No Social Media Privacy for Alleged Colorado Theater Shooter

Defendant James Eagan Holmes, the alleged Aurora, Colorado movie theater shooter, sought to suppress records obtained from two “dating” sites, and (to be clear, the former is for “sex and swinger personals”). apparently broke the story that Holmes, using the alias “classicjimbo,” had a picture of himself with red hair and a comment, “Will you visit me in prison?” homles

Some site photos and a CNN segment can be seen here.

Holmes’ lawyers argued to supress his profile records and subscription records.

The defense argued that the profile and subscription records were private.

As readers of this site well know, there is no reliable precedent that social media content is per se protected by privacy rights.

Applying the Katz “expectation of privacy” standard of 4th Amendment analysis, the court held that there was no societal expectation of privacy to the Defendant’s social media profile since it was accessible to the public.  In fact, the tagline “will you visit me in prison?” suggests that the writer anticipated it would be viewed by third parties.

Likewise, the subscription information amounted to content which the defendant voluntarily turned over to third parties (namely, those two sites).  This would include his billing and personal information as well as his IP address.

Unquestionably, the tagline about prison, if admissible, would be an indicator of forethought.  Likewise, the IP address information would tie the content back to the Defendant’s computer.

The November 7, 2013 Order Regarding Defendant’s Motion to Suppress Evidence: Records from and Adult Friend (D-117) is here.




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