In recent years, police and prosecutors have implemented social media in a host of new ways to investigate and prosecute crimes. Social media, after all, contains a wealth of information—and misinformation—on individual users and their networks and few laws restrict what law enforcement can do with social media data. As more social media evidence factors in criminal cases, new opportunities to solve crime and bring those responsible to justice emerge, along with questions about the fairness and reliability of such evidence. Social justice activists and victim advocates worry that social media content is being used against vulnerable groups, furthering the vilification and stigmatization of already marginalized individuals. In this piece, we discuss research on social media and the law in two types of criminal cases—gang cases and sexual assault cases—to highlight key issues at play in this digital turn in the criminal justice system. We also explore grievances within the legal field from public defenders concerned that social media companies have aligned with prosecutors and shut them out, thus placing them and their clients at a disadvantage in what is already an unbalanced playing field. These contexts point to the double-edged sword of social media use in criminal cases as it opens once-closed communication channels around criminal activity while functioning to support age-old stereotypes and disparities in court.
Gang Cases
Prosecution of gangs is one area in which social media has opened new opportunities, as well as potential harm. In a paper with Katy Pearce, we looked at how social media helped gang prosecutors in one large city in the Northeast address gun violence. Almost half of the evidence cited in a series of 2011–2014 gang indictments that charged a total of 198 teens and young adults with felonies referred to social media use, such as messaging and posting updates and photos. And the charges stuck, with 190 defendants convicted. Social media platforms encourage users to make connections and share content. These aspects of social media use helped prosecutors meet the legal requirements they needed to bring charges of criminal conspiracy against the defendants. Through social media, prosecutors in these cases were able to demonstrate associations among defendants and between defendants and content that could be construed as indications of a crime (either a crime that was committed or criminal plans acted upon in this communication). These indictments reduced gun violence in the targeted areas, but they also generated felony charges based in part on co-appearances in photographs, posts that were broad and prejudicial, and other, visible associations created on social media.
In my book The Digital Street (Oxford University Press, 2019), I [Lane] examined the experiences of Black youth exposed to neighborhood violence and law enforcement surveillance that stretched from the streets of the Harlem in New York City to social media. I found that through social media police had penetrated whole teenage social worlds. Under this surveillance, peers were effectively giving information on one another to police without any intention of cooperating, thereby straining friendships, dating life, and basic communication and trust in the process. Steeped in intelligence from multiple technologies and coercive field methods, social media provided the connective tissue to take down large numbers of alleged gang members all at once in conjunction with conspiracy law.
In most instances, social media helped apprehend persons responsible for serious gun violence, but in other instances law enforcement used social media in ways that reversed the desistance process of young people in their maturation beyond gang involvement as they pursued school, work, and family goals. Forrest Stuart explains in his book Ballad of the Bullet: Gangs, Drill Music, and the Power of Online Infamy (Princeton University Press, 2020) that some Black, urban youth play up racialized stereotypes of gang violence in a digital-attention economy that rewards such content. I saw similar online affectations in Harlem that gang prosecutors adapted to by deepening their level of surveillance to gather evidence not from the public feeds of social media but from the more intimate space of direct message—where private, one-to-one communication would likely be deemed more reliable in court.
Sexual Assault Cases
In addition to gang cases, scholars have examined the role social media plays in sexual violence cases. Sociologist Anna Gjika has found that digital evidence from social media can be helpful in overcoming the cultural and legal barriers to the processing of sexual assault cases. The abundance of images, interaction, and metadata stored on social media provide new, formal legal channels for police and prosecutors to investigate and prosecute sex crimes by establishing timelines, whereabouts, and other case details to substantiate rape allegations that would otherwise be dismissed. But social media does not appear in these cases in ways likely to change the attitudes of jurors or court actors about the perpetrators and victims of rape. Instead, prosecutors typically present evidence from social media to support long-standing gender stereotypes within sexual assault cases, including of women victims as permanently injured and helpless.
