The government cannot figure out just what is fair game when it comes to figuring you out.
Most law enforcement agencies and the Internal Revenue Service consider Twitter and Facebook as public spaces they can surveil on a hunch and without limit. People who engage in peaceful protest, for example, often attract prying eyes to their social media accounts.
The Social Security Administration, on the other hand, forbids such snooping even if it might confirm strong suspicions of disability fraud.
This divide illustrates how, over a decade since Facebook and Twitter became ubiquitous, government agencies have yet to craft a uniform policy regarding their use of public social media.
The reason, as is usual when it comes to government, is hardly simple.
The rise of social media occurred against the backdrop of 9/11, which triggered fierce debates regarding the tension between privacy rights and national security. At the same time the Patriot Act was raising constitutional questions regarding government surveillance, hundreds of millions of Americans were freely posting the most intimate details of their lives in cyberspace.
This evolving but always murky landscape was bound to spawn a wide range of government responses because most agencies have broad latitude to develop their own rules and protocols.
“Agencies are these individual silos,” said Jan Jacobowitz, director of the University of Miami School of Law’s Professional Responsibility and Ethics Program. “They are developing policies that work for themselves.”
The federal courts dealt initially with the Fourth Amendment issues regarding law enforcement searches and the limits of technology use in tracking suspects. But the narrow constricts of court rulings often do little to enlighten the bureaucracy of government.
U.S. Supreme Court Justice Samuel A. Alito Jr. got to the nub of the privacy issue during a hearing in 2011: “Suppose we look forward 10 years, and maybe years from now 90 percent of the population will be using social networking sites, and they will have on average 500 friends, and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cellphones. Then what would the expectation of privacy be then?”
On top of that, government agencies, which still typically rely on fax machines, cannot be expected to be agile at navigating such changes.
Some agencies, such as the Department of Homeland Security, consider social media to be part of “publicly available information” along with chat rooms, websites and bulletin boards.
Local law enforcement agencies vary on social media surveillance; the Boston Police Department claims it does not engage in the practice, while Seattle uses social media surveillance software, as do numerous others.
Last year the U.S. Department of Agriculture announced it would be checking social media for food stamp recipients posting notices to sell their stamps in exchange for cash or services. And the IRS has for years combed social media for scofflaws.
“Unless there are things that are password-protected, unless there is a crime involved, I can’t see [social media postings] being off limits,” said Ilya Shapiro, a senior fellow in Constitutional Studies at the Cato Institute. “I don’t know of a law that’s stopped government from looking at public information online.”
“Very few employers are doing this,” said John Page, vice president of sales for Quick Search, a background search firm in Dallas. “It’s a slippery slope. You have to be 100 percent sure and able to verify that someone is the person doing the posting. There are legal consequences for making a mistake.” Meanwhile, private sector employers are aware of the dangers of cruising the social media.
Even if investigators think they have the right person, the meaning of postings may be ambiguous. That’s what happened in 2015 when Oregon Department of Justice Agent James Williams was using digital surveillance software to screen social media in advance of a Black Lives Matter rally in Salem.
Williams thought he had a spotted a troublemaker when he found a tweet with a graphic of a cop in crosshairs and underneath it the words “Public Enemy.” He subsequently downloaded the man’s entire Twitter history and wrote a “threat assessment,” which he forwarded to his superiors.
Turns out what he saw was the logo of the rap band Public Enemy; the “policeman” was instead a black man. And the alleged agitator was the state attorney general’s director of civil rights, Erious Johnson, who sued the state for racial profiling and settled for $205,000.
Around the same time, a woman applying for Social Security disability benefits in Washington state told psychologist Cynthia Collingwood that she suffered from the anxiety disorder agoraphobia, which made her unable to work. The applicant didn’t seem to fit the bill of someone with the crippling disorder, in which people are afraid of going anywhere. Agoraphobia afflicts fewer than 2 percent of adults in the U.S.
So Collingwood broke with established procedure in the name of possibly preventing fraud. She visited the supposed agoraphobic’s Facebook page and found a picture of her on the X-Scream, a rolling, dipping ride 866 feet up, at the top of the Stratosphere in Las Vegas. But she could do little about it. And for her sleuthing, she faced termination for searching social media.
Typically, Social Security employees "cannot use social media in making a determination,” Nicole Tiggemann, a spokeswoman for the SSA, said in an email.
On the other hand, agencies such as the IRS “are simply seeing how much they can get away with,” said Kimberly Houser, an associate professor of business law at Washington State University, “because most privacy laws were written in the ’70s and ’80s, before social media.”
The most comprehensive of those laws is the Privacy Act of 1974, which was created at the advent of computerization. It’s been amended several times but has no mention of social media.
The policy at the Social Security Administration “is the way it should be,” Houser said. “But Congress is so technologically inept, the members don’t even understand these issues enough to form a policy.”
The situation allows potential fraud in some cases and ensnares individuals exercising their First Amendment rights in others.
On the fraud side of the equation, the federal Social Security disability system has groaned under an increasing load of claimants, many of them fraudsters. The number of disability-insurance recipients has tripled since the 1980s, when Congress relaxed requirements.
A worker can cite several smaller disorders, such as back pain, or even anxiety, as an inability to work, as opposed to one debilitating condition. An applicant can appeal a denial up to four times, and most cases reach administrative-law judges, who are slammed with hearings and have an incentive to award benefits and move on.
Anyone who knew Lawrence Popp could tell he was not blind. But the 62-year-old Wisconsin resident collected Supplemental Security Income benefits beginning in 2004, when his sight temporarily failed him. Popp got his monthly check while also working at the company he owned, Refrigerated Equipment Distributors.
Popp collected $175,000 in disability payments. In December 2010, a picture of Popp on Facebook showed him suited up for snowmobiling, looking happily at the camera. In 2013 Popp pleaded guilty to fraudulently collecting the money and in 2014 was sentenced to a year in prison.
But it wasn’t Facebook that called attention to Popp; rather it was SSA agents in the field who caught him driving his car. Could he have been caught more easily, and at less expense, via social media?
Perhaps, but “do we want government agents listening in on conversations among individuals?” posed Jay Stanley, senior policy analyst at the American Civil Liberties Union. “Society tends to confuse our social media privacy. You can have conversations on Facebook about Donald Trump and forget that all your other friends can read it."
“No one is for fraud and if an agency like SSI, or, say, a local welfare program can’t go on social media to screen while intel can, well, why are there different privacy protections for social service applicants than bad guys?”