Facebook: a Fine Line Between Public and Private

In late January, Gallatin County Judge John Brown dismissed a case against a 28-year-old Bozeman man charged with felony sexual abuse of a minor. The man had been caught sending illicit electronic messages to a Bozeman police detective posing as a 16-year-old Bozeman High School student. The conversation started over Facebook instant messaging, and eventually led to text messaging, where the man sent the “girl” a nude picture and requested nude pictures from her in return. The man then arranged to meet her in a Bozeman parking lot where he was arrested by the police.

Brown ruled that the police department’s undercover Facebook investigation had been an unwarranted invasion of privacy that violated both the Montana and U.S. Constitutions. In his ruling, Brown explains that the man had set up his Facebook account with the highest level of privacy, and therefore the man had a right to privacy on his Facebook page. Brown also mentions that online messaging and text messaging are quickly replacing face-to-face communication, and therefore should be protected from unlawful government intrusion.

On the opposite end of the spectrum, Gallatin County Deputy Chief Attorney Eric Kitzmiller argued that the man did not have the right to privacy in his Facebook messages due to the fact that the communication was not face-to-face and consequently the man could not verify that the “girl” was the recipient of the messages. Also, Kitzmiller argued that since the interaction was through electronic means, the content of the messages could have been stored and distributed to others, and thus should not be considered private information.

This case is the second in Gallatin County involving Facebook privacy rights within the last two years. In 2013, Gallatin County District Court Judge Mike Salvagni ruled that people do not have a reasonable expectation of privacy when it comes to messages sent over Facebook. In his ruling, Salvagni stated that the suspect of the case ran the risk of unknowingly communicating with a law enforcement officer, and that the suspect’s online activities were not entitled to constitutional protection.

Both of these cases are unique in the sense that no major Facebook privacy ruling has been made by larger courts such as the Montana Supreme Court or the U.S. Supreme Court. In effect, these cases put the Gallatin County District Court at the forefront of the issue, an issue that is only going to become more important as our lives become ever more digital.

It is frightening to think of the implications of a Facebook without privacy. Surely every Facebook user ought to realize that the things they post on their page and news feed are not private. After all, one of the most pleasing gimmicks of Facebook is seeing how many likes a post has received. However, most Facebook users use the messaging system for more private conversations, with the assumption that all of their messages are strictly private.

For the sake of being realistic, when it comes to “the information age,” it is always better to assume that online information is by default not private. The Internet at its core is about sharing information, not hiding it. However, that does not mean that law enforcement agencies should be allowed to search, and even mislead suspects without a warrant. Using a suspect’s public posts as evidence is one thing, baiting a suspect by using a fake Facebook profile, or using another person’s profile, is another thing.

Facebook privacy has been a popular topic recently as the courts have had to deal with the two cases without having substantial case law for guidance. The technology is still so new that courts across the country and world are still struggling to redefine privacy in the digital age. Despite the opposite rulings, the two cases give Montana the power to set a precedent in digital privacy matters that could be used by other courts in the future.

Billings legislator Daniel Zolnikov recently introduced a bill, HB 444, that would increase the privacy of Facebook messages. The bill would require that government agencies obtain a warrant before utilizing online communications held by a third party. According to the Bozeman Daily Chronicle, Zolnikov told the House Judiciary Committee that, if passed, the bill could be used as a model for the rest of the country and could set a precedent for the reform of privacy law. Although it will always be safer to assume that everything on the Internet is public, we can at least hope that our Facebook messages be kept private.