We live in an age where people will disclose significant amounts of personal information to obtain a dollar off a sandwich or to take a social media quiz about how smart they are without a second thought. Across America, and the world, I can discover the intimate details of people’s lives, their actions, their memberships, their friends, where they currently are located and who they are talking to with the click of a mouse. Given the persistence of sensor technology, I can zero in on places and people to observe actions in locations throughout my city and the world. Drones have become commonplace as they collect information on people and places. In other words, the world has become one of open source and instant connectivity. Widely embraced as a mash-up of idea and technologies, we careen at an accelerated pace to broaden the reach of all in a world supported by every growing transparency in digital communications. In other words, privacy is quickly becoming an antiquated concept.

That is, unless you are the government.

Recently, it was reported that the Chicago start-up firm, Geofeedia, was cut off from access to Twitter data after it was revealed to have shared its software with police who used it to monitor protest activity through publicly posted information. As part of its launch, Geofeedia stated that the company’s focus would be on marketing to people at events or locations. Apparently, commercialization of privacy is acceptable; however, when Twitter learned of the American Civil Liberty Union’s (ACLU) review of Geofeedia activity, it shut down its access. The ACLU reported that such use of social media platforms could contribute to discriminatory surveillance and contacted Facebook, Instagram and Twitter. Instagram also cut off access, but Facebook identified that the company was only accessing information that people made public. It was also reported that newspapers have used such technology to locate people to interview at breaking events and to peruse social media content.

Privacy is an intrinsic right, one that has long been aligned with physical space. Privacy is not unalienable, as people can and do waive privacy – for a variety of reasons. However, the degree to which this is done knowingly and freely is the new frontier in a digital age. The ACLU believes that social media platforms should be doing more to protect the free speech rights of its clients and that opening these digital feeds to commercial products that conduct surveillance risk putting users in harm’s way. It is an area in which the law lags behind the accelerated pace of technology, and as a result, standards and rules remain unclear.

Private entities have fewer boundaries than government, and access to information remains a significant concern to privacy advocates. Easy access to persistent surveillance that new technology allows alters the terrain in many areas – politics, competitors, and marketing – are some of the areas that come to mind. However, the collection of freely provided public data has long been seen as generally proper and legal action for law enforcement and government. Therefore, the issue with Geofeedia raises a new hurdle, both from a limitation of government’s ability to access and in defining what should be the context for collection.

So, what is a law enforcement agency to do?

  • Well, for one, policy and protocols are key. What is your privacy policy? Does it cover social media? It should.
  • Next, departments need to institute and adhere to supervision and auditing practices.
  • Third, education and continued training on policies is crucial.
  • Finally, persons must be held to account when policies are violated through swift corrective action.

In addition, law enforcement agencies should review their First Amendment activity policies and protocols.

  • Is your use of social media compliant with your own investigative policies in this arena? If not, it should be.
  • Covert police action is normally covered as part of these policies. How can officers engage with groups, under what parameters and how will it be reported? A covert presence on social media is no different.
  • Even if officers are not engaged in covert social media activities, targeted review of social media feeds based solely on affiliation within specific groups normally falls squarely within First Amendment policies. Does your policy address this type of social media activity?

Agencies should provide their policies openly and be transparent about their activities. Such transparency fosters community understanding and engagement. Annual audit reports should be published on the agency’s website, as another reflection of the commitment to supporting privacy and legal requirements that bind agency activity.

Officer’s Personal Use of Social Media

In addition to policies and protocols that govern on-duty behaviors, departments should consider how officers present themselves on social media when they are off-duty.

  • What are the policies for your officers regarding how the department is represented in personal social media? These type of policies often address that a social media presence is held to the same level of conduct as would be required of an officer within a physical community.
  • Consider limitations on use of the agency’s logo, name and uniform as part of such policies.
  • If a complaint is received about an officer’s actions on a social media page – what is your agency’s protocol to address this? Numerous officers and agencies find themselves in this position and, like most other critical areas, it is better to have a policy and protocol ahead of an event, rather than trying to develop at the time the event is breaking.

Conclusion

Legally, we are in a new frontier as the courts and legislatures attempt to define privacy in a digital age. However, community expectations and the need to investigate crime are the daily litmus test for law enforcement agencies. Strong policies, supported by protocols and education – both internally and to the community – will help agencies keep a forward course.

This blog is for informational purposes only and does not constitute a legal opinion or advice.