Law Enforcement Agencies Social Media Marketing Material :gov

Yet today'southward surveillance analysts have a new source of information: social media. Consider the contempo protests over the police killings of George Floyd and Breonna Taylor. As demonstrations spread beyond the country, the FBI and local police monitored social media and made arrests based on what people have posted online. In 1 instance, police in Wichita, Kansas even arrested a teenager on suspicion of incitement to rioting based on a threatening Snapchat screenshot he shared. The teen's post added a note cautioning readers to "stay tf away from" his hometown—rhetoric intended to denounce the call to violence, not to foment it.

Unfortunately, the surveillance of social media is a growing trend. In recent years, social media posts have landed individuals of color in overbroad and unreliable gang databases, and even been used to justify keeping them imprisoned. One New York teen spent more than a yr on Rikers Isle, based in large part on the district attorney's incorrect assessment that he was a member of a criminal gang. The D.A. relied on Facebook photos of the teen with members of a local crew—a group of kids loosely affiliated by block or housing development—and several posts from crew members that he had "liked." In reality, the teen was merely connected to crew members because they were his neighbors and family members. The extent to which communities of colour are viewed with suspicion tin create a self-fulfilling prophecy where basic social media etiquette is mistaken for membership in a criminal enterprise. Social media is highly contextual and prone to misinterpretation, magnifying the chance that one person'south innocuous mail volition exist taken as something more than sinister.

From protests to public housing, social media monitoring raises ceremonious liberties and civil rights concerns that are currently going unaddressed. Establishing a framework that balances public safe and the right to privacy, free expression, and equal protection under the police force requires updates to our existing regulatory controls.

How do constabulary monitor social media?

To brainstorm with, how do the police watch social media? Nearly commonly, an officer views publicly bachelor posts past searching for an individual, group, hashtag, or another search vector. Depending on the platform and the search, it may yield all of the content responsive to the query or only a portion. When seeking access to more than is publicly available, police may use an informant (such as a friend of the target) or create an clandestine account by posing every bit a fellow activist or alluring stranger. This allows officers to communicate straight with the target and see content posted by both the target and their contacts that might otherwise exist inaccessible to the public.

Constabulary have also used software to monitor people, groups, associations, or locations in a more automated style. This software included tools that mapped clusters of activeness and a platform for linking hugger-mugger accounts. This tactic is less common at present after the major platforms prohibited app developers from receiving automated access to public content for surveillance.

Dataminr, the prominent social media analytics firm, appears to have found a partial workaround to this prohibition by providing police with "public sector alerts." Dataminr'southward automated systems analyze public data feeds and deliver automated alerts to police force enforcement clients, including the FBI, well-nigh shootings and natural disasters. Information technology is unclear whether police enforcement tin customize the service to go beyond the types of alerts included in Dataminr's marketing fabric.

Police force enforcement may too request social media data as function of a criminal investigation. By deploying subpoenas and warrants, police enforcement tin collect an assortment of data directly from social media companies. For example, a template warrant drawn upwardly by the Department of Justice to serve on Facebook contemplates collecting an array of information, including contact information, photos, status updates, private letters, friends lists, grouping affiliations, "friend" requests, futurity and by event postings, privacy settings, and more than.

Social media monitoring is pervasive. According to a 2017 survey by the International Association of Chiefs of Police, lxx% of responding police force departments use social media for intelligence gathering and to monitor public sentiment. Similarly, Facebook's latest transparency report states that the visitor received over 50,000 regime requests for data between July and December 2019.

What does the police force say?

Despite widespread use of social media by police, in that location are few laws that specifically constrain law enforcement's ability to engage in social media monitoring. In the absence of legislation, the strongest controls over this surveillance tactic are often police departments' individual social media policies and platform restrictions, such as Facebook's real name policy and Twitter'south prohibition against using its API for surveillance. While the ramble mural is unsettled, constitutional protections for privacy, freedom of oral communication and association, and equal protection may provide mechanisms for individuals to claiming the government'south drove and utilise of their social media information.

Quaternary Amendment protections

The Fourth Subpoena guarantees the correct of the people to be free from unreasonable searches and seizures; the inquiry for whether a search was unreasonable, outside of the core protections of the Fourth Amendment for "persons, houses, papers, and effects,"  generally comes downwards to whether a person has a "reasonable expectation of privacy" and whether society recognizes that expectation as reasonable. While courts take begun to recognize that privacy doesn't require absolute secrecy, they have nevertheless typically held that individuals practice not have a recognized expectation of privacy in data publicly shared online. Every bit one appeals court put it, "If you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy."

When police want access to data that is not readily available to the public, however, the Supreme Courtroom generally requires law enforcement to see a higher standard. The Court has held, for case, that when police enforcement uses digital tools to view information that would otherwise require a warrant to obtain, the apply of that tool requires a warrant as well. All the same, courts accept by and large allowed police force to engage in undercover operations (both online and in the real world) without obtaining a warrant—though individual law enforcement agencies may put additional restrictions in identify.

