With “Friends” Like These

The thin blue line has gone online. Recognizing the vast quantity of information people are willing to disclose on social networking sites, the police in several major cities have created specialized task forces dedicated to mining information from sites like Facebook, Myspace and Twitter. Unlike on the streets, police on social networking sites aren’t flashing badges or lights; they’re disguised as that friendly stranger whose friend request you just accepted or may even be hiding behind the profiles of your actual friends.  

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            For those of you itching for another Law and Order spin off, the real life NYPD may just provided NBC with another idea: Law and Order: Social Media Edition.[1] In early September, New York Police Commissioner Ray Kelly issued a five page memo establishing new guidelines for police use of social media.[2]  The memo states that officers may use aliases in establishing social media accounts, register those aliases with the department and conduct investigations on laptops issued by the NYPD that cannot be traced.[3] While Commissioner Kelly’s report officially sanctions the use of false Facebook profiles, the NYPD has been using social networking sites to collect information on defendants for quite a while. In 2011, for example, Kevin O’Conner an assistant commissioner for the NYPD, who at the ripe age of 23 was dubbed “an online drug and gang expert,” was appointed as the head of a new juvenile justice unit focusing on social media.[4] O’Conner earned the promotion after having successfully uncovered information in a number of shooting cases on social networking sites.[5] In addition to O’Conner’s social media sleuthing, the NYPD recently solved the murder of Anthony Collao after his killer bragged on a social networking site.[6]  Similarly, evidence of a Facebook feud over a $20 loan for diapers proved to be the key to solving the murder of Kamisha Richards and the indictment of her friend Kayla Hernandez.[7]

It’s not just the boys in blue who are cracking cases using online spaces; the federal government has also put Facebook to use in cracking down on gang crimes. Melvin Colon, an alleged member of the Courtland Avenue Crew, was recently indicted on charges of murder, racketeering, attempted murder, narcotics trafficking, firearms possession, and other violent acts all thanks to one of his Facebook friends getting friendly with the FBI.[8] After one of Colon’s Facebook friends agreed to become a cooperating witness in the case against Colon, whose Facebook name is “Mellymel Balla,” the FBI asked to view Colon’s profile through his friends account.[9] The unnamed friend consented and the government learned that “Colon posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Colon’s gang.”[10] Using this information as the basis of their probable cause, the government then obtained a search warrant to gain full access to Colon’s Facebook profile.[11]

Arguing that the government had violated his reasonable expectation of privacy by viewing his Facebook profile through his friend’s account, Colon filed a motion to suppress all evidence seized as result of the search warrant.[12]Unfortunately for Colon, a federal judge denied the motion to suppress explaining that “[w]here Facebook privacy settings allow viewership of postings by ‘friends,’ the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment.”[13] The judge’s ruling is significant because this is the first endorsement from the judiciary of such use of social networking sites.

In addition to creating false profiles and hiding behind undercover friends, state and federal agencies also use subpoenas to gain access to information and, as a Twitter user discovered, this tactic may prove unstoppable. The Twitter user to discover the government’s inexorable subpoena power cannot be named, as he is simply known in court documents as Mr. X.[14] The subpoena in question was issued to Twitter, Inc. by a federal grand jury after federal prosecutors presented evidence that Mr. X had used his Twitter account to threaten Republican presidential nominee candidate Michelle Bachman.[15] Specifically, Mr. X tweeted, “I want to f*ck Michele Bachman in the a** with a Vietnam era machete.”[16] Based on this information, the grand jury’s subpoena demanded “any and all information” regarding Mr. X’s account, including Mr. X’s true identity.[17] After receiving the subpoena, Twitter, Inc. informed Mr. X, who in turn filed a motion to quash arguing that the  “that the government lacks a real investigative need for his identity” because his tweet did not represent a “true threat.” [18] A federal judge did not agree with Mr. X and finding that the “grand jury ought to know if Mr. X has a history of making threats to political candidates in other forums, or has stalked or engaged in other sinister behavior toward Ms. Bachmann, or happens to actually own a Vietnam-era machete.” Based on this reasoning the judged denied Mr. X’s motion to quash but not before noting that requiring twitter to reveal Mr. X’s identity might set a precedent that would allow the government to “presumably subpoena any Web site any time any anonymous user made any post containing a mere scintilla of violence.”[19] However, the judge dismissed such a frightening prospect saying, the situation her may be differentiated because “[h]ere, an individual has made a statement that threatens an established candidate for the presidential nomination of one of our two major political parties, and the government has a strong public interest in investigating that threat, however outlandish.”[20]

