Why Government Use of Social Media Monitoring Software Is a Direct Threat to Our Liberty and Privacy

A version of this post originally appeared at the ACLU of Oregon.

As we’ve previously written about, analysts at the Oregon Department of Justice used a tool called Digital Stakeout to surveil people — including the department’s very own director of civil rights — who used over 30 hashtags on social media, such as #BlackLivesMatter and #fuckthepolice. While an internal investigation confirmed the illegal surveillance and made recommendations to ensure it doesn’t happen again, much less attention has been paid to the tool itself.

Digital Stakeout is social media monitoring software (SMMS) that can be used to covertly monitor, collect, and analyze our social media data from platforms like Twitter, Facebook, and Instagram. It is part of a rapidly expanding industry that the public knows little about. Our goal here is to answer a few basic questions about SMMS: What can the technology do? How widespread is the use of SMMS by law enforcement in Oregon? What privacy concerns does it raise? And how we can protect free speech and privacy moving forward?

In summary, SMMS is a high-tech tool for surveilling and engineering our future world. 

What is SMMS?

SMMS is a booming industry. Products like XI Social Discovery, Geofeedia, Dataminr, Dunami, and SocioSpyder (to name just a few) are being purchased in droves by Fortune 500 companies, politicians, law enforcement, federal agencies, defense contractors, and the military. Even the CIA has a venture fund, In-Q-Tel, that invests in SMMS technology.

This isn’t just about searching for key words. Instead, SMMS performs highly sophisticated fishing expeditions across the internet, using complex algorithms to analyze and organize data into much more than a set of search results. 

Social media monitoring software can be used to geographically track us as we communicate. It can chart out our relationships, networks, and associations. It can monitor protests, identify the leaders of political and social movements, and measure our influence. It is also promoted as a predictor of future events, including threat assessment, and as an instrument for manipulating public opinion. In summary, SMMS is a high-tech tool for surveilling and engineering our future world. 

By its very nature, SMMS improperly blankets a whole range of innocent people without any evidence of wrongdoing. Instead of specific criminal activity prompting an investigation, investigators use SMMS to cast nets so wide they encompass the entire internet.

What are the risks? 

This type of government surveillance raises many privacy concerns. Rather than accepting its use by law enforcement as our inevitable future, we should consider the serious implications for our society. 

Silencing discourse. It should give us great pause to hear that SMMS is being used to politically profile, track, and target innocent people who express political opinions online. People like Erious Johnson, director of civil rights at the Oregon Department of Justice, and who knows how many more. 

recent study revealed what really happens when we know we are being constantly watched — voices are silenced. Professor Elizabeth Stoycheff of Wayne State University has shown that people who support surveillance and say they have nothing to hide are actually the most likely to avoid sharing unpopular opinions when they know government is watching. We lose the ability to discuss ideas openly when we fear we will be punished for them. 

Even innocent people who know they are being watched are intimidated into self-censorship. Yet robust public conversations and debates about controversial and difficult topics make us stronger as a nation. That is exactly why our founders enshrined strong protections for a broad marketplace of ideas in the First Amendment.

Targeting innocent speech. When everything and everyone is potentially suspect, innocent people become targets. Despite claims to the contrary by the companies that market this technology, we can’t accurately predict the future by measuring sentiment and profiling people on the internet. Internet speech is often hyperbolic and inflammatory, but that doesn’t necessarily mean a person or group is dangerous. Internet speech can also be easily misunderstood, particularly when it is interpreted by a system that relies on the biases of its users and programmers.

Making devastating mistakes. False alarms and mistakes, such as mistaking the Public Enemy logo as a threat to law enforcement, can be devastating — even when we are innocent. Unjustly becoming a target can be frightening, feel like an intrusive violation, result in embarrassing and uncomfortable public exposure, and threaten our civil liberties. 

Misuse and abuse. SMMS can easily be aimed at anyone who threatens existing power, whistleblowers, people who have reported misconduct, or someone an agent personally dislikes. In a country with a long history of targeting dissent, often in communities of color, we should be wary anytime a tool of this nature is wielded. 

Which Oregon law enforcement agencies are using SMMS?

Like many of the ever-evolving and new forms of technological surveillance, it is hard to know just how many law enforcement agencies in Oregon are using SMMS. In fact, when a reporter asked Attorney General Ellen Rosenblum whether the public would have ever learned of the DOJ’s tracking of social media hashtags with DigitalStakeout had it not ensnared her own director of civil rights, she said she didn’t know.

If national trends are any indication, it is likely there are other agencies in Oregon using this type of powerful surveillance tool. Since we don’t know exactly who is using it, we also don’t know how SMMS is being used, what policies and training (if any) are being implemented or followed, and who is being watched. 

What can we do to protect to our privacy?

