You’re walking down a quiet street in your neighborhood. Is there a camera watching your every step? You set that post to the “friends only” privacy setting on Facebook with a #BlackLivesMatter hashtag. Did it put you on a government watchlist?
To many, these might seem like the questions of a tinfoil-hat-wearing conspiracy theorist. Nothing applicable to normal, law-abiding citizens. But the winds are changing, and the definition of fourth amendment rights is being reexamined. Some would argue that our “reasonable expectation of privacy” is being chipped away at by the monitoring efforts of law enforcement officials.
Social media monitoring software—SMMS—is employed by law enforcement, the FBI, and the CIA to surveil people using various social media apps. SMMS creates a digital dragnet, collecting and analyzing our social media data from such applications as Instagram, Facebook, and Twitter. But this dragnet can be both indiscriminate and invasive.
$4.75 million has been spent by hundreds of police departments on SMMS, all over the US. This software is being used to monitor locations and social media posts by everyone from suspects in crimes to activists in protests. The Brennen Center for Justice tracked the spending of 151 different local agencies who have contracted with SMMS tech start-ups, and according to one of their directors, “the numbers we have are massively understated.”
Fledgling tech companies like Geofeedia, SnapTrends, and Dataminr haven’t been around for long, but their capabilities are imposing. They buy information from social sites, then comb the data to find trends or monitor specific events. In the recent past, financial firms, nonprofits, and corporations purchased the resulting analysis; (potential) customer data allows them to hone their marketing efforts. But in the past couple years, a new player has entered the field: US law enforcement.
From a desire to do good..
It should be noted that law enforcement officials are men and women acting from a desire to contribute to the greater good. They are pledged to protect the public and act in the people’s best interests. But as Chicago Criminal Defense Attorney Michael Schmiege notes, “This is a new era for the fourth amendment. The greater our government’s ability to track and monitor the public, the greater burden of responsibility they bear for using that knowledge in ways which do not violate individuals’ rights.”
The Oregon Department of Justice recently tracked more than 30 social media hashtags—including that of #BlackLivesMatter—with the help of a software called Digital Stakeout. The American Civil Liberties Union reported on the matter, and one of the people who claimed to have been monitored filed a lawsuit.
At the Standing Rock Sioux Reservation in North Dakota, thousands of people used Facebook’s “check-in” tool during the ongoing protest against the construction of an oil pipeline across the waters of the Missouri River. It was believed that law enforcement was using that particular part of the Facebook app to determine who was present, although officials have denied those allegations.
U.S. Supreme Court Justice Sotomayor wrote in a 2012 case, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” The degree to which monitoring violates a citizen’s right to privacy falls under this definition of the reasonable expectation of privacy. The extent of the government’s monitoring capabilities is great—but the degree to which they do such monitoring, especially without the knowledge or consent of the public, is somewhat unknown. For that reason, various civil rights groups and government watchdogs have begun to raise questions.
SMMS Surveillance—No Facebook Post is Safe
Many people who have used Facebook has experienced the difference between a “private” post, shared only with your immediate friends, and a “public” post, which can be viewed by anyone. It’s not in question that the government monitors posts with the “public” setting; President Obama stated without hesitation that federal officials are monitoring public posts continuously. And local police departments usually use SMMS to assist in criminal investigations. Law enforcement have even engaged in “catfishing”—or creating a fake profile to connect with someone online—to communicate with or gain information about suspects in crimes.
This monitoring can be hugely beneficial for many criminal cases, but there are inherent problems with its extreme lack of transparency. For many corporations, one of the major purchasers of this mined and analyzed data, the ability to build a digital profile based on someone’s likes, dislikes, and GPS-tracked whereabouts (thanks to the ubiquitous smartphone) is a major boon for efficacy in their targeted sales campaigns. This ability, if it were better-known, might make many people uncomfortable.
For law enforcement, that ability is instead used to amass lists of people who should be monitored based on their political views, religion, or presence near events like protests. The fourth amendment line here is blurry. Mr. Schmiege relates it to his criminal defense work: “If the means by which law enforcement obtains evidence is a violation of someone’s constitutional rights, the case shouldn’t be brought to trial in the first place. Citizens should not commit crimes. But the government should not commit its own crimes in efforts to try them.”
SMMS—Out of 1984?
The potential of constant surveillance—something that cannot always be proved, but is a persistent possibility—is no longer merely an Orwellian nightmare. The technology exists. It’s being deployed at an ever-increasing rate—check out this US map to see how and where. And according to a study by Jon Penney of the University of Oxford, its mere presence is affecting our behavior. People consciously change their habits—becoming less inquisitive, meeker, more compliant, when they fear the government is tracking their behavior. As Penney put it, “If people are spooked or deterred from learning about important policy matters like terrorism and national security, this is a real threat to proper democratic debate.”
His study is not alone. The theory has growing evidence to support it. Will we step quietly into line, accepting the ever-presence shadow of government surveillance? Or does this matter require a measure of patriotism, helping law enforcement understand that the greater good is best served by the intentional protection of our rights and freedoms?
If you’re being investigated for a crime, make sure your rights are protected. Michael Schmiege stands ready to put his experience and expertise to work for your case. Contact his law offices today for a confidential consultation.