Social Media Surveillance of the Black Lives Matter Movement and the Right to Privacy

Following the publicized police murders of George Floyd, Breonna Taylor, and other Black Americans, there was a nationwide resurgence of Black Lives Matter protests in the summer of 2020. As community members organized marches and other forms of civil disobedience on social media, notably X (formerly known as Twitter), organizers grew concerned that law enforcement officers were using X as a medium to collect information on these protests. Specifically, they claimed that the information would be used in order to arrest participants or quell protests via social media surveillance. Surveillance is “the act of observing another in order to gather evidence” and is a frequent method used by law enforcement to gather evidence for an investigation. [1] With the fears of covert surveillance via social media, Black American community members are now concerned about their privacy rights when engaging in protest, assembly, and expression–acts protected by the First Amendment. Law enforcement’s utilization of X and digital data from other social media sites as a form of surveillance should be considered a violation of the Fourth Amendment’s right to privacy of protestors.

The history of privacy within the United States’ federal legal system is complicated, as neither the Constitution nor Bill of Rights explicitly express a right to privacy. However, from Griswold v. Connecticut (1965) which concerned freedoms for contraception use without government interference, the Supreme Court found that a constitutional right to privacy exists within the  “penumbras,” or shadows, of protections provided by the Bill of Rights. [2] Griswold’s precedent for other privacy-related Supreme Court cases, like Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), made it a landmark case for privacy in various realms of American life, including the beliefs and private information that protestors are trying to protect.

Of all the amendments containing penumbras of privacy protections, the First Amendment also helped to create a precedent for protections for activists. The First Amendment was a pivotal tool for Black activists during the Civil Rights Movement, but the Civil Rights Movement was also a pivotal time for expansion of activist protections (e.g. libel, organization, assembly, and petition). [3] However, civil disobedience, which is defined as “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies,” is not protected by the Constitution. [4]

Though there are protections for both privacy and activism, these protections have developed a lacuna in the modern era. Social media has changed political communication and contributed to the mass mobilization of contemporary social movements among decentralized groups. Moreover, organizers now use social media platforms to fundraise, share stories, and spread awareness by creating community around specific causes. Promoting justice via social media has made boosting protests, platforming live experiences, and coordinating community responses faster and far more accessible.

The Black Lives Matter movement has transformed from an online community to combat the intersection of anti-Black racism and police violence to a movement that has physically organized and mobilized, even becoming a distinct organization. Pew Research reports: “On Twitter’s 10-year anniversary, the site published a list of the most used hashtags related to social causes…#Ferguson was the most used social-issue hashtag in the 10-year history of the platform, while #BlackLivesMatter was third.” [5]

As previously mentioned, law enforcement cannot conduct surveillance by electronic or physical without constitutional limitations. The Fourth Amendment, a form of civilian surveillance protection, protects individuals from unreasonable searches and seizures. Because electronic surveillance is also considered a Fourth Amendment search, probable cause to justify surveillance, the activity being surveilled, and a time frame for the surveillance must be established. [6] Another surveillance limitation is 1986’s Electronic Communications Privacy Act (ECPA), which both oversees electronic surveillance and protects those targeted by electronic surveillance that violates the law. [7]

However, the emergence of social media has complicated constitutional privacy. For example, Memphis police infamously gathered domestic intelligence on demonstrators and activists to suppress the exercise of free speech and assembly. In 1976, ACLU-TN procured the United States’ first court order prohibiting the upkeep of domestic intelligence units intended to surveil First Amendment activities. In early 2017, the City of Memphis released a police escort list for City Hall, including the names of individuals who had participated in protests and rallies. Because numerous listed people “had no criminal record or history of causing disturbances at City Hall,” four individuals called for legal action in federal court and were eventually joined by ACLU-TN, alleging that Memphis violated the consent decree. [8] On October 26, 2018, the judge ruled that the Memphis police department had in fact violated the 1978 consent decree by “engaging in surveillance of the protected political activities of activists and sharing information gathered with other law enforcement agencies and private companies.” [9]

