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When a Facebook Like Lands You in Jail

NYPD’s social media monitoring raises civil liberties issues.

  • Sara Robinson
July 6, 2018
NYPD Patrol Car
Todd Lappin/Flickr Commons

In 2012, Jelani Henry was arres­ted on two counts of attemp­ted murder in New York City. The evid­ence was thin at best: While he was a “tall light-skinned black male,” match­ing a witness descrip­tion, there were contra­dict­ory state­ments from witnesses and one failed to pick him out of a lineup. Despite the dearth of evid­ence and Jelan­i’s lack of crim­inal record, he was denied bail and incar­cer­ated for 19 months, includ­ing a 9-month stint in solit­ary confine­ment, at one of the most viol­ent deten­tion facil­it­ies on Rikers Island. The case was even­tu­ally dismissed.

How did Jelani, now 26, end up at Rikers for so long? The Manhat­tan District Attor­ney portrayed him as a known member of a viol­ent gang, based on his likes and group photos on social media. Jelani had liked posts related to a local “crew,” which, accord­ing to the NYPD, is an asso­ci­ation of young men that is looser than an estab­lished gang and is linked to a partic­u­lar city block or hous­ing devel­op­ment. Jelani also appeared in photos with neigh­bor­hood kids, some of whom were crew members.

Jelan­i’s exper­i­ence is not unique. The NYPD’s sustained use of social media as evid­ence in “gang take­downs” and sweep­ing conspir­acy indict­ments led to a New York City Coun­cil hear­ing on the issue last month, after a call from 30 advocacy and community groups.

At the hear­ing, NYPD Chief of Detect­ives Dermot Shea test­i­fied that just “like public places,” “public social media plat­forms are patrolled” by the NYPD. Social media activ­ity can land you on the gang data­base, he explained, either because the NYPD determ­ines that you have admit­ted to gang member­ship on social media, or — along with other indic­at­ors like wear­ing certain colors — your social media posts involve other gang members.

But these capa­cious criteria for inclu­sion may mean that many indi­vidu­als end up on the data­base simply because they live and grow up in a certain neigh­bor­hood. And inclu­sion on the gang data­base has grave civil liber­ties implic­a­tions. It decreases the like­li­hood of release on bail, as in Jelan­i’s case. Further, gang prosec­u­tions often involve sweep­ing conspir­acy charges, which have long sentences and are easier for prosec­utors to prove, since only evid­ence of an agree­ment, and not another crime, is required. Inclu­sion on the gang data­base can have seri­ous immig­ra­tion consequences as well: While Shea test­i­fied that the gang data­base is not shared with federal immig­ra­tion offi­cials, Immig­ra­tion and Customs Enforce­ment (ICE) has parti­cip­ated in NYPD-run “gang take­downs.” And removal from the gang data­base remains an opaque process, with indi­vidu­als suffer­ing consequences long after ending any gang-related activ­ity.

NYPD’s monit­or­ing of social media raises addi­tional complic­ated issues, many of which went unad­dressed at the hear­ing. First, posts, comments, photo­graphs, and other inter­ac­tions on social media do not always have an obvi­ous inter­pret­a­tion. Does a Face­book “like,” for instance, mean a user is express­ing approval of a post’s content, disap­proval but delight that an issue is being discussed, a simple thumbs-up for a friend, or some­thing else? In Jelan­i’s case, he explained that he liked posts to avoid being noticed or called out by his peers; his online engage­ment was part of his safety strategy, just like not walk­ing alone at night. In his mind, such activ­ity in no way repres­en­ted approval or showed that he parti­cip­ated in viol­ence.

Moreover, NYPD’s gang data­base, and presum­ably the social media patrols that come with it, dispro­por­tion­ately target communit­ies of color. As Chief Shea test­i­fied, while New York City is at least 45% white, 65% of those on the data­base are black, 24% are white Hispanic, and 10% black Hispanic. Confus­ing matters, Shea then stated that 95% of the indi­vidu­als on the data­base were people of color, without clari­fy­ing how the depart­ment mixes the categor­ies. Regard­less, this means that the vast major­ity of those on the data­base are people of color. This racial skew evokes the depart­ment’s prac­tice of stop-and-frisk, where about 83% of stops from 2004 to 2012 involved blacks or Hispan­ics.

This kind of discrim­in­at­ory applic­a­tion goes against the values found in the Hand­schu Agree­ment, court-ordered guidelines that limit how the NYPD can invest­ig­ate polit­ical activ­it­ies. These guidelines require that NYPD invest­ig­a­tions “not intrude upon rights of expres­sion or asso­ci­ation in a manner that discrim­in­ates on the basis of race, reli­gion or ethni­city.” 

The NYPD’s social media patrols and surveil­lance also implic­ate the First Amend­ment right to free­dom of expres­sion. As the Supreme Court has recog­nized, social media is the “modern public square” and “perhaps the most power­ful mech­an­ism avail­able to a private citizen to make his or her voice heard.” The Court observed that social media users can “debate reli­gion and polit­ics,” “look for work [or] advert­ise for employ­ees,” or “peti­tion their elec­ted repres­ent­at­ives.” Know­ing your online activ­ity is monitored may shape what you say online or make you less likely to use social media alto­gether, under­min­ing parti­cip­a­tion in a wide range of social and polit­ical activ­it­ies; indeed, it is no surprise that Jelani Henry now mostly avoids such plat­forms.

Notably, the NYPD’s social media surveil­lance also viol­ates Face­book’s own policies. A 2012 NYPD Oper­a­tions Order permits NYPD officers to create and use online aliases — essen­tially under­cover accounts — with super­visor approval. The New York Times repor­ted that NYPD officers have imper­son­ated ficti­tious female teen­agers, send­ing friend requests to youth as a way to view content that is avail­able only to a user’s “friends.” This prac­tice viol­ates Face­book’s policies, which forbid the creation of such accounts; as Face­book itself has told the federal govern­ment, it has no excep­tion for law enforce­ment activ­it­ies.

In light of these concerns, the NYPD must be more trans­par­ent about when and how it patrols and monit­ors social media in its gang-related work. Indeed, the Hand­schu guidelines already require some disclos­ure when social media posts are relied on as part of a polit­ical invest­ig­a­tion. The depart­ment should release stat­ist­ics about how many people it follows on social media; how long someone is typic­ally followed; the outcome of audits over­see­ing these contacts; a repres­ent­at­ive sample of the reas­ons for placing youth into the gang data­bases based on social media data; and whether (as sugges­ted by anec­dotal evid­ence) officers or detect­ives ask youth or other indi­vidu­als for social media pass­words. Without this crit­ical trans­par­ency, there will be no way to assess the NYPD’s use of social media to surveil New York­ers, to limit misuse, and to hold the depart­ment account­able.