Every day millions of
people log into social networking sites to voice their opinion about anything
and everything under the sun. We enjoy the ability to share information and our
thoughts with a world audience in fractions of a second. We, as a free nation,
enjoy being able to voice our opinions on anything and everything we please.
Instead of actually using a verbally spoken language, we resort to online
posts. The United States Constitution guarantees our right to free speech and
every day millions of American’s enjoy that right. Our court system has been
inundated with cases surrounding issues of free speech and privacy. Now, our
court system has been forced to enter into a brand new arena. The concept of social
media is a brand new phenomenon facing our nation today, being only a decade
old. The founding fathers of our country could not fathom a socially connected
world and therefore our constitution is not prepared to address such an issue. From
a Criminal Justice standpoint, the most important issues arise when attempting to
deal with cases involving the First and Fourth amendments to the U.S. Constitution.
These amendments have largely not been evaluated to protect our rights as
citizens in an online environment.
In 2009, one Sheriff’s deputy in Virginia logged
into his Facebook page and, just like any other day, voiced his opinion. That
deputy no longer works for the Hampton, Virginia Sheriff’s Department. Deputy
Daniel Ray Carter Jr. was fired for “liking” his boss’ political opponent’s
Facebook page. Daniel Carter Jr. took his case to court claiming that the “like”
of the page is protected under the First Amendment to the United States Constitution.
Judge Raymond A. Jackson of the Eastern District
of Virginia in Norfolk disagreed. The Federal Judge ruled against Daniel Carter
stating that “Merely 'liking' a Facebook page is insufficient speech to merit
constitutional protection (Hudson Jr.)” This was a huge blow to the millions of
Facebook users in the United States and sent a stern message to users across
the globe. The problem is that Carter did not actually “say” anything. Free speech protects exactly that; speech.
With more and more people expressing themselves online, the implication of such
a case could result in complete censorship of expression. Free speech advocates
and the American Civil Liberties Union disagree with the Judge’s ruling stating
that the “like” button actually says the word “like” and contains a “thumbs up”
which is an obvious symbol of expression. They state that this is an obvious
form of expression and is therefore protected. Facebook even chimed in and
stating that “liking” a political candidate on Facebook is the 21st
century equivalent to placing a campaign sign in your front yard (Gross). This
case will continue to be debated over the next few years and ultimately the
court system will determine if the Facebook “like” button is an act of free
expression. This is a small case that will have lasting social implications. It
is the beginning of a process that will be finely tuned over the next few
decades as the social networking phenomenon will continue to progress and
evolve. While we wait to discover the fate of the Facebook “like” button and
its relation to free speech, another battle is being waged against social media
and its protections under the fourth amendment.
“Existing
Fourth Amendment doctrine is ill-equipped to handle the convergence of the
public and the private (Petrashek)” and as a general rule, one loses all
privacy expectations in what is shared with the world. When an individual makes
a post to an online networking site or blog, they relinquish all rights to
having that information remain private. Thus, anything they write can be used
against them in any subsequent criminal or civil proceeding. Though this
tension between constitutional doctrine and social practice has yet to play a
major part in the courts, it may soon do so. With social networking users at an
all-time high, the crimes associated with it are also increasing exponentially
as more people are at risk of being victimized. Because the internet largely
does not protect an individual’s right to privacy, law enforcement has largely unrestricted
access to necessary information turning social networking into a crime fighting
tool. In January 2012, a group of Arizona men, including a Peoria, Arizona police
sergeant, triggered a federal investigation when they appeared in a photo
posted on Facebook. In that photo the men were posing with weapons and what
appeared to be an image of President Barack Obama that was riddled with bullet
holes. The Sheriff’s office put the
Sergeant on desk duty pending an internal investigation and the United States
Secret service launched a federal investigation into a potential threat against
the President of the United States (Donna Leinwand). That photo was obtained
from the social networking site without a warrant and can be used against the
subjects in a subsequent criminal proceeding. All across the United States law
enforcement officials are looking at these social networking sites and using
them to solve crimes and prevent other crimes from occurring.
According
to a news article on CBS in Chicago in January 2012, six individuals were
charged by police in connection with a brutal beating that was posted to
website ‘YouTube.com’. In California, an individual is wanted for reckless
driving and speeding after he posted a video of his 118 mph ride on a
California freeway to ‘Youtube.com’. These are all cases involving police being
able to use social media to hold those responsible of crimes accountable for
their actions. Social media is a powerful tool for police and they will
continue to use it as such. The police should not have their ability to use
social networking sites infringed and should continue to be allowed to use it
as an effective crime fighting tool as long as perpetrators are stupid enough
to make their crimes public.
The
future of online privacy acts and fourth amendment protection as it pertains to
social media is unclear at this point. Without a doubt Congress and the higher
courts within the United States will be facing these areas of concern. The enactment of federal regulation can be an
extremely long and grueling process and by the time it occurs, social networking
could have already evolved. Though some of the issues are currently being
discussed, such as the case of the Facebook “like” button, they are limited in
the nature to which they are being discussed. The right to free speech in
social media is being discussed as it pertains to the simple clicking of a
picture of a thumb but the issue is much larger than that. This is a prime
example of the limited nature of social media issues and how they are being
addressed. Most of the proposals and issues have nothing to do with Facebook
postings or other misuse of digital data, yet that is where most of the concern
is and what is important to us an a society. Many intellectuals agree that
there seems to be momentum within government institutions and criminal justice
agencies and many new policies may be rolled out in the near future. Until
then, we as a society are going to take to those very social networking sites
and warn each other about the ramifications of this new online environment
(Pike).
Works Cited
Donna
Leinwand, Leger, and TODAY USA. "Internet creates wider venue for
political incivility, threats." USA Today n.d.: Academic Search
Premier. Web. 4 Oct. 2012.
Gross,
Doug. "Virginia deputy fights his firing over a Facebook 'like'." CNN
[Richmond, Virginia] 01 Aug 2012. Web. 5 Oct. 2012.
<http://www.cnn.com/2012/08/10/tech/social-media/deputy-fired-facebook-like/index.html>.
Hudson
Jr., David L. "Like' Is Unliked." ABA Journal 98.9 (2012): 23-24.
Academic Search Premier. Web. 5 Oct. 2012.
Petrashek,
Nathan. "The Fourth Amendment and the Brave New World of Online Social
Networking." Marquette Law Review. 93.4 (2010): 1-36. Print.
<http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=5029&context=mulr>.
PIKE,
GEORGE H. "LEGAL ISSUES. Online Privacy Protection Gaining Momentum."
Information Today 28.5 (2011): 28. Academic Search Premier. Web.
6 Oct. 2012.
Song,
Susannah, perf. "7 Teens Charged In Brutal Attack Captured On
YouTube." CBS Chicago. CBS Local MEdia: 2, Chicago, 18 JAN 2012.
Television.
<http://chicago.cbslocal.com/2012/01/18/7-teens-charged-in-brutal-attack-captured-on-youtube/>.