Notably, in 2016, the ACLU of Northern California also revealed knowledge of numerous public records showing California law enforcement agencies “secretly acquiring social media spying software that can sweep activists into a web of digital surveillance.” [10]

There is currently no legal framework to dictate the monitoring of social media. Few people have been indicted on “charges of incitement to riot” only from sourced social media posts, but this is considered “an aggressive approach to prosecution” by legal experts. [11] By searching on these platforms or making undercover accounts, the FBI has successfully infiltrated activist groups. The Anti-Riot Act of 1968 makes "traveling in interstate commerce...with the intent to incite, promote, violently further, participate, and perpetuate a riot” a felony. The Act reemerged in mainstream conversations after former Attorney General William Barr threatened to use the provision against those involved in civil unrest following the police murder of George Floyd. It has now been narrowed by the Fourth Circuit, which unanimously found that “language in the Anti-Riot Act that makes it a crime to ‘encourage,’promote’ or urge a riot is unconstitutionally overbroad because it encompasses speech protected by the First Amendment.” [12] Moreover, the interpretation of the Act over time has been criticized for making a false equation argument between organized protest and organized violence.

These false equations disproportionately harm marginalized communities, especially communities of color. Due to a lack of contextualization and frequent misinterpretation of social media language and usage, communities of color are more likely to experience social media usage being mistaken for incriminating activity. [13] Regulatory controls now need necessary updates to protect civil liberties and civil rights pertaining to public safety and the right to privacy, free expression, and equal protection under the law. Courts usually hold that public shared online data are not considered under a recognized expectation of privacy. However, some judges have started to consider that privacy is not an absolutist term for secrecy. [14]

Moreover, a majority opinion written by Supreme Court Justice Antonin Scalia noted in Kyllo v. United States (2000) that a Department of the Interior agent’s usage of a thermal-imaging device to scan Kyllo’s triplex for evidence of marijuana growth violated the Fourth Amendment. This violation was determined since the government agent used “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." [15] Generally, if and when digital tools are used by law enforcement to gain access to information that would usually otherwise require a warrant, usage of that tool also requires a warrant.

On the other hand, in People v. Harris (2012), the appellate court wrote that “If you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy.” [16] Due to the “third-party doctrine,” if data is shared with a third party, it is a reasonable expectation that the data can be disclosed to the government. [17]

However, in Hassan v. City of New York (2015), the Third Circuit ruled that if “discriminatory government monitoring dissuades individuals from exercising their constitutional rights,” then they can challenge this surveillance in court. Additionally, if there is a racial or religious bias, or retaliatory intentions for exercising First Amendment rights biasing the surveillance, then individuals can also challenge it, whether or not said discrimination was negatively motivated. [18] For Black Lives Matter activists, Hassan v. New York could set a precedent for challenges against surveillance that specifically targets racial groups and causes legitimate harm based on the First or Fourteenth Amendments.

These trends of law enforcement tracking First Amendment-protected activities without oversight generates concern amongst civil society organizations due to the development of multiple “recent reports of targeting and surveillance of Black protesters and activists, family separation protests, and border groups by the FBI and Department of Homeland Security.” [19] According to the Brennan Center for Justice, most communities are not privy to the methods with which law enforcement agencies track their online activity, with 70% of responding police departments claiming the usage of social media for evidence collection. [20] Compared to in-person surveillance, verification of identity is significantly difficult because mass surveillance is enabled, and the adoption of multiple personas is possible.

In response to police tactics such as social media surveillance from 2020’s Black Lives Matter protests, federal courts should expand Fourth Amendment protections to digital data to prevent governmental overreach. Police departments, like the Long Beach Police Department, are also starting to request footage or photo evidence of “criminal activity from recent civil unrest incidents'' from the public. [21] The Fourth Amendment “limits law enforcement’s access to information that citizens would reasonably expect to remain private in the absence of a warrant or court order;” Carpenter v. United States (2018), for example, expanded Fourth Amendment-based privacy protections to historical cell phone site location information records, which can locate people using mobile tower data with a specific time frame. [22] Though it is argued that this data is considered public domain or the circumstances (e.g. protests) produce no reasonable expectation of privacy in public places, advocates worry about the disproportionate and discriminatory potential of these tactics against marginalized groups advocating for social justice.

