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Current concern with the federal surveillance of social protests on social media, particularly that of Twitter’s #blacklivesmatter (Joseph, 2015), has coalesced the topics of the Fourth Amendment, civil liberties in a broad sense, and technology into conversation around the scale, scope, and cost of civilian surveillance.
Documents made available by the Department of Homeland Security (DHS) in response to Freedom of Information Act (FOIA) requests underline the nature of this surveillance. Using events surrounding the fatal police shooting of Michael Brown in Ferguson, Missouri, in 2014, as a trigger, the DHS has been collecting information from social media sites in what it terms as an effort to provide “situational awareness” to law enforcement agencies. When paired with the problematic constructions of race in the United States, these actions and legislations erode the personal security of people of color; on the other hand, various lenses of surveillance can also have an empowering effect on their existence.
Undeniably, however, the use of technology to highlight the questionable and often violent actions of law enforcement has brought national prominence to the issue.
There is no doubt that situational awareness through information gathering is a vital process to safeguard against issues of national security and manage specific threats. However, focusing information gathering on mundane, non-violent social protests has made “situational awareness” a euphemism for what Baher Azmy [xix] terms as a way to both watch and intimidate individuals, as well as “an effective way to chill protest movements” (Joseph, 2015).
Citing the United States Supreme Court’s 2012 decision in United States v. Jones, in which GPS surveillance was found to be warrantless and a violation of Fourth Amendment protections, Bankston and Soltani (2014) have argued that “if the new tracking technique is an order of magnitude less extensive than the previous technique, the technique violates expectations of privacy and runs afoul of the Fourth Amendment.” In response to shifting technological and social mores, this equilibrium adjustment, essentially, prescribes the entrenchment of Fourth Amendment rights (Ohm, 2012).
Rather than forcing individuals to sacrifice their liberties as technology expands the breadth of law enforcement’s capabilities, new limits should be placed on the scope and accountability of such surveillance. For example, the NYPD’s current practice of social media monitoring has been described as a virtual stop-and-frisk (Hackman, 2015). Although the NYPD is casting a wider net, these probes are largely informed by prejudices of color, religion, and socioeconomic status (Hackman, 2015). In fact, 48% of all evidence found in New York City indictment documents was attributed to social media activity or communication (Lane & Ramirez, 2016).
First, the racial nature of social media policing is implicit in Commissioner Raymond Kelly’s comment on the efficacy of Operation Crew Cut, the code name of the NYPD’s initiative to monitor gang members’ social media presence. Commissioner Raymond Kelly claims that “strategic enforcement and proactive policing combined with strong prosecutorial partnerships, including attention to the new battleground of social media, have resulted in lives being saved in New York City, mostly young minority men” (New York Police Department, 2013).
On the surface, this is a commendable achievement, but the NYPD’s rhetoric omits an important factor: this success is both the result of surveilling communities of color and using social media links and interactions as the basis for drawing conclusion on the existence of real world relationships between members of these communities. This latter point is particularly troubling, as it has led to the indiscriminate criminalization of many young men of color who simply communicate or sympathize with young people on these watch lists. Additionally, Operation Crew Cut, which has resulted in the NYPD quadrupling its gang division (from 150 officers to 600 officers), came into effect when shootings and homicides were “lower than at any time in the four decades since crime statistics have been maintained” (Howell, 2015).
Commissioner Raymond Kelly also stated that, at Operation Crew Cut inception, issues in the City were not due to “established gangs such as the Bloods and Crips”; rather, it was due to “looser associations” of individuals who were organized based on neighborhoods and blocks (Parascandola, 2012). The influx of police resources did nothing to stunt the crime in the City (Howell, 2015), as the NYPD was already actively collaborating with the District Attorneys and federal prosecutors to learn more about these crews (Parascandola, 2012). Thus, the notion that increased surveillance was necessary operates merely as a façade for police enforcement to erode the rights of swaths of minorities. Such programmatic implementations are often described as creating a sense of “moral panic,” wherein police officials commercialize supposed rises in gang-related violence to both obtain new resources and, more importantly, to pass legislation that would otherwise be impassable (Howell, 2015). In examining the statistics of the ethnicities categorized in the NYPD’s Gang Database, as of August 2013, a mere 1% of the 20,000 individuals were Caucasian or White (Goldstein & Goodman, 2013). These numbers do not adequately reflect the commonly accepted theory in social science scholarship that it is common for Caucasians or Whites to account for a statistically large portion of gang members in the United States. Despite a turnover in leadership, Mayor Bill de Blasio has maintained Operation Crew Cut’s prominence and force (Goldstein & Goodman, 2013). Thus, the real question concerns what, if any, limitations are placed on the NYPD and other enforcement personnel in the United States? How far is too far in an age where “national security” is heralded as a license to, in a sense, broadly trample the rights of minorities?
Second, in Raza v. City of New York, a June 2013 action filed in the US District Court for the Eastern District of New York challenged the constitutionality of the NYPD’s discriminatory surveillance of Muslim individuals and communities in the City (American Civil Liberties Union [ACLU], 2016). The plaintiff claimed that the surveillance of Muslims and Muslim institutions by the NYPD has placed an unwarranted suspicion on all people of the faith: one that other religious groups have yet to face. The scope of this surveillance, as outlined in the suit, seems to highlight an inherent cultural distrust that it then reinforces. More specifically, the American Civil Liberties Union (ACLU) claims that such actions are violations of “the 14th Amendment’s Equal Protection Clause, the First Amendment’s right to the free exercise of religion and guarantee of neutrality toward all religions, and the New York State Constitution” (ACLU, 2016). Further troubling is that any validation of the NYPD’s conduct provides a “dangerous justification” for other enforcement techniques that operate under such narrow-minded, unjust constraints (Chowdhury, 2015).
