Social Media and Law Enforcement

The privacy individuals enjoy at home and in private has not been extended to our social media presence and law enforcement organizations have begun using this information to investigate, corroborate and prosecute individuals. The internet is currently the wild west for law enforcement and they are using social media to slowly corrode the Fourth Amendment rights guaranteed by the constitution. The Fourth Amendment protects American citizens against unreasonable searches and seizures, yet the current law enforcement practice has only been slowly analyzed by the courts. The rights of individuals are slowly encroached upon by law enforcement officials until courts step in to state that individuals have rights. Social media offers them glimpses into the lives of the accused at the simple click of a button. This blog post will focus on the ongoing use of social media by law enforcement to investigate and surveil individuals to fight crime and whether the use of social media may be overstepping into citizens Fourth Amendment rights

U.S. v. Blake

On cases involving computer warrants there seem to be an evolving point of view as to what the police may have access to when executing a search warrant.[1] The U.S. Court of Appeals for the 11th Circuit seems to be leaning toward placing a limit upon use of social media and email to prosecute individuals. In Unites States v. Blake, the defendants challenged the way that the government obtained the corroborating information that they were running a prostitution ring. The Court expressed some concerns over the use of the warrant to search the defendant’s email and Facebook account.

In Blake, the FBI arrested and charged the appellants, Dontavious Blake and Tara Jo Moore with crimes related to sex trafficking. The FBI managed to obtain warrants for Moore’s Facebook and Microsoft accounts. The Facebook warrants were not limited to specific data or to a specific timeframe. The Microsoft warrant was limited to emails linked to the charges against appellant.

The Eleventh Circuit Court stated that the search of the Microsoft account was lawful because it was limited in scope, the search of the emails to be turned over to law enforcement was limited to those that could contain potential evidence. However, the court did make a point that the Microsoft warrant not having a time period limit as to when the conspiracy was occurring was an overreach, but let it stand as the search was decently limited in scope to those that could be connected to the alleged crimes.[2] On the other hand the Facebook search was a clear overreach according to the court because law enforcement received all of the content of the account regardless of whether it was related to the alleged crime or not. The Court found that with regards to private messages contained within the social media account the search should have been limited to messages sent to or from persons suspected at that time of being prostitutes or customers.[3] Nonetheless the Court found that even though the warrants were overly broad they were supported by probable cause and the “good-faith” exception.

Law Enforcement use of Social Media

Law enforcement has begun using social media to monitor individuals, even those with no criminal activity or suspicion thereof on their record.[4] A 2014 survey of more than 1,200 federal, state, and local law enforcement professionals found that approximately 80 percent used social media platforms as intelligence gathering tools.[5]

The issue with law enforcement use of social media has raised several questions particularly in areas where law enforcement has used social media to monitor peaceful protests,[6] assembled social media activity as evidence for criminal conspiracy charges,[7] or created fake profiles or impersonated individuals online.[8] Law enforcement use of social media in these ways has raised some longstanding concerns over a potentially disproportionate law enforcement focus on people of color, religious minorities and low-income communities. The use of social media has stoked fears of how its use may affect both the First Amendment, which protects free speech, and the Fourth Amendment, which protects against unreasonable searches and seizures.

In 2014, law enforcement used social media to crack down on the Heartless Felons gang after a rapper affiliated with the gang posted videos on social media where he admitted to selling drugs.[9] Law enforcement used the videos and raps to corroborate other evidence and crack down on members of the gang. While this may be a positive situation the overextension of surveillance is a slippery slope where courts have no bright line rule.

On the other hand of adequate effects there are situations like Ferguson where law enforcement used social media to monitor peaceful protests.[10] Documents released by the Department of Homeland Security’s Office of Operation of Coordination indicated that the department frequently collects information, including data, on Black Lives Matter activities from social media accounts. The surveillance of peaceful protests by the federal government is a dangerous road that has been traveled before, most notably by the programs ran by the FBI against civil rights movements. It would be easy to say that law enforcement would never again indulge in such activities, but that is not something that should be left to chance and courts should act to curb law enforcement use of social media for such purposes.

Face Morphing Technology

The evolution of face morphing technology allows individuals to superimpose facial features into preexisting video with relatively little effort.[11] The ability to know place people in situations they may never have been in creates issues when law enforcement use social media posts to investigate individuals. The biggest issue with face morphing is placing celebrities in pornographic scenes in which they were never involved.[12] However it is not hard to see this technology being used to frame individuals whether it be by law enforcement or other individuals. Facebook uses facial recognition software that identifies the individuals in pictures or videos.[13]

The scenario where an innocent individual may be superimposed into a video is not farfetched anymore. Celebrities find themselves fighting fake celebrity porn, but it is not hard to imagine law enforcement basing their investigation on fake images.[14] The danger of law enforcement using these fake images is more dangerous especially with the fast spread of social media and the everyday use by individuals.

