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Expert Brief

Government Monitoring of Social Media: Legal and Policy Challenges

As new technology lowers the technical and financial costs of surveillance, we need to ensure that these tools are subject to mechanisms for transparency and accountability.

Published: 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.