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In its 2019 report ranking nations on Internet freedom, Freedom House declares that Internet freedom in the United States has declined for three years in a row. The group reduces America’s score for many reasons, but one key reason is that U.S. government entities monitor social media (which often feature public profiles) and uses subpoenas, court orders, and search warrants to access customer data from technology firms in lawful investigations. The implication is that these activities are at odds with Internet freedom. Indeed, Freedom House’s definition of Internet freedom combines elements of at times conflicting ideologies, such as cyber-libertarianism and Internet progressivism. This leads to a poor metric of Internet freedom and leads Freedom House to measure what it does not like about the Internet, rather than true violations of Internet freedom. The Freedom House report therefore criticizes the United States for using data for law enforcement and national security purposes.
To be sure, without proper protections, the government’s monitoring of social media and collecting personal data from technology firms could reduce American’s freedom on the Internet. And ITIF has found that abuses of surveillance powers can subvert U.S. competitiveness. However, U.S. lawmakers have put in place guardrails that police how, when, and what data government entities can obtain. These guardrails can help maintain freedom on the Internet and in the rest of civic life while enabling the government to use Internet-generated data to address social ills and protect national security.
Why Government Monitors Social Media
The federal government has indeed increased its monitoring of social media and requests of customer data from private firms. For example, the State Department began collecting social media data from all visa applicants in 2019. Meanwhile, the Department of Homeland Security (DHS) uses social media data to map potential associations between people and organizations and identify national security risks. And Immigration and Customs Enforcement (ICE) monitors the social media of international students who change from studying a non-sensitive topic to a sensitive one, such as nuclear physics. If this monitoring proves effective in reducing risks, it may be a reasonable tool. If not, the tradeoff may not be worth it. However, it is perfectly reasonable for the government to at least investigate these options.
Moreover, governments, both in the United States and other democracies, are analyzing data generated through the Internet platforms for several positive purposes. For example, researchers have found that an increase in hate speech on Twitter correlates with increases in hate crimes against minorities in London. That’s why the U.K. police used a tool called the Online Hate Speech Dashboard, which flags hateful tweets, to identify potential hotspots for hate crimes. This tool and similar ones could help reduce the increasing prevalence of online harassment, which Freedom House argues creates self-censorship online. In another application, California officials are using data from Facebook that shows where populations are traveling in aggregate to hone public health messaging around coronavirus. And U.S. law enforcement has used location data from Google to solve crimes ranging from homicides to robberies to kidnapping. In the future, local governments could use aggregated location data to better implement tourist initiatives and more equitably distribute public resources.
Strengthening Legal Guardrails
The U.S. government does not have a spotless track record. For example, ICE used social media data to create a list of “Anti-Trump Protests.” In addition, the Department of Justice recently called for firms to build backdoors in their systems to allow for government access to encrypted data, which Freedom House rightfully criticizes. Encryption has helped populations ranging from journalists to victims of abuse to the LGBTQ community communicate in private. Requiring firms to create backdoors for government would put the security of those and all groups’ encrypted communications at risk.
Lawmakers should put in place additional protections, which they have begun to do. For example, the Foreign Intelligence Surveillance Act of 2017 increased the transparency of the National Security Agency’s data collection. And the Supreme Court ruling in Carpenter v. Katz makes it clear that law enforcement must obtain a warrant to receive an individual’s cellphone location data.
But there are several other policies Congress should pursue to ensure the proper balancing of Internet freedom and security. First, lawmakers should clarify when law enforcement needs to obtain a warrant to receive data from private firms, rather than issuing a subpoena. For example, the Email Privacy Act, a bill that failed to pass the Senate in 2018, would have rightly required law enforcement to obtain a probable-cause warrant to access communications cloud service providers store. Second, Congress should require that law enforcement receive a warrant to access vehicle data. This data can include travel histories from navigation apps, messages from communication apps, and purchases from payment apps. Third, lawmakers should clarify that location data or data from social media posts are not by themselves enough justification to charge an individual with a crime. For example, location data, which has helped law enforcement solve crimes, can also implicate innocent individuals who were in the wrong place at the wrong time.
Law enforcement should also put in place protections to guard against potential misuse of data. For example, they should have clear data retention policies that state how long they keep information and when they delete it, and strictly enforce them. Unless there are national security concerns, law enforcement also should increase transparency concerning its use of technology to monitor social media. Local law enforcement agencies can provide information on their websites about the purposes of such programs, such as the patterns they are attempting to identify and the criteria they use to deem an individual a potential risk to public safety. Finally, law enforcement should create policies for when authorities will use automated tools to monitor social media data generated in sensitive environments, such as at protests or abortion clinics.
Lawmakers have taken several positive steps in recent years to balance the benefits of data collection with the need to protect privacy and civil liberties. Nonetheless, the U.S. government has also increased its monitoring of social media and data collection from technology firms. As such, lawmakers should continue to put in place protections that strike the proper balance between protecting society and not infringing on individuals’ rights. That balance, which would allow for social media monitoring and data collection that is effective and well-scoped, would likely differ from the lopsided balance that Freedom House desires, which would tilt towards individual license at the expense of the collective good.