My [Ramirez] own research with Denault, Carpenter, and Wyers on the role of social media evidence in sexual assault cases in Canada reveals similar justice concerns. In my analysis of 14 judgements from sexual assault trials by judges that focus on underage female victims and the use of a “mistake of age” defense by defendants, I found that in 64 percent of cases, judges used social media evidence to support a ‘not guilty’ verdict, taking victims’ social media content at face value and holding girls accountable for having provocative pictures or lying about their age on social media. Judges even showed sympathy toward defendants who had allegedly been misled by girls’ incorrect profile information (e.g., wrong date of birth or education level), edited photographs, and flirtatious online behavior. Only in 36 percent of cases did judges contextualize social media evidence as insufficient and unreliable as part of a guilty verdict, arguing that it is common for youth to embellish facts or present a highly curated persona on social media, and that a defendant should therefore have taken additional steps to establish the victim’s age before engaging in sexual activity. Although only a minority of judges noted that social media self-presentations may not match up to offline realities, the fact that such arguments were made in court suggests there is some awareness among legal professionals about the sociocultural norms that govern social media use.
Public Defenders Testify to a Technology Gap
Public defenders have voiced their own concerns about the use of social media in criminal court. On January 29, 2020, the New York City Council’s Committee on Justice System convened a public oversight hearing on “The Technology Gap between Public Defenders and DAs,” in which representatives from four public-defender organizations explained how social media disadvantaged their offices, starting with disparities in access to evidence from social media companies that, as one supervising attorney testified, “bend over backwards for law enforcement.” The attorney elaborated on law enforcement’s one-sided relationship with Facebook: “It offers a law enforcement-only portal for police and prosecutors to upload warrants, orders, and subpoenas. Defense attorneys are not permitted to use that portal.” Indeed, social media companies are not legally obligated to cooperate with public defender offices—and rarely do so. Under the Stored Communications Act (SCA), companies like Facebook do not need to turn over any messages, posts, photographs, or other content from their account holders to entities other than the government, even when served with a subpoena. According to hearing testimony, without recourse to successfully subpoena materials from any witnesses or case parties, public defenders find their access to evidence from social media is largely at the mercy of prosecutors as part of the discovery process (evidence often turned over in data dumps of thousands upon thousands of unsorted pages from social media accounts).
Conclusion
What we see as lacking in most applications of social media evidence in criminal proceedings currently is a deeper consideration of the sociocultural norms that govern individuals’ social media use and the importance of context. Rather, social media gets marshalled into evidence as an expression of prosecutorial power without carefully asking how, why, and under what circumstances social media content is produced. In gang prosecutions, social media generates more associations with neighborhood gangs for Black youth who, already under the shadow of suspicion, are often quickly and irrevocably labeled as gang members by law enforcement. Social media also provides another broad and deep tool for surveillance integrated along with so many other technologies designed or appropriated by law enforcement—issues discussed in Ruha Benjamin’s edited volume Captivating Technology: Race, Carceral Technoscience, and Liberatory Imagination in Everyday Life (Duke University Press, 2019).
Similarly, in sexual assault cases, it is important to be aware of the societal pressure placed on young girls to adhere to certain standards of femininity and sexuality and how these gender norms shape their self-presentation on social media. Proceeding without such contextual information risks perpetuating harmful rape myths and misconceptions about victim behavior.
We also see social media evidence as a privileged type of evidence that is not equally accessible to both sides of the criminal justice system, especially where public defenders are concerned. Current law on privacy and access to technology-mediated communication, such as the SCA, makes it difficult, if not impossible, for nongovernment entities to gain access to social media content (photos, written communications, etc.). Public defenders seeking access to social media evidence repeatedly get the runaround from social media companies, and when they do get access, they are typically restricted to requesting only non-content information such as IP addresses, which are less rich in detail and don’t hold the same evidentiary potential.
Although we have highlighted numerous instances of social media evidence extending problematic criminal justice practices that place marginalized youth and women at a disadvantage, we do not want to paint a hopeless picture. Because social media platforms have become archives of people’s lives, habits, and preferences, they can also be a source of rich, exculpating information. By giving more access to defenders and placing more restraints on law enforcement use and the admissibility of social media in court, as well as providing jurors with greater context and boundaries for how to evaluate and interpret social media evidence, we have a chance to better level the criminal justice playing field.
Any opinions expressed in the articles in this publication are those of the authors and not the American Sociological Association.
