POLICING THE INTERNET

There’s a strong new influence on the outcome of violent police encounters: Facebook

On Aug. 1, Baltimore police officers knocked on the apartment door of 23-year-old Korryn Gaines in an attempt to serve her an arrest warrant. Gaines resisted, reportedly threatening officers with a shotgun as she sat on the floor with her five-year-old son in her lap. To document the encounter, she posted footage of the hours-long confrontation on her Facebook and Instagram accounts.

As events unraveled and before police shot and killed Gaines, they asked Facebook to suspend Gaines’ accounts on both platforms. They said users were egging her on not to give in during their negotiations. Facebook complied with the request and anyone watching Gaines’ feed found themselves cut off.

 The suspension of Gaines’ accounts has raised a number of troubling questions about the relationship between Facebook and the police. Since then, the suspension of Gaines’ accounts has raised a number of troubling questions about the relationship between Facebook and the police as well as law enforcement in general. Facebook, like AT&T, Verizon, and other communications companies, often provides law enforcement with information, when asked or prompted by a court order or subpoena. But in an era when people are using social media to document their fraught, and even deadly interactions with police, shutting down an account means taking control of the narrative—and inevitably affecting the way events play out on the ground. Facebook has become an arbiter of the outcome, and the stakes could not be higher.

The citizen-user

Activists have increasingly employed social media as a way to reveal and document police brutality. When Philando Castile was killed by police in Minnesota, his girlfriend Diamond Reynolds used her cellphone to broadcast the aftermath on Facebook’s live-streaming feature. Castile can be seen bleeding to death in the front seat of his car as Reynolds streamed her video. The footage sparked a national outrage and the entire incident is still under investigation.

Cutting off an account or otherwise controlling social media access thus becomes a strike against those fighting police abuse. The police then “control the narrative, but in controlling the narrative they have to control social media, because it’s our narrative,” Baltimore activist Duane “Shorty” Davis told The Guardian, referring to Gaines’ shooting. “To keep our message from getting out, they’re going to take [social media] out.”

Facebook has become part of the censorship machine, activists say, with little insight into how the company makes its decisions. Following the Gaines shooting, SumOfUs, an activist group that says its mission is to “counterbalance the growing power of large corporations” posted an online petition that has gathered more than 60,000 signatures calling for the company to explain and clarify its practices. “If Facebook simply complies with police requests to suspend broadcasts and accounts, it will be shielding police misbehavior from the public,” the petition reads.

 Facebook has become part of the censorship machine, activists say. Separately, when Gaines’ accounts were reactivated, Facebook took down some of the footage. A Facebook spokesperson told Quartz that the materials violated its global community standards, which prohibit depictions of threat of physical harm.

A complicated tool for law enforcement

Social media can certainly be a useful source of information for police: for instance, to put a suspect at a certain place at a certain time. But it can be a double-edged sword. Baltimore County police say social media was directly interfering with their work. In Milwaukee, where violent protests erupted Aug. 13 after police shot and killed an armed suspect, Mayor Tom Barrett said the uprising was driven by social media messages instructing people to congregate in the area.

In Baltimore police chief Jim Johnson said at a press conference that police asked Facebook to suspend Gaines’ account to “preserve the integrity of the negotiation process.” He added that because her followers were encouraging Gaines not to comply with negotiators, it was a clearly an “exigent circumstance where life and serious injury were in jeopardy.” To suspend the account, police filed an emergency request with Facebook; it was the company’s decision to take Gaines’ account offline, which it did after nearly an hour.

This is not how law enforcement likes to proceed, however. “Any time law enforcement feels that we are legally entitled to do something—to gather evidence, to mitigate the risk to human life—but we cannot do that ourselves, but are instead dependent on third party… that raises concerns with us,” said Richard Littlehale, an assistant special agent at the Tennessee Bureau of Investigation. “I believe they don’t have the expertise, they don’t have the information, they don’t have the perspective.” 

Littlehale, who testified before the Senate Judiciary Committee last year on the related matter of gathering digital evidence, spoke to Quartz on behalf of the Association of State Criminal Investigative Agencies.

He said that law enforcement is in the “best position” to make decisions in such emergency situations, because they are the ones “responsible for resolving that situation.” Of the communications companies, he said: “I believe they don’t have the expertise, they don’t have the information, they don’t have the perspective.”

