{"id":140,"date":"2014-05-01T19:24:07","date_gmt":"2014-05-01T19:24:07","guid":{"rendered":"http:\/\/pages.charlotte.edu\/gordon-hull\/?page_id=140"},"modified":"2014-05-05T17:41:13","modified_gmt":"2014-05-05T21:41:13","slug":"undercover-cops-on-facebook","status":"publish","type":"page","link":"http:\/\/pages.charlotte.edu\/gordon-hull\/case-studies\/undercover-cops-on-facebook\/","title":{"rendered":"Undercover Cops on Facebook"},"content":{"rendered":"<p><strong>Gordon Hull \/ UNC Charlotte<\/strong><\/p>\n<p>Stories about oversharing on Facebook are commonplace \u2013 and of jobs, relationships, and the like lost as a result.\u00a0 For a reminder, do some searches on<\/p>\n<ul>\n<li><a href=\"http:\/\/youropenbook.org\/\">YourOpenBook.org<\/a> \u2013 try \u201cnew number is\u201d and \u201cburned couch\u201d<\/li>\n<li>Or look for people on Google, and note the frequent link to their FB page<\/li>\n<\/ul>\n<h3>\u00a0I. The Fourth Amendment<\/h3>\n<p>The Fourth Amendment to the U.S. Constitution says:<\/p>\n<p style=\"padding-left: 30px;\">\u201cThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized\u201d<\/p>\n<ol>\n<li>What values does the fourth amendment try to support?<\/li>\n<li>When is looking for something not a search?<\/li>\n<li>If you disclose a piece of information to someone, should you have any expectation of privacy regarding that information?\u00a0 If so, what should that expectation of privacy be (and why); if not, why not?<\/li>\n<\/ol>\n<h3>\u00a0II. Two Scenarios<\/h3>\n<p>Consider the following scenarios:<\/p>\n<p><strong>Scenario I<\/strong>\u00a0 Defendant is a convicted sex offender, who has now finished his sentence and returned to his community.\u00a0 Mr. A, an undercover cop, obtains his name from a public sex offender registry and finds his FB account by Google-searching his name.\u00a0 Mr. A. sends a friend request to Defendant, saying that \u201che\u2019s heard they share some interests.\u201d\u00a0 Defendant agrees.\u00a0 They exchange some messages back and forth.\u00a0 Mr. A. cautiously asserts that they likely have shared interests that require that they be careful of the police; defendant encourages him to explain.\u00a0 Mr. A. explains that he thinks they both are \u201cinterested in Lolitas.\u201d\u00a0 Defendant agrees.\u00a0 Mr. A. asks if that interest is current.\u00a0 Defendant volunteers to share some photos with Mr. A.\u00a0 Mr. A enthusiastically agrees.\u00a0 Defendant emails Mr. A some child pornography, and is promptly arrested.<\/p>\n<p><strong>Scenario II<\/strong>\u00a0 Defendant is a college student.\u00a0 He receives a friend request from \u201ca pretty girl\u201d who says she met him at a party the week before and thought he\u2019d be fun to get to know better.\u00a0 He immediately agrees.\u00a0 Three days later, he\u2019s charged with underage possession of alcohol \u2013 the pretty girl was an undercover agent, who obtained photos of him drinking from his FB page.<\/p>\n<ol>\n<li>Is what the police did in the sex-offender scenario legitimate?\u00a0 Why or why not?<\/li>\n<li>Is what the police did in the college student case legitimate? Why or why not?<\/li>\n<li>If your answer to these questions is <i>the same<\/i>, articulate a principle that justifies the answer.<\/li>\n<li>If your answer to these questions is <i>different<\/i>, come up with a principled difference between them \u2013 in other words, articulate a principle according to which the different results are justified.<\/li>\n<li>Should individuals be protected from misplaced trust in someone else?\u00a0 Does the internet change this at all?<\/li>\n<li>How should one draw a line between undercover policing and entrapment?<\/li>\n<\/ol>\n<h3>III. General Issues<\/h3>\n<ol>\n<li>As a general matter of law, if someone leaves his FB settings public, he foregoes any legal expectation of privacy.\u00a0 FB\u2019s privacy settings are hard to use, and change frequently.\u00a0 Does FB have an obligation to make its settings easier to use?\u00a0 Why or why not?<\/li>\n<li>FB\u2019s terms of use basically say that the site will err on the side of complying with law enforcement by voluntarily turning over requested information on users.\u00a0 Should this be FB\u2019s policy?\u00a0 Why or why not?<\/li>\n<li>Semitsu suggests that the law be amended to require that sites dealing with personal and other sensitive information encrypt it.