by Steve Horn
Social media, broadly defined as encompassing popular websites, and smartphone applications such as Facebook, Twitter, Instagram and others, has been pointed to by many as a potentially revolutionary avenue through which citizens from around the world can communicate with one another to effect change and participate in democratic actions.
Underneath that popular narrative sits a murkier reality for defendants in the U.S. criminal justice system. A recent history of court rulings, combined with lack of legislative action on the federal-level, has ushered in an era in which law enforcement has nearly carte blanche authority to utilize social media during criminal investigations.
The broad authority given to law enforcement agencies to use social media has real-life consequences for defendants in the criminal justice system, even amid debate over Fourth Amendment privacy protections. Everyone from journalists, to criminal justice scholars, legislators, and the U.S. Supreme Court, have called for updated constitutional or legislative protections over law enforcement use of social media.
Some have heeded that call, predominantly in the legislative sphere – in city councils across the country and particularly in California. But, at the federal level, little has been done in courts or Congress to regulate law enforcement’s use of social media during criminal probes.
In an article in the Yale Journal of Law and Technology, author Brian Mund went so far to say that the Fourth Amendment hardly applies to social media users at all, because of on-the-books case law.
“An exploration of the extant case law shows that social media users have no reasonable expectation of privacy in their social media postings – even if users communicate their information behind password-protected pages,” wrote Mund in his 2017 paper titled, “Social Media Searches and The Reasonable Expectation of Privacy.” “As such, courts allow the government to search private social media information without applying Fourth Amendment protections.”
To understand why, look back nearly a century to the case that started debate about Fourth Amendment protections anew – the 1928 U.S. Supreme Court case Olmstead v. United States – and go from there.
Trespass and Third Party Issues
The Olmstead case, decided before television’s advent – let alone social media – centered on Roy Olmstead, an alcohol bootlegger during Prohibition. In that case, federal agents wiretapped Olmstead’s phone and discovered the incriminating evidence to help obtain an indictment under the National Prohibition Act.
“The [Fourth] Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only. There was no entry of the houses or offices of the defendants,” reads the majority opinion in that case. “The language of the [Fourth] Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.”
The majority ruling determined that law enforcement did not partake in a form of trespass, a concept that would arise again nearly a century later in the landmark U.S. Supreme Court case United States v. Jones that addressed the issue of long-term surveillance by surreptitiously implanting Global Positioning Systems (“GPS”) in automobiles (More on this case later.)
Decades later, the Court ruled on the “third party doctrine” – which also sits at the heart of the debate over the legality of law enforcement and social media surveillance activities. That doctrine came out of majority rulings in three landmark cases—Katz v. United States (1967), United States v. Miller (1976) and Smith v. Maryland (1979) – all of which predate social media and the internet.
As one of the most famous Fourth Amendment U.S. Supreme Court rulings, Katz dealt with the constitutionality of performing a wiretap on a phone booth. Katz tackled the issue of an ephemeral private phone call, which unlike the home or private property of an individual, was legally debatable at the time—whether it fits the Amendment’s definition of “persons, houses, papers, and effects” and whether a wiretap of that call amounts to “unreasonable search and seizure.” Rather than just judge whether it fits those criteria, the Katz concurring opinion, written by Justice John Marshall Harlan II, created a new test that has served as the hallmark of Fourth Amendment jurisprudence in the past half-century, viz., the concept of a “reasonable expectation of privacy.”
In his opinion, Harlan wrote that “an enclosed telephone booth is an area where … a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic, as well as physical, intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment, and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.”
Though not the majority opinion for that case, what’s become known as the “Katz test” created by Harlan, has sat at the center of the debate over policing and social media privacy issues in Fourth Amendment jurisprudence since. In nearly all major cases, courts have ruled that those using social media fail this particular test, which has come under criticism by scholars and even the U.S. Supreme Court itself. (More on that later.)
