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Analysis

Law Enforcement Social Media Monitoring Is Invasive and Opaque

Unbridled government surveillance using social media poses significant dangers to civil rights and civil liberties.

The extens­ive reach of social media has made it an attract­ive tool for expand­ing state surveil­lance. For law enforce­ment officers and federal agen­cies, social media monit­or­ing is used both in the course of crim­inal invest­ig­a­tions and as a general drag­net, rais­ing concerns about abuse and over­reach.

When agen­cies use social media to keep tabs on people they perceive as suspi­cious, it has a dispar­ate impact on histor­ic­ally over­po­liced communit­ies, espe­cially communit­ies of color. It also leads to surveil­lance of and police pres­ence at protests and other First Amend­ment–­pro­tec­ted activ­it­ies. These risks have a chilling effect on free speech and commu­nic­a­tions both online and off.

In light of these concerns, the Bren­nan Center, ACLU of North­ern Cali­for­nia, Free Press, and Media Justice released a state­ment Wednes­day, joined by 51 other civil soci­ety groups, spelling out the civil rights and civil liber­ties implic­a­tions of law enforce­ment monit­or­ing of social media.

There are numer­ous examples of law enforce­ment using social media to improp­erly monitor speech and asso­ci­ations that are protec­ted by the First Amend­ment. In Memphis, Tennessee, for instance, a police sergeant created a phony Face­book account to imper­son­ate a Black activ­ist, infilt­rate online Black protest spaces, and collect intel­li­gence on hundreds of activ­ists. The officer even went so far as to flag nonpolit­ical gath­er­ings like vegan soul food cookouts. In Minnesota, an FBI Joint Terror­ism Task Force used a confid­en­tial inform­ant with access to nonpub­lic social media commu­nic­a­tions on a Black Lives Matter protest to provide inform­a­tion to local police.

The FBI’s widely condemned “Black Iden­tity Extrem­ist” (BIE) threat desig­na­tion adds to the concerns. Cooked up by the FBI’s Domestic Terror­ism Analysis Unit, the desig­na­tion lumps together seem­ingly unre­lated cases of viol­ence and posits, without support, that Black Amer­ic­ans’ “percep­tions of police brutal­ity” may result in “an increase in premed­it­ated, retali­at­ory lethal viol­ence against law enforce­ment.” An internal assess­ment report leaked in 2017 indic­ated that the FBI based its determ­in­a­tions that indi­vidu­als had “been influ­enced by BIE ideo­logy” at least in part on their social media searches for “pages of BIE and black separ­at­ist groups” and “likes” of those pages. The report was imme­di­ately met with back­lash from lawmakers and advocacy groups, and the FBI prom­ised to stop using the BIE descriptor. But in a 2018 strategy guide, the FBI desig­nated BIE as a “prior­ity domestic terror­ism” threat.

In the wake of the police killing of Michael Brown in Ferguson, Missouri, the Depart­ment of Home­land Secur­ity tracked Black Lives Matter protest­ers as well. DHS dissem­in­ated inform­a­tion about nonvi­ol­ent protests, walks, and silent vigils to “fusion centers,” which were created to pool coun­terter­ror­ism intel­li­gence but actu­ally infringe on civil liber­ties while fail­ing to contrib­ute to national secur­ity.

In addi­tion to spying on police account­ab­il­ity activ­ists, DHS has used social media for surveil­lance of people surround­ing the immig­ra­tion debate. Invest­ig­at­ive report­ing from NBC’s San Diego affil­i­ate this year revealed that DHS used inform­a­tion gleaned from social media to create “a secret data­base of activ­ists, journ­al­ists, and social media influ­en­cers” who were involved in cover­age of the so-called “migrant cara­van.” In some cases, DHS placed alerts on their pass­ports, lead­ing to increased scru­tiny by border offi­cials.

And in June 2018, a private intel­li­gence firm tracked Face­book activ­ity to compile a report about 600 planned protests of the Trump admin­is­tra­tion’s family-separ­a­tion policy and circu­lated it to DHS and fusion centers around the coun­try. The report, which included loca­tion data for the protests, was then shared with Immig­ra­tion and Customs Enforce­ment. ICE also kept tabs on border groups and other public protests in internal spread­sheets that used the Face­book pages of event spon­sors to detail numbers of expec­ted protest­ors and organ­iz­ing groups.

            There is no short­age of troub­ling law enforce­ment examples in local crim­inal invest­ig­a­tions as well. In 2017, Long Island author­it­ies falsely accused a Honduran student of being an MS-13 gang member after he posted Face­book photos of himself with other Cent­ral Amer­ican students dressed in the colors of their home coun­tries’ flags with their area codes displayed.

In 2012, a Black teen­ager in New York City named Jelani Henry was arres­ted on a double attemp­ted murder charge based largely on his social media asso­ci­ations and pictures with members of a local “crew.” His older brother, Asheem, who had been arres­ted five months earlier in a targeted gang raid, was a member of the crew, but Jelani was only connec­ted due to his prox­im­ity — both online and in real life — to Asheem and other neigh­bor­hood friends. Never­the­less, Jelani spent two years in jail, includ­ing nine months in solit­ary confine­ment, on the basis of “social media evid­ence” before his case was dropped and he was released.

Social media monit­or­ing was also used for what was called the “largest gang take­down in New York City history.” Police arres­ted 120 young men on conspir­acy charges, rely­ing in part on over 41,000 Face­book pages and records. But while prosec­utors and police framed the case as a targeted prosec­u­tion of rival gangs plaguing the community with viol­ence, most of the defend­ants were never convicted of any viol­ent crime. Strik­ingly, the major­ity of the men swept up in the raid were never even alleged to be gang members.

And in Delaware, a Black man with a prior felony convic­tion was sentenced to 15 years in prison after his girl­friend posted a photo of a gun (registered in her name) to his Face­book account; an under­cover police officer had been peri­od­ic­ally check­ing the account for more than two years with no specific basis, rais­ing ques­tions about whether the indi­vidual was targeted for his race.

In addi­tion to these issues, our joint state­ment outlines the dangers of track­ing indi­vidu­als’ loca­tions, the opacity of these track­ing efforts, and the lack of restric­tions and account­ab­il­ity for social media monit­or­ing.

Social media is virtu­ally every­where, and we must be wary when the govern­ment tries to exploit this ubiquity to target indi­vidu­als or groups without suspi­cion or over­sight. It’s essen­tial that in any discus­sion of the issue, lawmakers and the public recog­nize the harm­ful impacts from social media surveil­lance.