Police and the Social Network – Rights at Stake?

You may want to think twice before accepting that new friend request from your favorite social networking site.  Why is that you may ask?  As social networks have experienced exponential membership growth rates over the last decade or so, the police, too, have taken notice.  More recently this has translated into law enforcement authorities employing social media sites such as Facebook, Myspace, and Twitter to combat and deter crime arguing that if average people are using these sites to find long lost friends or create new bonds there is no reason why police should not use these networks in their efforts to prevent crime.

Of the many advantages -from a police perspective- of using the social network as another tool to combat crime is that it allows officers to conduct online investigations of its users with near-anonymity.   With the click of a mouse and a few registration steps, police detectives are setting up fake profiles to ‘friend’ suspects under investigation and gain intelligence information.  Up to this point, criminal gangs have been their main focus.

For example, in the state of Florida, police report that gang members are using these sites to brag about their involvement in criminal activity[1].  Members often post photos of themselves in gang colors along with gang related hand gestures.  Some even use these sites as a way to communicate threats about future criminal activity against other rival gangs.

Florida police have recognized these shenanigans and have used the fist of law to combat such unruly behavior.  In October of 2008, the sunshine state passed statue 874.11, which makes it a 3rd degree felony for anyone posting electronic communications that “furthers the interest of a criminal gang,”[2] The charge carries a sentence of up to 5 years.  What’s more, successful conviction of a felony charge such as this may result in the defendant’s loss of his or her right to vote[3].

You may be asking yourself what exactly does “furthering the interest of a criminal gang,” mean?  Unfortunately there is no exact definition, which means that the individual police officer conducting the investigation is given total discretion in deciding who is allegedly violating the law; this should not be taken lightly and should be seen as very frightening.  Essentially, this means that anything you post online -be it a comical statement or picture that is not intended to represent anything criminal, such as a cartoon or hand gesture- can easily be misinterpreted as criminal gang activity.  One could argue that this is yet another example of our 1st Amendment rights (freedom of expression) being tossed out the front door. Currently, Florida is the only state with such a law on the books, however, numerous states are in the process of creating similar initiatives.

Lack of clarity in the law and the deceitful process used by police to intrude members’ profiles is causing a ruckus amongst digital rights advocacy groups, such as the Electronic Frontier’s Foundation (EFF)[4]. This civil liberties group, based in San Francisco, argues that deceptive police tactics like creating fake profiles to gain access to individual’s profiles -especially those set to private- is a blatant violation of people’s right to privacy.   Shawn Moyer -a spokesperson from the digital rights advocacy group Fishnet Enterprise- declared that such intrusion is not only wrong, but also unethical, noting that police pretending to be someone else are actually in violation of Facebook’s terms of service policy against willful impersonation of another individual.[5] Despite this rule, however, police continue to employ this tactic without any legal ramifications because there are no state or federal laws governing when and how police may conduct their online investigations on social networking sites.

In order to gain some sort of clarity on these issues the two digital rights advocacy groups filed a Freedom of Information action suit against the Dept. of Justice.  In a whopping 33-page response, the DOJ expressed their interest in -and implied their support for- police using the social network as an investigative tool and stated that all investigations are legal, as long as they are accompanied by a valid search warrant.[6] The DOJ did, however, remain silent on the issue of police violating social networks’ terms of service agreements. Although the DOJ did provide some answers to these fundamental questions of right to privacy online, their response seems to be mediocre at best.

Therefore, until both transparency and clarity are provided within the laws of online investigations, you may want to take some time to see who is really behind that new friend request.  Also, if there was ever a time to re-examine your profile you may want to do that now -you wouldn’t want an image or a comment you posted last week (or last year for that matter) to be misinterpreted as criminal.  Remember, there is a disclaimer on all major social networking sites that states that all posted information is public information[7] [8] [9].And if you didn’t know, now you know.

[1] Florida Police and Teen Gangs

[2] Fla. Stat. 874.11

[3] Specific case law – State of Florida v. Figueroa-Santiago

[4] EFF official website

[5] Privacy Concerns Raised by Undercover Police Tactics

[6] DOJ Report

[7] Facebook Disclaimer

[8] MySpace Disclaimer

[9]Twitter Disclaimer