The Digital Hunt for the Craigslist Killer Spawns Fresh Legal Issues

Earlier this month the Boston Phoenix ran a transfixing analysis of the Boston Police’s use of online and cell phone data in their hunt for Craigslist Killer, Philip Markoff.

If you haven’t seen the article, take a look. The Boston Police turned over their investigation files which reporters both analyzed and released. You can view seemingly endless crime scene photos and listen in on recordings of the interrogation. But perhaps most interesting, BPD released the its subpoena and Facebook’s response on what they knew about the suspect.

Facebook is reserved about their process for responding to subpoenas. So, the BPD sharing a copy of their request and the resulting data dump they received from Facebook was an eye-opener. Facebook’s response included an list of Philip Markoff’s Facebook friends, photos, status updates and IP addresses showing how he accessed the system. The Phoenix self-censored friend names before releasing the files. (See it all below.)

Several legal questions immediately surface:

  1. Does Facebook favor the prosecution?
    Facebook honors government subpoenas, but it does not honor defense or civil subpoena requests. The Phoenix’s reporting shows the depth of information the state can gather against a suspect, but a defendant couldn’t discover similar information about others to use in their defense. If a third party admitted to a crime on Facebook, an accused wouldn’t have a way of legally discovering this, unless it was a public post. Further, legal ethics block lawyers from “friending” others to gain access to information for legal proceedings. Even if not intentional, this is a structural inequity in digital discovery.
  2. What good are European privacy regulations?
    If US law enforcement and press can access and publish personal data outside of EU jurisdiction, then these laws mean quite little.  Under the PATRIOT act law enforcement can access European accounts from Facebook, Google, Hotmail or Twitter – none of which are provided protected status in the US.
  3. What privacy rights do innocent friends of the guilty retain?
    If one of Markoff’s friends shared an innocent secret with him, it would have ended up on the record, both with the police and the press too. This is a the very least a reminder to be careful of who you friend, and at most a wake-up call that use of social network may deserve privacy protection because of its permanence, volume, and potential for unintended collateral damage.

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