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The human rights problem with social media monitoring

This is part one of a two-part series on the human rights impact of law enforcement tracking of social media content. Part two explores the appropriate limits and necessary human rights safeguards for this kind of surveillance.

Government proposals to track and map the content that users publish on social media platforms are never as innocent, or as straightforward, as they appear. In recent months various politicians and pundits have increasingly called for collecting and retaining more user-generated social media content. The U.S. House of Representatives has even passed a vague but potentially far-reaching bill on tracking social media content.

However, the talking heads are oversimplifying the issue, ignoring technical and legal realities, and failing to recognize how monitoring social media can lead to grave human rights violations.

Below, we take a look at what social media monitoring is and what politicians are proposing. In our next post, we’ll discuss the human-rights safeguards needed for such monitoring.

What is social media tracking?

On December 2, 2015, Syed Farook and Tashfeen Malik murdered 14 people at an event by the San Bernardino County Department of Public Health, in what has now been classified as a terrorist attack. In the aftermath, several major news outlets rushed to discuss how the attack was planned and coordinated. Not surprisingly, many aspects of these reports have since been proven false.

In one of the most high-profile examples, the New York Times reported that Malik had “talked openly on social media” about her support for and desire to participate in violent jihad, but that her posts had gone undetected during the review of her visa application. Later that week, FBI Director James Comey debunked these reports, stating that they were a “garble.” Indeed, there was no public social media post that could have revealed the heinous intentions of Ms. Malik.  

Anyone who has used Facebook knows that when you post content, you have the ability to grant or deny permission to see that content. This means that while some posts are public and open to the world, others are restricted to certain audiences, typically either the people you are connected with as “friends,” or a smaller subset that you specify. The only way for a member of the general public to see this content is to establish some form of connection to you.

What you make public is already monitored. President Obama has explained that federal officials are “constantly monitoring public posts” on social media in widespread surveillance, and such monitoring is included as part of the visa application process. Further, the vast majority of police departments track social media in some capacity for criminal investigations, such as identifying suspects and gathering evidence. In some circumstances, these activities incorporate collecting and using information that’s not public. And this not the only way that law enforcement leverages social media. Law enforcement officials have also created fake social media profiles to connect with suspects for the specific purpose of obtaining private information, although this practice has come under heavy criticism.

Risks for personal liberty

Any government monitoring of social media poses significant risks to users’ privacy and free expression. Even public social media posts can reveal extensive private details about a person. Messages, and posts that you make non-public, may contain especially sensitive information, as the information is intended to be shared with only a limited audience. The content isn’t the only matter of concern, either. In some cases, posts can provide details about your location, which can be used to track your daily movements and habits.

Additionally, government surveillance can create a chilling effect on free speech online, as detailed in a recent report (PDF) from PEN American Center. People who expect or fear that the government is monitoring their messages are more likely to self-censor, avoiding writing about or discussing certain topics, including discussing political and social issues that could contribute positively to the public discourse. If a government makes a practice of routinely monitoring social media, these chilling effects are only compounded, threatening the use of these platforms as a way to explore new identities, positions, and arguments.

This is no small problem. When we’re put under surveillance, it limits speech and shrinks both the size and diversity of the marketplace of ideas. As U.N. Special Rapporteur Frank La Rue stated, “communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society.” If a regime of social media surveillance is developed, it must be developed with safeguards to avoid suppressing free expression and compromising our democratic values.

U.S. proposal to monitor social media

On December 16, 2015, the U.S. House of Representatives passed H.R. 3654: the Combat Terrorist Use of Social Media Act. This bill would require the Obama administration to develop a policy to enhance “the exchange of information and dialogue between the Federal Government and social media companies” on the issue of terrorism. One clear purpose of the legislation is to direct the government to expand monitoring and tracking of user-generated social media content. Speaking in support of the bill, Foreign Affairs Committee Chairman Rep. Royce said, “as we learned from the San Bernardino terrorist attack, ignoring the online statements of terrorists only puts Americans at risk.”

It appears that proponents of H.R. 3654 — and others who have called for increased government monitoring and surveillance of social media — have bought into a false media narrative. Contrary to political rhetoric and the reports that have sprung up after San Bernardino, the government is not currently legally prevented from monitoring social media. It already does so at many levels. Such monitoring, if and when it is conducted, is by nature highly intrusive, and any new legislation must at a minimum contain provisions to protect human rights, including requirements for strong oversight and transparency.

Stay tuned. In part two, we detail what human rights protections any current or contemplated  government practices or programs to monitor social media must include.

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