The many ways cops are patrolling social media

On Wednesday night, a state of emergency was called in Charlotte, NC after two nights of unrest following the shooting of Keith Lamont Scott, 43, who was killed in an encounter with police on Tuesday afternoon. Activists and outraged social media users turned to both Facebook and Twitter to stream protests in Charlotte, voice their concerns, and mobilize through hashtags.

But they may have unknowingly opened themselves up to police surveillance. The cops have been unofficially monitoring social media for information and officially, by sending warrants and subpoenas to tech companies asking for private information about users.

On Wednesday, Twitter published its latest transparency report as part of what the company calls its commitment to “the open exchange of information.” Released every six months since December 2012, the report details all government and corporate requests made to Twitter to either produce information about specified accounts or remove prohibited and copyrighted content.

Between January and June of this year, Twitter received 2,520 information requests from U.S. law enforcement agencies, producing at least some of the requested information 82% of the time. That’s a 2.1% increase in both overall requests and compliance from the same period last year. Facebook’s most recent transparency report for 2015 reveals it received 30,000 requests and has a 81% compliance rate, up 2.3% from the same time period in 2014.

But, transparency reports tell only half the story. Local police departments are increasingly turning to social media platforms to monitor crime committed both online and off,  lurking on profiles and gathering data on suspects. Last year in San Francisco, Instagram photos of a suspect with guns were used as evidence in a firearms conviction. Business Insider reported that the SFPD offers “specialized training” for officers to monitor the platform, informally dubbing them the “Instagram officer” of their unit. (In the Twitter transparency report, California was the third leading state in information requests, following Virginia and New York.)

Speaking at a conference at NYU’s Law School recently, former NYPD Police Commissioner Bill Bratton, an active Twitter user himself, explained the importance of Twitter for law enforcement.

“We’ve made it a priority to have a department presence across all social media platforms,” Bratton told the press. Not only does the NYPD have an official Twitter account, Bratton said he encourages nearly every officer join.

Bratton, partially summarizing an old maxim about crime, referenced how often suspects unwittingly incriminate themselves online. “It’s not that we, the police, are so smart; it’s that they, the criminals, are so dumb,” he said. “Well, many of them are, as evidenced by their postings on social media which, oftentimes, forms the foundation of our criminal cases against them.”

You can’t expect that postings on a public social media site won’t be seen by law enforcement, but at what point does an officer monitoring your online movements cross a line? The Fourth Amendment says that officers must obtain a warrant before searching areas where citizens have a “reasonable expectation of privacy.” Obviously, your home is a private space, but is your Facebook? Or your Instagram? If a police officer wanted to follow you around for an entire month, they’d have to go through a judge. But in an instant, they can see everything you’ve posted over the last “92w” (weeks, for the uninitiated) on Instagram without going through anyone.

But law enforcement may be more than just an unseen force secretly monitoring Facebook posts. There are also questions of free speech rights when it comes to posting encounters with the police on social media. When the live stream of Philando Castile’s death was temporarily removed from Facebook, it prompted cries of censorship. The company faulted a “technical glitch,” though the fear that police can delete content at will remains pervasive.

Similarly, when Korryn Gaines was shot and ultimately killed during a standoff with police, she had been updating her social profiles. Suspiciously, her Facebook and Instagram accounts were quickly suspended upon request from the Baltimore Police Department. In a statement, the BPD explained this was due, in part, to her interactions with followers on the service: “Gaines was posting video of the operation, and followers were encouraging her not to comply with negotiators’ requests that she surrender peacefully. This was a serious concern; successful negotiations often depend on the negotiators’ ability to converse directly with the subject, without interference or distraction during extremely volatile conditions.”

For decades, we’ve had conversations about the fraught relationship between officers and the communities of color they serve. Do the police have too much power? Are people of color being unfairly targeted? How can people of color protect themselves? How can officers? Now that these violent breakdowns between police and black citizens are being recorded and disseminated through digital spaces, similar dynamics and questions are arising online.

“I call Facebook ‘fed-book’. I don’t do Facebook,” Harlem resident Mike Loudwy told The Guardian in a piece about the NYPD’s surveillance of black teenagers. “They’re watching us on there.”

Because unofficial monitoring of social media isn’t tethered to legal oversight from any judge or court, it’s ripe for racial profiling. As The Guardian piece discusses, while “Stop and Frisk” policies were ruled unconstitutional racial profiling by a judge, monitoring black youth online can be a digital re-creation of the policy. Potentially, social media users and especially people of color, will be made vulnerable. Twitter’s 2.1 percent increase in compliance isn’t negligible, it’s indicative of a strengthening relationship between police and social media networks.

Imagine if, every time you logged onto Instagram or Twitter, you saw the warning: “Anything you say can and will be used against you in a court of law.” It sounds absurd, but it’s quickly, quietly becoming the new reality of our online lives.