI examines additional considerations in a social networking search analysis, including youth privacy and suppression claims.




The leading case governing Fourth Amendment searches remains Katz v. United States.23 In Katz, Justice Harlan argued in his concurrence that Fourth Amendment violations must be decided under a reasonable expectation of privacy standard.24 In this case, the defendant used a public pay phone to place illegal gambling wagers.25 The FBI had attached an electronic device to the phone booth to listen to Katz’s call, and the officers used the information that they gathered while listening to the call to justify Katz’s arrest and conviction.26 Katz appealed his conviction, claiming that the use of the electronic device constituted a search in violation of the Fourth Amendment.27 The Supreme Court agreed

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with Katz, stating that the wiretapping constituted a search because it violated Katz’s reasonable expectation that his conversation would not be broadcast to the world regardless of the lawfulness of Katz’s actions.28 As the Katz Court stated, “Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution.”29 The Fourth Amendment right against unlawful searches and seizures governs the inquiry.30 Writing for the majority, Justice Stewart argued that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”31 Because social networking websites are still in their infancy, the Court has yet not narrowed the definition of “knowingly exposed” for application to social networking website activity. However, these websites have become one of the most common modes of communication, and it seems inevitable that this issue will soon reach the Court.32 Because of the privacy guidelines disclosed on each social networking website, location check-ins may be considered knowingly exposed to the public; to join a social network, the user must respond to the standard privacy policy and accept the terms-of-use agreement.33 A user may argue that her social networking use is not aimed toward the public dissemination of personal information, but that user posts with the hope that the community will see the information. A user posts with the understanding that the information put on social networking websites will be broadcast to the world and, thus, knowingly exposed. Therefore, under the Katz framework, it seems that the average social networking website user will not receive the benefit of the Fourth Amendment’s protections for her online social networking activity.

Under Katz, even if the information is knowingly exposed, what a defendant “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”34 In a public phone booth, for example, an individual “is surely entitled to assume that the words he 28 Id. at 356–57.

29 Id. at 350 n. 5.

30 Id.

31 Id. at 351.

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