As social media becomes an increasingly vital part of our lives, governments around the world are struggling to strike a balance between security and privacy. Laws governing wiretapping and surveillance, many of them decades old, often lack clear guidelines for our modern world, and the question of what exactly the government’s allowed to do with our personal information has never been more hotly debated. Facebook posts and Tweets are, ostensibly, public information (although these accounts can, and often are, set to be “private”) – but what about data that shows your location? What about private messages sent through the sites? Two recent lawsuits have once again highlighted the struggle between protecting our right to privacy and authorities’ efforts to keep us safe.
Twitter – a site with more than 270 million active users – sued the U.S. government this week seeking the right to disclose the number of national security requests for user data the company had received. Such information is, controversially, protected under the Stored Communication Act, and last month the Department of Justice responded to Twitter’s attempts to release a Transparency Report by forbidding the company from releasing any data. In essence, Twitter wants to let users know how many National Security Letters and Foreign Intelligence Surveillance Act orders it’s received from the government and FBI over the last few months – a report which, the company says, is aimed at calming users’ fears that too much information is being handed over to authorities. In a painful twist of irony, the government responded to Twitter’s attempt to downplay fears of surveillance by doing the one thing that will fuel those fears: closing ranks, forbidding the release of information, and claiming that its requests for user data are legal, but must remain secret.
Twitter’s lawsuit, which names Eric Holder, Attorney General of the United States, the U.S. Department of Justice, and the FBI as defendants, is not messing around: Twitter claims violations of the First Amendment, writing that:
“The U.S. government engages in extensive but incomplete speech about the scope of its national security surveillance activities as they pertain to U.S. communications providers, while at the same time prohibiting service providers such as Twitter from providing their own informed perspective as potential recipients of various national security-related requests. […]
These restrictions constitute an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern. Twitter is entitled under the First Amendment to respond to its uses’ [sic] concerns and to the statements of U.S. government officials by providing more complete information about the limited scope of U.S. government surveillance of Twitter user accounts—including what types of legal process have not been received by Twitter—and the DAG Letter is not a lawful means by which Defendants can seek to enforce their unconstitutional speech restrictions.”
It’s an interesting situation all around. The government does have a legitimate right to act in secret for the sake of security, and at times this may require, in a modern world, access to personal online data. On the other hand, a government that’s accountable to its people must, ultimately, be willing to have its practices exposed. If the FBI asks Twitter for data, and the whole world knows about it, will individuals who pose a threat simply find other means of communication? Clearly, Twitter has made up its mind, and believes that users have a right to know just how many requests are made, at the very least. The FBI has yet to respond to the lawsuit, but has said it is reviewing the complaint.
It’s not just the government’s access to social media that’s spurring lawsuits at the moment. A woman who had information taken from her cell phone, including photographs and personal information, after a drug-related arrest in 2010, is suing the Drug Enforcement Administration after she discovered a fake Facebook account had been created in her name. The account was used to contact suspects as part of an ongoing investigation into drug distribution, and upon her arrest, Sondra Arquiett is said to have surrendered her phone to officials – something the DEA claims constitutes “implicit consent.” The question now, though, is whether granting access to your mobile device gives the government the right to use your personal information in such a public way. Photographs used by the DEA allegedly included pictures of Arquiett’s son, as well as half-clothed pictures of Arquiett herself. DEA agent Timothy Sinnigen and the Department of Justice are named as defendants in the case, which is due to go to trial next week in New York. Lawyers are seeking more than $250,000 in damages for violations of privacy, violations of due process and emotional distress.
Does she have a case? That remains to be seen, and it all depends on whether you consider the government’s actions as excessive. Officials have already stated that Arquiett "relinquished any expectation of privacy she may have had to photographs on her cell phone" upon her arrest, though the government has admitted that they never received “express permission” to use her images and information in its undercover operations.
Let’s get one thing straight: “implicit consent” is never a sturdy defense. Arguing that implicit consent gives officials a valid reason to use your personal information for its own doings can be a slippery slope. In Arquiett’s case, it’s likely that the trial will focus heavily on whether she consented to the use of her cell phone’s data – and all of that data – or not. If she consented, then the use of her information to produce a fake account may, in the end, be legal. If she never consented, the government may need to pay up.
The world is changing – perhaps faster than ever – and the way we communicate, the way we live our lives, is offering new opportunities and, at the same time, is opening us up to new dangers. Social media seems to have an uneasy relationship with U.S. officials right now – but lawsuits such as these are important. By providing answers to their questions, we clarify, one step at a time, exactly what the rules will be. That’s good for everyone: for individuals, who can use the Internet knowing exactly what is and isn’t safe, and for the government too, which can act within the law, but know there are limits to its powers.
So, what do you think? How much access to your social media information should the U.S. government have? Let us know in the comments below.