A Reason Why Governments Tip Toe around Facebook?
September 6, 2019
Is Facebook a criminal evidence preservation resource?
How important is Facebook to law enforcement, and how important should it be? How broad should efforts be to preserve potential evidence on the platform? These are some questions we pondered when we read the Daily Caller’s article, “Facebook’s New ‘Clear History’ Tool Hits a Legal Roadblock Over Criminal Evidence Concerns.” The tool in question, Off-Facebook Activity, addresses privacy concerns by giving users control over what data other apps and websites share with Facebook. (It does not, however, completely “clear” user’s browsing history, as some had hoped.)
The Texas civil case at hand is one of human trafficking facilitated, alleges the plaintiff, through Facebook’s platform. The victim’s attorney, Annie McAdams, filed a temporary restraining order to block Off-Facebook Activity altogether, reasoning the tool would obscure data relevant to her case. In doing so, she cited the federal Fight Online Sex Trafficking Act and the Stop enabling Sex Traffickers Act, both enacted in 2018. This would seem reasonable but for a couple of factors, reporter Audrey Conklin argues. For one thing, U.S. Code Section 230 protects social media companies from being held responsible for content published by others on their platforms. Furthermore, Facebook has other mechanisms for preserving data relevant to legal cases. Citing tech lawyer Brad Shear, Conklin writes:
“Shear explained that law enforcement can still access information behind Off-Facebook Activity under proper legal procedures because ‘Facebook still has that information on the back end because they don’t delete any information on their platform.’”
Interesting. The article continues:
“Facebook is used regularly as a resource to catch both active and potential criminals, including mass shooters and drug traffickers, so long as law enforcement subpoenas the information needed to identify them. …
We note:
“Facebook also works with Polaris and the National Human Trafficking Hotline ‘to provide resources and assist victims of human trafficking,’ according to a page on its site dedicated to human trafficking information, which also includes a list of human trafficking hotlines in various countries. The social media giant complied with 88% of 41,336 U.S. government requests for information in 2018, according to Facebook Transparency. There were 23,801 search warrant requests made for 36,652 accounts, 90% of which were produced. Of 8,360 subpoena requests for 13,728 accounts, data was produced for 83%. Hundreds of requests related to national security threats were also requested.”
So, according to Conklin, McAdams is approaching the issue all wrong. Instead of filing a broad restraining order against the Off-Facebook Activity tool, she could have asked Facebook nicely. However, the Transparency page states it will preserve information upon request from government law-enforcement, not private attorneys. Perhaps the issue is more complicated than the write-up suggests, and McAdams is not simply tech-ignorant, as Conklin charges.
Whatever the case here, there is no denying Facebook data has been playing an increasingly important role in law-enforcement efforts. Is that why punishments are mostly hand waving?
Cynthia Murrell, September 06, 2019
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