Furthermore, policies such as qualified immunity states that law enforcement officers cannot be tried for unlawful conduct, “including the use of excessive or deadly force, unless the person suing proves that: the evidence shows that the conduct was unlawful; and the officers should have known they were violating ‘clearly established’ law, because a prior court case had already deemed similar police actions to be illegal.” [23] The abuse of qualified immunity, especially in cases pertaining to police brutality, as well as the Court’s history of permitting covert online surveillance is evidence that law enforcement officers are not held to firm standards when gathering evidence. Enabling police officers to violate a person’s rights without being held personally responsible, then, validates the protestors’ fears of having their privacy invaded while organizing on social media under their constitutional right.

Beyond local law enforcement, the Department of Homeland Security (DHS) already utilizes social media data to make traveler risk and terrorist threat assessments. DHS’ increased use of social media monitoring tools further raises concerns relating to privacy and speech, especially for marginalized groups. DHS has used social media to surveil protests, including Black Lives Matter protests, protests “against the Trump administration’s family separation policy,” and other anti-Trump demonstrations. [24] Government surveillance of social media activity and interpersonal networks can influence what people say and whom they interact with, censoring their speech and association, and thus violating the Third Circuit’s ruling in Hassan v. The City of New York.

More pressingly, the lack of legislative or judicial precedent on protecting social media data has enormous consequences across the board. Social media surveillance by law enforcement should at least require regulations, including ongoing monitoring and auditing, publicly available policies,  and judicial oversight. Moreover, social media platforms should prohibit surveillance based on a user’s freedom of speech and assembly or identities, including protected classes such as race, religion, and gender.

Using digital data from social media sites, such as X, as a form of surveillance from law enforcement should not only be a concern for the violation of the privacy rights of protestors, but also the violation of privacy rights for everyone. The Urban Institute found in a 2016 report that police departments have been expanding their presence on social media, reporting 91% of police departments use social media in some fashion. [25] The risks of not having protections for activists and protestors against law enforcement and digital surveillance also carry implications for other realms of American society. As apps like BeReal develop, which are centered around photos that provide evidence of one’s location, the ease and justifications with which law enforcement can intrude on other zones of privacy is pressing not only for the amendment rights of expression and assembly but also to the right to be let alone.

 Edited by Ashley Park and Shreya Shivakumar

[1] “Surveillance.” Legal Information Institute. Accessed April 12, 2024. https://www.law.cornell.edu/wex/surveillance. [2] 

[2][3]  Griswold v. Connecticut, 381 US 479 (1965)

[3] Hudson, David L. “Civil Rights Movement.” The Free Speech Center, February 18, 2024. https://www.mtsu.edu/first-amendment/article/1463/civil-rights-movement. [4] 

[4] Candice Delmas and Kimberley Brownlee, Civil Disobedience, Stanford Encyclopedia of Philosophy (January 4, 2007), online at https://plato.stanford.edu/entries/civil-disobedience/ (visited October 10, 2023).

[5] Monica Anderson, The Hashtag #BlackLivesMatter Emerges: Social Activism on Twitter, Pew Research Center: Internet, Science & Tech (August 15, 2016), online at https://www.pewresearch.org/internet/2016/08/15/the-hashtag-blacklivesmatter-emerges-social-activism-on-twitter/ (visited October 10, 2023).

[6] “Surveillance.” Legal Information Institute. Accessed April 12, 2024. https://www.law.cornell.edu/wex/surveillance.

[7] “Surveillance.” Legal Information Institute. Accessed April 12, 2024. https://www.law.cornell.edu/wex/surveillance.

