Social Media for Investigative and Intelligence-Gathering Purposes (2021)
Contemplated uses for social media (other than public-facing use) and requirements for use in investigations:
The policy broadly endorses the use of social media for investigative and intelligence-gathering purposes; it permits “overt monitoring, searching, and collecting of information available in the public domain for any legitimate law enforcement purpose,” with no authorization from a supervisor required. In the context of “overt use,” which is not defined in the policy, department members may use “fictitious accounts created to monitor social media” as long as they do not use those accounts to “engage in conversation.”
Prohibitions on use of social media:
There are no blanket prohibitions on the use of social media.
Specific rules for situational awareness or other non-investigative efforts:
No rules for situational awareness or other non-investigative efforts.
Authorization required for general use:
No authorization requirement for non-covert uses.
Limitations on undercover/covert activity:
The policy states that under certain (undefined) circumstances, members of five MPD divisions may request approval to use undercover accounts on social media “in the course of legitimate criminal investigations or intelligence collection efforts related to public safety or potential criminal activity.” The five divisions are the Criminal Investigations Division, the Intelligence Division, the Internal Affairs Division, the Narcotics and Special Investigations Division (NSID), and the Youth and Family Services Division. Members of these divisions must obtain approval from the NSID commander prior to using or creating an undercover account. Commanding officials are instructed to monitor the use of undercover accounts used by their members and conduct a documented review of all accounts every 30 days.
Language governing use of personal device or account:
Personnel may only use departmental or federal equipment for investigations involving social media.
Discussion of constitutional rights:
Officers will ensure that they adhere to the policies set forth in MPD’s procedures for investigations involving First Amendment activity when social media investigations overlap with First Amendment-protected activities. MPD has not produced or published these procedures, but a section of the DC Code on investigations involving First Amendment activities provides that officers must obtain written authorization from MPD personnel with Commander rank or above to undertake a preliminary inquiry or a criminal investigation involving First Amendment activities for a legitimate law enforcement objective. MPD officers may undertake preliminary inquiries without prior authorization in limited circumstances, including to gather information about future assemblies as they review notices and assembly plans. The code also states that MPD will safeguard the constitutional rights of all persons in all such investigations, including by adopting minimization procedures in all investigations and preliminary inquiries involving First Amendment activities.
The DC Code also states that authorizations for investigations and preliminary inquiries involving First Amendment activities will be reviewed every 90 days by a panel of MPD commanding officers and that the Chief of Police is required to prepare an annual report for the DC Mayor and City Council regarding investigations and preliminary inquiries involving First Amendment activities. The report, at minimum, should detail the number of authorized and denied investigations, the number of law enforcement actions (e.g., arrests and prosecutions) taken as a result of such investigations, any violations of DC law by officers during investigations, and more. The Office of the DC Auditor also audits investigations and preliminary inquiries involving First Amendment activity on an annual basis.