The Trump Administration Wants To Access Your Social Media Records - HuffPost

Critics of Donald Trump or his administration may be known to the Department of Homeland Security. The organization is allegedly pressuring social media companies to share information about users who criticize the president, along with information about people who run anonymous ICE-watchdog social media accounts, according to reporting in Tech Crunch.

The DHS is doing this by issuing administrative subpoenas to social media companies, in hopes of getting information about users.

Third-party organizations (like social media companies) do not have to comply with administrative subpoenas, explained Steve Stransky, an adjunct professor in the school of law at Case Western Reserve University in Ohio.

This is true, “Unless there’s a separate court process or separate order from a judge requiring the third party, the social media company, to comply with the administrative subpoena,” he added.

Not all companies will comply, but some have cooperated. Take, for example, Google, which handed information about a 67-year-old recent retiree over to the government; the user had emailed a federal prosecutor about an immigration case he read about. Federal officials later showed up at his door after he received a notice from Google about the subpoena. The DHS has since withdrawn the subpoena in this case.

The idea of the government monitoring your social media activity if you’re critical of their current moves is unnerving yet unfortunately not totally illegal. Here’s what to know:

A social media company’s terms of service generally state that you don’t have a privacy right.

“The Supreme Court has held that individuals generally don’t have a privacy interest in data that they share with third parties,” Stransky said.

This means when you use a third-party service ― like a social media company or even an internet service provider ― to send communications (emails, posts, messages and more), that information may not actually be private, he explained.

“There are some exceptions to that rule, but that’s the general principle that’s been around for 50-plus years now,” Stransky said.

The government reviewing social media posts has been happening for “I think, over a decade, looking at it for people coming in for visas, immigration, things like that. But what I’ve been seeing a lot is they’re starting to use administrative [subpoenas] to go after anybody that’s critical,” said Dave Chronister, CEO of Parameter Security.

You hand over your right to privacy when you agree to any given social media app’s terms of use.

Most people don’t read these terms thoroughly when they sign up for the platform, but terms of use, generally, include how the company “can actually disclose records to the government pursuant to various types of requests for information, whether a subpoena or warrant, and how the individuals may be able to try to prevent that type of disclosure,” Stransky explained.

These terms are updated frequently to adhere to different policies from political administrations and different policies within the social media company itself, he said.

“You probably receive a couple emails a month that say, ‘We’ve updated our terms, please read them here,’ and nobody reads them, right? But that’s where these social media companies are setting forth the process for when and how they will disclose your data to the government,” Stransky said.

But doesn’t this violate free speech?

Free speech is protected under the First Amendment, so shouldn’t you be able to say or write what you want on social media?

“The government’s position has generally been that their enforcement or their concern isn’t related to free speech activities or First Amendment-protected activities,” Stransky said.

“Particularly when we’re talking about U.S. persons, the Freedom of Information Act, the Privacy Act, specifically prohibit the federal government from maintaining records on individuals that are otherwise related to a protected First Amendment activity, unless there is specific law enforcement, statutory investigatory authorities behind that,” he added.

What the government has relied on in recent years, though, is focusing on “their authority to protect federal officials or officer safety type of issues,” Stransky said.

So, if you make a statement online, and it seems to threaten a federal officer or someone in power, this could be treated as a crime.

“The government taking adverse action against people because of their political ideology is classic First Amendment no-no,” said Paul Gowder, a professor of law at Northwestern Pritzker School of Law in Illinois. But it can be complicated when there are private parties involved such as a social media company, the government and the social media user, Gowder added.

*What can the federal government actually do with all of this social media data they gather? Experts say not much. *

“While the government has lots of surveillance resources, it doesn’t actually have lots of doing-harm-to-people resources,” Gowder said.

This isn’t to say the government won’t do harm to some people or some groups, but it certainly can’t do harm to everyone posting negatively about Trump or his administration. Certain people (undocumented folks, immigrants) are likely at higher risk of retaliation than American citizens.

Since the federal government has limited resources, they tend to use those resources to focus on specific priorities.

“The federal government, in particular the Trump administration and every administration going back to the Obama administration, has set their priorities for enforcement actions, and those priorities are going to be around terrorism, cybersecurity, human trafficking, preventing narcotics transferring,” said Stransky.

Tracking folks’ Trump-critical social media movements isn’t a priority for them to actually enforce.

“Their focus is on those other core missions, and they would likely only get involved on investigating statements that seem to be critical of the administration if they take the extra step or the extra measure, and determine that those statements aren’t just statements but would have an impact on the government’s ability to actually operationalize their enforcement priorities,” Stransky said.

While enforcing social media isn’t a focus, and the probability of anything happening to the average user is low, there has been an increase in this kind of enforcement in the last 10 years, Stransky added.

If you’re worried, there really isn’t much you can do — other than not use social media.

“The other piece of this that’s kind of grim is ... the government already has access to so much social media data through any number of ways,” said Gowder. This could be through data brokers or contract relationships with other companies.

“I think number two, a lot of data, a lot of social media activity, is just public,” Gowder said. This could be true for your LinkedIn profile, your YouTube comments or what you post on Reddit.

If you are worried about the government having access to what you post on social media, there really isn’t any way around it other than simply not using social media, according to Chronister.

“This is the terms and service, and I think this is something that we’ve been dealing with as a civilization for the past 20 years — we sign up for these platforms, and the only way you can use these platforms is to agree to their terms of service,” Chronister said. “And a lot of terms of service are set up for ... no expectation of privacy.”

Once your data is on a social media company’s servers, they can do what they want with it. “And it becomes a very, very bad situation, especially when you get into areas like this, where the government’s starting to try to weaponize it,” said Chronister.

There are also situations where the government is already working to get access to social media, like at the border, Gowder said, where Border Patrol is actively searching people’s phones.

“All of these new initiatives about access to social media accounts from people coming in is going to be a major source of data for the government,” Gowder noted. “So, I kind of feel like, in a lot of ways, the horse has left the barn here.”

“And I mean ... we sort of live in a surveillance economy, and it turns out that when we spend decades handing over massive amounts of data to companies that don’t care about us for the purpose of that data being monetized in exchange for services, we really ought not to be terribly surprised when an authoritarian government realizes that there are a bunch of easy ways for it to hoover that in,” Gowder said.

Is the answer to be silent and afraid of posting on social media? For some people who are more vulnerable to action from the government, Gowder believes yes. But for those who aren’t part of an at-risk group, speaking out on social media (and in real life) is a good idea.

“I actually think that, right now ... we’ve got a regime in the White House that has authoritarian dispositions. I think there are people in the White House who would love to run an authoritarian regime,” Gower said, “I think that it’s actually more important for people to be brave and to speak out and to signal to their fellow citizens that they’re not alone in their opposition to what’s going on.”

The original version of this story was published on HuffPost at an earlier date.