Facebook as the decision-maker

Facebook is opaque about how it responds to requests from law enforcement in the event of an emergency. A spokesperson told Quartz that Facebook, like Google and Apple, decides how to respond on a case-by-case basis. The company has teams of people who handle these cases; they include employees from the company’s legal department. The spokesperson wouldn’t say how many times Facebook had suspended an account after being asked—or whether it ever had done so.

In its publicly posted guidelines for law enforcement, Facebook says that it will grant emergency access to information if there is “imminent harm to a child or risk of death or serious physical injury to any person.” It does not specify its process of evaluating requests to suspend an account, which the spokesperson confirmed to Quartz would fall under such an emergency information disclosure request.

A report on government requests from the company says that in the most recent available time period (July 2015-December 2015), Facebook received 855 “emergency disclosure” requests and granted 73.45% of them–but this refers to all kinds of requests, such as obtaining information from user accounts, not just suspending accounts.

That is a small number compared to the 14,858 emergency data queries that AT&T received from law enforcement during the same period. Facebook statistics dating back to 2013 show that the company is getting–and granting–more and more requests every year.

The bigger picture

Gaines’ shooting and the way it played out on the ground and online is perhaps a unique incident, but as social media takes on a bigger role in how we communicate, it could be a harbinger of similarly complex situations. “We would encourage Facebook to have clear policies, have them be transparent, open to the public and implement them in a consistent fashion,” said Sophia Cope, a staff attorney for the Electronic Frontier Foundation (EFF).

 The Gaines shooting was unique, but it could be a harbinger of similarly complex situations. Digital rights advocates such as the EFF, would rather have social media companies impose their restrictions sparingly, particularly when they cooperate with law enforcement, in order to “respect the fact that people are using these platforms in situations that are very serious and potentially very dire,” Cope said.

While Cope acknowledged that Facebook wields significant power in a situation such as the Gaines’ shooting, she said that it’s better if the company is able act as a check on the government’s authority rather than an enabler. “From our perspective, we are concerned when the companies have no discretion because of the potential abuse by law enforcement,” she said.

Battle in Congress

Meanwhile, a larger debate about the relationship between internet communication companies and law enforcement has been playing out in Congress. Proposed legislation updating the 1986 Electronic Communications Privacy Act would, among other things, limit law enforcement’s ability to obtain electronic communications without a warrant (the discussion does not refer to suspending accounts). Law enforcement representatives have pushed back, arguing that the current law already hinders their ability to catch criminals. Obtaining digital evidence in an emergency situation is harder for law enforcement than in physical world, they say. 

Testifying before the Senate Judiciary Committee, Littlehale said that the legal process of obtaining electronic evidence severely impedes his work. He spoke of “routine turnaround times measured in months, the inability to speak to a human being about your case in a timely manner, uneven access to records in emergencies.”

Littlehale told Quartz that obtaining digital evidence in an emergency situation is harder for law enforcement than in the physical world. Police operate under broad authority when under exigent conditions–if they believe someone’s life is endangered, or that evidence could be destroyed, they can, for instance, break down a door without prior special authorization. If someone questions their actions, Littlehale said, there is “an existing and extremely well-developed mechanism for them to challenge it”—in court.

“What’s different now is that it is not within their power to do so,” he said. There is no breaking down digital doors without permission from these private companies.

The bill updating the 1986 act passed with bipartisan support in the House of Representatives in April, but it is stalled in the Senate Judiciary Committee, where several senators want to tack on amendments to boost law enforcement’s ability to get access to online content.

One of those amendments is a proposal by Republican senator Jeff Sessions of Alabama, who wants law enforcement to always have the ability to obtain information in pressing situations, in so-called “mandatory emergency requests.”

But here, activists argue, lies an inherent danger, a “sinkhole” that would allow government unhindered access to citizens’ private online data without independent oversight. “It creates a new problem where you have law enforcement agencies, from local all the way up to federal asserting that everything is an emergency and therefore getting quick and easy access to private content,” Cope said.

One thing is clear. As Facebook, which now has 1.7 billion people actively using its platform, and its social media cohorts continue their torrid pace of growth, the tensions between it and law enforcement are likely to heighten.

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