Cross-posted from The Nation.
On November 8, more than 130 million Americans turned out to cast their ballots in the presidential election. While a presidential election is a critical moment in a democracy, democracy is a year-round endeavor, not just a quadrennial experiment. And a well-functioning democracy requires transparency about the government’s operations, especially law enforcement. That increasingly means transparency around the use of social media.
According to the Brennan Center’s research, big spenders include the Florida Department of Law Enforcement, which spent nearly $200,000 over two and a half years; the County of Los Angeles, which also spent close to $200,000 over three years; and Harris County, Texas, which spent over $150,000 in the same number of years. Only a small fraction of the jurisdictions surveyed have publicly-available policies on how to use social media to monitor civilians.
The new revelations are not surprising. In a recent survey conducted by the International Association of Chiefs of Police, over half of the responding law enforcement agencies reported that they used social media for “listening/monitoring,” and three-quarters for “intelligence.” On the federal side, the Department of Homeland Security, which already monitors social media domestically, recently floated a vague and ill–conceived proposal to request “social media identifiers” from twenty million travelers per year.
One might ask: who cares? Why does it matter if police detectives or intelligence agents look at what you do on social media, when any other member of the public could do the same thing?
First, what law enforcement and intelligence agencies can do with social media monitoring software often bears little resemblance to what members of the public can do on social media platforms. To be sure, officers may follow individual suspects online—but they can also use powerful proprietary software that purports to leverage “big data” to predict threats before they happen. Whether or not these services work (and do so non-discriminatorily) is a major question—either way, it is far different from the one-on-one eavesdropping that characterizes most public use of social media.
In addition, most people sharing information with their friends don’t fathom that their data is being shared with law enforcement as well. In a Pew Research Center poll, over 90 percent of American adults surveyed said that it was important to be able to control who saw information about them—that is, privacy should not require total secrecy.
As any 15 year old knows, social media is also highly context-dependent. A journalist on the national security beat may follow a suspected terrorist for her reporting—but how will an automated software program, or an intelligence agency, know that the journalist doesn’t subscribe to the terrorist’s message? The situation is even more fraught for adolescents in areas with gangs, who might need to “like” a picture to keep themselves out of trouble with neighborhood gang members but simultaneously get into trouble with law enforcement; one teen spent nineteen months in Rikers Island for appearing in pictures with “crew” members and liking their Facebook posts.
In light of these developments, citizens must demand that elected leaders and police departments be transparent about the social media monitoring services they use, the taxpayer money spent on them, and what they do with the data they produce. They should also demand that both the tools and their use be regularly evaluated to ensure that they are not being used discriminatorily or to target political dissidents. This sunshine is critical to ensuring that their use is in line with community and constitutional values.