Just hours before a panel on social media surveillance here at South by Southwest, Facebook announced a change in policy that would keep some of its data out of easy collection and use by law enforcement.
The news was broken by The Washington Post‘s Elizabeth Dwoskin, who by sheer coincidence was a panel participant here at “Activism in the Era of Social Media Surveillance.”
The announcement was a response to a discovery months ago that some tech companies were using their access to massive amounts of social media data through developer tools to sell it to law enforcement agencies across the country. The police then use the information to keep track of citizens’ behavior. These tools have been used to track potential criminal behavior—and also activists engaged in public protests.
Dwoskin wrote of today’s announcement:
Last year, Facebook, Instagram and Twitter cut off access to Geofeedia, a start-up that shared data with law enforcement, in response to an investigation by the American Civil Liberties Union. The ACLU published documents that made references to tracking activists at protests in Baltimore in 2015 after the death of a black man, Freddie Gray, while in police custody and also to protests in Ferguson, Mo., in 2014 after the police shooting of Michael Brown, an unarmed black 18-year-old.
On Monday, Facebook updated its instructions for developers to say that they cannot “use data obtained from us to provide tools that are used for surveillance.”
At the panel itself, though, Dwoskin said Facebook would be willing to make an exception for police in the case of emergencies, then pointed out that what constitutes an “emergency” is up to interpretation. When it comes to protests, sometimes police seem to think the simple inconvenience of them is an emergent threat.
A chunk of the panel’s debate revolved around what exactly the expectation of privacy should be when people are willing to post what they’re doing in the public sphere on social media. The data being provided to law enforcement isn’t secret stuff, after all. It’s what people are posting publicly. Matt Cagle of the American Civil Liberties Union said that’s the argument police are using to justify mass surveillance via social media tools. They argue citizens should have “no expectations of privacy” for information they publicly post online.
Rachel Levinson-Waldman of the Brennan Center’s Liberty and National Security Program, noted that typical Constitutional interpretations and case law tended to find in favor of the police. Anything the public is able to see, police are also able to see. But, she pointed out, the courts might be willing to rethink the concept given that these social media tools allow for police to very easily keep track of citizens’ behavior, en masse, for long periods of time. Under typical, traditional surveillance tools, this type of constant snooping would not be possible.
In addition, the reason why police engage in surveillance also mattered, she noted. Recall that mass surveillance of Muslim citizens living in New York post-Sept. 11 targeted them on the basis of their religion, an activity protected by the First Amendment. When this surveillance targets groups of citizens for surveillance on the basis of their protests of the government or participation in the “Black Lives Matter” movement, for example, that’s a problem.
Read more about Facebook’s announcement here.