This permissive approach largely grows out of a separate legal principle called the "third-party doctrine." Under this doctrine, when people share data with a tertiary party, whether another person or a concern, they should expect that the data could be disclosed to the regime.

Courts take extended this reasoning to social media. In United States v. Meregildo (2012), for case, a New York commune courtroom found that while a person's privacy settings might have signaled an intent to maintain secrecy, any expectation of privacy was "extinguished" when they shared content with Facebook friends because those individuals were free to use that information however they saw fit—including by sharing it with police enforcement.

But the boundaries of the 3rd-party doctrine are becoming murkier, and the Supreme Court is increasingly signaling a need to reconsider the doctrine in light of technological advances. Most recently, in the 2018 instance Carpenter 5. United States, the court ruled that despite the tertiary-political party doctrine, the police had to obtain a warrant before it could access historical location information held by cell telephone providers. And in the Supreme Courtroom'due south 2012 determination in United states 5. Jones, which held that the government had to get a warrant to install a GPS device that enabled constant location tracking, Justice Sonia Sotomayor observed in her concurrence that secrecy might need to stop being treated as a "prerequisite for privacy" in order to account for the volumes of sensitive information shared with tertiary parties on a daily basis.

The awarding of the Quaternary Subpoena has been rooted in applied limitations, but the force multiplier event of social media surveillance calls those limitations into question. If constabulary desire to physically trail a car, there are limits to the number of vehicles that can exist followed. Having to make determinations about how best to allocate an officer's valuable time provides some rough limits, even if those resources decisions are not ever made judiciously. By contrast, a single officeholder can monitor the social media accounts of dozens of people all at once, without having to leave her workstation. Hugger-mugger social media accounts offer profoundly expanded power as well. An officer who would have to have care to create and maintain a single undercover persona in real life could have twenty different personas online. And sophisticated software may be able to assist law in monitoring thousands of accounts at the button of a push.

In 1983, the Supreme Court predicted that this kind of wide-scale surveillance could trigger a different legal analysis. "If such dragnet-type law enforcement practices…should eventually occur," it may be fourth dimension "to decide whether unlike ramble principles may be applicable," Justice William Rehnquist wrote in United States v. Knotts, in which the court decided that tracking a suspect using a surreptitiously planted beeper device did not constitute a Fourth Amendment search.

Finally, law enforcement can also seek account data directly from social media companies. Under the Stored Communications Deed (SCA), law enforcement can serve a warrant or subpoena on a social media visitor to get access to information about a person's social media profile. The SCA as well permits service providers to voluntarily share user information without any legal process if delays in providing the information may lead to death or serious injury.

While numerous defendants have challenged the constitutional validity of warrants to search their social media data, courts take mostly upheld the warrants. For example, courts have upheld warrants looking for IP logs to institute a suspect'south location, for prove of communications betwixt suspects, and to establish a connection betwixt co-conspirators.

Outset and Fourteenth Amendment protections

The Starting time and Fourteenth Amendments offer protections where surveillance is based on political or religious beliefs, associations, racial and indigenous identities, and other protected categories or activities. Surveillance can have a spooky issue on Starting time Subpoena freedoms, and surveillance that disproportionately targets a protected class can give ascent to equal protection harms under the Fourteenth Amendment.

Social media monitoring tin accept serious spooky effects on protected speech communication and association. When police force target individuals for surveillance because of their political viewpoints, people may choose to censor their online activity and associations to reduce the risk of governmental monitoring. Also, law enforcement may use social media to compile dossiers on people on the footing of First Amendment-protected activities and may share them among local, country, and federal agencies—this can increment the risk that protesters later on face retaliatory targeting in the grade of displacement proceedings or unrelated criminal prosecutions.

The case constabulary on whether these impacts requite rising to concrete Offset Amendment claims continues to evolve. In Laird v. Tatum (1972), the Supreme Courtroom adopted a restrictive approach to the Outset Subpoena, ruling that plaintiffs in the case did not have standing to claiming an Army intelligence programme stood up in response to 1960s civil rights protests. That program collected data from newspapers and police departments and sent Regular army intelligence agents to nourish public meetings. Just, the Court ruled, the mere existence of a surveillance plan that may have chilled speech did not crusade sufficient harm to give the plaintiffs the right to sue nether the First Amendment.

