Law Enforcement, Wiretaps and Social Networking

Lora Bentley

Last week when I saw this Huffington Post piece on how the federal government uses information posted on Facebook and other social networking sites to gather evidence of fraudulent activity, I thought, "Who needs wiretaps when most people publish more than anyone wanted to know in their status updates?" I'd do the same thing. Monitoring Facebook pages has to be less expensive.than surveillance, right?


This week, The New York Times reports that law enforcement officials, including counterterrorism experts, are lobbying for tougher wiretapping laws. Specifically, they want more incentives for telecom carriers to ensure that advances in technology don't result in network changes that would prevent the government from conducting wiretaps, and they want stiffer penalties for companies that make said changes without regard for the government's ability to wiretap.


Like an attorney quoted in the story says, the government is going to be hard pressed to keep technology from advancing, especially as more and more players enter the telecom space. But if that's the way it plays out, the penalties are bound to be pretty high. The carriers will have to determine whether the benefit of the advance outweighs the cost of the penalty.


As for my thought on social network monitoring obviating the need for wiretaps, I may have spoken too quickly. The Huffington Post piece addresses one particular agency's use of social networks, not all of law enforcement generally.


Writer Bianca Bosker points to a two-year-old U.S. Department of Homeland Security memo (now posted on the Electronic Frontier Foundation's website) that instructs agents working in the Office of Fraud Detection and Naturalization Services on how to use social networks to check in on those who have applied for U.S. citizenship. From the memo:

Narcissistic tendencies in many people fuels a need to have a large group of 'friends' link to their pages...This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities.


Facebook friending and MySpace visits allow the agents to make the equivalent of unannounced site visits, the memo says, to determine if the facts upon which petitioners are relying to obtain citizenship are in fact true.


The EFF's biggest problem with this approach, it seems, is that FDNS assumes everything posted on one's Facebook or MySpace or other social network is true. But I would not be so quick to decide that's what FDNS is doing.


First, the memo is two years old. Even if that was the government's position then, it may not be the government's position now. Everyone's understanding of social media and how it can be used (for good and for ill - Catfish, anyone?) evolves as the technology itself evolves. Second, even if the government assumes social networking posts are true, I doubt anyone is going to be granted or denied citizenship based on those posts alone. They would simply be one factor, one part of the evidence collected in favor of or against an award of citizenship.

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