This may prove necessary in jurisdictions where police departments exhibit repeated and consistent practices that violate constitutional rights and freedoms. The case law on whether these impacts give rise to concrete First Amendment claims continues to evolve. Law enforcement agencies use social media for both external purposes, including community engagement and public notifications, and internal purposes, including investigations and recruitment. But this important regulatory action is overdue and should not be put off any longer. There, the Supreme Court ruled that the government “may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.” Applying this ruling to the digital era, if a person’s social media is surveilled on the basis of her political beliefs or associations, and she is later denied a civil benefit or prosecuted for an unrelated crime in retaliation for the beliefs or associations revealed, she should have standing to bring a First Amendment claim. Today, more and more law enforcement agencies are using social media as an investigation tool, even though that wasn’t social media’s traditional function. Each police department’s social media monitoring practices should be audited by an independent entity on an ongoing basis to ensure compliance with constitutional protections and safeguards. Explore how social media monitoring can assist your law enforcement agency’s efforts to build trust and positive relationships within your immediate community. The First and Fourteenth Amendments offer protections where surveillance is based on political or religious beliefs, associations, racial and ethnic identities, and other protected categories or activities. Where law enforcement wants to use a covert account, they should be required to document that no less-invasive means are available and to submit the documentation to an external body for oversight and approval. Rachel Levinson-Waldman is the deputy director of the Liberty and National Security Program at the Brennan Center for Justice.Ángel Díaz is a counsel in the Liberty and National Security Program at the Brennan Center for Justice. Social media monitoring can have serious chilling effects on protected speech and association. 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 give rise to a viable First or Fourteenth Amendment challenge, even if the surveillance was not animated by “overt hostility or prejudice.” By intentionally targeting Black Lives Matter activists, police may be engaging in this kind of discriminatory surveillance. Police have also used software to monitor people, groups, associations, or locations in a more automated manner. The American Civil Liberties Union has voiced concerns about whether using social media as an investigation tool … The reports should also indicate where investigations may impact protected classes of people. How to reform police monitoring of social media. Civil rights protesters have long been the target of state surveillance. These practices by the BPD reflect a growing trend in law enforcement called social media mining. In a time when social media monitoring allows the government to discover a person’s beliefs and associations easily and covertly, there is a particular need to ensure that this information is not misused to target disfavored individuals for adverse government action. Finally, law enforcement can also seek account information directly from social media companies. Fortunately, in Hassan v. City of New York (2015), the Third Circuit ruled that where discriminatory government monitoring dissuades individuals from exercising their constitutional rights, they may have standing to challenge the surveillance. Every jurisdiction should be required to hold public hearings and obtain local government approval before police engage in social media monitoring. One New York teen spent more than a year on Rikers Island, based in large part on the district attorney’s incorrect assessment that he was a member of a criminal gang. Without the help of her digital “breadcrumbs,” Loofe’s remains might not have been discovered. Reforms should place guardrails on law enforcement access to social media and codify legal … As demonstrations spread across the country, the FBI and local police monitored social media and made arrests based on what people have posted online. The extent to which communities of color are viewed with suspicion can create a self-fulfilling prophecy where basic social media etiquette is mistaken for membership in a criminal enterprise. Law enforcement’s use of social media surveillance software has spurred some controversy. There are a number of practical steps that can be taken to begin to address this gap. In United States v. Meregildo (2012), for instance, a New York district court 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 law enforcement. Guidance for the Brookings community and the public on our response to the coronavirus (COVID-19) », Learn more from Brookings scholars about the global response to coronavirus (COVID-19) », Tomorrow’s tech policy conversations today. Police are prevented from interviewing minors without notifying their parent or guardian. The OssaLabs social media monitoring tool … Every law enforcement agency that uses social media for data gathering purposes should have a publicly available policy that describes their use of social media. Today, social media helps police build relationships, and that in turn helps them do their jobs. For example, police should have to regularly disclose information such as the number of social media investigations that are open and closed and those that are extended past their original closure date. These recommendations are intended as starting points for enacting needed reforms. In this instance, the Lincoln Police Department used social media as an investigation tool which aided in solving a crime, but that’s not always the case. Users of said social media platforms were concerned with each company’s lack of oversight on how their data is used. The Fourth Amendment guarantees the right 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 down to whether a person has a “reasonable expectation of privacy” and whether society recognizes that expectation as reasonable. Social media monitoring should be subject to ongoing reporting and audit requirements. In one instance, police in Wichita, Kansas even arrested a teenager on suspicion of incitement to rioting based on a threatening Snapchat screenshot he shared. And in the Supreme Court’s 2012 decision in United States v. 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 data shared with third parties on a daily basis. The SCA also permits service providers to voluntarily share user data without any legal process if delays in providing the information may lead to death or serious injury. Wylie spoke with Rick Graham, a former Chief of Detectives in Jacksonville, Fla. who said, “Gathering a mountain of evidence from social media and being able to properly analyze it transforms raw information into ‘actionable intelligence’ and results in the effective deployment of valuable resources.”. A report by the Brennan Center for Justice at the NYU School of Law showed that nearly all large cities, and many smaller ones, have made significant investments in social media monitoring tools. The ACLU helped create Community Control Over Police Surveillance laws to “ensure residents, through local city councils are empowered to decide if and how surveillance technologies are used, through a process that maximizes the public’s influence over those decisions.”. By following CCOPS laws and standards (even if no relevant law exists in your jurisdiction), law enforcement officers can protect public privacy while continuing to use social media as an effective investigative tool. The same analysis could also apply to the surveillance of teens and pre-teens of color suspected of gang activity. In addition, agencies can surveil social media sites through software programs, including X1 Social Discovery, Geofeedia and MediaSonar. Social media has been a part of our everyday lives for several years now, and has many uses for individuals, businesses, and even government agencies. Law enforcement agencies who rely on social media intelligence are better equipped to build stronger ties with communities and their leaders, leading to safer, more secure communities. Social media is highly contextual and prone to misinterpretation, magnifying the risk that one person’s innocuous post will be taken as something more sinister. Social media policies should contain clear prohibitions against surveillance based on race, religion, gender, sexual orientation, immigration status, or a person’s exercise of First Amendment freedoms. All Rights Reserved. For example, in Baird v. State Bar of Arizona, a lawyer was prevented from joining the state bar because she refused to answer if she had ever been a member of the Communist Party. Law enforcement can also use social media as an investigation tool to acquire probable cause for a search warrant. Law enforcement should be banned from impersonating an actual person without that person’s permission. And sophisticated software may be able to assist police in monitoring thousands of accounts at the push of a button. The application of the Fourth Amendment has been rooted in practical limitations, but the force multiplier effect of social media surveillance calls those limitations into question. According to Doug Wylie of PoliceOne, “Many criminals have posted damning evidence of their crimes on social media.” This includes gang-affiliated individuals who brag about their exploits to intimidate rivals or gain status.
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