Confused by Facebook privacy settings? So is the Supreme Court.


A view of the Supreme Court in Washington, D.C., Wednesday, June 27, 2012. (AP Photo/Evan Vucci)

The Supreme Court, on Tuesday, heard oral arguments in a pair of cases that will shape what privacy protections Americans have against warrantless searches of electronic devices. But during the two-hour discussion, Chief Justice John Roberts touched on a related issue that millions of Americans are challenged by every day: Facebook privacy settings.

The privacy settings of the social network and its related applications came up in the discussion of Riley v. California, a case involving a San Diego college student, David Riley, who was pulled over for expired tags, only to have police seize his phone and use a photo on it to convict him for participation in a drive-by shooting. Litigator Jeffrey L. Fisher, representing Riley, argued that even flipping through photos on a smartphone draws on a multitude of data that is "intrinsically intertwined" in the device in such a way that implicates the Fourth Amendment.

"Including information that is specifically designed to be made public?" asked Roberts, "I mean, what about something like Facebook or a Twitter account?"

Depending on a user's privacy settings, Facebook activity can range from entirely public to only available to an individual user -- although Facebook changes the settings often enough that users aren't always aware of the current setup. Twitter offers users the option of making their tweets public or only sharing them with approved followers.

But Roberts went on to say there is not really "any privacy interest" in a Facebook account -- or it's "at least diminished because the point is you want these things to be public and seen widely" -- before asking if there would be a way to create a rule that police could search "those apps that, in fact, don't have an air of privacy about them."

Even Roberts's argument about accessing publicly posted information doesn't seem to be making a lot of sense -- which isn't entirely surprising considering the court's previous problems with technology concepts -- mostly because if something is already public, there would be no need for law enforcement to use an arrestee's device to access it.

And there are many private aspects of a user's Facebook and Twitter account that would potentially be available to law enforcement. For instance, if a user is logged into a social media account via an app on the phone, and if law enforcement is able to digitally search through that app, then private aspects, such as direct messaging archives, would be available to authorities.

Fisher responded by noting that most of the information on smartphones is private. "Even a Facebook account is a limited universe of people who have access to it," he explained.

But Roberts seems to indicate that he believes anything shared on Facebook is potentially fair game, regardless of privacy settings. "I mean, you know, maybe it's a hundred people ," he said. "But it's certainly not private in the sense that many of the other applications are."

Facebook's privacy settings did not explicitly come up in the oral arguments of the other case, United States v. Wurie. In that case, information taken from a Boston drug suspect, Brima Wurie's phone led the police to other drugs and a weapon. But the social network did make a brief cameo in a list of potential targets for evidence collection.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.

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