It is relatively easy to gauge the impact of social media on some levels of law enforcement. Simply watch expert testimony at gang trials as they cull incriminating photos of youths dressed in particular colors, adorning specific tattoos or slashing specific hand signs, and you can see how the advent and proliferation of social network sites, first MySpace and now Facebook and Instagram, have impacted law enforcement.
But while we may have particularized questions about such techniques, the use of photos to link defendants to gang activity is relatively straightforward, and even mundane, in most respects. After all, social network sites act more as a repository of images, and thus facilitate law enforcement efforts rather than create new issues.
A more troubling use of social media is depicted in an article released on Tuesday from the Center for Investigating Reporting, which notes, “Private tech firms have found a new market for their sophisticated software capable of analyzing vast segments of the Internet – local police departments looking for ways to pre-empt the next mass shooting or other headline-grabbing event.”
They add, “Twitter, Facebook and other popular sites are 24-hour fire hoses of raw information that need an automated tool for deciding what’s important and what is not.”
The problem is that, as this is an emerging technology, it is also an emerging area of law. Where does the line get drawn between collecting information that is public in nature or lacking the expectation of privacy – the standard by which the law has frequently been held to, in terms of intelligence gathering?
As the article notes: “Some argue that online surveillance shouldn’t matter if we freely make so many of our tweets and status updates available to all on the Internet.”
They cite as an example a website developed by a British teenager which provides examples of users who are “openly describing their own misconduct, confessing to being hungover at work and threatening their bosses.”
But merely gathering publicly available information about a particular crime might be different that the overt act of intelligence gathering.
Thus the CIR reports: “Police in Michigan reportedly used social media to nab a serial burglar and motorcyclist who boasted online about racing from the cops. A sheriff’s office in Louisiana posts suspect information on its own social media sites first before turning to TV stations and newspapers. The Colorado Office of Emergency Management used Twitter for updates on recent wildfires, and the Aurora Police Department tweeted critical updates following the theater shooting there in July.”
The report cites Dallas-area internet attorney Benjamin Wright, who argues that the courts have sent mixed signals pertaining to the use of social media as evidence in criminal trials.
He notes there is “no concurring opinion worth noting from the Supreme Court’s landmark January privacy case known as United States v. Jones. Justice Sonia Sotomayor argued that it may be time to reconsider the assumption that any reasonable expectation of privacy is lost when we hand over personal information to third parties.”
In her concurrence, Justice Sotomayor wrote, “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
This may at least be a gray area. More troubling, Mr. Wright told CIR, is the practice whereby law enforcement has been “deceptively ‘friending’ people online for surveillance purposes.”
They reference an article in the web publication, Security Management, where a detective at UMASS told the magazine that he has created fake profiles on social networking sites.
Security Management reports, “The investigations have involved creating a persona that the target and their contacts might “consider attractive.” Tactics can involve visiting targeted chat sites or subscribing to certain groups or publications. One goal might be to friend contacts of a person of interest.”
CIR reports, “Interns at a New Jersey prosecutor’s office were instructed to monitor as many alleged gang members as possible. Tax collectors have been using the Web for years, Wright said, and they view it as no different than reading newspapers for tips.”
However, Mr. Wright said, “It’s one thing for the IRS or a police officer to read the newspaper, but it’s a completely different ballgame when that very same officer now is using some automated tool to track me around the Internet and read thousands of blog posts and tweets and filter it all through some kind of artificial intelligence software. People just start getting creeped out.”
The use of government to create fake identities on social networking sites to monitor potential targets is troubling, and would seem to have a chilling effect on the notions of freedom of speech and freedom of expression of sometimes politically unpopular viewpoints.
Those who argue that those who have nothing to hide have nothing to fear are missing the boat on several essential points. First is the more generalized notion that people should be free from government interference and intrusion into one’s private lives.
Social networking sites are not truly public sites. They have layers, and the use of friending techniques is to provide the user with a bit of privacy and protect their information from the general public.
Moreover, as we well know, information on such sites can be ambiguous, it can be vague, and most importantly the use of such information could lead investigators to reach false conclusions that wrap people into the legal system for years at great expense even if they are innocent.
The Fourth Amendment of the Constitution is recognized as a generalized right of privacy for individuals to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The requirement of warrants is used to search people’s most private and personal effects. And yet the advent of social networking sites breaks down some of those protections.
The speed of technological advance is well-outpacing the ability of the law and the courts to protect the rights of privacy.
In our view, if someone puts their information out for the general public – that is one matter. But if police are honing technology to monitor communications, that starts us on a slope toward government monitoring of activities of private citizens. Creating false profiles on social networking sites is absolutely chilling.
Hopefully, the courts can stake out a reasonable doctrine on the use of such sites within the parameters of Fourth Amendment, not to mention First Amendment, case law.
—David M. Greenwald reporting
David, thanks again for bringing another important issue to light. The fact the police, FBI, prosecutors, etc. are using tactics like friending to try to get information that otherwise would be private shows another way our rights are being eroded. Just think how easy it is to take something innocently done, post it on Facebook and have “the authorities” say it shows something else entirely.