In another landmark case decided nearly a decade later, United States v. Miller centered on the admissibility of bank records obtained by a grand jury subpoena—as opposed to a warrant—issued by the Alcohol, Tobacco and Firearms Bureau of the U.S. Department of Treasury. The bank records were used to prove that the defendant was illegally participating in dealing whiskey on the black market. In his defense, Miller argued that his bank records were private and obtained outside the bounds of the Fourth Amendment. That argument did not fly with the U.S. Supreme Court, however, ruling 7-2 that because Miller had handed the records over to a third party—in this case his bank – he had no “reasonable expectation of privacy.”
Just three years later in Smith v. Maryland, the Court bolstered the Miller “third party doctrine.” In that case, law enforcement obtained a warrant to implant a pen register on Smith’s phone line at the telephone company’s central office. A pen register does not monitor the content of phone calls, but it does record all the numbers dialed from a particular line, paralleling email and its associated metadata today. The Smith majority ruled that, because the phone company is a mediating “third party” through which communication takes place by two other parties, there exists no “reasonable expectation of privacy” that the phone company could not hand over its records to law enforcement.
“Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes,” wrote the majority in the Smith ruling. “Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”
These precedents, particularly the “third party doctrine” and the Katz ruling, laid the groundwork for federal cases involving both social media and policing in the years that have followed. They would be continuously cited as a means of giving law enforcement nearly carte blanche authority with regards to policing efforts involving cyberspace.
No “Reasonable Expectation” on Social Media
To date, federal courts have ruled that those who participate on social media and post things for the public to see fail the Katz test, having no “reasonable expectation of privacy” while using those platforms. This also falls under the “plain view” doctrine of Fourth Amendment searches and seizures.
Whether that same set of circumstances exists if privacy settings are changed, though, is an issue upon which courts have yet to rule. That’s because the only way law enforcement could gain access to postings not published to the general public would be by adding the user as a “friend” on the website or hacking into a social media page to gain access to something that technically can only be seen by “friends” (in the case of Facebook) or “followers” (in the case of Twitter and Instagram). A later section will cover more on the former, and the latter situation has never been litigated.
So, if you don’t want law enforcement agents to have what’s legally deemed “plain view” access to your social media postings, don’t make postings that literally the whole world can see by doing a simple Google or Facebook search.
Or, at the very least, be careful about what you post. Here’s why.
The first wave of social media-centric court cases began near the end of the first decade of the 21st century, with sites like Facebook, Twitter, and the now-antiquated MySpace—and law enforcement’s interactions with them—getting legal treatment in both state-level and federal-level courts. In every case, law enforcement gained more surveillance and policing powers.
The first major shoe to drop was McMillen v. Hummingbird Speedway, a civil court case decided in the Court of Common Pleas of Jefferson County in Pennsylvania. Decided in 2010, it centered on discovery issues in a civil personal injury case filed by an employee, Bill McMillen, against his employer. McMillen was a race car driver and claimed to have suffered major injuries, “including possible permanent impairment, loss and impairment of general health” and other ailments, according to the opinion in the case.
As the case proceeded and during the discovery process, Hummingbird Speedway filed a Motion to Compel Discovery, seeking McMillen’s Facebook username, login name, and password. The Speedway argued that the contents found within McMillen’s profile could run counter to the personal injury claims aired in his lawsuit. While not a criminal law case, thus not triggering the Fourth Amendment and analysis thereof, the court still did a de facto “reasonable expectation of privacy” analysis, ruling that McMillen had no right to keep the contents of his profile private and avoid compelling production as part of the discovery process.
“[N]o person choosing MySpace or Facebook as a communications forum could reasonably expect that his communications would remain confidential, as both sites clearly express the possibility of disclosure,” reads the McMillen opinion, echoing the “reasonable expectation of privacy” analysis in criminal cases. “Confidentiality is not essential to maintain the relationships between and among social network users, either … [W]hile one may expect that his or her friend will hold certain information in confidence, the maintenance of one’s friendships typically does not depend on confidentiality.”
