Publicly available social media influences criminal investigations, with costs and benefits to both society and police services.
Social media has introduced new ways of both committing and solving crimes into our increasingly digitized world. Services like Facebook, Twitter and Instagram create opportunities for criminal activity. They also allow police services to scour publicly generated user information – posts, pictures, videos and personal information. This article examines how publicly available social media content influences criminal investigations, and the associated costs and benefits to both society and police services.
Open Source Intelligence: The data social media leaves out in the open
According to Ryerson University’s Social Media Lab project, as of July 2020, 94% of adult Canadians have at least one social media account. Within this large number of users, daily activity varies greatly. While some never, or hardly ever, use their accounts, others post constantly about every aspect of their lives. Either way, these accounts can offer anything from a tiny glimpse into a user’s life to a candid picture of their daily activity.
For criminal investigations, the information these accounts generate is relevant to the practice of Open Source Intelligence (OSINT). OSINT is the collection of public records, including social media content, for investigative purposes. Police forces use this practice to gather and analyze vast amounts of publicly available information to uncover evidence for some purpose.
Police acquire OSINT material in two ways:
- manually through targeted online searches, or
- by using complex algorithms and surveillance programs that mine, classify and store information on an ongoing basis.
OSINT finds content that is publicly accessible. Most social media platforms’ default security settings make users’ posts “public”. The billions of social media accounts online then create an enormous amount of material available for OSINT practices.
Even in the absence of a social media presence, individuals can be captured in photographs or posts made by friends, or even strangers, that ultimately end up online for all to see. Social media has therefore created an online space that theoretically excludes no one.
The Rise of Social Media in Criminal Investigations
Facebook was created in 2004 but was not mentioned in a Canadian court decision until 2008. At that point it had already reached 100 million users. The Supreme Court of Canada did not address Facebook until 2013 in the case of R v. Vu, a landmark decision about search warrants for personal computers. In this case, the court only mentioned the social media platform as the accused’s account was open on his laptop when it was seized. The site’s publicly available content was not an issue.
Today, a Westlaw database search returns over 5000 Canadian cases for “Facebook,” and over 800 combined for “Twitter” and “Instagram”. This shows how prominent social media has become over the last decade, not just in our daily lives but also in legal disputes.
The 2011 Vancouver Stanley Cup riot is often seen as an important moment in the rise of social media in criminal investigations. The investigators – faced with a long timeframe, large geographical area and thousands of potential suspects – turned to social media. The result was a massive number of tips from the public, which often included links to social media posts.
The unsolicited tips police received from the public also marked a new era of citizen investigation – sometimes called “digilantism.” As users posted photos and videos to social media, there was a “frenzy in cyberspace” to name, shame and bring those involved to justice. Individuals forwarded identifying information to criminal investigators. All told, police laid 912 charges against 300 alleged rioters. We also see this playing out as investigators track down those involved in the riots at the Capitol in Washington, D.C. in January of this year.
While this may seem like a great benefit to police services, there are also drawbacks to this unsolicited evidence. Innocent bystanders may be wrongly accused. And unverified material can lead to investigators wasting valuable time following irrelevant leads.
How and When do Investigators use Social Media?
Large-scale public events are not the only way police have used social media to investigate crimes. Online threats, murders, weapon possessions, sexual assaults and countless other offenses have gone to court with prominent social media evidence gathered by investigators.
There is no clear answer as to how and when investigators use this evidence. Generally, it falls in line with police practices outside of the digital world. In a 2018 interview with Global News, a Calgary Police member stated “we don’t have any special access to social media beyond those privacy settings” which users can set for their own accounts. For publicly available posts then, investigators are free to act as if they are patrolling city streets. What they “witness” is fair game for investigations.
Policing the digital world is, however, not the same as policing a community’s physical space. Social media posts have a permanence not available in the real world. A police officer who sees a post made weeks ago with threats of violence is much different than overhearing that same threat made on a street corner. The first example exists long after the relevant context has disappeared, while the second leaves no trace if nobody hears it.
Pushback Against OSINT and Social Media Investigations
Given the differences between online and real-world investigations, one would think that investigators have clear, legal guidelines of what they can and cannot do. Yet, there is no standard policy for how police use social media across Canada. Many groups have called for police services to clearly outline their social media investigatory policies. These calls have not been sufficiently answered.
In 2019, The Tyee reported the RCMP was actively monitoring social media content for at least two years under Project Wide Awake. This program involved advanced OSINT software. The RCMP admitted they had switched from “a ‘reactive’ approach – analyzing specific social media accounts as part of a criminal investigation – to a ‘proactive approach,’” which aimed to “help detect and prevent a crime before it occurs.” This shift blurred the line between hands-on investigation and mass surveillance. Experts suggest it introduced serious threats to Canadians’ Charter rights.
Because of the outcry from The Tyee’s report, the RCMP announced it would release an audit of its online surveillance practices in the summer of 2020. However, they never shared the audit publicly. Instead of making their social media and online surveillance policies known, a follow-up report found the RCMP began using the controversial Babel Street software in September of 2020. Babel Street is an artificial intelligence-based program which analyzes the relationship between content and its producers and networks. It can search every corner of the web. Yet it is still unknown exactly how and when the force uses this technology for investigations. Rather than increasing their transparency, the RCMP have increased their online investigatory practices. The effects of this shift are still unknown.
Conclusion
Social media provides a vast body of evidence for criminal investigations which was previously unimaginable. Individuals create a digital trail that not only helps shed light on their own lives, but can also provide information about others who pass through their real world and digital existence. Privacy issues arise in any investigation of someone’s online “life”. But as it stands in Canada, there are no clear guidelines on how police can use publicly posted material for criminal investigations. It is clear, however, that this type of investigation is only increasing and will have an increasingly prominent role in the courts in the years to come.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Lee Klippenstein