\u00a0 This will have the effect of making it invisible to site employees, and thereby keeping the information \u201cnon-disclosed\u201d to the company (and thus reasonably expected to be \u201cprivate\u201d by users).\u00a0 He writes: \u201cWhile law enforcement agencies might argue that this will frustrate efforts to crack down on cybercrime (and all other crime), such encryption measures will also minimize the crime or cyberterrorism that results when others with more nefarious motives gain access to such information.\u201d (375). Are his priorities correct?<\/li>\n<\/ol>\n<h3>IV. Fourth Amendment again<\/h3>\n<p>\u201cPrivacy\u201d can mean a lot of things (and a lot of ink has been spilled trying to define it).\u00a0 Even in terms of constitutional law, there\u2019s two completely distinct lines of cases, the Fourth Amendment ones, and a series beginning with <i>Griswold v. Connecticut<\/i> (and including <i>Roe v. Wade<\/i>) dealing with sexuality or intimate relations.\u00a0 Here\u2019s three values that the Fourth Amendment might be trying to maximize:<\/p>\n<ul>\n<li>Utility: police searches are disruptive, and that\u2019s bad<\/li>\n<li>Dignity: police searches are an offense to dignity<\/li>\n<li>Limiting Government Power: police searches make the government more powerful \u2013 limiting searches puts a check on tyranny.<\/li>\n<\/ul>\n<ol>\n<li>What was the Framers\u2019 probable \u201cparadigm case\u201d of a search that they wanted to prohibit?<\/li>\n<li>Does their paradigm case help them to sort out these values?<\/li>\n<li>Which of these do you think the Framers of the Constitution <i>should<\/i> have had in mind (which is the most important)?<\/li>\n<li>Does technology change the situation?<\/li>\n<\/ol>\n<h3>V. Readings<\/h3>\n<p>There\u2019s a lot written on Facebook.\u00a0 Here\u2019s the paper cited here and a few others.<\/p>\n<ul>\n<li>Danah Boyd, \u201c<a href=\"http:\/\/www.danah.org\/papers\/FacebookPrivacyTrainwreck.pdf\">Facebook\u2019s Privacy Trainwreck: Exposure, Invasion and Social Convergence<\/a>&#8221; 14:1 (2008), 13-20. (for discussion of how FB\u2019s policy shifts are jarring.\u00a0 Boyd has written extensively on social networking: see her home page.).<\/li>\n<li>Gordon Hull, Heather Lipford and Celine Latulipe, \u201c<a href=\"http:\/\/www.danah.org\/\">Contextual Gaps: Privacy Problems on Facebook<\/a>,\u201d Ethics and Information Technology (2010) (this is shameless self-promotion, admittedly; we argue that Facebook\u2019s privacy problems are largely problems of architecture and design, and use Helen Nissenbaum\u2019s theory of privacy as a way to articulate these problems)<\/li>\n<li>Lawrence Lessig, <a href=\"http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1427546\">Code and Other Laws of Cyberspace, version 2.0.<\/a>\u00a0 New York: Basic Books, 2006 (see the chapter on privacy, from which I draw a lot of the inspiration for section 4 here).<\/li>\n<li>Junichi P. Semitsu, \u201c<a href=\"http:\/\/codev2.cc\/\">From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Government Surveillance<\/a>\u201d Pace Law Review 31 (2011), 291-381.<\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"<p>Gordon Hull \/ UNC Charlotte Stories about oversharing on Facebook are commonplace \u2013 and of jobs, relationships, and the like lost as a result.\u00a0 For a reminder, do some searches on YourOpenBook.org \u2013 try \u201cnew number is\u201d and \u201cburned couch\u201d Or look for people on Google, and note the frequent link to their FB page [&hellip;]<\/p>\n","protected":false},"author":407,"featured_media":0,"parent":71,"menu_order":0,"comment_status":"closed","ping_status":"open","template":"","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-140","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/P3hMo6-2g","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/pages\/140","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/users\/407"}],"replies":[{"embeddable":true,"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/comments?post=140"}],"version-history":[{"count":3,"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/pages\/140\/revisions"}],"predecessor-version":[{"id":144,"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/pages\/140\/revisions\/144"}],"up":[{"embeddable":true,"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/pages\/71"}],"wp:attachment":[{"href":"http:\/\/pages.charlotte.edu\/gordon-hull\/wp-json\/wp\/v2\/media?parent=140"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}