The court went on to compare and contrast those bonds and discussions on social-media sites with those more confidential in nature, such as attorney-client, patient-doctor, or psychologist-patient types of relationships, which depend on confidentiality as a core principle. Friendships, writes the court, are not generally held to the “same guarantee.”
In a similar personal injury case decided two months earlier in New York’s Supreme Court in Suffolk County, Romano v. Steelcase, Inc., the court similarly ruled that “as neither Facebook nor MySpace guarantee complete privacy, plaintiff has no legitimate reasonable expectation of privacy,” invoking those same words made famous in Katz. This logic extended to private messages exchanged on Facebook and MySpace in the case Zimmerman v. Weis Markets, Inc., another Court of Common Pleas case decided in 2011, citing the Romano precedent in doing so.
“Based on a review of the publicly accessible portions of his Facebook and MySpace accounts, there is a reasonable likelihood of additional relevant and material information on the non-public portions of these sites,” wrote the court in Zimmerman. “Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace sites to share with other users of these social network sites, and he cannot now claim he possesses any reasonable expectation of privacy to prevent Weis Markets from access to such information.”
These rulings were narrowed slightly in the case Tomkins v. Detroit Metropolitan Airport, which was decided in the U.S. District Court for the Eastern District of Michigan’s South Division in 2012. In that case, the court ruled that the discovery request of private Facebook messages was not “reasonably calculated to lead to the discovery of admissible evidence,” as is the standard for the Federal Rules of Civil Procedure. The court further ruled, pointing to the 2010 McCann v. Harlysville decision in the Supreme Court of Erie County, New York, that Tomkins had “not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”
But the legal drubbing would continue for those bringing Fourth Amendment claims in criminal court cases along similar lines. The first swing of the wrecking ball came in the form of the 2012 Criminal Court of the City of New York Case in the County of New York, New York v. Harris, centered on one of the biggest mass mobilization protests in the U.S. in decades: Occupy Wall Street. Malcolm Harris, in 2011, was a participant in an Occupy march that crossed the Brooklyn Bridge and halted traffic as a result. He was charged with disorderly conduct, and as part of the legal proceedings, the prosecutor sent a subpoena to Twitter asking for all of Harris’ account information and his tweets relevant to the charge. Both Harris and Twitter filed motions to quash the subpoena, but eventually Twitter forked over the tweets to the prosecutors rather than face potential contempt of court charges.
As with its civil court predecessors, the court ruled in Harris in June 2012 that “There can be no reasonable expectation of privacy in a tweet sent around the world,” continuing to opine that “So long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary.”
The court was blunt in its assessment of what tweeting out to the world means as it relates to the Katz test.
“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy,” wrote the court. “There is no proprietary interest in your tweets, which you have now gifted to the world.”
Just 13 months later, in the case Roasio v. Clark County School District decided in the U.S. District Court for the District of Nevada, the court doubled down on the Harris precedent. Roasio was a case about tweets sent on a student’s account that were lewd in nature about employees of the school he attended, for which he was disciplined.
“[A]nyone searching the internet may view and read a public user’s tweets whether or not that person is a follower of the tweeter,” the court wrote in Roasio. “When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users’ followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun.”
And, just months later, the U.S. District Court for the Northern District of Georgia made a similar ruling regarding a Facebook user. In that case, it was a high school student, Chelsea Chaney – then a 17-year-old – who was upset that sexually promiscuous photos of her were shown as an example of how not to use the social media website during an internet safety presentation given by the Fayette County Public School District’s director of technology services. The photo was tracked down on Chaney’s Facebook by the School District official, who used it in a slide containing Chaney’s full name titled, “Once It’s There — It’s There to Stay.” Paper copies, too, were distributed to all of those who attended the presentation.
