Many people spend a large part of their day in front of a computer. However, they don’t often think about the criminal implications of their digital lives. Nothing is truly ‘private’ online, and a lapse of judgement can lead to people getting into serious trouble.
The following explains how digital behaviour can turn into criminal evidence, how investigators lawfully obtain that material and why online behaviour should never be treated as legally insignificant.
1: “Private” Does Not Always Mean Legally Protected
Digital communications frequently amount to admissible evidence in a criminal trial. There is no truly ‘private’ web browsing, social media account or messenger application.
Police have extensive powers to search and seize items connected to an offence including mobile phones, laptops, tablets and storage devices. Data from these devices can be extracted and used against an accused.
Moreover, police can intercept communications conducted online and may even be able to ‘decrypt’ so-called ‘encrypted’ conversations with extensive investigation powers (particularly at a federal level).
The fact that a conversation occurs in a “private” chat does not create immunity from lawful investigation or prosecution.
2: Social Media Posts Are Often Relied Upon by the Prosecution
The prosecution often relies on a posting of content online by a person that contradicts a later statement that they make to police or the court.
Under the Evidence Act 1906 (WA), prior inconsistent statements may be used in cross-examination. If a person gives evidence in court that conflicts with earlier digital posts those posts can be put to them. For example, where a person claims they were sober on a particular night but social media posts show they had been drinking to excess and were highly intoxicated.
Images and videos posted online are frequently relied upon in prosecutions. These may place a person at a specific location, show they associate with particular individuals, or that they were in possession of certain property. Metadata attached to images may include timestamps and geolocation data.
There is the potential for serious criminal charges to be laid where a person deletes incriminating posts from a social media trail which are relevant to a current police investigation.
In any event deletion of social media posts does not guarantee removal. Content may be cached by platforms, backed up, captured in screenshots or recoverable through forensic extraction. Furthermore, deliberate deletion after becoming aware of a police investigation may be used by the prosecution to show a consciousness of guilt.
3. Text Messages and Private Chats Can Incriminate
Test messages are often written quickly and without reflection. Text messages are frequently used by the prosecution as evidence in a criminal trial. Informal language, slang and humour can later appear in a bad light when read out in a courtroom.
The prosecution frequently leads evidence of group chats that they may use to prove a demonstration of joint planning or enterprise and established knowledge of wrongdoing. Even passive participation in a chat may be used against a person as evidence.
Messages do not need to amount to a confession to be damaging on an accused. Seemingly minor comments can be used to establish intent, knowledge or association with others involved in an offence.
4: Location and Metadata Are Stored
Mobile phones continuously track a person’s location either via GPS, connection to Wi-Fi networks or by pinging off cell towers.
Police may obtain location records through warrants or telecommunications data requests providing in-depth location data that can later be used as evidence. Although location data may not always be precise and can be challenged by the defence, it can still form part of the prosecution case.
Further the ‘metadata’ stored in digital files and images can provide information about creation date, modification date, device information and location. Timestamps can corroborate or contradict accounts of events.
5: Cloud Storage and Backups
In the age of ‘cloud computing’, automatic back-ups and forensic extraction devices, it’s naïve to assume that deleting material will ever truly get rid of it.
Investigators will frequently use warrants to access stored data in cloud backups or take advantage of the auto-sync function across devices. This interconnectedness increases the likelihood that digital material will survive deletion attempts.
6: Discussing Your Case Online
If you are charged with an offence, it’s always preferable to maintain your right to silence – and that includes maintaining silence online.
Persons charged with an offence who post about their ongoing proceedings on social media are likely doing themselves a serious disservice. Public commentary by an accused may undermine defence strategy, reveal information which is helpful to the prosecution, influence potential witnesses to the case or breach court orders (particularly if the accused is on bail).
Publication of material relating to pending proceedings may also raise issues of contempt of court.
7: Interacting With Alleged Victims or Witnesses
One of the most serious misjudgements a person can make after being charged with an offence is to contact victims or witnesses online.
Bail conditions commonly prohibit contact with relevant party. Under section 51 of the Bail Act 1982 (WA), failing to comply with bail conditions without reasonable cause constitutes a criminal offence.
Sending messages to try and ‘sort out’ a matter or apologise could not only cause an accused to breach their bail but may be interpreted as witness interference or other serious unlawful conduct.
8: Financial and Transactional Data
Not only do digital devices track our location and communications, but modern technology also means a person’s financial information can be tracked.
Online banking records, payment applications and transaction histories are all increasingly relied upon in criminal prosecutions. Digital payments generate detailed logs which are easily obtained by investigators and used as evidence.
Attempting to conceal digital transactions often leaves further evidence which may strengthen the prosecution’s case.
9: Everyone’s Digital Footprint Is Durable
Suffice to say, digital activity leaves a lasting footprint. Whether social media posts, private messages, location data, cloud backups or financial records, a person’s digital activity can, and frequently does, become evidence in criminal proceedings.
Online behaviour can have serious legal consequences.
If you are facing a criminal matter in Western Australia, it is essential to seek guidance from an experienced criminal lawyer. A defence lawyer will provide expert advice, protect your rights, and help achieve the best possible outcome for your case, especially where digital evidence is involved.
