Stephen Earnest*

Introduction

Most Americans use social media on a regular basis.[1] Indeed, according to a recent report from the Global World Index, the average American allocates more than two hours a day to social media interaction, and that number appears to be increasing.[2] It should then come as no surprise that law enforcement agencies are similarly active on social media, using platforms like Facebook and Twitter to update the public about current events, solicit public support in reporting crime, and, most importantly, gather intelligence.[3]

However, while law enforcement generally has used social media data for legitimate purposes like solving murder cases and detecting human trafficking activity,[4] certain law enforcement uses of social media have been questionable. For example, from 2014 to 2016, the Boston Regional Intelligence Center used social media to monitor posts about the Black Lives Matter and Muslim Lives Matter movements, as well as to target students involved in a walkout to protest budget cuts at Boston Public Schools.[5] Similarly in the summer of 2020, the FBI and local law enforcement relied heavily on social media to monitor the protests that swept the nation following the police killings of George Floyd and Breonna Taylor,[6] even though almost all of these protests were peaceful.

These monitoring tactics can implicate significant privacy and speech interests, yet currently there are no federal, state, or local laws that specifically limit how law enforcement agencies can monitor social media. Social media platforms and law enforcement agencies themselves have also been slow or unwilling to adopt social media monitoring policies. However, there may be another mechanism for challenging social media monitoring by law enforcement agencies: the U.S. Constitution, through its First, Fourth, and Fourteenth Amendments. This post explores these amendments and considers where they might successfully be used to challenge law enforcement social media monitoring practices.

I. First Amendment

The First Amendment generally prohibits government officials from unduly restricting the exercise of First Amendment freedoms, such as the freedom to engage in protected speech, and from retaliating against individuals for exercising those freedoms.[7] Social media has proven to be an important tool for activists to engage in First Amendment-protected activities online; the Black Lives Matter and #MeToo movements, to name a few, have prospered in large part because of their proliferation across social media platforms. Even the U.S. Supreme Court has noted this importance, holding that “the most important place[] . . . for the exchange of views . . . is cyberspace – the vast democratic forums of the Internet in general, and social media in particular.”[8] Other courts have made similar observations in recent years.[9]

Law enforcement social media monitoring practices may violate the First Amendment unless there is a compelling interest in the practices and they are narrowly tailored to achieve this interest.[10] While law enforcement undoubtedly has an important interest in protecting public safety, it may not be compelling enough to justify monitoring individuals who are engaged in lawful activity. Monitoring practices also may not be narrowly tailored to achieve the interests of public safety “where their scope far exceeds the magnitude of any criminal behavior involved.”[11] Additionally, even though the U.S. Supreme Court has held that “the mere existence . . . of a governmental investigative and data-gathering activity” does not unconstitutionally chill the lawful exercise of First Amendment rights absent a concrete and particularized injury,[12] such injury may be demonstrated where law enforcement uses social media to target individuals because of their political beliefs, as those individuals may decide to stop using social media to make political statements or organize political activities. More importantly, they may decide to stop attending political demonstrations if they believe those demonstrations are being monitored by law enforcement. While case law in this area is limited, recent cases suggest that courts are increasingly willing to recognize these types of arguments.[13]

II. Fourth Amendment

Because the Fourth Amendment prohibits warrantless searches of items in which individuals have a reasonable expectation of privacy,[14] it may provide an avenue for challenging social media monitoring by law enforcement. Traditionally, this kind of challenge would face two obstacles. First, according to the public space doctrine, when someone does something in public that can be seen by another person, the general rule is that they have no reasonable expectation of privacy in that action, and therefore a law enforcement officer can watch what that person is doing without a search warrant.[15] Thus, in the case of publicly available social media posts, monitoring of those posts by law enforcement should not violate the Fourth Amendment because individuals lack a reasonable expectation of privacy in content they post publicly.

The second obstacle to a Fourth Amendment challenge is the third party doctrine, which holds that anytime a person gives information to another person, they take a risk that the other person is a law enforcement officer or may give that information to a law enforcement officer.[16] Thus, when a social media user messages another user in private, or posts content that is only accessible by individuals with whom they are “connected,” they run the risk that those private messages or posts may be relayed to a law enforcement officer. For these reasons, a Fourth Amendment challenge to social media monitoring by law enforcement could be difficult under the traditional framework.

However, there are a couple of recent cases which suggest that the traditional framework may not be completely applicable to social media—at least, not social media monitoring by law enforcement. For example, the U.S. Supreme Court has prohibited law enforcement’s use of GPS trackers, a modern monitoring technology, if such trackers are deployed without a warrant.[17] While social media and GPS trackers are sufficiently different from one another, the use of social media by law enforcement to target specific individuals—rather than groups or ideas—without a warrant may therefore come to be prohibited, or at least constrained by the Fourth Amendment. The Court has also held that law enforcement must obtain a warrant to get a week or more of historical cell site location data from a cell phone provider,[18] which suggests that there may be limits on the application of the third party doctrine to digital information. Lastly, and perhaps most importantly, the Court has held that law enforcement generally may not search digital information stored on a cell phone seized from an arrestee unless they have a warrant.[19] While none of these cases specifically apply to social media, together they suggest that the Court is increasingly recognizing that the use of certain kinds of modern technology by law enforcement raises significant privacy concerns, and that these concerns may be deserving of special treatment under the Fourth Amendment.

