D.C. Appeals Court: Post-Location Information on Social Media Is Not Private
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
This case relates to the nationally known events that unfolded on January 6, 2021, when a “rioting mob swarmed the Capitol grounds and breached the Capitol building.” Due to the open and obvious use of cell phones by many rioters on January 6, the Federal Bureau of Investigation (FBI) sought information from Facebook. It asked Facebook to identify “any users that broadcasted live videos which may have been streamed and/or uploaded to Facebook from physically within the building of the United States Capitol during the time on January 6, 2021, in which the mob had stormed and occupied the Capitol building.” In response to the FBI’s request, Facebook made three separate disclosures, on January 6, January 13, and January 22.
Facebook’s voluntary disclosures included identification of users who posted content indicative of being inside the Capitol building during the January 6 breach. Armed with the account identifiers, the FBI sought search warrants requiring Facebook to disclose various records and information associated with the voluntarily disclosed information, including messages, posts, chats, photos, videos, location history, user information, and other account activity.
Defendant Matthew Bledsoe is the owner of one Facebook account in which the FBI sought a search warrant. Based on information Facebook voluntarily provided to the FBI, the FBI was able to identify Bledsoe as an individual inside the Capitol building on January 6, 2021. He was eventually charged and convicted by a jury on July 21, 2022, on all five counts against him for unlawfully entering into and remaining in the U.S. Capitol and acting with the intent to obstruct, influence, and impede Congress’s certification of the Electoral College vote in the 2020 election.
Before trial, Bledsoe moved to suppress all evidence from the non-public portions of his Facebook and Instagram accounts, and any evidence and information derived from the exploitation of that evidence. He asserted two grounds – first, that under Carpenter v. United States, the government’s request to Facebook seeking identifying information of accounts was required a warrant, and second, that even if obtaining identifying account information from Facebook presented no violation, the warrant that later issued lacked probable cause.
The District Court for the District of Columbia first looked at Bledsoe’s argument that the government’s acquisition of non-content information from Facebook, which identified user accounts engaged in activities during a specified time and location, qualifies as a Fourth Amendment search. The district court described this as a “novel Fourth Amendment issue in this Circuit.” Specifically, the question for the court was whether under Carpenter, the government’s acquisition of non-content information derived from user-generated content on a public social media platform is a Fourth Amendment search requiring a probable cause warrant.
In Carpenter, the Supreme Court held that the government must generally obtain a warrant supported by probable cause before acquiring historical cell phone record information that provides a chronicle of an individual user’s past movements, whether or not actively on the cell phone. In that case, the Supreme Court declined to extend the third-party doctrine to cover the cell phone location records. That said, the Supreme Court characterized its holding as “a narrow one.”
Here, the district court stated that Bledsoe failed to establish how the non-content information presented the same privacy concerns as the information identified in Carpenter. Unlike Carpenter, the information that Facebook provided to the government was derived from location records it collects for user-generated activity. Accordingly, the only way Facebook was able to determine when and where a user engaged in account activity on January 6, is by virtue of the user making an affirmative and voluntary choice to download the Facebook or Instagram social media platforms onto an electronic device, create an account on them, and initiating the activity of live-streaming or uploading a video. There is a volitional aspect of the data collected in this case.
Bledsoe’s attempt to claim a reasonable expectation of privacy in the disclosed information under Carpenter was also determined to fail for another reason – he did not establish that the disclosed information rested on a detailed chronicling of his physical presence for every moment over the course of several years. The government did not ask for and Facebook did not voluntarily disclose the contents of account activity, information to reveal an account user’s movements into private residences or other revealing locales, or a record of movements over the course of a year, month, week, or even day.
Thus, the district court determined that Bledsoe failed to establish a Fourth Amendment interest in the non-content user identification information that Facebook voluntarily disclosed to the FBI. As such, suppression was not warranted on this basis.
The court also considered Bledsoe’s second argument, that the search warrant issued lacked probable cause. The court determined that the search warrant was supported by ample reason to believe that evidence of criminal activity occurring at the Capitol building on January 6 would be found in the identified social media accounts. As such, the district court denied Bledsoe’s motion to suppress.
Read the full case: United States v. Bledsoe.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.