Social Media Surveillance: The Threat of Systematic Data Collection
In October 2016, the American Civil Liberties Union (“ACLU”) released a report stating that a data service company called Geofeedia was marketing a tool to law enforcement that would allow it to keep tabs on protesters on social media platforms.1 With full permission from social media companies, Geofeedia gained access to public data feeds on social media platforms, collected metadata,2 then sold the collected data to law enforcement for surveillance purposes.3
The ACLU report addressed an important issue; what are the limits to law enforcement’s use of social media as an investigative tool? From a legal perspective, the simple answer is that there seems to be no limit.
The Fourth Amendment has consistently served as a constitutional barrier that protects individuals from unreasonable police intrusion.4 Social media users generally believe that information on his or her social media profile is free from this unreasonable intrusion by law enforcement. However, courts find that users erode any reasonable expectation of privacy by exposing personal information on social media platforms that are viewable to third parties, and thus cannot be legally protected.5
Social media users cannot depend on First Amendment protection either. Historically, the First Amendment has served as an independent check on law enforcement surveillance methods where the Fourth Amendment does not apply.6 The First Amendment cultivates the exchange of ideas by providing protections to a person’s speech, 7 and it would seem that the invasive surveillance methods by law enforcement threatens this right. However, precedents show that there is a very high bar to show a First Amendment violation in court regarding law enforcement surveillance practices. 8
The threat of social media surveillance is gaining momentum. The biggest problem law enforcement has faced regarding social media surveillance is the lack of manpower to manually search the platforms.9 Thus, the spread of social media surveillance through software programs such as Geofeedia have opened doors to potentially boundless surveillance power.
Fortunately, there is hope. Even with this trend towards mainstreaming data collection software, social media companies have been responsive to the ACLU report; Instagram, Facebook and Twitter have all cut off Geofeedia’s access to public user posts.10 Now that social media companies have taken the first step, it is critical that these companies acknowledge its responsibility to actively take action and prevent privacy violations from law enforcement.
Matthew Cagle, Facebook, Instagram, and Twitter Provided Data Access for a Surveillance Product Marketed to Target Activists of Color, ACLU: Blog (Oct. 11, 2016, 11:15am), https://www.aclu.org/blog/free-future/facebook-instagram-and-twitter-provided-data-access-surveillance-product-marketed [https://perma.cc/K4GK-S9BA]; see also GEOFEEDIA, https://geofeedia.com/ [https://perma.cc/SA94-5MEV] (last visited Oct. 17, 2016).↩
See R.J. Taylor, Geofeedia Expands Its Role in Pioneering Location-Based Intelligence, TECHPOINT (Apr. 11, 2016), http://techpoint.org/2016/04/geofeedia-expands-its-role-in-pioneering-location-based-intelligence/ [https://perma.cc/CUR9-5H5M].↩
Matt Kapko, ACLU Takes Social Giants to Task Over Geofeedia Privacy Gaffe, CXO MEDIA INC. (Oct. 26, 2016 5:00 AM), http://www.cio.com/article/3135042/privacy/aclu-takes-social-giants-to-task-over-geofeedia-privacy-gaffe.html [https://perma.cc/AYT3-X9XJ].↩
U.S. Const. amend. IV; see also Dunaway v. New York, 442 U.S. 200, 213 (1979).↩
Katz v. United States, 389 U.S. 347, 360-61 (1967); see also Smith v. Maryland, 442 U.S. 735, 742-43 (1979) (holding that records of telephone numbers dialed are not subject to constitutional protection); United States v. Miller, 425 U.S. 435, 446 (1976) (holding that there is no expectation of privacy in bank records held by a third party).↩
Many cases implicating First Amendment values have been decided exclusively on Fourth Amendment grounds. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978) (involving photographic negatives held by newspaper); Stanford v. Texas, 379 U.S. 476, 486 (1965) (involving books and records of Communist Party).↩
See U.S. CONST. amend. I.↩
See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978); Laird v. Tatum, 408 U.S. 1, 1 (1972).↩
Smith IV, supra note 10 (“[B]uilding relationships, setting up fake profiles, monitoring event invites — all this is relatively analog work.”).↩
Cagle, supra note 1 (“Based on the information in the ACLU’s report, we are immediately suspending Geofeedia’s commercial access to Twitter data.”)↩