Where the targeting of Commencement Amendment-protected activity leads to a concrete harm, afflicted individuals may take continuing to heighten a merits. For case, in Baird v. Land Bar of Arizona, a lawyer was prevented from joining the country bar because she refused to answer if she had ever been a fellow member of the Communist Party. There, the Supreme Court ruled that the government "may non ask almost a man's views or associations solely for the purpose of withholding a correct or do good because of what he believes." Applying this ruling to the digital era, if a person'southward social media is surveilled on the basis of her political beliefs or associations, and she is later denied a ceremonious benefit or prosecuted for an unrelated law-breaking in retaliation for the beliefs or associations revealed, she should have continuing to bring a Offset Amendment merits. In a time when social media monitoring allows the government to detect a person's beliefs and associations easily and covertly, there is a item demand to ensure that this information is not misused to target disfavored individuals for adverse authorities activeness. Unchecked, discriminatory surveillance can have chilling effects on unpopular but lawful associations.

Fortunately, in Hassan five. Urban center of New York (2015), the Third Circuit ruled that where discriminatory government monitoring dissuades individuals from exercising their ramble rights, they may take standing to challenge the surveillance. The Hassan courtroom evaluated the NYPD's mail-9/11 surveillance of Muslim communities in New York and New Jersey. This surveillance program targeted mosques, student groups, businesses, cafes, and more, leading many individuals to limit or withdraw from being active participants in their customs. The Third Circuit ruled that where surveillance is racially or religiously biased, or undertaken in retaliation for exercising First Amendment rights, impacted individuals have continuing to claiming the practise in courtroom—even if the bigotry is not "motivated by sick will, enmity, or hostility."

Extending Hassan to social media monitoring, surveillance that targets protected speech or disproportionately targets a racial or religious group, and leads to a concrete harm, can requite rise to a viable Commencement or Fourteenth Subpoena challenge, even if the surveillance was not animated by "overt hostility or prejudice." By intentionally targeting Black Lives Thing activists, constabulary may exist engaging in this kind of discriminatory surveillance. The same analysis could too apply to the surveillance of teens and pre-teens of color suspected of gang action.

These discriminatory surveillance programs, which target their online lives for disparate treatment based on their ethnicity, may stamp them with a badge of inferiority that violates their rights to equal protection nether the law. In Boston, a defense attorney recently won a discovery order requiring the police department to produce records related to its surveillance on Snapchat, which will offer an opportunity to determine whether the programme disproportionately targets Black and Latino men.

Room for reform

The availability of social media has dramatically expanded the scope of law enforcement surveillance. At the same fourth dimension, few departments have publicly bachelor policies governing their use of social media for intelligence, data collection, and criminal investigations. At that place are a number of practical steps that can be taken to brainstorm to address this gap.

1.  Every jurisdiction should be required to hold public hearings and obtain local government approval earlier police engage in social media monitoring. Where departments are already engaged in this do, they should pause the majority of these operations pending public hearings and evaluate whether existing surveillance programs disproportionately target constitutionally protected groups or associations.
2. Every police enforcement agency that uses social media for data gathering purposes should accept a publicly available policy that describes their employ of social media. These policies should particular the restrictions and procedures for social media monitoring and should specify the standards governing collection, use, retention, and sharing of personal information. Social media policies should contain articulate prohibitions against surveillance based on race, religion, gender, sexual orientation, immigration status, or a person's do of First Subpoena freedoms. The policy should also specify the legal processes that must be followed before law enforcement can seek social media data from companies. The restrictions imposed past a department's social media policy should be legally enforceable, such as by state attorneys general or the Department of Justice.
3. Not every investigation warrants the use of invasive covert accounts. There should be strict controls on the employ of this technique, including ongoing monitoring, supervisory approval and oversight, and time limitations. Law enforcement should be banned from impersonating an bodily person without that person's permission. Where law enforcement wants to use a covert account, they should be required to certificate that no less-invasive means are bachelor and to submit the documentation to an external trunk for oversight and approval. Judicial oversight of online hugger-mugger activity would offer the near robust protection.
4. Police are prevented from interviewing minors without notifying their parent or guardian. This protection should be extended to the online space with a flat prohibition against police connecting with minors via social media.
5. Social media monitoring should be subject area to ongoing reporting and audit requirements. For instance, police should have to regularly disclose information such every bit the number of social media investigations that are open and closed and those that are extended past their original closure appointment. The reports should also indicate where investigations may impact protected classes of people. Each police department'south social media monitoring practices should be audited by an independent entity on an ongoing basis to ensure compliance with ramble protections and safeguards.

These recommendations are intended every bit starting points for enacting needed reforms. They represent a regulatory floor, and jurisdictions should be empowered to enact stronger prohibitions against certain types of monitoring. This may show necessary in jurisdictions where constabulary departments exhibit repeated and consistent practices that violate ramble rights and freedoms. Establishing the right regulatory controls will require input and action from a number of stakeholders, from communities to civil society to police departments and local government to Congress and the Section of Justice. Merely this important regulatory action is overdue and should non be put off any longer.

Rachel Levinson-Waldman is the deputy managing director of the Liberty and National Security Program at the Brennan Eye for Justice.
Ángel Díaz is a counsel in the Freedom and National Security Program at the Brennan Middle for Justice.

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