Tag: ACLU

Categories
Privacy

How the government uses social media to monitor protestors

The death of Freddie Gray in April 2015 while in the custody of Baltimore police touched off a wave of protests in that city about civil rights and the department’s treatment of African-Americans.  Days later, as protests mounted, police monitoring social media noticed that kids from a local high school planned to skip class to join a protest at a nearby mall. The department deployed officers to intercept and turn back the students.

The summary of the surveillance comes courtesy of Geofeedia, a Chicago company that sells software that allows users, including police departments across the U.S., to track the whereabouts of people based on searches of data posted to Twitter, Facebook, Instagram and other social networks. According to marketing materials posted by Geofeedia on its website, location-based monitoring of social media activity allowed police in Baltimore “to stay one step ahead of the rioters” and, by running social media photos through facial recognition software, “discover rioters with outstanding warrants and arrest them directly from the crowd.”

screen-shot-2016-10-16-at-11-21-52-am

We know of the monitoring thanks to the American Civil Liberties Union, which obtained the information via records requests to law enforcement agencies in California. A report released Oct. 11 by the group documents how social media companies provided data about users to Geofeedia that comes directly from their servers.

Though both Facebook and Instagram later cut off the feeds, both companies provided police access to data that allowed Geofeedia to sort by specific topics, hashtag or location. Twitter, which also has since ended the practice, provide searchable access to its database of tweets.

As the ACLU noted, the social networks that supplied data for use in monitoring all have expressed publicly their support for activism and free speech.

“Mark Zuckerberg endorsed Black Lives Matter and expressed sympathy after Philando Castile’s killing, which was broadcast on Facebook Live,” Matt Cagle, an attorney for the ACLU who authored the report, wrote in a blog post. “Twitter’s CEO Jack Dorsey went to Ferguson. Above all, the companies articulate their role as a home for free speech about important social or political issues.”

“Social media monitoring is spreading fast and is a powerful example of surveillance technology that can disproportionately impact communities of color,” Cagle added.

For its part, Geofeedia says it has protections in place to ensure that its technology is not used to infringe civil rights.

Though data feeds from the companies have legitimate applications – investors, for example, use data sets from the companies to learn early of problems that can affect stocks, e.g., someone tweets about about his friend becoming ill after eating at Chipotle. The data also can help in finding missing persons. But giving it to the government for use in surveillance can chill the exercise of basic freedoms.

The ACLU is calling on social networks to adhere to guidelines that include a prohibition on supplying data access to developers who are providing software for government surveillance. The networks also should develop clear and open policies that bar use of data feeds for surveillance, and should monitor developers to spot violations, the ACLU says.

Categories
Law

Facebook posts cannot be threats without intent, Supreme Court rules

The Supreme Court on Monday narrowed the circumstances in which someone who posts threats on Facebook or social media can be criminally liable for their actions.

In an 8 to 1 ruling, the court overturned the conviction of Anthony Elonis, a Pennsylvania man who was found guilty in 2011 of threatening his estranged wife, former co-workers and others in series of posts on his Facebook page.

The musings, which contained violent language and images, earned Elonis, writing under the pseudonym “Tone Dougie,” a sentence of 44 months in prison for violating a federal law that bars “transmitting in interstate commerce” a threat to injure another person or group of people.

On appeal, Elonis contended that to be criminal—and otherwise beyond the protection of the First Amendment—the threats required a subjective intent that Elonis claimed he lacked. According to Elonis, the trial court erred when it instructed a jury that a statement constitutes a criminal threat when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.

The Court agreed, noting that to be criminal, conduct must derive from a defendant’s mental state; that negligence alone is insufficient to support liability. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice Roberts wrote for the majority. “That understanding ‘took deep and early root in American soil’ and Congress left it intact here… ‘wrongdoing must be conscious to be criminal.’” (citation omitted)

Though the court did not discuss the implications for free speech raised by the appeal, the American Civil Liberties Union and other groups had charged that the instruction insisted on by the trial court would discourage speech protected by the First Amendment.

For its part, the government contended that requiring a subjective intent as Elonis urged would undermine the goal of protecting people from fear of violence regardless whether the person who threatens them intends his words to be harmless.

The Court limited its opinion to Elonis’ intent. “Having liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces culpability on the all-important element of the crime to negligence,” wrote Roberts. “We ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes… Under these principles, ‘what [Elonis] thinks’ does matter.” (citations omitted)

Categories
Law

NSA phone records case shows the power of standing

Like many things, legal arguments can have an elegance about them.

Look no further than the arguments advanced by the plaintiffs in the lawsuit that led a federal appeals court to rule last week that the government’s collection of information about the telephone calls of Americans violates the USA Patriot Act.

The decision, which was reported widely, marks the first time an appeals court has declared the surveillance program that the National Security Agency has used to harvest telephone numbers and other details of calls made or received in the US for at least the past nine years to be illegal.

Besides invalidating the bulk collection of so-called metadata, the decision reveals some terrific lawyering by the American Civil Liberties Union, which filed the lawsuit on June 11, 2013, six days after The Guardian, reporting on leaks by former government contractor Edward Snowden, published an order from the FBI to Verizon directing the company to hand over metadata for all calls on its network that either began or ended in the US.

Under the Constitution, federal courts only have the power to resolve actual disputes between real parties. Thus, to sue, a plaintiff must show a concrete personal stake in the outcome of the case, a requirement known as standing. It’s not enough to dislike a law. You have to show injury.

For its lawsuit, the ACLU needed a Verizon customer whose phone records had been collected by the government. A customer who might claim that the government’s collecting his or her phone records harmed the plaintiff in some way. For that, the ACLU looked no further than its own offices.

As the ACLU charged in court papers, the organization was itself a customer of Verizon, which provided the ACLU with landline, Internet and wireless services throughout the period covered by the order. The NSA’s harvesting of the ACLU’s metadata exceeded the government’s authority and constituted a seizure in violation of the Fourth Amendment, the group charged.

In court papers, the ACLU described its standing as follows:

The information collected includes plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact plaintiff for legal assistance or to report human-rights or civil liberties violations, as well as those whom plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact plaintiff.

In other words, the ACLU communicates with people about matters that are sensitive or privileged and who depend, as the group noted, “on their ability to keep even the facts of their discussions” with the ACLU confidential.

The trial court determined that the ACLU had standing to file the lawsuit.

On appeal, the government took issue with the ruling, charging that the ACLU had failed to demonstrate that the NSA had reviewed any of the metadata collected from the group. Thus, the government charged, the ACLU had failed to allege an injury sufficiently concrete to support standing.

The US Court of Appeals for the 2nd Circuit disagreed, noting that the ACLU had alleged injury from the very collection of metadata, regardless whether the government reviewed the information.

“Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them,” wrote US Circuit Judge Gerard Lynch for the majority. “Appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the [Foreign Intelligence Surveillance Court]; and the records have been collected.”

The appeals court observed that the government admitted that when it searches its database its computers search all of the information stored in it. That means the government searches the ACLU’s records, which are among the millions of records stored in the database, electronically.

Finally, the court noted that the ACLU also had standing to challenge a violation of its right to freedom of association guaranteed by the First Amendment. As the court observed, the government’s forcing a group that’s engaged in advocating for the civil liberties of its membership to disclose its members can itself violate the right to associate freely.

“When the government collects appellants’ metadata, appellants’ members interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point,” Lynch added.