By: Marisa Cefola
Volume IX – Issue II – Spring 2024
Introduction
When Americans launch an account with a given social media application, often, they are asked to check a box indicating they understand the application’s Terms and Conditions. These terms include permissions users give, such as permission for an app to access a user’s personal information. For example, Instagram’s Terms of Use include a clause stating that users must grant the app access to their username, profile picture, and any information related to user engagement – such as likes or follows – to tailor advertisements and other sponsored content [1]. Meta’s Privacy Policy more specifically states that they collect similar information, however, they also record email addresses, phone numbers, instant messages, information about the device a user is logged in from, and information from third-party websites a user visits. Most notably, Meta provides all of this information to government and law enforcement agencies at their “legal request” [2].
The federal government has access to information accumulated on Americans’ social media accounts, and many United States law enforcement agencies – such as the Federal Bureau of Investigation – regularly monitor social media for conducting investigations. Other government entities use social media to identify potential terrorist threats that may arise, be aware of current events appearing frequently in online forums, and determine if immigrants or travelers arriving in the United States may pose a security risk [3]. While there are protective benefits to this, any American is at risk of their personal information being breached by the Government, as some investigations do not require probable cause or demonstration of criminal activity for agencies to access and monitor accounts. Qualified criminal defense attorneys attest to this, claiming government surveillance has escalated following the January 6 insurrection and general political and social unrest that has increased in recent years. [4] Artificial intelligence has even begun to assist with monitoring efficiency. In 2022, the FBI partnered with Babel X, a software using AI algorithms to sift through millions of social media accounts and flag those that contain potentially threatening keywords. [5] A lack of regulations, as well as the somewhat novelty of social media privacy laws and AI monitoring, begs the question: How much are we really being monitored?
This paper explores the current regulations associated with government surveillance and social media monitoring, and it asks if Americans’ social media and online data should be monitored more or less than they are based on these regulations. It weighs the benefits and drawbacks of surveillance and offers potential policy implications that would prevent the negative impacts of surveillance. Social media today contains the most personal parts of us, therefore, it is important to decipher how much of it is being unknowingly seen by government entities.
I. Current Regulations
The U.S. Constitution provides protections such as the 1st and 4th Amendments that contribute toward regulating data privacy and protection. However, after analyzing past, current, and potentially future legislation, it is clear much of social media is public information. There are laws currently in place that relate to online data privacy, but they are insufficient because they do not consider modern social media. Legislations that do address social media have not been signed into effect as of 2024.
i. The USA PATRIOT and USA FREEDOM Acts
In October 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act was enacted to assist the Government in detecting and eliminating terrorist threats, in turn saving many American lives. In terms of modern technology, the Act permits the government to access customer records from Internet service providers should an emergency “involving an immediate risk of death or serious physical injury” occur. Hacking crime victims can also request law enforcement agencies to monitor potential device intruders under the act [6]. In the weeks following the September 11 attack, a frightened Congress and Bush Administration quickly signed the PATRIOT Act into effect, which arguably implies they did not consider the potential consequences and backlash the act would receive. This act was the first to expand government surveillance and, as a result, was heavily criticized. Soon after it was introduced in late 2001, the American Civil Liberties Union claimed the PATRIOT Act was unconstitutional, violating both the 1st and 4th Amendments. [7] The 1st Amendment protects Americans’ right to exercise their freedom of speech, yet the PATRIOT Act allows agencies like the FBI to conduct investigations and monitor social media for such exercises. These investigations are secret, which violates the 4th Amendment and Due Process Clause by failing to provide citizens notice of a search. The most significant violation, however, is the authorization of warrantless government searches without a requirement to demonstrate probable cause that a crime has occurred. This violates the 4th Amendment and puts any American at risk of monitoring regardless if they have committed a crime. While the PATRIOT Act was designed to reduce terrorism and eliminate threats, it gives government entities the power to conduct secret searches on any American and exercise the Act in less severe crime investigations. Many critics of the law argued it threatened key foundations of democracy for these reasons.
