ness and respond to needs during a crisis. The second perspective is that many people find it disconcerting to know that the government is reading and analyzing information posted in social media.1 The monitoring raises several questions: How long will such information be stored? What else will it be used for? Will individual dossiers be created that may potentially lead to limitations on an individual’s freedoms?
Swire observed that the Fourth Amendment to the U.S. Constitution, with its limits on search and seizure by the government, helps shape understanding of what is public. Essentially, probable cause or a warrant is needed to enter an individual’s house or vehicle.
By contrast, the Fourth Amendment does not limit the government’s ability to follow people on a public street or to read information published in a newspaper, a precedent that might be extended to cover government monitoring of public social media communications. Interestingly, in the context of another circumstance involving new technology and its privacy implications, the January 2012 Supreme Court decision in United States v. Jones placed limits on the definition of “in public.” The court issued a unanimous opinion that a warrant was needed to place a GPS tracking device on an automobile even though the vehicle in question was traveling in public spaces. The majority of justices emphasized that physically attaching something to a car was a factor in the decision; other justices questioned whether “in public” is enough to make surveillance acceptable.
Another Fourth Amendment consideration relevant to social media is consent—individuals can consent to a search or seizure. When people make information available to the public through social media, does this action mean that consent has been given? A related question is under what circumstances people give consent. Facebook user settings provide an example of the lack of clarity surrounding the concept of consent. Several papers have discussed how Facebook users have trouble understanding their privacy settings.2 Users often believe that postings are not available to the public when in fact they might be.
1 Concerns about government use of information can, observed Swire, be attributed at least in part to past abuses. For example, it was uncovered after the fact that the FBI had placed many of the delegates at the 1972 Democratic party national convention under surveillance. In the wake of Watergate and other abuses, President Ford’s attorney general issued what would become known as the Levi guidelines to limit the information, including public information, that law enforcement could gather. Concerns about government intrusion also led to passage of the 1974 Privacy Act.
2 Maritza Johnson, Serge Egelman, and Steven M. Bellovin. Facebook and privacy: It’s complicated. Symposium on Usable Privacy and Security (SOUPS), July 2012. Michelle Madejski, Maritza Johnson, and Steven M. Bellovin. A study of privacy setting errors in an online social network. Proceedings of SESOC 2012, 2012. An earlier version is available as Technical Report CUCS-010-11.