Questions for Discussion

  • Do you think the court in United States v. Blake was correct in allowing the search and seizure of defendant’s accounts even though the search went beyond the scope of the warrant?
  • Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime?
  • Do you think face morphing technology will make video evidence less trustworthy in the coming future?

 

[1] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/22/no-warrants-for-a-suspects-entire-facebook-account-appellate-court-hints/?utm_term=.1e051a453ed3

[2]See United States. v. Blake, No. 15-13395 (11th Cir. 2017)

[3] Id. at 21

[4] Alexandra Mateescu et al., Social Media Surveillance and Law Enforcement Data & Civil Rights (2015), http://www.datacivilrights.org/pubs/2015-1027/Social_Media_Surveillance_and_Law_Enforcement.pdf (last visited Mar 29, 2018).

[5] Id.

[6] George Joseph, Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson The Intercept (2015), https://theintercept.com/2015/07/24/documents-show-department-homeland-security-monitoring-black-lives-matter-since-ferguson/ (last visited Mar 29, 2018).

[7] Meredith Broussard, When Cops Check Facebook The Atlantic (2015), https://www.theatlantic.com/politics/archive/2015/04/when-cops-check-facebook/390882/ (last visited Mar 29, 2018).

[8] Jacob Gershman, Police Online Impersonations Raise Concerns The Wall Street Journal (2015), https://www.wsj.com/articles/police-online-impersonations-raise-concerns-1421895089 (last visited Mar 29, 2018).

[9] James F. McCarty, Police arrest dozens of West Side Cleveland gang members accused of waging reign of terror cleveland.com (2014), http://www.cleveland.com/court-justice/index.ssf/2014/10/police_arrest_38_members_of_we.html (last visited Mar 29, 2018).

[10] Joseph, Supra note 45

[11] Chang, James. “Deepfakes, Privacy Rights and the AI-Powered Blurring of the Lines.” Internet & Social Media Law Blog, 14 Feb. 2018, http://www.socialgameslaw.com/2018/02/deepfakes-privacy-rights-ai-blurring-lines.html

[12] Id.

[13] Constine, Josh. “Facebook’s Facial Recognition Now Finds Photos You’re Untagged In.” TechCrunch, TechCrunch, 19 Dec. 2017, techcrunch.com/2017/12/19/facebook-facial-recognition-photos/.

[14] Palmer, Annie. “Reddit User Who Revealed Disturbing AI That Can Make Fake Porn Videos Using Celebrities’ Faces Has Now Launched an App so ANYONE Can Do It.” Daily Mail Online, Associated Newspapers, 25 Jan. 2018, http://www.dailymail.co.uk/sciencetech/article-5313645/Fake-celebrity-porn-Reddit-thanks-new-app.html.

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~ by jmosquera317 on April 14, 2018.

13 Responses to “Social Media and Law Enforcement”

  1. I do not think that law enforcement should be able to monitor the accounts of individuals who have not been accused of a crime or are not reasonable suspected of committing a crime. To monitor someone with no real reason is an abuse of government oversite. It is a complex issue to decide what is reasonable for law enforcement to view without a warrant on social media because a reasonable person knows that once something is posted on the internet almost anyone can view it. I would think that if a person’s profile is public and not measures have been taken to adjust the privacy settings (even if they are limited) then it seems more reasonable that law enforcement could view what that person posted. However, if the policy are hacking into accounts to seem more than what that person has allowed to be public then they should be required to have a warrant, and stay within the scope of that warrant.
    I know very little about face morphing technology but I would say that unless there is a way to know, and/or reverse a video once it has been altered then video evidence would need to be strictly scrutinized before it was admitted.

  2. The fact that social media sites implement privacy settings that many users utilize demonstrates that there is a certain level of privacy that users expect regarding what they post on social media. Police have been able to circumvent the privacy restrictions with the help of users’ friends who have access to protected information. This is another use of the third party doctrine to show a lack of a privacy expectation, and illustrates why there must be a re-evaluation of what constitutes a reasonable expectation of privacy in the current age of digital information and technology. I am not so concerned about police monitoring individuals through public information that is not hidden behind a website’s privacy tools; however, the use of circumvention methods such as third parties and creating fake profiles is ethically concerning, and I think that it needs to be addressed in the law. There should also be more effort made by social media sites to inform users about the extent of their privacy rights as they stand with current law so that people can make better decisions about what they post on social media.

