Could you be in hot water with the cops based on what you post? Cops routinely search Facebook photos, Myspace posts, Twitter feeds and YouTube videos to gather evidence and build a case. Even innocent people can be ensnared in these digital dragnets. Are you wearing a jacket that looks like one that was shoplifted from a local store? Did you offer to sell homemade jewelry on Etsy while IRS agents were scrutinizing the site? Are you Facebook friends with someone in Cuba or Iran? Have you Googled the word “chloroform”?
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Social networks are transforming the activities of cops and judges, often challenging cherished principles of democracy. Police sweep social networks for signs of misconduct and create fake profiles to befriend and monitor gang members. The IRS searches Facebook and Myspace profiles for evidence of taxable transactions and the whereabouts of tax evaders. Courts consider social network posts about a parent’s partying to be signs of parental neglect. Although such actions may be touted as smarter law enforcement, they conflict with traditional due process rights and the principle that citizens should be free from constant scrutiny.
Off the Web, government officials need a warrant to invade people’s privacy. Yet, on the web, they surreptitiously monitor Facebook postings and Google searches to gain access to intimate and revealing information about people.
Adam Bauer, a University of Wisconsin-La Crosse student, accepted a friendship request from a good-looking girl he didn’t know. He believes that this led to his invitation to come down to the La Crosse police station, where a cop laid out photos of Bauer holding a beer, and then ticketed him for underage drinking. Al Iverson, a La Crosse police officer said, “law enforcement has to evolve with technology…it has to happen. It is a necessity—not just for underage drinking.”
Lawyer Jennifer Lynch of the Electronic Frontier Foundation is concerned with people’s privacy on the Web. With colleagues from the Samuelson Clinic at the law school at U.C. Berkeley, she filed Freedom of Information Act requests to find out which government agencies were snooping in cyberspace—and whether social networks were routinely turning over private user information to the cops. She told me that the digital dragnet has spread far beyond local cops: “The IRS looks at social media. U.S. Customs and Immigration looks at social media. It’s become prevalent throughout all aspects of the federal government.”
In its investigations, the Department of Homeland Security monitors the use of certain terms on social networking sites, even innocuous terms like vaccine, body scanner, and even the term social media itself. (See the actual list of the terms they use in this 2011 DHS publication. Tally up how many you’ve innocently used.) And the scope of the searches keeps expanding. Requests from government authorities for information about Google users increased 29% in the past year. An internal PowerPoint from the Justice Department advises law enforcement officials to search Facebook, Myspace, LinkedIn and other social networks to “establish motives and personal relationships, provide location information, prove and disprove alibies, and establish [evidence of a] crime or criminal enterprise.”
“I just can’t believe it. I feel like I’m in a science fiction movie, like they are always watching. When does it end?” Bauer asked when he went to court on the underage drinking charge. He paid a $227 fine. But other people have found themselves unwittingly under investigation for more serious offenses—such as child abuse or terrorism—based on a misinterpretation of what they’d posted.
Last month, Caryn Wagner, Undersecretary of the U.S. Department of Homeland Security acknowledged the difficulty of extracting meaning from online posts, noting that “We’re still trying to figure out how to use things like Twitter as a source.” According to Wagner, “There are just a lot of questions that we are sort of struggling with.”
These trends raise troubling questions. Governments in democracies exist to protect their citizens and uphold their rights. Cops need probable cause and search warrants to collect evidence in a person’s home. Constitutional restrictions on governmental action apply. But what happens when state and federal agencies circumvent those rules by searching people’s digital homes? I’m proposing a Social Network Constitution that would give you a right to privacy over what you post or search for on the Web. Vote on the Constitution at www.socialnetworkconstitution.com.
Lori is a law professor and the author of I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY.
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