Privacy Framework for Monitoring Social Media Professor Peter Swire Ohio State University & Future of Privacy Forum National Academy of Sciences Public Response to Alerts & Warnings Using Social Media February 24, 2012

Two Perspectives on Government Watching Social Media It’s Public. – People have posted on FB, Twitter, blogs, etc. – Of course the government should be situationally aware – It’s good to use modern information tools to learn and respond to crises

Second Perspective It’s creepy. Ich. – The government reading/scanning/analyzing all of that stuff on social media? – Part of my permanent record? – Creating a “Terrorist Risk Score” or “Political Opponent Risk Score”? – 1972 Democratic Convention Levi Guidelines, Privacy Act, FISA

Overview Constitution: 4 th Amendment – Public – Consent Statutes – Privacy Act, Wiretaps and Stored Records Subset of legal actions – What is good to do

My Background Moritz College of Law, Ohio State Future of Privacy Forum project now on government access to personal information , National Economic Council , Chief Counselor for Privacy, OMB

4 th Amendment Warrant, with probable cause – No unreasonable searches or seizures – Clear limits on entering an individual’s house, car, etc. – Social media, though, don’t require a search warrant to see

“In Public” Major reason that is OK for government to look at social media – Can read newspapers – Can follow an individual down the street – Not a “search” or “seizure” – A foundation of DOJ/DHS actions for years

Jones GPS Case & “In Public” Supreme Court, 9-0, said warrant needed to put a GPS tracker on a car – Car “in public” – Majority emphasized physical attachment – Four or five justices questioned whether “in public” is enough to make surveillance OK – “Mosaic” theory and what are the limits on government surveillance

“Consent” Exception to 4 th Am. Another foundation of 4 th Am: individual can consent to a search or seizure – You can agree to have the cop enter your house Social media and individuals have consented – “User generated content” posted by users! – Users have “opted in” to posting blog, Twitter, many posts on Facebook So, consent has been given!?

Was It Really Consent? Bellovin study – Vast majority of FB users did not have their settings the way they thought they were – Widespread misunderstandings More generally – Fraction of people who think posts on FB are going to the government? – Has there really been consent to that?

Statutes: The Privacy Act Privacy Act of 1974 – Agency, such as DHS, issues a System of Records Notice – DHS has done so for situational awareness – Law does place limit on sharing with other agencies – If procedures are followed, not strict constraint on data collection and use

Statutes: Wiretaps Strict limits on government interception of phone calls – Extra-strict search warrant – Content of private communications very sensitive Doesn’t literally apply to reading public posts, but shows sensitivity of reading content

Statutes: Stored Communications Stored Communications Act applies to records held by a third party – Would apply if you subpoena FB, Twitter for records Medium level of strictness to get data Shows medium level of sensitivity for content of stored records

Statutes: Pen Registers This is the to/from information – Who you called, texted, ed Pen register – the ones you sent to Trap and trace – the ones who sent to you Needs judicial order, but easy standard to get This routing information not as sensitive – But, very useful to law enforcement – Friends list on FB

Current Mystery: Location Information Split in lower courts now whether need a warrant to get a person’s cell phone location information Big battle brewing Sensitivity of location – Cell phone and track a person in unprecedented ways – Pictures posted to Net often have time/date/place

Subset of What is Legal Not everything legal is good to do – You know this – you teach it to your kids Current DHS self-restraint – Basically, monitor public officials and traditional media types on social media – Careful not to track individuals – FBI tracking words (bomb) but not people That didn’t prevent painful hearing last month

Tests for What is Good to Do Friends and family test New York Times test

Conclusion Achieve these goals – Follow the constitution and the law – Do what is good to do – Be alert to the risk of undermining a good program by creeping people out And – Use new tech effectively