Sex Crimes, Social Media & Privacy: The line of scrimmage defined.

Much has been written on the right of privacy that is implicit within the United States Constitution.[1] Regardless of the volumes of prose, the nation’s criminal justice system is still just learning how to balance the aforementioned rights with the use of social media, and the rights of the criminally accused. What happens when two college football players are accused of rape, and the lion’s share of the communication between the alleged victims, the accused, and third parties exists solely on sites such as Facebook, Instragram, and Yik Yak? Sadly, like many sexual crimes, the result turns into a he-said-she-said  affair that is hard to mine for truth.  Online conversations between the parties and other witnesses could greatly affect the outcome of the case. That is what is at the core of a legal scrum being waged by former University of Tennessee football players A.J. Johnson and Michael Williams.

The Knoxville News Sentinel describes the situation thusly:

“[a]gainst what is already a high-profile backdrop, the case is plowing new legal territory in the criminal justice system. Johnson’s defense team…has launched an aggressive push to uncover the virtual lives of not only the accuser but witnesses…Prosecutors in recent years have begun to mine social media sites such as Twitter and Facebook for evidence against defendants…But this case represents the first time in Knox County — and one of only a handful in the state — in which the defense has gone on the offensive to garner access to the social media accounts of witnesses…When social media providers, including Facebook, Instagram and Yik Yak, balked at providing access to [the accuser and witness] accounts, it also became clear there is no nationwide legal rule on how a court in one state must enforce an order issued by a court in another state. Johnson’s defense team is waging separate fights in California, where the providers are located, and in Florida, where key witnesses now live, as a result.”[2]

Criminal Court Judge Bob McGee initially moved to compel the accusers and witnesses to provide data to show what was said surrounding the alleged events, but later reversed.  McGee explaining his change stated that “This is new territory. It is a new world. … Legal principles are failing to keep up. We are without legal guidance and authority.”[3]  This latest ruling has been appealed by the defense. With that in mind, the nation should be watching the outcome of the Tennessee appellant case, and those like it.. Like the Apple cases[4], these rulings will forever change our legal landscape, and could define the length and breadth of the gridiron of our implicit rights to privacy as read into the First, Fourth, Fifth, Ninth and Fourteenth amendments of the United States Constitution.


—By Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] For introductory primer, see: