There is nothing new about authorities increasingly collecting evidence by digital means. What is new, however, is that Instagram has been added to the list of potential sources.
Daniel Gatson, the suspect in a case before the US District Court for New Jersey, was believed to have posted photos of stolen property on Instagram. He had been arrested back in October 2013 on suspicion of dozens of burglaries, including taking jewellery worth USD 3 million. The US police obtained the photos from Instagram and submitted them to the court as evidence. To that end, it had created a fake Instagram account and sent the suspect an invitation to become ‘friends’, which the suspect had accepted. Needless to say, the suspect tried to prevent the photos in question from being used as evidence against him, claiming there were no grounds to search such data.
It was to no avail, perhaps because he defended his own case. The judge in New Jersey ruled that the photos had been ‘shared consensually’ seeing that the suspect had accepted the police’s friendship invitation, thereby giving them access to his account. In the judge’s opinion, the police therefore do not require a warrant to gather evidence this way.
The police not only investigated Gatson’s Instagram account, but also searched his mobile phone after the FBI had been able to arrest him on the basis of his phone records. The places from which he had made calls matched the burglary locations. This evidence gathering method was applied earlier by the judge in Gainesville (Florida) in a murder trial in which the suspect had asked virtual assistant Siri for advice.
The argument of consensus could possibly be successful in the Netherlands, even though the New Jersey case raises a number of questions. Did it actually involve mutual consent when the suspect was not aware he accepted a friendship invitation from a cop? Would he have accepted it had he known who was behind it? If the general advice is to accept invitations only from people you actually know – as Gatson should have done in his case – what if the police resort to forging existing people’s accounts in the future?