Social Media and the Militarization of Our Data

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

​- Milton, Areopagitica, 1644

​The public statements we post on social media are, by definition, available to all. Federal investigators often have good reason to access some of this information from social media, some of the time. How far that power goes is a line for the courts to draw.

However, that line – meaning the First Amendment – is clearly crossed when the government conducts mass surveillance of social media posts not because of a particular suspicion of bad behavior, but to make a case against targeted people.

Taylor Lorenz reports that Immigration and Customs Enforcement (ICE) is building out a massive social media surveillance program. It is searching posts and looking for “speech that, essentially, they feel they can deport people over. They can take lawful, legal speech and convert it into fresh leads for enforcement raids.”

Now add The Intercept’s disturbing report suggesting that ICE is so obsessed with its reputation that it wants to track any “negative” social media discourse directed toward it.

Such a program would scrape a user’s internet history and associations, then use facial recognition to create a dossier composed of a “photograph, partial legal name, partial date of birth, possible city, possible work affiliations, possible school or university affiliation, and any identified possible family members or associates.” Not to mention the possible infringements of the First Amendment. Such surveillance programs deter people from expressing certain ideas. This is precisely the kind of content-based restriction and viewpoint discrimination that courts often treat as presumptively unconstitutional.

Nor should we forget about the right to associate for expressive purposes. Without an utterly compelling justification, government actions cannot “burden association” (in this case, citizens sharing a discourse of critique against the government). Thinking of social media as an electronic sidewalk might help here, making the removal of anti-government apps akin to clearing sidewalks of speech the government doesn’t like.

To quote Taylor Lorenz again, all this amounts to a “mass, automated digital dragnet.” And few acts of surveillance are more anti-constitutional than warrantless dragnets. Dragnets are a symptom of policy enforcement inspired by animus to speech and activism. From a First Amendment perspective, this looks like retaliation. And the fact that social media seems to be increasingly used as the basis of crackdowns amounts to what Lorenz calls the gradual “militarization of our data.”

We live in an era in which our digital and physical selves have become indistinguishable. Government monitoring our social media and internet presence 24/7, then using it to profile us, enables government regulation of speech. Add ICE’s new capability to track us by our location histories, and we have a system not far from tapping phones or raiding homes.
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Whether the government’s intrusion is analog or digital, it harms free speech.

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