All of this irked Chaney, who argued that the School District had invaded her privacy in defiance of the Fourth Amendment. The Court in Chaney v. Fayette County Public School District did not agree, however.
“Chaney fails to acknowledge the lack of privacy afforded her by her selected Facebook setting. While Chaney may select her Facebook friends, she cannot select her Facebook friends’ friends,” wrote the court in Chaney. “By intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends) … Chaney has not shown that society would recognize as legitimate her expectation of privacy in her Facebook photo, and as a result the Court need not address Chaney’s arguments that she was subjected to an unreasonable search and seizure.”
The rulings in Harris, Chaney, and Rosario made clear that posts broadcast to the general public on social media receive no Fourth Amendment protections. This has opened a feeding frenzy for many law enforcement agencies to deploy tools created by the private sector to crawl, monitor, and analyze public posts made on social media websites like Facebook, Twitter, and Instagram in real time. Companies that do this type of work include the firm Geofeedia, Social Sentinel, and Hypersight.
According to a 2014 study conducted by LexisNexis, about 81 percent of law enforcement officials surveyed said they use social media as a tool during investigations. And 80 percent of them said they believe it is ethical to create a fake social media persona to be used during a law enforcement investigation. It turns out that 100 percent of courts have also said doing so is legal. Utilizing open-records law requests, the Brennan Center for Justice calculated that, as of November 2016, 157 law enforcement agencies throughout the U.S. utilize private sector social media monitoring tools, with over $5.8 million dollars’ worth of contracts flowing to these firms.
Undercover Officer “Friends”
As in the real-life equivalent, in the land of cyberspace, courts have repeatedly ruled that making “friends” is a perfectly legal tool in the investigative arsenal for undercover law enforcement agents.
First made the law of the land and legally kosher in the 1966 Hoffa v. United States U.S. Supreme Court ruling, a slew of case rulings dealing with the issue of undercover officers on social media have cited Hoffa as the go-to precedent. On the flip side, legal bar associations nationwide uniformly say performing such a ruse to advance a case is unethical under their codes of conduct.
Though not a social media case but rather one dealing with a music sharing peer-to-peer platform, in the 2011 U.S. District Court for the North District of Ohio case United States v. Sawyer, the court ruled that the Fourth Amendment does not protect defendants against undercover officers adding them as “friends” on a music sharing sites such as GigaTribe and finding incriminating evidence about the person they added as a friend.
In Sawyer, an undercover officer requested that GigaTribe user Brian Sawyer become his “friend” on the platform, with Sawyer taking up the offer. From there, the officer saw that Sawyer had child pornography in his download queue, and the undercover agent uploaded 28 images, while also engaging Sawyer in a conversation about what the court ruling described as “sexual contact with minors.” Though a total ruse, the court ruled it legally kosher under Hoffa.
“Once Defendant Sawyer granted his ‘friends’ access to his files, he had no control over the manner in which his friends used that access,” read the opinion. “Defendant Sawyer voluntarily made his files available to all of his ‘friends’ and he also bore the risk that those ‘friends’ might turn the files over to law enforcement.”
This same line of legal logic would repeat itself anew the next year in a case involving Facebook. That 2012 case decided in the U.S. District Court for the Southern District of New York, United States v. Merigildo, said law enforcement can utilize cooperating witnesses to examine the Facebook profile of a defendant and use evidence discovered in the process as part of a criminal probe. Doing so, ruled the court in Merigildo, does not violate the Fourth Amendment.
Though the defendant “believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his ‘friends’ would keep his profile private,” wrote the court. “Colon’s legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted, including sharing it with the Government.”
The case United States v. Gatson, decided in 2014 in the U.S. District Court for the District of New Jersey, extended that same logic to the social media photo-sharing Instagram (which is owned by Facebook), with another undercover agent adding the defendant Daniel Gatson as a “friend,” finding incriminating evidence against him, and then passing that onto his colleagues to use against Gatson in criminal proceedings.
