Social Media Privacy: Issues, Concerns, & What It All Means Legally

While social media is now well-engrained in our day-to-day lives, it continues to evolve as new apps and social networks like TikTok come to the forefront. Social media privacy is changing right along with it. Ultimately, these changes have significant implications for users, social media investigators, and legal proceedings.

As leaders in social media investigations, we keep our fingers on the pulse of social media privacy and policy to ensure we are obtaining information effectively and ethically. Here, we cover all things privacy on social media, including social media privacy issues, common concerns, and whether social media is private in both a general and legal sense.

Table of Contents:

• Why is social media privacy an issue?
• What are major social media privacy issues and concerns?
• Can social media be used as evidence in court?

Why is Social Media Privacy an Issue?

Social media and privacy are by no means synonymous. Platforms collect vast amounts of data on their users, including personal information such as names, email addresses, phone numbers, and locations, as well as browsing history, search queries, and interactions with other users.

The issue is that this sensitive data is sometimes accessible by people outside of the intended audience. Third parties with ill intent can obtain this data and use it for targeted misinformation, identity theft, cyberstalking, harassment, and more. Whereas other third parties like social media investigators and online retailers rely on the legal use of this data in their daily professions.

Social Media Privacy is Evolving Quickly

The technical innovation cycle is rapid and becoming more so every day. Safeguards are often missing when new features or platforms are released. Yet when those safeguards are developed, they may have imperfections and can quickly become obsolete.

For example, Facebook actually shut down its application programming interface (API) in 2015 to stop data harvesting. Yet in 2016, political consulting company Cambridge Analytica was caught harvesting personal data from millions of Facebook users. Their goal was to influence the 2016 election by serving hyper-targeted, manipulative ads. The platform had restricted future use, but that didn’t limit the use of previously harvested data.

Image Source: Wikimedia Commons

The push and pull of innovation versus regulation has led to a slew of policy updates meant to curb the negative impact of social media on privacy. These policies come from legislatures and social media platforms like Facebook alike. Such updates have very real implications for social media users, investigations, and the admissibility of social media evidence in court.

What Are Major Social Media Privacy Issues & Concerns?

Is there privacy on social media? Most social media users know that there’s nothing private about a social media post if it’s published to a public audience (as opposed to followers or friends). What they may not know is that there is still a lack of privacy on social media in many ways, and an abundance of other information is still accessible to unwanted eyes.

How Does Social Media Affect Privacy?

Over time, social media users create a trail of breadcrumbs that paints a picture of preferences, beliefs, habits, and more. Even if users take measures to restrict the visibility of their content and data, it’s still potentially susceptible to a data breach, fake social media accounts, phishing, scams, or other malicious activity. Plus, private social media content will still likely be admissible in court.

There’s also the issue of third parties. Most major platforms have taken steps to ensure third parties obtain consent before accessing private information (e.g. you have to give permission before you can sign up for Spotify with your Facebook account). However, what third parties do once they have personal data is outside of a platform’s purview.

This puts much of the responsibility on the user’s shoulders at a time when most users don’t tend to read the fine print.

What Are the Privacy Risks of Social Media?

Cybercriminals who wish to exploit social media privacy shortcomings and loopholes are becoming more sophisticated, always trying to stay one step ahead of safeguards. While there are many potential ways they do this, we outline some of the most common risks below.

Data Breach

A data breach is when an unauthorized user accesses, uses, discloses, disrupts, modifies, or destroys personal data stored on a social media platform. This type of breach happens as a result of a data leak or hack. It can expose sensitive information like names, email addresses, phone numbers, passwords, and financial information.

Data Mining

Data miners collect and store personal information about people without their knowledge or consent. This information can be sold and used to track an individual’s movements, monitor their online activity, or even predict their future behavior.

Surveillance

Parties such as employers, governments, corporations, and other organizations might monitor an individual or group’s social media account(s). Surveillance enables these parties to track movement, activities, views, and beliefs.

Misinformation

Much like Cambridge Analytica did in 2016, malicious parties can use personal data to serve targeted misinformation. They often use this information to understand the motivations, beliefs, or political views that might be used to elicit a strong response.

What Are the Top Social Media Privacy Concerns?

Data privacy issues in social media have an impact on both users and legal professionals. However, the main concerns look very different for each group.

For Users

• Permanence – Even when users delete social media posts there is still the possibility that they have been copied.
• Security – Personal data is susceptible to common social media privacy issues like data breaches, data mining, false accounts, and impersonators.
• Third-party data use – Platforms have no control over what third parties do with the data they obtain.

For Social Media Investigators & Legal Professionals

• Admissibility – Courts have consistently ruled that social media content is admissible as evidence in court so long as it is properly obtained. Additionally, the courts are consistently ruling that even “private” content is admissible so long as it is relevant to the litigation.
• Access – Platforms like Facebook are constantly changing avenues of access to information; however, effective social media investigators are able to quickly adapt to these changes.
• Authenticity – In certain cases, it may be difficult to discern the authenticity of the content created. (This will become more difficult as AI image creation becomes more sophisticated.)

