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Cautionary tales of posting photos on Facebook

posted Apr 19, 2012, 10:30 AM by Kevin Morrison   [ updated Apr 19, 2012, 10:37 AM ]

Individuals posting pictures on Facebook documenting their crimes is nothing new.  It has happened to celebrity athletes like Michael Phelps and ordinary people like Mr. Baker and his girlfriend.  Posting photos appearing to show a crime on Facebook, or the internet in general, carries certain risks related to prosecution as the photos can help a prosecutor prove different elements of their case, even if you didn't do anything wrong.  These cautionary tales, and others like them, can tell us something about the risk of posting those photos.

First, photos can help a prosecutor prove where it happened.  This is important because laws vary from place to place.  Drinking age, age of consent for sex, wiretapping, and public nudity laws vary across the nation.  Additionally, prosecutors can typically only bring charges for conduct which occurred in their jurisdiction.  For example, a county prosecutor in Minnesota cannot prosecute you for what you did in Wisconsin (although they can arrest you and send you back to stand trial).  If your photo includes GPS coordinates, like the photo being used as evidence of the identity of CabinCr3w, or shows an identifiable location such as a landmark, the prosecution can easily prove where the crime occurred.

Second, the photo can demonstrate when the crime occurred.  Photos are frequently date and time stamped.  Most crimes have a statute of limitations.  Time limits for the prosecutor to bring charges against you.  If the photo has a date and time somewhere in the metadata, the prosecutor can use it to prove the crime happened within the time limit.

Third, the photo can demonstrate evidence of the crime itself to varying degrees.  If the photo shows you drinking from a beer can, doing a line of coke, beating someone up, or siphoning gas from a police car, you have provided some evidence of your own wrongdoing.  Because photos can be staged for comedic effect, it is difficult to prove they show what they are supposed to be showing.  Take the gas siphoning photo, pictured to the right (picture found at newstalk870.am). If the defendants had stuck to the claim that the photo was staged, the charges might have been dismissed.  After all, the photo shows the defendant in a compromising position but it does not actually show gas being stolen.  It is not a crime to pretend you are siphoning gas from a cop as a joke.  Similarly, a picture of you drinking from a beer on your 18th birthday with a GPS stamp from your house can prove you had a can of beer in your hands on your 18th birthday, it doesn't prove the can still had any beer in it.  It is not illegal to hold an empty beer can if you are underage.

SO WHAT SHOULD YOU DO?

There is no way to completely prevent this from occurring to you, even if you remain law abiding.   After all your friends can post pictures of you appearing to break the law even if you didn't.  However, you can take measures to protect your own privacy.  First, don't post compromising photos if you actually committed a crime. Second, turn off GPS tagging on your camera phone.  Third, use the Facebook privacy features to restrict who can see your pictures.  Fourth, turn off the date/time stamp.  Fifth, pay attention to the elections for judges and prosecutors in your area.  If the judges and prosecutors in your area don't seem to have a problem with the prosecution of protesters or government infringement of constitutional rights, you might want to consider voting against them in the next election.