III. Fourteenth Amendment

The Fourteenth Amendment, through the Equal Protection Clause, prohibits discrimination based on religion, race, sex, and other protected classes or activities.[20] Thus, where a law enforcement officer monitors a particular social media account expressly because of the religion, race, or sex of the account holder, the officer has violated the Fourteenth Amendment unless they can show that the monitoring satisfies intermediate or strict scrutiny. This is typically very difficult to do because intermediate and strict scrutiny are demanding standards of judicial review.[21] 

However, where a social media monitoring tactic is not intentionally discriminatory, but rather has a disparate impact on a protected class, it is less likely that the practice violates the Fourteenth Amendment. This is because there is no disparate impact theory of liability under the Fourteenth Amendment: an individual cannot successfully challenge a governmental practice as violative of the Fourteenth Amendment merely because the practice has a discriminatory effect; they must also show that the practice is discriminatory in purpose.[22] Thus, where an ostensibly neutral social media monitoring practice only has a discriminatory effect on a protected class, it could be difficult to demonstrate that there has been a violation of the Fourteenth Amendment.

Conclusion

Social media serves as a valuable investigative and surveillance tool for law enforcement agencies throughout the United States. At the same time, however, the use of social media by law enforcement for monitoring purposes is highly unregulated and may adversely affect certain constitutional rights, such as the right to privacy, association, and speech. In absence of legislation, the U.S. Constitution, through its First, Fourth, and Fourteenth Amendments may serve as a valuable, although imperfect, tool for challenging social media monitoring by law enforcement.

*Stephen Earnest, University of Minnesota Law School Class of 2021, Note and Comment Editor of JLI

 

[1] See Brooke Auxier & Monica Anderson, Social Media Use in 2021, Pew Res. Ctr. (Apr. 10, 2019), https://www.pewresearch.org/internet/2021/04/07/social-media-use-in-2021/ (finding that nearly three-quarters of Americans “say they ever use any kind of social media”).

[2] Global Web Index, 2021 Social Media Report 15 (2021).

[3] See KiDeuk Kim, Ashlin Oglesby-Neal & Edward Mohr, Int’l Ass’n of Chiefs of Police & Urb. Inst., 2016 Law Enforcement Use of Social Media Survey 2 (2017) (observing that roughly 70% of police departments in the United States used social media to gain tips on crime, gather intelligence, and monitor public sentiment).

[4] See, e.g., Savannah Police Investigating Two Social Media Posts Alleging Attempts at Human Trafficking, WTOC News (Feb. 18, 2021), https://www.wtoc.com/2021/02/19/savannah-police-investigating-two-social-media-posts-alleging-attempts-human-trafficking/; Snapchat Self Unmasked Pittsburgh Killer, Police Say, BBC News (Feb. 9, 2015), https://www.bbc.com/news/world-us-canada-31294752.

[5] Iqra Asghar, Boston Police Used Social Media Surveillance for Years Without Informing City Council, Am. C.L. Union (Feb. 8, 2018), https://www.aclu.org/blog/privacy-technology/internet-privacy/boston-police-used-social-media-surveillance-years-without.

[6] Sam Biddle, Police Surveilled George Floyd Protests with Help from Twitter-Affiliated Startup Dataminr, The Intercept (July 9, 2020), https://theintercept.com/2020/07/09/twitter-dataminr-police-spy-surveillance-black-lives-matter-protests/.

[7] Nat’l Ass’n for the Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462-63 (1958); Roth v. United States, 354 U.S. 476, 481-62 (1957).

[8] Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (internal citations omitted).

[9] See, e.g., Bland v. Roberts, 730 F.3d 368, 385, 388 (4th Cir. 2013) (holding that “likes” and comments on Facebook may constitute First Amendment-protected speech).

[10] Patterson, 357 U.S. at 460-61.

[11] Hannah Fuson, Fourth Amendment Searches in First Amendment Spaces: Balancing Free Association with Law and Order in the Surveillance State, 50 U. Mem. L. Rev. 231, 270 (2019).

[12] Laird v. Tatum, 408 U.S. 1, 10 (1972).

[13] See, e.g., Hassan v. City of New York, 804 F.3d 277, 307-09 (8th Cir. 2015).

[14] Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978); Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J., concurring). 

[15] United States v. Knotts, 460 U.S. 276, 276 (1983).

[16] See United States v. Miller, 425 U.S. 435, 445 (1976).

[17] United States v. Jones, 565 U.S. 400, 413 (2012).

[18] Carpenter v. United States, 138 S. Ct. 2206, 2219 (2018).

[19] Riley v. California, 573 U.S. 373, 401 (2014).

[20] See, e.g., Craig v. Boren, 429 U.S. 190, 199 (1976) (holding that sex is a quasi-suspect classification under the Equal Protection Clause); Loving v. Virginia, 388 U.S. 1, 8 (1967) (holding that race is a suspect classification under the Equal Protection Clause). 

[21] See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 815, 818, 822, 826 (2006) (finding that laws survived strict scrutiny 30% of the time on average).

[22] Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 275 (1979); Washington v. Davis, 426 U.S. 299, 244-45 (1976).