Can Social Media Be Used as Evidence in Court?

Yes, social media is used as evidence in court, although it is often underused. Social media platforms may contain information that’s relevant to a legal case, including communications between individuals, photographs, videos, location data, etc. These types of data often make up the output of social media investigations.

What Are the Benefits of Social Media to Lawyers?

Social media evidence is useful in supporting a variety of legal claims. Social media investigations unearth content that establishes patterns, trends, beliefs, and more to help bolster the strength of a case.

Establish a Timeline of Events

The timestamps on social media posts create a timeline of when certain events happened, when a party was feeling a certain way, etc. For example, social media posts could help support that a defendant was not at the location or was in a certain mood at the time of a crime.

Identify Patterns in Behavior & Beliefs

Social media is often a digital soapbox for people to share even their most radical beliefs and vent their frustrations. By showing patterns within content over time, lawyers can use social media to establish the character and/or motive of a party.

Corroborate Witness Testimony

Social media evidence can help further validate the testimony of witnesses. If the witness were to testify they had a close relationship with the plaintiff or defendant,  images of them together and past posts where they tag one another could help corroborate (or refute) the claim.

Show Intent

In some instances, criminals will post their intent to commit a crime online before actually doing so. This is what some individuals who stormed the capitol on January 6th did. Posts these parties created have been used as evidence against them as defendants.

Demonstrate Knowledge of a Crime

Social media posts can be used to show knowledge of a crime. What if a defendant were to show they had knowledge of a crime in a post, but that post was before anyone was aware of the crime? That could be potentially compelling evidence.

How Secure Is One’s Privacy & Data on Any Social Media Platform in a Legal Sense?

Social media is a potentially valuable source of evidence in legal proceedings, but it must be obtained and presented properly to ensure its admissibility in court. Generally speaking, it’s possible that even posts set to private or limited to specific audiences could be admissible if considered relevant, authentic, and reliable.

AI-generated image of Pope Francis goes viral on social media. pic.twitter.com/ebfLK4F850

— Pop Base (@PopBase) March 25, 2023

Establishing the authenticity of social media evidence in court comes down to verifying who originally created it and ensuring it hasn’t been altered in any way. There are several examples of social media case law where authentication has become a primary issue. In cases where content may be difficult to authenticate, digital forensics experts are often needed.

Are Social Media Posts Protected by Privacy Regulations?

Social media posts are protected by various privacy regulations, but platforms also play a role in implementing cybersecurity features and policies to protect this content.

Data Privacy Laws for Social Media

Some of the newest and most impactful regulations of data privacy are not federal laws, but they still have national and even international implications. That’s because social media platforms often operate internationally. So if Europe passes new data privacy rights on social media for its citizens, the downstream adjustments made by social media platforms could still impact U.S. users.

This short list summarizes some of the major regulations impacting social media privacy.

• General Data Protection Regulation (GDPR) – This law regulates the collection, use, and storage of personal data belonging to citizens of the European Union. Since it applies to any business that processes the personal data of EU citizens, it impacts how most major social media platforms handle data privacy.
• California Consumer Privacy Act (CCPA) – This law gives California consumers more control over their personal data. Any business that collects data from a California resident must comply, which impacts virtually every social media platform used in the United States.
• Children’s Online Privacy Protection Act (COPPA) – This federal law protects the privacy of children by requiring websites to obtain parental consent before collecting information from a minor under the age of 13.
• Electronic Communications Privacy Act (ECPA) – This federal law protects the privacy of electronic communications like text messages, emails, and direct messages (DMs) stored by tools, platforms, and carriers.

Privacy Policies & Features

The truth of the matter is that technological innovation often outpaces legislation. So while data privacy laws roll out slowly, social media platforms release policy, feature, and data updates rapidly. This speed of development is one of the advantages of social media privacy policies enacted by platforms versus legislatures.

Often, these changes impact the personal data accessible to other users, social media investigators, third parties, and more.

How Do Social Media Privacy Laws & Platform Policies Impact Social Media Investigations?

Social media investigations (SMI) continue to provide crucial information for litigation, but the SMI process has evolved in tandem with social media policy changes.

It was once possible to enter an individual’s phone number or email address into the search bar and locate an account. Changes in privacy policies and laws – including Facebook’s changes to its API – made some of the most popular social media investigation tools obsolete. The functionality that made it relatively easy to locate an account or information is now long gone.

Such changes reinforce the need for experienced and skilled social media investigators with the skills and technical know-how to locate the accounts of their subjects and preserve necessary information. By utilizing a wide array of techniques and tools, a quality social media investigation process is protected against large-scale privacy setting changes.

Experts in Data Privacy & Social Media Investigations

We pride ourselves on staying one step ahead of changes in the social media privacy landscape. By pairing a diversity of tools and techniques with industry-leading expertise, we continue to provide effective, comprehensive social media investigations. For inquiries, please call us at (877) 353-8281 or fill out our online form to discuss how we could help you!