David and Nemesis
In order to catch sexual predators in the act, law enforcement members often pose as teenagers to draw out sex offenders.
Undercover officers create profiles that might entice a pedophile to contact them.
Should the police stop this also???
I am just trying to get a feel of where you village idots are going with this one….
Another good report, reminding us how much things have changed in our lifetimes.
Remember similar concerns about the use of radar on our streets and highways? Now pretty well accepted, although we argue its accuracy. Or the arrival of security cameras in every nook and cranny?
After initial concerns about the 1984-ness of eyes looking at us from everywhere, we’re adjusted and expect a lot of lawbreaking to be documented our ubiquitous video.
When technology makes it easier or faster or more positive to identify and capture the truly guilty, should we fight it? The “expectation of privacy” allows each of us to decide what and how much information we want out there. Prohibitions against entrapment still should keep authorities from using social media to “generate” criminals. These lines to keep authorities from misusing improved technologies can and need to be kept strong.
Improved technology helps us capture those who’ve committed crimes. Providing improved identification, DNA and other new technologies help assure that the innocent don’t go to trial or get found guilty and encourages pleas by the guilty. Technology also can be used by those mistakenly targeted; cellular phone records can help us show that we weren’t near the scene of a crine.
We knowingly give up some privacy when we join the social media revolution. We invite trouble when we document our crimes, then post video on YouTube or brag about our criminal behavior on Facebook, complete with photos. Improvements in technology doesn’t improve stupid, just speeds up the consequences.
Here’s one police force Facebook page followed by our New Zealand relatives. They make crime fighting fun as they engage the community.
https://www.facebook.com/ThamesPolice?ref=stream
craised: re [i]’village idiots'[/i] — please do not use disparaging terms about blog participants.
[quote]Moreover, as we well know, information on such sites can be ambiguous, it can be vague, and most importantly the use of such information could lead investigators to reach false conclusions that wrap people into the legal system for years at great expense even if they are innocent.[/quote]
Is there any specific case where public posts on social media has led to false conclusions? As far as gangster pictures on s social media site they are not ambiguous. Posting pictures of yourself flashing gang signs while decked out an you gangs colors is not ambiguous. I have hundreds of pictures on my social media page and you won’t see me throwing signs with my homies and I won’t be confused for a gang member.
Mr Obvious, don’t you realize that once something is “well known,” there doesn’t need to be any evidence offered up.
And, the obvious target here is all those investigators and judges who think “reasonable cause” and “without a doubt” are synonyms for vague” and “ambiguous.”.
You must know how common investigators’ false conclusions based simply on vague and ambiguous Facebook postings have wrapped innocent people “into the legal system for years at great expense.”
Craised: I’m not inclined to respond to you comment given the “village idiot” riff. However, I will suggest there is a world of difference between most of those “to catch a predator” operations that involve clearly public message boards and chat rooms versus infiltration operations into more protected and private domains.
JustSaying: So you are precluding the possibility of such occurrence and you are comfortable with the government intrusion? How do you see that different from entering someone’s home without a warrant under the same auspices?
[quote]So you are precluding the possibility of such occurrence and you are comfortable with the government intrusion?[/quote]
I don’t think anyone is precluding anything from happening. Anything COULD happen. Even you said it COULD happen, you didn’t say is HAS happened.
“JustSaying: So you are precluding the possibility of such occurrence and you are comfortable with the government intrusion? How do you see that different from entering someone’s home without a warrant under the same auspices?”
Nope, none of the above. However, this doesn’t take away from my support looking at the concerns or for the value of your article.
First, I’m questioning how it’s “well known” and what some case examples might be. Assuming it’s your opinion and concern since you didn’t attribute it to the people you’re quoting, I certainly agree with you that there’s the possibility that poor police work or unscrupulous prosecution could wrap innocent people into the justice system for years.
Or, that using one piece of ambiguous information to prosecute instead of as a lead to better quality evidence is wrong. But, the technology isn’t the culprit.
Second, I’m uneasy with everything that threatens my privacy and take steps. For example, only you know whose responding here. I was troubled when I found that the IT folks had the right to scan my office email and track my Internet use, but solved the concern by quiting my personal undertakings.
And, although “government intrusion” is loading the question, let’s be ever vigilant to keep the government from violating the law or the Constitution.
Third, entering our homes without a warrant violates both the law and the Constitution.. Taking information from Facebook violates nothing, including our expectation of privacy. In that respect, FB is not a “world of difference” from chat rooms and bulletin boards, just an improved, revised format of the same kind of information we’ve chosen to put into non-private domain.
Sometimes it’s vague or untrue, sometimes it’s a specific admission of guilt with the undeniable proof attached. However, it cannot be protected the way our “homes” are from government intrusion without a warrant.
Finally, doesn’t it just irritate you no end when people like craised make nasty, personal comments about other blog participants. He should apologize…too.
“you didn’t say is HAS happened.”
Did we not set up constitutional protections such as the Fourth Amendment precisely to prevent things that could happen?
Good comments JustSaying.