[8] Blanchard et al. v. City of Memphis, 2:2017cv02120 (Western District of Tennessee, 2017)

[9] [5] Blanchard et al. v. City of Memphis, 2:2017cv02120 (Western District of Tennessee, 2017)

[10] Henry Brannan and Joe Opaleski, As Law Enforcement Scours Social Media, Protesters Are Catching On, Street Roots (September 23, 2020), online at https://www.streetroots.org/news/2020/09/23/law-enforcement-scours-social-media-protesters-are-catching (visited October 10, 2023).

[11] Cyrus Farivar and Olivia Solon, FBI trawled Facebook to arrest protesters for inciting riots, court records show, NBC News (June 19, 2020), online at https://www.nbcnews.com/tech/social-media/federal-agents-monitored-facebook-arrest-protesters-inciting-riots-court-records-n1231531  (visited October 10, 2023).

[12] Josh Gerstein, Court pares back federal Anti-Riot Act, POLITICO (August 24, 2020), online at https://www.politico.com/news/2020/08/24/court-pares-back-federal-anti-riot-act-400999 (visited October 11, 2023).

[13] Rachel Levinson-Waldman and Ángel Díaz, How to Reform Police Monitoring of Social Media, Brennan Center For Justice (July 9, 2020), online at https://www.brennancenter.org/our-work/analysis-opinion/how-reform-police-monitoring-social-media (visited October 12, 2023).

[14] Rachel Levinson-Waldman and Ángel Díaz, How to Reform Police Monitoring of Social Media, Brennan Center For Justice (July 9, 2020), online at https://www.brennancenter.org/our-work/analysis-opinion/how-reform-police-monitoring-social-media (visited October 12, 2023).

[15] Kyllo v. United States, 533 U.S. 27 (2001).

[16] The People of The State of New York v. Malcolm Harris,  36 Misc. 3d 868, 874 (New York City Court, Criminal Court 2012), 949 N.Y.S.2d 590, 2012 N.Y. Slip Op. 22175

[17] Rachel Levinson-Waldman and Ángel Díaz, How to Reform Police Monitoring of Social Media, Brennan Center For Justice (July 9, 2020), online at https://www.brennancenter.org/our-work/analysis-opinion/how-reform-police-monitoring-social-media (visited October 12, 2023).

[18] Rachel Levinson-Waldman and Ángel Díaz, How to Reform Police Monitoring of Social Media, Brennan Center For Justice (July 9, 2020), online at https://www.brennancenter.org/our-work/analysis-opinion/how-reform-police-monitoring-social-media (visited October 12, 2023).

[19] Statement of Civil Rights Concerns About Monitoring of Social Media by Law Enforcement, The Brennan Center For Justice (November 6, 2019), online at https://www.brennancenter.org/our-work/research-reports/statement-civil-rights-concerns-about-monitoring-social-media-law (visited October 9, 2023)

[20] Statement of Civil Rights Concerns About Monitoring of Social Media by Law Enforcement, The Brennan Center For Justice (November 6, 2019), online at https://www.brennancenter.org/our-work/research-reports/statement-civil-rights-concerns-about-monitoring-social-media-law (visited October 9, 2023)

[21] Julia Weng, Protester Surveillance May Test Constitutional Privacy in Courts, Bloomberg Law (August 4, 2020),  online at https://news.bloomberglaw.com/privacy-and-data-security/protester-surveillance-may-test-constitutional-privacy-in-courts  (visited October 12, 2023).

[22] Carpenter v. United States, 585 U.S. ___ (2018).

[23] Qualified Immunity, Equal Justice Initiative, online at https://eji.org/issues/qualified-immunity/ (visited October 12, 2023).

[24] Rachel Levinson-Waldman and José Guillermo Gutiérrez, We’re Suing DHS to Uncover Its Use of Social Media Surveillance Tools, Brennan Center For Justice (August 18, 2022), online at https://www.brennancenter.org/our-work/analysis-opinion/were-suing-dhs-uncover-its-use-social-media-surveillance-tools (visited October 12, 2023).

[25] KiDeuk Kim, Ashlin Oglesby-Neal, and Edward Mohr, “2016 Law Enforcement Use of Social Media Survey: A Joint Publication by the International Association of Chiefs of Police and the Urban Institute,” The Urban Institute, 5 (February 2017).