    Face morphing technology is a worrying phenomenon that does present a real danger beyond the consent issues surrounding it’s use in pornography. Technological improvements and ease of access to face morphing tools will almost certainly lead to cases of people being framed and the spread of false information in an age where concerns over fake news and propaganda have already made people less trusting of information sources.

  3. The question of whether law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of a crime is quite tricky. My gut reaction is no, since without an accusation, there’s no reason to invade someone’s personal space and liberty like that. It can’t really be an issue of privacy, since social media is public, although concessions may need to be made in this regard for people who use privacy protections to limit what people can see of their profiles, in which case, monitoring a private Facebook page, for example, by hacking in or using someone else’s account to see the full page may be a privacy invasion.

    Regardless, I think this is an issue that is coming to a head. While a state where the police can monitor your public personal information as if waiting for you to commit a crime is hardly ideal, I think this has to be balanced against the social good of preventing crimes. If we as a society decide that this is an ok behavior, I think it’d be imperative from the get-go to establish some norms and boundaries to prevent abuse.

  4. I’m actually not greatly concerned about law enforcement’s use of social media. It sounds as though in most cases (emergency situations excluded) technology companies are requiring law enforcement to present a warrant before handing over user’s data, which I think is appropriate and perhaps more protection than one might receive regarding government surveillance in other areas of life. As far as publicly accessible information not requiring official exchanges with the owners of the social media platform – I think this is more an issue of educating the public than it is one of police overreach. I don’t have a problem with individuals boasting on social media of crimes that they committed being caught. I’m even okay with police making fake – otherwise discovering an undercover agent would be as simple as requiring your criminal associates to send you a Facebook message. To the question of whether I think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime – I see it as no different than asking whether a police officer should be able to park her car at a busy traffic intersection and watch (people who have not been accused of any crime) for suspicious activity. If you commit crime where a police officer can plainly see it, I don’t think of it as the police officer’s fault.

    Do I think face-morphing technology will make video evidence less trustworthy in the coming future? Yes. But similar to my response to the previous question, I think this is a more a matter of public expectations shifting than anything else. I think that inside a courtroom, authentication procedures will exist just as they do for any other piece of evidence. They won’t be fool-proof, but my expectation is that they (with the help of zealous counsel on both sides) will at least be formidable.

  5. • Do you think the court in United States v. Blake was correct in allowing the search and seizure of defendant’s accounts even though the search went beyond the scope of the warrant?
    No, when it comes to viewing basic information such as the users’ posts, that’s one thing. However, in order to go beyond that into a defendant’s account, I think a warrant should be necessary and law enforcement should not be able to go beyond the scope of their warrant.

    • Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime?
    No, I do not think that law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime. However, this is a very difficult area to monitor as all that is needed to create social media accounts today are an email address. And all that is needed to create an email address is … practically nothing. I, myself have four different email addresses that I use for different purposes (job, work, personal, etc.) So, law enforcement can easily create a fake profile to monitor accounts, even without cause. Likewise, if users keep information public, law enforcement may not even need to create an account to monitor them. All they would need is internet access. Then, they could go to the social media page and view it without ever having to log in. So, while this may cause some concerns, it is essentially up to the users to determine what information they want private and what information they want to keep public. Even if we do not agree that law enforcement should be able to use social media for this purpose, there is no way to stop them from doing so, because as one article mentioned, it is not illegal.

    • Do you think face morphing technology will make video evidence less trustworthy in the coming future?
    I definitely think so. In one of the articles, it mentioned possibly using face morphing in child pornography videos. This is a huge issue. For someone who is technologically advanced and has these abilities, they can easily harm individuals if the video footage gets in the hands of law enforcement. Then, that individual will have to figure out a way to prove that they are not actually the one portrayed in the video. This can ruin lives and turn into a lot of false accusations.

  6. I don’t think law enforcement should be allowed to use social media to monitor the accounts of individuals who have not been accused of a crime or are reasonably suspected of committing a crime as this definitely seems like an overuse of power. However in this discussion, I am curious as to what constitutes “monitoring”. In order to effectively make a ruling on this topic, a clear definition of monitoring would need to be established in order to ensure that everyone is aware of what constitutes monitoring.

    That being said, if an individual is actually reasonably suspected of a crime and law enforcement finds evidence of the crime on social media, law enforcement should not be barred from using this evidence. It is common knowledge that nothing on social media is private. In my opinion, posting something on social media is akin to posting something publicly for anyone and everyone to see, regardless of what privacy settings you use. Due to this, law enforcement shouldn’t be expected to ignore evidence that is right in front of their face. Of course, this is not to suggest that law enforcement can obtain the social media evidence illegally.