The PATRIOT Act has since expired and was replaced by the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring (USA FREEDOM) Act under the Obama Administration in June 2015. Aiming to reform the PATRIOT Act, the law restricts the government’s ability to collect data unsolicitedly. It adopted new processes for collecting data while preserving citizens’ rights. Rather than collect all desired data, law enforcement agencies must input a “specific selection term” when requesting data. For example, if the FBI is aiming to investigate a potential terrorist threat, they must request data records only containing terms related to international or domestic terrorism. [8] The FREEDOM Act was praised in comparison to the PATRIOT Act by many organizations such as The New York Times, which called the bill “the strongest demonstration yet of a decade-long shift from a singular focus on national security at the expense of civil liberties to a new balance in the post-Snowden era.” [9] However, critics believed the act only addressed a small fraction of government surveillance issues within the National Security Agency. The key difference between the two legislations lies in who collects Americans’ phone data. Under the PATRIOT Act, the NSA collects data; under the FREEDOM Act, phone companies collect data; yet the NSA can still request data as usual. The FREEDOM Act was an overall improvement from the PATRIOT Act, however, it does not address modern surveillance regarding social media. Instead, it focuses on call or text data because social media did not act as a forum for political discourse until the late 2010s and 2020s. Because these acts were designed to protect Americans from terrorist threats or attacks, the U.S. government was likely less focused on casual posting from the average American. A situation where the government may have monitored one’s social media could have been after they identified someone as a threat to the U.S. through other data searches like call records indicating they may have plans to enact domestic or international terrorism. It is important to note none of these laws apply to foreign data, such as a phone call made between someone in the U.S. and someone in a foreign country.
ii. The American Data Privacy and Protection Act
Recent legislation includes the American Data Privacy and Protection Act, which was the first federal online privacy bill to pass the House of Representative’s Energy and Commerce Committee. It aims to privatize social media accounts and data collected from it, making data more difficult for third parties such as the government to access. Key elements of the act highlight the rights of the consumer, making the legislation more specific to social media. For example, individuals have the right to consent and withdraw consent to third parties accessing their data under the act, along with the right to opt out of target advertising [10]. This differs from a given social media application’s terms and conditions, as terms and conditions require users to consent to third parties accessing data to create an account with the app; the ADPPA allows the option to consent to this. As of March 2024, the ADPPA is still just a bill. The bill had bipartisan support and was nearly unanimously passed in 2022. It was then added to the House Union Calendar in December of that year, and no action has been taken since then. [11]
A crucial note to make is that the ADPPA classifies any posts made on social media as publicly available information, meaning posting personal information to the public makes it accessible to anyone, including third parties. Therefore, a user implies consent for government entities to utilize post data without breaching any privacy or 4th Amendment protections. The ADPPA protects private personal data, such as direct messages, video call records on platforms such as Instagram or Snapchat, user personal email and phone number, or any information not outwardly displayed to the user’s account following. Under Congress’ definition of publicly available information, which is “any information that a covered entity or service provider has a reasonable basis to believe has been lawfully made available to the general public”, private social media accounts would not be classified under this term. In theory, the ADPPA would protect these private posts, but whether or not the two types of social media posts differ is unclear.
II. Potential Benefits of Social Media Monitoring
It has been established that there are no laws to adequately protect public social media posts; now, the question is: should there be? Although the federal government has access to online public information, they are only searching for inherently suspicious behavior and glaring threats to the state. This means that the average social media user should not be at risk. [12] The risk of monitoring increases, however, when a user’s platform has a generally significant following and is politically based (more specifically if the platform or posts within it oppose the current government or regime). More social media monitoring could have prevented or minimized the impact of the January 6th insurrection in 2021. This violent protest of pro-Trump groups storming the United States Capitol in response to the 2020 election results has been coined as an act of domestic terrorism by the FBI and other government organizations. A crowd of approximately 80,000 people surrounded the Capitol, with some federal officers being beaten with weapons such as bats and others being sprayed with deadly chemicals; a few even suffered death due to the attack. It took three hours for the District of Columbia National Guard to mobilize and nearly ten to clear the rioters out of the Capitol. [13]
Plans for this incident began on social media, with former President Donald Trump tweeting, “Be there, will be wild!” organizing the event and encouraging supporters to attend. [14] Many supporters and groups rallied on social media as well, with some posts reading, “I don’t even like to say it because I’ll be arrested… tomorrow, we need to go into the Capitol,” and, “I’m thinking it will be a literal war on that day” preparing for violence to transpire at the protest. [15] Platforms such as X, known as Twitter at the time, were vital for assembling the insurrection. With over 100 injured officers and 700 arrested citizens, social media monitoring would have been beneficial in improving law enforcement response times. By doing so, perhaps it would have mitigated the violence earlier and minimized the number of injuries. Because the incident had been discussed weeks before January 6, agencies could have predicted the number of protesters assembling at the Capitol and gathered reinforcements before the insurrection began. While the 1st Amendment guarantees freedom of speech online, it does not protect speech that has the potential to “lead to imminent lawless action.” [16] Therefore, citizens preparing for violence at the Capitol through social media posts should be subject to social media monitoring only when their posts have been flagged as a potential threat to national security.