Recently, in Everett v. Delaware, Delaware’s state Supreme Court extended the Sawyer reasoning to Facebook, ruling that it was legally permissible for an undercover law enforcement agent to create a fake account and add a target of a criminal investigation as a means of gathering incriminating evidence against the mark of the probe.
The evidence found on Facebook was used against Terrance Everett as a means of securing a search warrant for his home. The undercover detective in the Everett case visited his page “between one to three times per week for at least two years,” according to the opinion in the case.
These same rules, though, do not exist for criminal defense attorneys. Working in an undercover capacity to “friend” those involved with the prosecution’s side of a case is considered a breach of many bar associations’ ethics code.
For example, a 2015 paper published by the American Bar Association titled, “Attorney Ethics and Social Media” details that the Philadelphia Bar Association, San Diego Bar Association, New York, and Massachusetts Bar Association all consider it unethical to “friend” a party or witness in a case under false pretenses. Those bar associations all oppose such behavior on the grounds of the American Bar Association’s Rule 8.4, which prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.”
NYPD’s Operation Crew Cut
While there has been a rich history of court cases tackling the issue of social media surveillance, real-life examples also exist of law enforcement surveilling websites such as Facebook to rope a generation of millennial-aged youth into the criminal justice system. That often means a fast-track into jails and prisons.
The most prominent social media-centric mass surveillance program is called Operation Crew Cut, overseen by the New York Police Department (“NYPD”) and seen by some as a successor program to the NYPD’s notorious “stop and frisk” policy for the digital era. In fact, at the same time as the number of “stop and frisk” incidents declined under Mayor Bill de Blasio and in the aftermath of a key federal court ruling — the 2014 U.S. Appeals Court case Floyd v. City of New York — Operation Crew Cut got off to a running start.
For Crew Cut, launched in 2012, the NYPD has honed in on breaking up “crews.” Not quite official street gangs, “crews” are mostly young teenagers who form neighborhood groups with one another within inner-city urban areas, such as New York City, and often name themselves. While akin to gangs in that they have names and are a group with “turf” in the streets, generally these groups differ from gangs in that they are not part of a national network, though violence often still ensues as part of turf wars.
The NYPD, for all intents and purposes, has criminalized “crews” and made all of their members potential suspects in the ongoing mass criminal investigation that is Operation Crew Cut. Some have already been ensnared under the program. Critics worry, as well, that other predominantly African-American youth living in New York City could see their fates similarly set in a negative direction as a result of the operation.
As one of the major components of Crew Cut, the NYPD keeps close tabs on social media sites and communications being conducted by a trove of “crew” members the department claims to have identified. A 2013 article published by The New York Times reported that NYPD officers “spend hours, day and night, monitoring the Facebook pages and Twitter accounts of teenagers” as part of the initiative. Sometimes, The New York Times further reported, NYPD detectives create fake accounts posing as attractive teenage women and send “friend” requests to teens as a means of luring them into having their nonpublic accounts surveilled.
“We are coming to find you and monitor every step you take,” a senior NYPD official told The Times in that same piece. “And we are going to learn about every bad friend you have. And you’re going to get alienated from those friends because we are going to be all over you.”
A sign of the importance of social media as part of law enforcement’s efforts in Crew Cut, in a June 2014 86-count indictment brought against 67 youth defendants, the word “Facebook” was mentioned 169 times. The technology-focused publication The Verge further reported in a December 2014 article that, pointing to an academic study, 48 percent of evidence used in seven different gang indictments between 2011 and 2014 came from materials gathered via the NYPD’s trolling of social media accounts.
In a November 2013 press release, the NYPD boasted that it had already arrested 400 people in 25 investigations under the auspices of Crew Cut. Some of those, including Jelani Henry, were arrested in a form of de facto guilt by association due to social media trolling conducted by the NYPD.