    In response to the face morphing technology, this is actually horrifying. I can definitely see how this can be extremely dangerous in high-pressure situations or could be used to harm others (i.e. celebrity face swapping porn). I would imagine that software exists (or will exist soon) that can detect whether video evidence has been altered by this type of technology, however I feel like the damage will already be done to the integrity of video evidence. Once a video has been altered this much, theres nothing to say that any other video evidence (or evidence of distortion of a video) can be trustworthy.

  7. Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime?

    While such actions may seem to be a bit intrusive, I do not believe that such monitoring activity should be disallowed by law enforcement. When people post information onto their social media sites, they are making this information “public” in the sense that other people are able to see the information. While posts may be intended only for the friends of a social media poster, law enforcement should have a right to monitor such accounts in order to possibly prevent crimes from occurring or gathering important evidence that may be relevant to a current legal matter. If a person does not want law enforcement to get such information, then they should not be posting the information in the first place.

    Do you think face morphing technology will make video evidence less trustworthy in the coming future?

    Face morphing technology seems to be a huge issue today in terms of authenticating evidence that is presented in a trial or criminal proceeding. Like Photoshop, there are many technologies available today that can alter an original image to anything imaginable. Such ability to alter photographs or videos while making them seem authentic is an authentication issue that will be of issue for many years to come. Steps will need to be put in place to authenticate whether or not a photo or video is in fact authentic, and if such steps cannot be taken, then the trustworthiness of such evidence should be put into question.

  8. (1) Do you think the court in United States v. Blake was correct in allowing the search and seizure of defendant’s accounts even though the search went beyond the scope of the warrant?

    Without reading the case and other relevant case law this is a challenging question to answer. However, I do think that we have a “scope” factor in warrants for a reason, and to abrogate the requirement of particularity – which is implicit in the scope of a warrant – seems to abrogate 4th amendment protections. It will be interesting to see whether this case is granted cert.

    Although the question was not posed, I found it interesting that law enforcement can make a fake account to view Facebook profiles. If this is a breach of the user policy I question how this is different than law enforcement trespassing on property then arguing plain sight. I suppose if they send a friend request and you accept it then that is on the acceptor, but at the same time I think the breach of Facebook terms and conditions is an interesting spin on an issue that is yet to be answered.

    (2) Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime?

    I think this seems very questionable. However, if the user is giving the information out publicly it seems to be a waiver of the expectation of privacy. This still “just doesn’t feel right.”

    (3) Do you think face morphing technology will make video evidence less trustworthy in the coming future?

    I think it certainly calls into question the veracity of video evidence. However, we have had photographic manipulation technology for years and it has not done away with the introduction of photographic evidence in courts because electronic manipulation of photos and videos tend to leave some indication that manipulation has occurred. I therefore question whether, at the end of the day, this will have any tangible effect on the introduction of real unmanipulated video.

  9. Do you think the court in United States v. Blake was correct in allowing the search and seizure of defendant’s accounts even though the search went beyond the scope of the warrant? A: I don’t think so. I think the scope of any search should not exceed what is written and permitted by the warrant. Any search exceeding what’s permitted in the signed warrant is unreasonable and a violation of the defendant’s Fourth Amendment rights.

    Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime? A: I don’t think law enforcement should be able to use social media to monitor and individual who has not been accused of any crime, especially if that individual has made reasonable efforts to ensure their privacy (i.e. make their page private, use an alias, etc). If the page is not private and free for the public to look at that leads me to believe that the person is not as concerned about their privacy and so law enforcement agents aren’t fringing on any rights because there’s no reasonable expectation of privacy here.

    Do you think face morphing technology will make video evidence less trustworthy in the coming future? A: I don’t think so. I’m not an expert on Photoshop but I generally can tell the difference between an edited and unedited image. My basic knowledge leads me to believe that experts and specialists will have no issue determining what is and isn’t real.