III. Potential Harms of Social Media Monitoring
The FBI and other federal agencies attempt to combat international and domestic terrorism, in which surveillance could be beneficial, especially when speech is unprotected. However, social media monitoring has the potential to become problematic and harmful to Americans when used for local or less severe crime. Being on a smaller scale than the federal government, police officers often use fake accounts to monitor a subject, even communicating with them on the account. This raises ethical concerns due to the deceptive nature of the surveillance. Misinterpretation is also common among police officers, as many social media posts are context-based. For example, police and prosecutors have used photos posted on Facebook and user engagement, such as likes and comments, to support false allegations of criminal gang activity they have made. These misinterpretations can gravely affect innocent individuals, who are most likely unaware their social media has been surveyed. [17]
Consequences can additionally become amplified for social media users who are non-English speakers, possess cultural contexts that are unknown, and are part of a race or ethnicity commonly associated with crime. For example, the ACLU argues government surveillance disproportionately targets racial and religious minorities, as some Department of Homeland Security programs have increased monitoring of non-citizens coming to the U.S. on student or business visas, requesting social media handles, aliases, associated identifiable information, and search results on given platforms. Through the Visa Lifecycle Vetting Program, the DHS begins monitoring non-citizens’ social media when they apply for a visa and continue doing so until their time in the U.S. comes to an end. The Continuous Immigration Vetting program is another program within the DHS that scours social media for “derogatory information” about a non-citizen. This surveillance begins when a person applies for an immigration benefit and persists until they become a U.S. citizen. [18] It is important to acknowledge that immigration and the proper background checks associated with it is a politicized topic, with some believing this monitoring is necessary to ensure people entering and maintaining their stay in the U.S. will not be a threat to national security.
Regardless of views on immigration background screening intensity, social media surveillance on these groups, or any group for that matter, is not efficient for the government itself. [19] There is no structured law or guideline for admitting someone into the U.S. by examining social media; according to Wired, it is an ambiguous, subjective process that relies on what a person can and cannot say online. The amount of content alone to sift through could lead to counterproductivity within the DHS. This may additionally lead to misinterpretation on a federal scale, which has the potential to be harmful to many non-citizens. Due to this ambiguity, concrete information such as criminal records would likely be a better indicator of an immigrant’s threat level and would likely take less time to analyze. Seeing as social media is a novel edition to society, it is simply an add-on to background checks and does not need as much emphasis as other aspects of one’s personal information.
IV. Policy Implications and Recommendations
According to the current laws in place, anyone is at risk of their social media being secretly monitored by government officials. However, some groups are at a higher risk of being monitored than others. Although the ADPPA has the potential to be passed, it would still not address publicly available information, like social media, that is accessible to third parties. Instilling any “catch-all” law on a federal scale restricting access to public information has the potential to impede national security within the government, as seen through violent protests assembled through public social media. Alternatively, it is more efficient to establish a law that restricts prolonged social media monitoring unless a clear threat is posed to national security. The First Amendment does just that, establishing exceptions to freedom of speech when that speech is intentionally a threat. This speech is explicitly outlined as a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”. [20] That same precedent should be applied to speech on social media.
Under the potential legislation, law enforcement officers will be permitted to perform an initial examination and flag certain phrases or images. If any red flags arise, officers may then continue a search. To limit the risk of misinterpretation and exploitation in local crimes, a policy limiting surveillance would establish a boundary law enforcement would be unable to cross. These policies would likely be established at the state level due to its locality. Having complete jurisdiction to investigate a suspect’s social media enables law enforcement to scrutinize posts subjectively. One solution is to prohibit conclusions from being made solely from social media posts. Instead, law enforcement officers can question suspects on what the context behind specific posts is if it is initially flagged as suspicious. This maintains social media as public information but limits the government's power to exploit that information and, as a result, charge potentially innocent people with committing or conspiring to commit a crime. This solution also limits the risk of minority groups being disproportionately impacted by social media monitoring. By establishing an objective line of demarcation in surveillance, for example, permitting prolonged surveillance for a user who posts “true threats to the state or government that they intend to execute” the proposed policy would prohibit law enforcement from incorporating any subconscious biases into their search and help to eliminate stereotyping of certain groups. Narrowing the scope of the search additionally reflects a more objective and efficient search process.
V. Conclusion
Based on both its potential benefits and harms, there should be legislation established to limit surveillance entirely on a person without probable cause and exceptions for substantial threats to the national government. However, the process of determining what a threat is can be ambiguous, which can be seen through social media post misinterpretation without proper context. This may be part of the reason why a sufficient policy on modern government surveillance has not been instilled. Another significant component is the idea of social media being classified as public information, meaning one waives their right to privacy from the U.S. government. The priority of both social media companies and the federal government should be to make this aware to users. Regardless of social media’s public element, clear definitions of threats can be established to protect our government and state while also prioritizing Americans’ 1st Amendment rights.
