The nature and scale of the police use of social media data has been evolving quickly. New technologies and industries have sprung up to support innovative explorations into social media supported surveillance, profiling and prediction. Despite these techniques raising privacy and social justice concerns, the regulation of police surveillance through social media data has been limited.
Scassa contends that new approaches to transparency are essential for the public to learn as much as possible on how police use social media data for surveillance purposes. Generally, a police search or surveillance via social media involving information considered private requires a warrant. In the case of information obtained through data analytics performed on the substantial collections of social media data held by private companies, it is unclear whether the data searched is public or private. However, many aspects of the data, its ownership and its processing could be considered to be private.
The companies involved facilitate the analysis of publicly available data such as geolocation and posts on social media. For example, data analytics company Geofeedia offered its services to law enforcement after prominent protests against police violence against African Americans, exacerbating a climate of mistrust, racial division, and the sense that authorities surveilled and targeted minority communities. The commercial motivations of social media companies creates risk for activists facing dictatorial regimes in ‘crisis moments’ such as public protests as they have little awareness of or control over the data they contribute to the platform.
A fundamental issue here is the protection of civil liberties, namely the right to privacy and the related rights of free speech, freedom of association, and the right to be free from discrimination. The right to privacy and free from unauthorised surveillance has been the traditional lens for assessing the oversight of law enforcement and national security activities. This lens requires transparency so that unreasonable searches or invasions of privacy can be detected. In the context of social media and big data technologies the oversight requires deeper understanding of the technology.
Scassa observes that law enforcement, policy makers and corporations that work in social media and data analytics are three entities that need to recalibrate the level of transparency that characterizes their practices. She proposes a three-part transparency approach, where a commitment to transparency is baked into regulation over the use of social media data for both public and private institutions, particularly as it concerns the 1) creation of policy, 2) the oversight of those institutions, and 3) in instances of redress. Policies around the acceptable use of services that do not permit invasive uses of the services could be helpful in establishing how these services should be used, however in the case of Geofeedia it was a mechanism for passing responsibility to others. Policies for the police use of data would help assert acceptable use. Despite the difficulties of implementation, some transparency/oversight mechanisms have long been part of the legal framework governing such activities. An approach to transparency for these activities could be to require policy for the transparent operation of the police; the platforms with users about how and what information will be used for what; and developers’ use of platform data. Oversight is required to ensure that police and social media companies comply with their established policies. These policies should be enforced proactively by companies as well as part of a response to revealed problems.
Scassa contends that our current regulatory systems are inadequate, and that individuals still hold a reasonable expectation of privacy in aggregated data obtained through automation. Increased transparency will facilitate better public knowledge about how law enforcement uses social media data. It will also help decision makers devise appropriate limits and oversight regarding the use of social media data analytics in state surveillance and monitoring programs.
Transparency measures for the use of social media data by law enforcement are increasingly important as existing laws and paradigms may be inadequate to address surveillance.