“As teenagers, Jelani and his older brother Asheem ran with a Harlem crew called Goodfellas. Asheem, who was more heavily involved than Jelani, was arrested during a police gang raid in November 2011 and charged with criminal conspiracy,” The Atlantic Magazine reported in April 2015. “Jelani was involved in the crew by virtue of being Asheem’s brother, and because he lived in the neighborhood, but except for a few minor scuffles, he steered clear of violence.”
But then Henry was charged with a double shooting, which took place in the same area of Harlem in which his crew maintained its territory. Henry matched the vague physical description given by an eyewitness, but there was no other evidence at the NYPD’s disposal, other than Henry’s Facebook friend circle. He would sit two years in the infamous Rikers Island jail, including nine months in solitary confinement, before his charges were dropped for lack of evidence.
CUNY Law School Professor Babe Howell worries that friends depicted in photos, who are not necessarily even “crew” members, also are getting labeled and then surveilled on social media just by associating with the crew. At worst, some of them may end up ensnared by the NYPD as co-conspirators in criminal indictments — akin to Henry — brought by the district attorney.
“Instead of stating that an individual is suspicious, the NYPD now state that he or she is a suspected gang or crew member,” Howell wrote in the 2015 paper, “Gang Policing: The Post Stop-and-Frisk Justification for Profile-Based Policing.” “The gang narrative will be used, and has already been used, to justify an even more aggressive regime of stops, summonses, arrests, and surveillance than the pre-Floyd regime.”
Fast-forwarding to 2018, the investigative news outlet The Intercept recently reported that New York City’s gang database has ballooned to a rate of 342 people being added per month, which is three times the rate of the previous decade. The numbers were obtained by Howell and shared with The Intercept, which show that there are now 42,334 people on the list, up 70 percent since Mayor de Blasio became mayor in January 2014.
Community Control Over Police Surveillance
Faced with dire circumstances and court rulings hostile to the spirit of the Fourth Amendment, cities, a county, and the state government in California have taken legislative action meant to fend off the surveillance state and policing apparatus. Legislative action, too, has been taken or is under consideration far beyond the Golden State.
That effort has been bolstered by model bills drafted by the American Civil Liberties Union (“ACLU”) under the umbrella of its nationwide Community Control Over Police Surveillance. In Massachusetts, the ACLU also has drafted a model bill meant to fend off police encroachment of the Fourth Amendment called the Fundamental Freedoms Act.
In March, Berkeley, California, became the first City Council to adopt the Surveillance and Community Safety Ordinance, which is an ACLU model bill. It passed unanimously. Just weeks later, the same bill passed in Oakland, California and Davis, California, both with no dissenting votes. Preceding all of those was Santa Clara County, which passed a surveillance ordinance – also unanimously – in 2016.
That bill calls for a more democratic process for city law enforcement’s use of surveillance techniques and tools, including social media. It also mandates that a cost-benefit analysis be done during all surveillance-related procurement decisions, weighing civil rights and civil liberties risks against any gains to be had by policing agencies. Any surveillance-related efforts, too, must begin with the drafting up of a Surveillance Impact Report, which spells out the scope and depth of the surveillance efforts.
“Based upon information provided in the Surveillance Report, the [Council/Board] shall determine whether the benefits to the community of the surveillance technology outweigh the costs and civil liberties and civil rights are safeguarded,” the model bill reads. “If the benefits do not outweigh the costs or civil rights and civil liberties are not safeguarded, the [Council/Board] shall direct that use of the surveillance technology cease and/or require modifications to the Surveillance Use Policy that will resolve the above concerns.”
Beyond procuring new surveillance technology, the model ordinance also mandates a wholesale audit for existing surveillance technologies within a 180-day deadline. The ordinance also allows for both civil damages to be filed by plaintiffs for violations of the ordinance, as well as criminal charges to be brought against government agents who commit “willful, intentional, or reckless violation[s] of this Ordinance.” Criminal penalties can be up to six months in county jail, a $1,000 fine, or both.
