- Whether we use privacy settings or not, each of us has some culturally/ subculturally developed expectation of privacy and the limits of information sharing. These govern the expectations of privacy we apply to our online thoughts and behaviours.
- We dress and speak differently with friends than in a job interview – those distinctions get lost when online statements are re-viewed out of context. Does the act of doing something online rather than offline really transform every utterance into a truthful and reliable reflection of who we are?
- Let’s not criminalize thoughtlessness, nor make it into a weight to be carried for the rest of someone’s life.
We have all heard the various cautions about watching what we put online for fear of repercussions.
When we think of those repercussions, however, we most often think of administrative decisions – the impact on a job seeker or university applicant of a racy photo, troubling tweet or similar artifact. There are other potential repercussions — more immediate, more serious and more lasting. Some troubling examples:
An Ontario man ranted online that the Children’s Aid Society that had apprehended his son deserved a suicide attack and was charged criminally.
A 15-year-old who had tweeted that if George Zimmerman was found not guilty he’d “shoot everyone in Zion…and ill [sic] get away wit [sic] it just like Zimmerman” was arrested and charged with a felony. Despite law enforcement statements that there was no truth to the statement, the youth has still been criminally charged.
An 18-year-old who regularly posts his own rap lyrics and videos was charged with “communicating terrorist threats”after posting rap lyrics that referenced the Boston marathon bombings. Despite petitions and arguments that locate the statement under the First Amendment protection of freedom of speech, the youth remains incarcerated and has been denied bail.
An 18 year old girl was ordered to remove a Facebook status where she "LOL-ed" her report of her DUI accident. Despite her statements that she had no intention of minimizing or making fun of the incident, she was sentenced to two days in jail for contempt of court when she failed to do so.
Two Britons on their way to the US to “destroy America” were met at the airport, searched and detained by armed guards. Despite attempting to explain that “destroy” in this context referred to partying, they were kept overnight and put on a return flight the next day.
In each of these situations, we see statements made on social media being taken out of context by law enforcement and resulting in various degrees of criminal investigation, detention and prosecution.
Context is key
I’ve written before about the problematic presumption that information online is inherently public. Here I want instead to examine the context within which such information is shared; and then explore the importance of understanding that context in appropriately interpreting the information.
Ibrahmin suggests that online networks be thought of as “complicit risk communities where personal information becomes social capital which is traded and exchanged.” Thus, if we are to correctly understand the interactions within those spaces, it is imperative that we recognize that these utterances, performances, and risks are undertaken within a particular community and are enacted with a view to acquiring social capital within that particular community.
While observers may believe that any or all information posted online is inherently public, research suggests rather that the absence of (or failure to adhere to) current mainstream privacy standards does not indicate an absence of privacy or the desire for privacy altogether. Indeed, from historical antecedents through to contemporary youth online engagement we see recognized community norms that facilitate the recognition and protection of privacy even where no physical or spatial privacy is possible.
One of the fundamental underpinnings of the “if it’s on the Internet its public” attitude is the recognition that it’s never that hard for motivated searchers to find information no matter what precautions or obfuscations are employed by the user. Questions about the accuracy, reliability or even truthfulness of the information that can be found in this way are left unaddressed by this presumption
Accordingly, as online engagement increases, so too does the collection of information from those spaces by external bodies, be they employers (current or prospective); educational institutions; lawyers; law enforcement bodies or even the State itself. Where this information is being used by third parties, there is a risk that the information will be misinterpreted or accorded more weight than is deserved.
Social Media and Law Enforcement
A Lexis Nexis Risk Solutions 2012 survey of 1200 law enforcement professionals reveals the extent to which social media use has permeated law enforcement activities. At least 50% of the respondents use social media at least weekly for law enforcement purposes, and 67% believe that social media use is of assistance not only in solving crimes but in solving them quickly. The study shows that social media information and platforms are used for a variety of purposes, including identifying persons, discovering criminal activity in the first place, and gathering evidence.
Research on social media conducted for Public Safety Canada recently included 11 interviews with persons related to law enforcement about their use of social media in February and March 2011. In their results detailing the way(s) in which social media may be used in information gathering and investigations, respondents discussed Open Source Intelligence gathering (OSINT) – finding the profile(s) of an already identified suspect individual, mapping the interpersonal networks, and collecting other information which can be linked to the individual at issue. While this may have a positive impact in some cases such as that of Rodney Brardfod, who was being investigated for armed robbery and was exonerated by a Facebook status, the process does result in a largely unregulated collection of personal information and the inferences drawn from information as well as performance and social connection(s) to others.
"we run the risk of sarcasm, artistic expression, mere frustration or hyperbole resulting in the criminalization of individuals who are thoughtless rather than dangerous."
There are also instances where a particular suspect isn’t identified, but a particular incident is at issue and law enforcement agencies use social networks in order to identify a suspect. In both the Vancouver, BC, Stanley Cup riot and the London, Ontario, riots, law enforcement interacted with SNSs in novel ways. While participants were posting pictures and stories on Facebook, Twitter and other networks, police were able to follow the action, identify perpetrators, and levy charges more serious than simple participation (in the cases of those who detailed their actions). Of course, this process isn’t restricted to law enforcement agencies -- in the wake of the Vancouver riots numerous Facebook groups were set up by users for the purposes of assisting with identifying perpetrators while others eschewed Facebook and used the web directly to set up similar sites.
Law enforcement does not simply use SNSs reactively -- it is increasingly the case that social network sites are monitored proactively, as in the case of the NYPD, who actually set up a Facebook team to monitor SNSs on an ongoing basis, or the recent revelation of the Department of Homeland Security’s program that included a list of key words and search terms that are monitored prophylactically for security reasons.
It is unquestioned then that law enforcement can and does use information from social media sites. My purpose here isn’t to argue that these uses are good or bad – rather, I am arguing that the importance of context in understanding and interpreting this information cannot be overstated. Identity presentations, connections and interactions are informed by the context in which they exist, as well as existing for the purpose of facilitating interactions and social capital within those spaces.
In the first example given above, Jesse Hirsch was accepted as a “Facebook Expert” in the Ontario criminal trial of a young man who posted comments on his Facebook threatening a suicide attack against the Children’s Aid Society who had recently apprehended his infant son. Hirsch testified that Facebook users “routinely embellish what they say as part of an online persona” and the accused was ultimately acquitted. It is imperative that the role of context in shaping the presentation of information and tone of online be understood. If law enforcement agencies are unable to do so, recourse should be had to experts who do understand the role of context and performance in online spaces. Where charges make it to court, counsel must insist on the right to lead evidence contextualizing the posts admitted into evidence.
The presumptive accuracy and reliability of statements made in online spaces can and should be called into question by appropriately contextualizing the information and its production. If this is not done, we run the risk of sarcasm, artistic expression, mere frustration or hyperbole resulting in the criminalization of individuals who are thoughtless rather than dangerous.