  10. I actually see nothing wrong with law enforcement monitoring social media for general investigative purposes. As an avid private enthusiast, you might find this surprising. I think that social media is very public and generally conveys non-criminal activity but can be a good tool in ferreting out crime. I think if somebody posts on social media, they are generally sharing their thoughts on a public forum, just as they would on a street corner. Police officers generally have a duty to observe and monitor the public as bystanders which does not infringe on their privacy. Furthermore, your post mentioned having aliases and fake Facebook profiles. I think you can look at this from two different views. First I would liken it to the ABA standards for attorney communications. The Model Rules state that adding someone as a friend whether or not an alias is used is considered “communication” and creates ethical issues when researching an opponent parties social media profile. If you apply these ethical concerns to police, then maybe there is a problem with police misidentifying themselves to the public. Which leads me to my second view point; I see no issue with police acting in this manner because they constantly do it every day they enter the public in street clothes or when they go under cover. I’m not sure if there are any legal limitations to when and how an officer can go under cover, but I would have no problem imposing these limitations in the cyber context.

    The issue with facial recognition is also interesting. As mentioned in previous post the article mentioned using face morphing videos in child pornography. As atrocious as this sounds tampered videos has serious evidentiary concerns. I am not sure how or if law enforcement can ensure that videos from the internet are original and authenticated, other than to just admit videos as evidence and state the source. It would then be up to defense counsel to attack the credibility of the source. Realistically jurors, like myself, would probably believe the credibility of the source unless doctoring could be proven. As someone who did investigative work for civil cases over the summer, I pulled countless videos and pictures from social media as evidence, and issued social media subpoenas. This issue didn’t cross my mind once, and none of the lawyers at the firm talked about it either. It will be interesting to see if this changes in the criminal context, and I wonder how many investigators have this on their radar.

  11. I don’t know that we have enough here in the post to properly discuss the Blake case. Perhaps you can expand on it during class. Do you think the Cambridge Analytica debacle will help move the privacy issue forward? Maybe it wasn’t enough that poor people, brown people, and others disliked by society were losing their privacy rights but if 87 MILLION Facebook users lose privacy rights maybe that is significant.

  12. 1. Do you think the court in United States v. Blake was correct in allowing the search and seizure of defendant’s accounts even though the search went beyond the scope of the warrant?
    I’m confused by this question; the way you described the case in the post was that the scope of the warrant was overbroad, but not that the search exceeded it. If the search stayed within the limits of the overbroad warrant, this seems like a straightforward application of the “good faith” exception, because the mistake was on the part of the magistrate, not the officers.

    2. Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime?
    I agree with Dan; I don’t see how this usage of social media is exceptionally different from existing physical practices of police such as stakeouts and interviews. That the public overshares on social media things they would never say in person is a problem of educating the public, not I think overreach by the police. I think the argument for reducing government power here was stronger in the context of the Carpenter case or cell tower simulators; a fake social media account isn’t different at all from an undercover agent who infiltrates a drug trafficking ring, and in fact may be preferable if the agent doesn’t have to garner trust by furthering their crimes.

    3. Do you think face morphing technology will make video evidence less trustworthy in the coming future?
    Absolutely, yes. Having read now about the deepfakes situation, I think that the court systems are on the cusp of being shaken by the immense loss of credibility for video evidence. However, I don’t think that ordinary evidentiary principles will be forced to shift for this reason; after all, we have the ‘crucible of cross-examination’ which is assumed to fix witness testimony and other problems. The larger problem I expect will be educating juries as to this issue, because they may be too ready to accept video evidence even after it can be shown that it might be tampered.

  13. 1. Do you think the court in United States v. Blake was correct in allowing the search and seizure of defendant’s accounts even though the search went beyond the scope of the warrant?
    I think limiting the search to scope of the warrant is the correct procedure. I agree with the court that the Microsoft account was a good decision, but I don’t think that the Facebook warrant should’ve been permitted under the good faith exception. I think the fact that the police limited the Microsoft account shows that some consideration was put when deciding the scope of the search, so to then go around and argue that there should not be some limits in the Facebook warrant is not “good faith” mistake.

    2. Do you think law enforcement should be able to use social media to monitor the accounts of individuals who have not been accused of any crime?
    I think we are already monitored in many ways and as much as I would like to say, no my social media should not be monitored, I am not naive enough to believe I have that much privacy. Especially considering that I choose to leave certain sites in public. As far as monitoring individuals that haven’t been accused of crimes, I think a lot would depend on the notice that is given as well as how deep does the monitoring go. I will say, like many others, I downloaded my Facebook archive and was a bit upset to see that besides the things I expected Facebook to have access to, they also had access to text messages that I was sent that were in no way related to Facebook.

    3. Do you think face morphing technology will make video evidence less trustworthy in the coming future?
    I think presentation of video evidence in court was always an issue because of the methods that some attorneys utilize (i.e. stills vs showing actual video). Deepfakes are super terrifying notion because they only further make us question what is real anymore and in this digital age can be insanely damaging to peoples’ reputations.

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