Peter Waldkirch is a second year LL.B. student at the University of Ottawa.
People are clearly displaying more and more of their personal lives for all to see on social networking websites such as Facebook. Whatever one feels about the appropriateness of some of this behaviour, it’s a fact that isn’t likely to go away any time soon. This has raised a host of issues, many of which have been discussed here at IPilogue. Here, for example is Brandon Evenson’s coverage of Prof. Jacqueline Lipton’s talk on privacy and Web 2.0. I wrote about the Privacy Commissioner of Canada’s most recent annual report, which focused largely on privacy and social networks. Billy Barnes wrote about Facebook’s policy regarding deceased users, and Brian Chau has written about privacy theft and social networks. (This is just a sample – click on the “Privacy” link near the bottom of the IPilogue screen, under “Categories”, to find more!) So far, the most prominent privacy concerns have had to do with employment issues (such as pre-hiring online background checks or getting fired for posted content) or the social awkardness of negotiating new norms (the “Facebook creep”). The Electronic Frontier Foundation, however, has launched a lawsuit which hopes to shed light on what may be the most pervasive online snoop of them all: the government.
The EFF’s complaint seeks to compel several US agencies (including the Department of Homeland Security, the CIA, and Department of Justice, amongst others) to comply with the EFF’s Freedom of Information Act (FOIA) requests regarding the defendants’ use of social networking sites as “investigative, surveillance, and data collection tools.” Currently, almost nothing is known about the extent of these uses and what, if any, policies guide them. The lawsuit was prompted not in response to any published policy or regulation, but rather to an emerging body of unrelated newspaper accounts of government use and surveillance of social networking sites. For example, this AP story reports on how an individual accused of fraud was located through Facebook. What’s interesting about it is that Secret Agent Seth Reeg, at least, seems to routinely use Facebook to locate suspects; the article describes the situation as, “the hold-nothing-back world of social networking, where police search Facebook photos for evidence of underage drinking and watch YouTube videos to identify riot suspects.” In another case, the FBI stormed and searched the house of a man who had used Twitter to spread the word of police movements during the G-20 summit in Pittsburgh. The story “Is This Lawman Your Facebook Friend?” is particularly interesting. In it, Police Chief Edward Denmark, “said he would have no reservations about going undercover on Facebook – taking on a fake identity and tricking a suspect into accepting a police department employee as a friend, which would give police full access to the suspect’s online profile.” Although Denmark denied ever having done it before, he says police do engage in undercover Facebook conversations, and that sending a fake friend request would not require any permission or oversight.
In response to stories such as these, on October 7 and 8 the EFF sent Freedom of Information Act requests to various US agencies. None of the agencies have complied to date, far exceeding the 20 day statutory deadline. The IRS invoked the 10-day extension for “unusual circumstances”, but has taken no further action. The EFF is hoping that the lawsuit will compel the various agencies to release how social networking sites are being used, including policy statements or internal guides and manuals. Certainly there are legitimate law-enforcement uses of social networking sites – but as the non-compliance with the FOIA requests shows, right now nobody seems to know anything concrete about what those uses are or if any safeguards are being observed to ensure privacy and due process rights are being respected. Without such knowledge, no meaningful public debate can occur on the proper scope of such activities. Hopefully the EFF will be able to shed some light on the situation.