Santa Clara County’s bill takes things a step further still, mandating that if the Sheriff’s Office or the District Attorney’s Office seeks funding for surveillance technology from any sources, then it must first gain permission from the County Board to do so. Since the ordinance’s passage, Santa Clara County has created an online portal via which citizens can track surveillance-related procurements and decisions being made by county government. The county listed 49 entries as of July 4, 2018.
“Simply put, we’ll be asking these important civil liberties questions before, rather than after, we acquire some new technology. We’ll have policies in place before we acquire some new technology. And we’ll be holding ourselves accountable on a regular basis,” Santa Clara County Supervisor Joe Simitian said in a press release celebrating the ordinance’s passage at the time.
Following suit, the California Legislature passed its own version of the bill in 2015, SB 21, dealing with the Department of Justice and the California Highway Patrol. Beyond California, versions of this model ordinance are being considered in 20 cities across the country, according to the ACLU. And it has passed in other cities outside the state, including Seattle, Washington; Nashville, Tennessee, and Somerville, Massachusetts. Major cities such as Boston, Massachusetts; New York City, and Madison, Wisconsin also are currently considering similar pieces of legislation.
Not everyone is thrilled about these developments, least of which is law enforcement itself. With the New York City Council considering the POST (Public Oversight of Surveillance Technology) Act, the NYPD has exhibited vocal opposition to the legislation calling it “insane” and “an effective blueprint for those seeking to do us harm” at a June 2017 public hearing about the proposal.
The New York City version of the bill, suffice to say, has yet to pass.
“Mosaic Theory,” Third Party Opening?
While court rulings have overwhelmingly gone in favor of law enforcement as it relates to social media, some scholars believe that two recently decided U.S. Supreme Court cases may have provided a legal opening to provide at least a modicum of Fourth Amendment protections against seemingly unfettered police surveillance of social media. Those cases are the 2012 United States v. Jones and the 2018 Carpenter v. United States cases.
Jones grappled with some of the difficult questions inherent in pondering Fourth Amendment protections in the digital era. The case focused on the constitutionality of law enforcement inserting a GPS tracking device on a criminal suspect’s car, with the majority in that case ruling that inserting the device into the car is a form of trespass in violation of the Fourth Amendment. It was a ruling harkening to the Olmstead decision, while avoiding analyzing it under the rubric of Katz.
“[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates. Katz did not repudiate that understanding,” wrote the Court in explaining why a Katz analysis was not a prerequisite and that the case could be decided upon more simple grounds, in this case asking if the GPS installation fits the Fourth Amendment definition of a “search.” Because the search in this case happened after a warrant had expired and lasted for 28 days of all-consuming tracking, the Court ruled it an illegal search and seizure.
In their concurring opinions, Justices Samuel Alito and Sonya Sotomayor both grappled with Jones and GPS systems within the broader confines of the digital era and whether new legal tests should exist to protect Fourth Amendment rights, given a modern day all-seeing surveillance-state reality. Alito, a conservative Justice appointed by President George W. Bush, did not answer the question in the affirmative. Instead, he raised what he called the “vexing problems” with only analyzing the legal question on trespass grounds and then kicked the can down the road for Congress to do more on the issue. The “Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked,” wrote Alito. “Devices like the one used in the present case … make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”
Sotomayor, a liberal appointee of President Barack Obama, took a step further than Alito and called the majority opinion’s reliance on the Fourth Amendment trespass doctrine alone a cop out (excuse the pun). That’s because, she wrote, electronic surveillance—such as that of the social media variety—does not necessarily by definition equate to a physical intrusion-style trespass.
“In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance,” wrote Sotomayor. “In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention.”
Sotomayor goes on to lay out some of those “unique attributes,” which could just as easily apply to social media websites such as Facebook, Twitter, and Instagram.
