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Social Media in Law Enforcement. Your Rights.

September 1, 2011

Yesterday, an article posted at Mashable examined law enforcement use of social media to apprehend and control criminals. The big takeaways, for me, are:

  1. Anything you post to the web is public. Period.
  2. You have no guaranteed right to use social media.

The article poses the question:

Are governments and law enforcement agencies violating individual rights by monitoring social media?

The answer is a resounding NO. The Fourth Amendment provides protection against unreasonable searches. If you have a reasonable expectation of privacy in something (like your house), the police must get a warrant to search it. A search, or monitoring, of information you post in a public forum, does not violate your privacy rights. The NYPD is already watching.

The expert interviewed in the article also states that:

 In the United States, a government that shuts down access to an electronic communications platform may be violating the First Amendment.

This is mostly true. Take Twitter, for example, which has been associated with revolutions, riots, and flash-crime mobs. If the government forces a shut down of the service without Twitter’s complicity, there is almost certainly a First Amendment violation.

Social media is a form of speech, of course, but if the provider has a hand in shutting down the service, then there is no clear state action.

The terms of service would likely come into play. Twitter’s terms of service provide:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames… We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request… or (v) protect the rights, property or safety of Twitter, its users and the public.

The way I read this (please correct me if I am wrong), Twitter can shut itself down for basically any reason. The user agrees to the terms when she signs up for the service. Hence, the user has no right to tweet under the First Amendment, so long as Twitter itself is the one shutting down the service.

The Twitter Rules also provide:

Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.

This effectively eliminates any right at all to use Twitter to plan or commit a crime. It also limits international users to locally permissible uses (which might not be as free as the U.S.).

The remainder of the article talks specifically about how police can use social media. It’s a good read.

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