The NYPD’s actions are part of a broader issue of unaccountable surveillance, as their actions were largely supportive of the Central Intelligence Agency (CIA)—an organization which faces minimal oversight restrictions (Apuzzo & Goldman, 2011). While the United States Supreme Court has recognized various exceptions to searches in the absence of a warrant, such exceptions are granted if there exists reasonable suspicion (e.g., Terry stops). However, merely exercising searches based on an individual’s race or religion does not fall-in-line with precedent. Such tactics provide a blurring of the lines “between ethnic and religious profiling and the Fourth Amendment’s ‘reasonability’ requirement” (Chowdhury, 2015).
The act of categorizing centers of worship and focusing searches on solely large sects of Muslims “initiates a debate on ethnic and religious profiling, which Courts have found closely parallels the complex discussion on racial profiling” (Chowdhury, 2015). In light of precedent, such as Korematsu v. United States, where the United States Supreme Court upheld that “public necessity” validated curtailing the rights of the Japanese (which, in conjunction with Plessy v. Ferguson, another race-related case, are viewed as some of the Court’s most heinous precedent), law enforcement and other personnel must be careful to ensure that, as a society, we do not permit such injustices to occur.
Sadly, there does not appear to be a reduction in law enforcement’s use of such questionable tactics. The possibility of regressing to a Korematsu-era mentality is shockingly evident in the September 2015 arrest in Texas of 14-year-old Ahmed Mohammed for bringing a homemade clock to school. Such an arrest is but the most recent national example of the bias that Raza addresses (Fernandez & Hauser, 2015). Thus, despite decades of advancement, is the American government embracing and mirroring a mentality propagated during World War II? Even if the NYPD’s program is found not to be on the same-level of such an extreme, the actions of law enforcement undeniably perpetuate an “extremely intrusive and comprehensive system of documenting and watching an entire minority community based on nothing but their religious affiliation” (Chowdhury, 2015).
Third, the story of Jelani Henry is another demonstration of racial profiling in digital policing (Popper, 2014). Henry, a young Black man from Harlem, found himself incarcerated in Rikers Island prison for 19 months—including 9 months in solitary confinement—due to social media associations that, in the eyes of New York City law enforcement, made him a criminal affiliate. Henry became a person of interest due to his Facebook activity and his brother’s gang involvement (Broussard, 2015). Jelani was arrested in 2012 at his girlfriend’s apartment in the Bronx for two counts of attempted murder. Just weeks before his arrest, a young woman was spat on by members of a local Harlem crew and the following day, individuals from the opposing crew shot the spitter and others to retaliate.
This entire scene took place just two blocks from Jelani’s home. At the police station, Jelani was questioned about his connections to the Goodfella’s gang. He stated that individuals in that gang were his friends, but he did not participate in their activities. Although Jelani had never been convicted of a crime, the District Attorney labeled him a known member of a violent gang and pointed toward his pictures and “likes” of Facebook posts from Goodfella’s gang members.
Charged with two counts of attempted murder along with other lesser charges, Henry faced up to 40 years in prison in a trial that never came. When offered a plea deal, Henry refused and the Manhattan District Attorney’s office later dismissed the charges without explanation. While the charges were ultimately dismissed, Henry and his family failed to receive any compensation for the wrongful incarceration (Gendreau, 2016). In examining Henry’s case in light of the way gang-involved youth in Chicago use social media, it is evident that law enforcement struggles to understand the various contexts of online communication, and instead assume deviant behavior—an example of “conxt collapse” (Patton et al., 2016).
Rather than relying on the binary logic of databases (Broussard, 2015), police efforts would result in less discrimination if databases were used “to find a clearly identifiable suspect” (Behrman, 2015). Before proceeding based on a database “hit,” officers should be required to produce information that is more specific, determine a motive, or “look for other inculpating information” (Behrman, 2015). Current efforts, such as Henry’s case, are representative of law enforcement’s too frequent use of generalizations and over-intrusive tactics to surveil minorities.
Researchers have argued that the threat of being surveilled plays as significant a role as actual surveillance in affecting the way we behave (Bentham, 1995; Foucault, 1995).Flashing a gang sign on Facebook may be a young man’s way of joking with friends, proclaiming solidarity or neighborhood affiliation, or harmless posturing. An inherent danger in social media interactions, however, is the issue of the aforementioned context collapse where, in the absence of the cues that frame face-to-face interactions (e.g., physical expression, tone of voice, or conversational context), messages may be misconstrued.
In its use of the social media activities of young men of color as the basis for conspiracy charges (O’Connor, 2013), the NYPD has been shown to be treading heavily on their civil liberties (Rakia, 2015). Whether such individuals are convicted or merely arrested in suspicion of criminal conduct, it is highly difficult to facilitate a process of rehabilitation. The often unwarranted and unredeemable broad label of “criminal” is a stigma that is hard, if not nearly impossible, to shed.
This has a particularly profound effect on certain minorities who are already faced with difficult socioeconomic stressors and racial stratification. Thus, victims of unwarranted police probing are faced with devastating short- and long-term issues in a system that provides little support. These factors coalesce, propagating a troubling mechanism for suppressing the rights, and arguably future, for many minorities.