As technology gets more and more sophisticated, it is a critical time to protect privacy. It is not about putting blinders on law enforcement but rather about setting appropriate limits that protect our rights and liberties. Oregon law enforcement and policy makers should consider the following guidelines:

  1. The public needs to know what government agencies use digital surveillance tools, like SMMS, and how extensive their use is. Ultimately, this comes down to transparency and accountability. Without knowing what our government is doing, we cannot ensure that our rights will be protected or that wrongdoing will be corrected. 
  2. The public should have an opportunity to provide input on if, when, and how surveillance tools like SMMS are used. We should understand the risks and benefits and be involved in the conversations and decision making before government starts using new technologies to watch us. If the risks are too great, particularly if innocent people are bound to get caught up in intrusive government surveillance, we should be allowed to say no, or at the very least, to set strict limits. 
  3. Government officials should take a hard look at their use of surveillance technology and regularly report on its use. More specifically, government agencies should be required to publicly assess privacy risks, adopt strict privacy policies and training, and be proactive to mitigate potential risks before new technology is used. Government agencies should also be required to routinely audit their surveillance systems and regularly report to the community about whether technology is achieving its public safety purpose and whether civil liberties protections are being followed.
  4. There must be clear consequences for violating surveillance rules and policies. This should include exclusion of evidence in criminal prosecutions, potential termination of anyone engaged in misconduct, fines against the offending agency, and civil rights actions. 

 We can be safe and free, and we must insist on it now. 

This post is part of a series exploring what we have learned about the DOJ surveillance of Black Lives Matter in Oregon. Click here to see all of our posts on this topic.

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Melvin

This must be why the FBI raided my house a week ago. They said they had been monitoring my Facebook Messenger conversations about organizing the anticapitalist march in Seattle. They now have my laptop and cellphone and won't give them back to me, even though I have broken no laws at all. They said that they had a right to raid my house, because I might break a law.

Anonymous

Pretty sick man. Where is your community support network when you need them? If they're not there for you it's time to wake them up. Where do you live? Don't be afraid to engage your state reps/senators wherever that may be. If they aren't helpful & your cause is righteous at least you've identified who's 4 real and who's not, part of a solution or part of the problem.

Anonymous

I am sorry, but this article is silly.
If you are posting something online for the public to see, facebook, instagram, etc, of COURSE people are going to see it. It is public.
There is no privacy on the internet.
So a tool that makes it easier to find said comment is in no way a threat for free speech.

Anonymous

Not all post are public. Many, if not most people change their privacy settings so that only their friends can see them. This is much like sending someone a chat message. There IS a certain expectation of privacy. If the FBI uses a blanket warrant and a backdoor in Facebook to scoop up all posts, including private posts, then yes it's a violation of the 4th amendment.

Anonymous

Is it possible that using a tool like this, whose authors by the way are not forthcoming with WHOIS data for their domain, may violate the Terms of Service of social media services, by operating a spidering tool without authorization? See the notice at the beginning of m.facebook.com/robots.txt

AnonymoFreedom ...

We must protect our freedom, even if this is not an I.date risk.
It sounds like Minority report, the late 90s movie.
Just like president Obama went A step way to far, when he said people would get mentalp they needed..
Meaning it would be forest, and abusers would use it to freely abuse children, and adults.
We must make a stand while we can.
America an must be free forever.

Anonymous

Simple solution publicly fund elections with a TWIST...all candidates gets the same amount of money to spend.... when one runs out and asks for more then ALL get the same amount.... no more fundraising you are there to work and make america better!!!! ....so its one or the other.....people like Trump can spend all he wants of his own money because the government will tax it anyway and he can put more people to work right now.... or go the public finance route...

Gail

Wow. ACLU has sure become wimpy on privacy matters. Too sad. Step up your game! You know.....like back in the 60's!!!

Anonymous

I'D REALLY LIKE TO TELL YOU TO FUCK OFF -- BUT I WON'T. I'LL JUST SAY ... SCREW YOU !! NEWS FLASH !! WE WANT SURVEILLANCE OF ANYONE WHO IS SHARIA COMPLIANT, AN ISIS SYMPATHIZER & JIHADIST. ANYONE CONSPIRING AGAINST AMERICAN CITIZENS ON OUR OWN SOIL ... IS A VIOLATION OF "OUR" CIVIL RIGHTS. YOUR IDEOLOGIES ARE IRRELEVANT AND YOUR "PC-ASS" CRAP MEANS NOTHING. YOU'RE NOT IN CHARGE ANYMORE. WE ARE.

ScarletStorm

Who is this 'WE' of whom you speak? You got a mouse in your pocket? And, by the way, YELLING does not get your point across more effectively. In fact, it does just the opposite. You're confusing civil rights with political correctness. Those are two different things. Oh, why do I bother? You probably think you can 'seig heil' people into submission to your ideology. You're ridiculous.

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