            As law-abiding students, who have yet to threaten a single politician or form a drug dealing, murdering gang, I’m sure many of you are wondering why we should be concerned with law-enforcement’s use of social networking sites. Aside from the obvious big brother argument against the government finding ways around your carefully selected privacy settings, there is the fact that the government is not the only side using social networking sites in criminal cases. Defense attorneys have also used police officer’s postings to discredit their testimony.[21]Social networking sites have also raised the issue that law enforcement officials are violating the social networking sites’ terms of use when they create false profiles or request users to disclose their usernames and passwords. Certainly the pursuit of deadly criminals is a noble feat, but given these arguments, the question remains are the tactics employed by the NYPD and federal officials discussed here the right approach?


[1] Any NBC executives that happen to be reading this blog and are interested in Law and Order: SME, I’m more than willing to adapt my seminar paper into a screenplay and have a few casting ideas.

[2] NYPD Releases Guidelines for Social Media Use in Investigations: Report, NBC News New York (Sept. 14, 2012, 11:00 AM) http://www.nbcnewyork.com/news/local/nypd-social-media-guidelines-commissioner-kelly-rules-169757066.html

[3] Id.

[4]NYPD Looks to Mine Social Networks for Info on Criminal Activity, DailyTech (Aug. 11, 2011, 5:26 PM) http://www.dailytech.com/NYPD+Looks+to+Mine+Social+Networks+for+Info+on+Criminal+Activity/article22417.htm

[5] Id.

[6] Id.

[7] Id.

[8] Facebook, Friends and the Fourth Amendment, Cyb3rCrim3 (Aug. 15, 2012, 1:33PM) http://cyb3rcrim3.blogspot.com/2012/08/facebook-friends-and-4th-amendment.html

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] The Twitter Subpoena, the Machete and the Motion to Quash, Cyb3rCrim3 (Mar. 9, 2012, 8:34 AM)

http://cyb3rcrim3.blogspot.com/2012/03/twitter-subpoena-machete-and-motion-to.html

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] When police officers use social media, departments see risk, The Arizona Republic (Oct. 21, 2012, 11:11PM) http://www.azcentral.com/arizonarepublic/news/articles/2012/03/01/20120301police-officers-social-media-use-departments-see-risks.html

~ by kristenuflchase on October 21, 2012.

8 Responses to “With “Friends” Like These”

  1. Police presence on social media may have plaintiff friendly implications for civil rights lawsuits. Suppose an officer brags on his facebook page about how good it felt using (probably excessive) force against a suspect. Or the officers post racially inflammatory material. Or the officer acts similar to the outed “Violentacrez” behind a false profile. Civil discovery requests for the officers’ social media profiles fits into the standard for relevance and may flip the risks of making personal info available to everyone.

  2. My initial thought in reading this post was that “the FBI is violating Facebook’s terms of use!” However, I would argue that under these circumstances, it seems to make sense to allow the government a pass. For example, we don’t require a police officer to go the speed limit when chasing down a car. An ambulance can proceed through an intersection even if the light is red. The big picture here is that the government is trying to protect our citizens by putting criminals behind bars, and if that means Facebook’s terms of use is violated, then so be it. As we discussed before, it almost doesn’t make sense that Facebook be allowed to set these standards in the first place.

    I am glad to hear the FBI and police departments are using social media, and that they are creating specific jobs for people who have shown they are skilled at “Facebook stalking.” All joking aside, “Facebook stalking” is a serious skill that takes time and intuition. Not that I have ever done this (wink), but a lot of information could be found out about a person just by looking at someone’s Facebook page. For example, say you are stalking “Joe”. “Joe” could be in a picture last week with “Mike”. So you click on Mike. Mike’s Facebook profile is public. Mike “checked in” to the Blue Lagoon Restaurant on the same day he was tagged in a picture with Joe. You go to Google, and type in Blue Lagoon Restaurant. The Blue Lagoon Restaurant has a website where they upload pictures from a photographer that was walking around taking pictures. You scroll down to last week, and there’s Joe, holding hands with his new girlfriend. It may not always come that easily, but a lot of information could be found about a person from Facebook by someone who knows what they are doing.