Here is the point where I differ with you: “Third, entering our homes without a warrant violates both the law and the Constitution.. Taking information from Facebook violates nothing, including our expectation of privacy.”
In order to gain access to information on Facebook, you need to establish a relationship, Faceball refers to this as “friends.”
Facebook is not a fully public realm. And it has increased the privacy in response to criticism. You can now set privacy settings anywhere between “Public” to specific Networks, Friends of Friends, Friends, or in the most restrictive sense “Only me.” So in fact, there is some expectation of privacy on facebook.
For me there are a couple of key questions here that need more scrutiny:
1. What is a reasonable expectation of privacy for information posted on facebook?
2. To what extent the government can in effect trick citizens to gain access to information not generally available for the government
and
3. Whether there should be some oversight over such activity. A warrant for example at least puts the decision in a judge and requires probably cause. So should a government agency simply be able to monitor any citizen even when there is no established probable cause? That for me is a critical concern.
Yes, certainly some new frontiers being explored on the legal standards of “expectation of privacy” and “unlawful intrusion.” Then there are the additional concerns of law enforcement secrecy and deliberate deception in the social network arena. All these issues are worthy of additional public scrutiny and eventual case law ruling. As already offered, standards will be established. I predict the standards towards government agencies will be very temperate, if at all.
Anybody that willingly and freely posts information of themselves on social networks will have a most difficult task to legally claim that this information was for a selective group (e.g., “friends)and therefore a compartmentalized expectation of privacy.
For law enforcement to be faulted for being secretive in its social network participation is quite funny when you think about it. The vast majority of all participants in blogs and social networks use a pseudonym to identify themselves. Even in this forum there has been accusations of persons posing under multiple identities.
Deception and deceit on these postings and exchanges are hardly the exclusive domain of the police. Ask people who have used the many dating services that are now so popular and prevalent.
The saying goes, “You can find anything on the Internet.” The information is there, but what is factual, credible, and honestly presented, well, that’s an entirely different matter. Any Internet viewer must proceed with caution and a fair degree of skepticism on just about everything.
[quote]Did we not set up constitutional protections such as the Fourth Amendment precisely to prevent things that could happen?[/quote]
The things the fourth amendment protected us from had happened. Are there any cases you can point to where the facebook thing has been an issue?
“You can now set privacy settings anywhere between “Public” to specific Networks, Friends of Friends, Friends, or in the most restrictive sense “Only me.” So in fact, there is some expectation of privacy on facebook.”
Maybe, but it seems a real stretch. How is this different than announcing your crime to a banquet room full of your friends? How is asking to be “friended” any more an unfair trick than going undercover onto a gang’s turf? And, how could one term that the act of posting for 300 or so “friends” is private in any way.
I agree that the issue needs continuing consideration to determine what actions should require probable cause finding by a judge. I’m not at all pleased with the expansion of data mining done in the name of the war on terror in cooperation with corporations and in secret. Or, that our courts and Congress reacted by legalizing what had been being done illegally.
You raise good points. I guess one huge difference between this and the standard undercover onto gang turf may not be a clear legal difference. But if you are a police force and you have scarce resources, you will pick your targets carefully to consume months of time of one of your officers. In the case of Facebook, there is no such practical limitation and that means it could be much more of a fishing expedition. Just a thought.
[quote]Those who argue that those who have nothing to hide have nothing to fear are missing the boat on several essential points. First is the more generalized notion that people should be free from government interference and intrusion into one’s private lives.
Social networking sites are not truly public sites. They have layers, and the use of friending techniques is to provide the user with a bit of privacy and protect their information from the general public.[/quote]
Anything posted on the internet is no longer “private”, but open to the world, any Facebook privacy settings notwithstanding – they give you nothing but the illusion of privacy. If you want privacy, don’t post on Facebook…
But. David, you seem to be overlooking the fact that that we [u]want[/u] the police to find criminals and prosecutors to convict the guilty. Why would you want to make it [u]harder[/u] for them to do their jobs–limited as you note, by budgets and staff–so that their work more likely results in innocents being punished and the guilty wandering around the streets committing more.
It sounds like it’s good enough to keep the justice system a little starved and, somehow, keep their own illegal acts down to a minimum. We should give them the tools to do their jobs effectively, including policing themselves.
Yes I want them catching criminals, not monitoring my activity or the activity of other law abiding citizens. You yourself express some discomfort here.
“Anything posted on the internet is no longer “private”, but open to the world, any Facebook privacy settings notwithstanding – they give you nothing but the illusion of privacy. If you want privacy, don’t post on Facebook… “
I’m not convinced. I don’t think the court is sold on that either.
Justice Sotomayor wrote, “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
I think it will become a more obvious issue to people once telephone calls are all done on the internet.
At that point, your calls will be recorded and transcribed by software if you opt in. In some respects, this will work to your advantage and for your protection, so you will want to opt in. Eventually everyone will just opt in, as the benefits will outweigh the paranoia.
On the other hand, who will get access to those transcripts? Since you opted in, does that mean you have any expectation of privacy? Its complicated.
And don’t forget, it works both ways. Wikileaks has proved that.