Academic journal article Harvard Journal of Law & Technology

Equal Access to Public Communications Data for Social Media Surveillance Software

Academic journal article Harvard Journal of Law & Technology

Equal Access to Public Communications Data for Social Media Surveillance Software

Article excerpt

                   TABLE OF CONTENTS    I. INTRODUCTION                                             237  II. THE VALUE OF SOCIAL MEDIA SURVEILLANCE                   238 III. LEGALITY OF COLLECTING AND ANALYZING PUBLIC      COMMUNICATIONS DATA                                      241      A. The Fourth Amendment Does Not Protect Public Posts         on Social Media                                       241      B. First Amendment Rights Are Not Infringed by         Government Surveillance of Public Social Media Posts  243  IV. ADVERSARIALISM BY SURVEILLANCE INTERMEDIARIES            244      A. Increasing Adversarialism                             244      B. Problems of Twitter's and Facebook's Developer         Policies                                              247      C. Ensuring API Access for Social Media Surveillance         Software                                              250   V. A PROPOSAL FOR EQUAL ACCESS TO PUBLIC      COMMUNICATIONS DATA                                      252      A. Equal Access to Public Communications Act             252      B. Anticipating Opposition to the Proposal               254  VI. CONCLUSION                                               256 

I. INTRODUCTION

A recent trend among popular social media companies is to change developer policies to prohibit surveillance uses of data collected by the companies. (1) Enhanced social media surveillance capabilities made possible by data aggregation and analysis may reduce some practical obscurity for users who post publicly, but the ability to view and organize this data at the developer level is essential to capture the maximum intelligence value of social media communications. Social media companies with application programming interfaces ("APIs") should thus allow application developers who provide tools for government surveillance to access public communications data to the same degree as any other private software developer. Given the lawfulness of social media surveillance (2) and its critical intelligence value, legislation is needed to reverse the current trend of social media companies blocking access to developers who build applications for government surveillance.

This Note begins with a discussion of social media surveillance in Part II, highlighting the unique value of software built on access to APIs. Part III discusses the potential legal issues involved with government collection and analysis of public communications data. The recent trend of increased hostility between government agencies and social media companies and the potential consequences of this hostility are described in Part IV, with particular focus on changes to the software developer policies of Facebook and Twitter that restrict the use of their APIs for surveillance purposes. Acknowledging the futility of persuasion to convince social media companies to revert these policies, Part V proposes legislation to guarantee equal access to social media companies' APIs for developers who create surveillance applications for the government.

II. THE VALUE OF SOCIAL MEDIA SURVEILLANCE

As social media in particular has become a mainstream platform for public communications, its intelligence value has correspondingly increased, leading to both benefits and unintended harms. (3) Even a Supreme Court Justice has recently acknowledged that social media platforms provide both a ready means of committing crimes and a source of evidence. (4) Public posts can indicate threats to public safety, (5) which authorities (or friends and family) can use as a predicate for intervention or further investigation. (6) Crisis response agencies can respond in real time without having to divert scarce resources to collect reports from the field, (7) and social media platforms have even integrated helpful features in recognition of this crucial role. (8)

Law enforcement and intelligence agencies increasingly seek to exploit the value of social media through a range of techniques. …

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