Government Monitoring of Social Media: Legal and Policy Challenges

Law enforcement use of social media to monitor and track civilians, including through the use of undercover accounts, raises novel legal and policy dilemmas. As new technology lowers the technical and financial costs of surveillance, we need to take care to safeguard individuals’ rights to privacy, freedom of expression, and freedom of association, and ensure that these tools are subject to mechanisms for transparency and accountability.

August 27, 2018

Social media has come to play a crucial role in political expression, social interaction, and community organizing in recent years. As the number of users and the amount of information exchanged online has skyrocketed, however, social media information has also become an irresistible target for law enforcement surveillance. Information about an individuals’ movements, habits, purchases, and associations that previously would have required months of surveillance work can now be accessed by a tech-savvy officer in minutes.

In this article for the Howard Law Journal, Rachel Levinson-Waldman analyzes current law enforcement uses of social media and reviews the legal framework that governs its use. She recommends policy prescriptions to help ensure transparency and safeguard constitutional protections under the First and Fourth Amendments.


INTRODUCTION:

Technology is transforming the practice of policing and intelligence. In addition to the proliferation of overt surveillance technologies, such as body cameras and license plate readers, there is a revolution playing out online where domestic law enforcement agencies are using social media to monitor individual targets and build profiles of networks of connected individuals. Social media is fertile ground for information collection and analysis. Facebook boasts over two billion active users per month; its subsidiary Instagram has 800 million monthly users; and Twitter weighs in at 330 million monthly active users, including nearly a quarter of all U.S. citizens. It is thus no surprise that in a 2016 survey of over 500 domestic law enforcement agencies, three-quarters reported that they use social media to solicit tips on crime, and nearly the same number use it to monitor public sentiment and gather intelligence for investigations. Another sixty percent have contacted social media companies to obtain evidence to use in a criminal case.

While these new capabilities may have value for law enforcement, they also pose novel legal and policy dilemmas. On the privacy front, government surveillance was once limited by practical considerations like the time and financial cost associated with monitoring people. As surveillance technology grows ever more sophisticated, however, the quantity of data and ease of accessibility grows as well, lowering the bureaucratic barriers to privacy intrusions and creating opportunities for near-frictionless surveillance that the Founders could not have envisioned. And in an era when people use social media sites “to engage in a wide array of protected First Amendment activity on topics ‘as diverse as human thought,’” studies indicating that online surveillance produces a chilling effect and thus may suppress protected speech, association, and religious and political activity are of particular concern.

Moreover, much as with other types of surveillance technologies, social media monitoring appears likely to disproportionately affect communities of color. Youth of color are particular targets, with the most high-profile examples arising in the context of gang surveillance, raising concerns that already over-policed communities will bear the brunt of its intrusion. These tools are likely to pose even more difficult questions in an era of live video streaming, a popular tool that police have used to gather information and also manipulated to control users’ access to their friends and contacts.

 This essay highlights issues arising from law enforcement’s use of social media for a range of purposes; analyzes the legal framework that governs its use; and proposes basic principles to govern law enforcement’s access to social media in order to ensure transparency and safeguard individuals’ rights to privacy, freedom of expression, and freedom of association.