Social Media at the Border: Call for Comments: Until 22 August 2016

The US Customs and Border Protection Agency are proposing to add new fields to the form people fill out when entering/leaving the country—fields where travelers would voluntarily enter their social media contact information.  The forms would even list social media platforms of interest in order to make it easier to provide the information. 

This raises serious concerns. Some might ask, how can this be controversial if it’s voluntary?  If someone doesn’t want to share the info, they’ll say, then don’t. Case closed.

Unfortunately, it isn’t that simple. This initiative raises some serious questions:

Is it really voluntary?

Are individuals likely to understand that provision of this information is, in fact, voluntary?  If this becomes part of the standard customs declaration form, how many people will just fill it out, assuming that like the rest of the information on the form, it is mandatory? 

Is the consent informed?

Fair information principles require that before people can meaningfully consent to the collection of personal data they need to understand the answers to the following questions: Why is the information being collected?  To what uses will it be put, with whom will it be shared?  We have to ask, will the answers to these question be known? Will they be shared and visible?  Will they be drawn to the attention of travelers? 

Can such consent be freely given?

In a best-case scenario where the field is clearly marked as voluntary and the necessary information about purposes is provided—can such indicia really overrule our instinctive fear/understanding that failing to “volunteer” such information can be an invitation for increased scrutiny. 

Is it relevant?

Even if the problem of mandatory “volunteering” of information is addressed, what exactly is the point?  Is this information in some way relevant?  It is suggested that this initiative is the result of

… increasing pressure to scrutinize social media profiles after the San Bernardino shooting in December of last year. One of the attackers had posted a public announcement on Facebook during the shooting, and had previously sent private Facebook messages to friends discussing violent attacks. Crucially, the private messages were sent before receiving her visa. That news provoked some criticism, although investigators would have needed significantly more than a screen name to see the messages.

If this is meant to be a security or surveillance tool,  is it likely to be effective as such? Will random trawling of social network participation—profiling based on profiles—truly yield actionable intelligence?

Here’s the problem: every individual’s social media presence is inherently performative.  In order to accurately interpret interactions within online social media spaces, it is imperative to recognize that these utterances, performances, and risks are undertaken within a particular community and with a view to acquiring social capital within that particular community. 

Many will ask, if information is public why worry about protections?  Because too often issues of the accuracy, reliability or truthfulness of information in these various “publics” are not considered when defaulting to presumptive publicness as justification. All such information needs to be understood in context.

Context is even more crucial when such information is being consulted and used in various profiling enterprises, and especially so when it is part of law enforcement or border security. There is a serious risk of sarcasm, artistic expression, mere frustration or hyperbole resulting in the criminalization of individuals who are thoughtless (or indeed simply not thinking along the lines preferred by law enforcement agencies) rather than dangerous. 

The call for comments contains extensive background, but the summary they provide is simple:

U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: CBP Form I-94 (Arrival/Departure Record), CBP Form I-94W (Nonimmigrant Visa Waiver Arrival/Departure), and the Electronic System for Travel Authorization (ESTA). This is a proposed extension and revision of an information collection that was previously approved. CBP is proposing that this information collection be extended with a revision to the information collected. This document is published to obtain comments from the public and affected agencies.

They are calling for comments. You have until 22 August 2016 to let them hear yours.  https://federalregister.gov/a/2016-14848

The First Rule of Fight Club: Understanding Context in Interpreting Online Information

margin notes

• 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.