Endnotes
[1] Instagram Help Center. “Terms of use”. Instagram Help Center. July 26, 2022. https://help.instagram.com/581066165581870/?helpref=uf_share
[2] Meta. “Privacy policy: What is the privacy policy and what does it cover?” Meta Privacy Center. December 27, 2023. https://privacycenter.instagram.com/policy/
[3] Levinson-Waldman, R., Panduranga, H. & Patel, F. “Social Media Surveillance by the U.S. Government”. Brennan Center for Justice. January 7, 2022. https://www.brennancenter.org/our-work/research-reports/social-media-surveillance-us-government
[4] Los Angeles Criminal Defense Attorney. “Is the Government Monitoring Your Social Media Accounts?” Werksman Jackson & Quinn LLP. April 25, 2022. https://werksmanjackson.com/blog/is-the-government-monitoring-your-social-media-accounts/
[5] Schaffer, A. The FBI is spending millions on social media tracking software. The Washington Post. April 5, 2022. https://www.washingtonpost.com/politics/2022/04/05/fbi-is-spending-millions-social-media-tracking-software/
[6] The White House: President George W. Bush. “USA PATRIOT Act”. The White House: President George W. Bush. 2006. https://georgewbush-whitehouse.archives.gov/infocus/patriotact/#:~:text=The%20Patriot%20Act%20allows%20Internet,monitoring%20trespassers%20on%20their%20computers.
[7] American Civil Liberties Union. “Surveillance Under the USA/PATRIOT Act.” American Civil Liberties Union. October 23, 2001. https://www.aclu.org/documents/surveillance-under-usapatriot-act#:~:text=Under%20the%20Patriot%20Act%2C%20the,the%20Fourth%20Amendment%20explicitly%20requires.
[8] Human Rights Watch. “US: Pass USA Freedom Act: Congress Should Take First Step Toward Reform”. Humans Rights Watch. April 30, 2015. https://www.hrw.org/news/2015/04/30/us-pass-usa-freedom-act
[9] Cole, David. Here’s What’s Wrong With the USA Freedom Act. “The Nation”. May 6, 2015. https://www.thenation.com/article/archive/heres-whats-wrong-usa-freedom-act/
[10] United States House of Representatives. “H.R.8152 - American Data Privacy and Protection Act”. Congress.gov. June 21, 2022. https://www.congress.gov/bill/117th-congress/house-bill/8152/text#toc-HAE5D4E4985B64A1691A932DD8B3A5C3B
[11] United States House of Representatives. “All Actions: H.R.8152 — 117th Congress (2021-2022)”. Congress.gov. December 30, 2022. https://www.congress.gov/bill/117th-congress/house-bill/8152/all-actions?overview=closed#tabs
[12] Hanko, Kateryna. “Does the Government Monitor Social Media?” Clario. Sep 18, 2023.https://clario.co/blog/government-monitoring-social-media/#:~:text=The%20Department%20for%20Homeland%20Security,surveillance%20tactics%2C%20alongside%20the%20FBI
[13] Zou, Jie Jenny & Logan, Erin B. “Key facts to know about the Jan. 6 insurrection”. Los Angeles Times. January 5, 2022. https://www.latimes.com/politics/story/2022-01-05/by-the-numbers-jan-6-anniversary
[14] Duignan, Brian. “January 6 U.S. Capitol attack”. Britannica: History and Society. August 4, 2021. https://www.britannica.com/event/January-6-U-S-Capitol-attack
[15] Jane Lytvynenko, Jane & Hensley-Clancy, Molly. “The Rioters Who Took Over The Capitol Have Been Planning Online In The Open For Weeks”. Buzzfeed News. January 6, 2021. https://www.buzzfeednews.com/article/janelytvynenko/trump-rioters-planned-online
[16] Freedom Forum. “What Speech is Protected by the First Amendment?” Freedom Forum. N.D. https://www.freedomforum.org/what-speech-is-protected-first-amendment/
[17] Electronic Frontier Foundation. “Street Level Surveillance: Social Media Monitoring”. Electronic Frontier Foundation. N.D. https://sls.eff.org/technologies/social-media-monitoring
[18] Rather, Shaiba & Al, Layla. “Is the Government Tracking Your Social Media Activity?” American Civil Liberties Union. April 24, 2023. https://www.aclu.org/news/national-security/is-the-government-tracking-your-social-media-activity
[19] Newman, Lily Hay. “Feds Monitoring Social Media Does More Harm Than Good.” Wired. September 28, 2017. https://www.wired.com/story/dhs-social-media-immigrants-green-card/
[20] University of Wisconsin Milwaukee. “Free Speech, Rights and Responsibilities: What Constitutes a True Threat?” University of Wisconsin Milwaukee. N.D. https://uwm.edu/free-speech-rights-responsibilities/faqs/what-constitutes-a-true-threat/