  3. I suppose some would argue that we have already given up our privacy merely by the act of using a medium where our conversations can be recorded, even when those conversations were privately communicated to a circle of friends. Our understanding of reasonable expectation has eroded a long way from Katz’s pay phone call.

    First, these techniques are used for catching criminals like drug lords; next, to catch people making vague and implausible threats against politicians they don’t like. Then, prosecutors are subpoenaing all the tweets of someone who was on the Brooklyn Bridge during the Occupy protests. Before long (if not already) we’re in the world of COINTELPRO, with law enforcement infiltrating and trying to disrupt valid political organizations and protest movements. Rather than ask the question “Can the police legally do this?” I’ll take a normative approach and simply ask if this is the kind of world we deserve just because we decided to begin using new forms of communication?

  4. While it is frightening that the police and the federal government can view our Facebook profiles and even use the information they find to bring criminal charges, it is not surprising. In fact, the danger of intrusion goes beyond the criminal context and into the civil realm. Private law firms, especially those that represent insurance companies in personal injury, have taken to social media to acquire evidence against their opponents. If, for example, a plaintiff claims to have been permanently injured to the point of not being able to stand for long periods of time then posts a picture of themselves dancing at a concert, counsel for the insurance companies can use that information as leverage in a settlement or as evidence at trial. The fact that posts and pictures on Facebook are now making their way into the courtroom just goes to show how dominated our lives have really become by social media.

  5. I agree with the comments made here. Social media has taken over our lives and honestly, it’s not surprising that law enforcement agencies are trying to use it to their advantage. It is unsettling that we are beginning to see the start of a “big brother” culture, but at the same time, most educated people know that full privacy on the internet tends to be complete farce. We had this discussion previously in class, whether our expectation of privacy (which on the internet is low) should have any bearing on our real privacy rights. The Katz test in this manner seems to be out of date and obsolete, so I wonder how the courts and the government will try to adapt law to this kind of privacy issue. Undoubtedly, there are many government agencies and officials that will try to hack down our privacy rights, especially on the internet, since they could take full advantage of it. Or, more frighteningly, many government officials do not understand the consequences of privacy violations on the internet and believe that if a person isn’t doing any wrong, then they shouldn’t have anything to worry about.

    Although that’s a perfectly reasonable standpoint, I do not believe that is the general opinion we should hold when it comes to our privacy rights. That could open Pandora’s Box and lead us into a world where there are no privacy rights, just because people are expected to be okay with being watched when they’re not doing anything wrong.

  6. The internet allows for the dissemination of thoughts, ideas, critiques, and knowledge. The continued pressure by governments and corporations to restrict this expression is essentially the widespread application of the Orwell’s “thought police”. Kevin is right in forgoing the legal arguments to focus on the normative. Rotely applying legal arguments formed from an antiquated legal system for which “virtual” anything was inconceivable does the future no good.

  7. I think the fact that social media sites claim to provide anonymity through privacy settings, avatars, and screen-names is extremely misleading. All these services do is trick people into believing that the information they are posting will not be seen by anyone they don’t allow. One would think that “Friends only” would mean only your friends are allowed to view this information. While In reality as soon as you post something to a social media site you are giving up control of that information. These sites don’t tell you this fact in the privacy settings page; they just allow you to believe you are protecting what you post. I know the cases above used fake accounts or compromised actual friends but that is not always the case. Sometimes, the Police just get a warrant for the information.

    In the end, even though people may be mislead by privacy settings, an individual should not have a reasonable expectation of privacy when sharing information on social media sites. This is just a modern day version of the wire tap cases that came around after the invention of the tape recorder. When you share information with someone else you are susceptible to losing your privacy rights in that information.

  8. I think Ryan makes a good point that any time you are sharing information you are subjecting yourself to having it traced or used against you if the police can demonstrate probable cause.

    I agreed with a lot of what Kevin said until I thought about it from this angle. While there is always the “slippery slope” argument, limiting the power of the police to investigate crimes and gather evidence by adapting techniques they already use to fit the characteristics of modern communication and social media doesn’t seem to be that big of a risk.

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