“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” Sotomayor further opined. “And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices.”
And though Jones did not address the issue, Sotomayor went on to write that the third party doctrine needs another legal look by courts, a close and honest consideration in the digital era.
“I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year,” she wrote. “But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”
The issue of third party doctrine, six years later, would be tackled in the Carpenter ruling.
But because the Jones majority failed to analyze the case under the Katz standards, a 2014 case that cited the Jones concurring opinions — United States. v. Brooks — was shot down by the U.S. District Court for the District of Arizona. Brooks honed in on the issue of the installation of a security camera on the pole across the street from an apartment as a means of having an omniscient view of potential drug-trafficking ensuing at the property. The Court shot down Brooks’ argument on two grounds: the majority ruling prevails in a U.S. Supreme Court decision, thus concurring opinions cannot be cited as precedent. And under Katz, Brooks had no “reasonable expectation of privacy” because the drug trading could be seen from a plain view vantage point from a parking lot across the street from his home.
Carpenter, on the other hand, grappled with both Katz and the third party doctrine head-on.
The ruling dealt with the issue of cell site location information (“CSLI”), used to track down four people suspected of committing an armed robbery. That information was obtained via cell phone companies, and the case addressed whether that information should receive Fourth Amendment protections. In no uncertain terms, the Court answered that question in the affirmative.
“We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection,” wrote the majority in that 5-4 ruling, pointing to both the Alito and Sotomayor concurrences in Jones to make their case. “Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”
The Court made this determination out of caution for what CSLI data really is, something it described as essentially Orwellian “near perfect surveillance” by the majority. George Washington University Law School Professor Orin Kerr called this the “mosaic theory,” a legal determination in which long-term snooping on an individual provides many more pieces of the totality of the big picture than does a bout of short-term surveillance.
Though the Court carefully called the decision “a narrow one” pertaining specifically to the third party doctrine, CSLI and the need for a narrowly tailored warrant, it does not take a huge stretch of the imagination to foresee third party doctrine legal defense challenges forthcoming in the near future citing Carpenter, including in the social media arena.
Alan Butler, senior counsel for the group Electronic Privacy Information Center, provided a road map of what he thinks should ensue in a post-Carpenter world.
“First, lower courts will need to apply Carpenter in a wide range of cases about advanced surveillance techniques: real time location tracking, license plate readers, body cameras, facial recognition, and secret profiling (to name a few),” wrote Butler in an article published by The Hill. “Second, Congress will be pushed by both privacy advocates and law enforcement to update privacy laws and create new laws to address law enforcement’s use of these advanced surveillance techniques.”
Given how little Congress gets done, and even if they get something done, expect lawyers to remain busy litigating this issue for years to come in light of the new post-Carpenter reality.
Sources: digitalcommons.law.yale.edu, supreme.justia.com, thehill.com, repository.law.umich.edu, epic.org, supremecourt.gov, theintercept.com, legistar.council.nyc.gov, madison.legistar.com, aclu.org, aclum.org, aclunc.org, leginfo.legislature.ca.gov, nashville.gov, somervillema.gov, youtube.com, http://www.berkeleyside.com/, http://www.capradio.org/, https://www.eff.org/, academicworks.cuny.edu, sccgov.iqm2.com, https://www1.nyc.gov/, https://www.theguardian.com/us, theatlantic.com, theverge.com, web.archive.org, manhattanda.org, nytimes.com, ccrjustice.org, http://www.nysba.org, americanbar.org, usatoday.com, casetext.com, courtlistener.com, nysd.uscourts.gov, slideshare.net, brennancenter.org, leagle.com, wired.com, scribd.com, yalelawtechdotorg.files.wordpress.com, x1.com, wassom.com, https://ia801005.us.archive.org/10/items/289725-motion-to-quash-twitter-subpoena/289725-motion-to-quash-twitter-subpoena.pdf
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