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Monday, June 23, 2014

O'Connor on Cops, Gangs, and the Internet

James R. O'Connor has posted Asocial Media: Cops, Gangs, and the Internet (42 Hofstra L. Rev. 647, 2013) on SSRN. Here is the abstract:

Criminal street gangs are not a new phenomenon in America, but recent developments in technology and social interactions have changed the game -- gangs are increasingly using social media to accomplish gang objectives and commit crimes. This is no secret to law enforcement. In fact, police departments and prosecutors regularly use the Internet and social media networks to obtain incriminating evidence against gang members -- evidence that is often ruled admissible in court. Although the majority of the information seized in these investigations is highly personal and profoundly private, the details of the government’s specific data-collection and data-storage practices remain shrouded in secrecy due to a glaring lack of regulation and transparency.



Such clandestine government policies create a slippery slope -- one that could potentially transform the American society into a dystopia. Law enforcement is not necessarily breaking any specific laws through its current investigative and data-mining practices. But perhaps it should be.

This Note argues that law enforcement is properly using social media to investigate active cases and past crimes, and, when brought to its attention, to prevent imminent crime. However, law enforcement is dangerously toeing the line of constitutionality by collecting the personal data of non-suspects (and their purported affiliations or associations with a gang), and congressional guidance is needed to monitor these Orwellian practices. 

Accordingly, this Note focuses on the government’s unregulated digital surveillance of suspected gang members and their associations, and the potential chilling effect that such practices may have on the First Amendment rights to free speech and association.Specifically, Part IV.A asserts that the current shadowy state of the law regarding law enforcement’s investigations and data-collection procedures leads to unbridled surveillance practices that lurk precariously close to the point of violating the Constitution. To prevent constitutional violations and the ensure that digital evidence remains admissible, Part IV.B proposes a federal statute that requires uniform reporting procedures for social media that would allow evidence of gang-related crime to be communicated to the administrator, who would then be directed to follow internal procedures and potentially notify law enforcement if the evidence of a crime is credible. But social media networks’ policies must be clear, which the proposed legislation will ensure.

The proposed statute further grants law enforcement the positive authority to collect data from social media administrators and the individual users’ ISPs, if there is probable cause to believe that a crime has occurred, or there is a reasonable probability of "imminent lawless action." The statute explicitly prohibits data-collection based on a user’s mere affiliation or association with a gang or gang member. This comports with the freedom of association, and, thus, the statute should be upheld if challenged on such grounds.

http://lawprofessors.typepad.com/crimprof_blog/2014/06/oconnor-on-cops-gangs-and-the-internet.html

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