BY SARA ROBINSON.
In 2012, Jelani Henry was arrested on two counts of attempted murder in New York City. The evidence was thin at best: While he was a “tall light skinned black male,” matching a witness description, there were contradictory statements from witnesses and one failed to pick him out of a lineup. Despite the dearth of evidence and Jelani’s lack of criminal record, he was denied bail andincarcerated for 19 months, including a 9-month stint in solitary confinement, at one of the most violent detention facilities on Rikers Island. The case was eventually dismissed.
How did Jelani, now 26, end up at Rikers for so long? The Manhattan District Attorney portrayed him as a known member of a violent gang, based on his likes and group photos on social media. Jelani had liked posts related to a local “crew,” which, according to the NYPD, is an association of young men that is looser than an established gang and is linked to a particular city block or housing development. Jelani also appeared in photos with neighborhood kids, some of whom were crew members.
Jelani’s experience is not unique. The NYPD’s sustained use of social media as evidence in “gang takedowns” and sweeping conspiracy indictments led to a New York City Council hearing on the issue last month, after a call from 30 advocacy and community groups.
At the hearing, NYPD Chief of Detectives Dermot Shea testified that just “like public places,” “public social media platforms are patrolled” by the NYPD. Social media activity can land you on the gang database, he explained, either because the NYPD determines that you have admitted to gang membership on social media, or — along with other indicators like wearing certain colors — your social media posts involve other gang members.
But these capacious criteria for inclusion may mean that many individuals end up on the database simply because they live and grow up in a certain neighborhood. And inclusion on the gang database has grave civil liberties implications. It decreases the likelihood of release on bail, as in Jelani’s case. Further, gang prosecutions often involve sweeping conspiracy charges, which have long sentences and are easier for prosecutors to prove, since only evidence of an agreement, and not another crime, is required. Inclusion on the gang database can have serious immigration consequences as well: While Shea testified that the gang database is not shared with federal immigration officials, Immigration and Customs Enforcement (ICE) has participated in NYPD-run “gang takedowns.” And removal from the gang database remains an opaque process, with individuals suffering consequences long after ending any gang-related activity.
NYPD’s monitoring of social media raises additional complicated issues, many of which went unaddressed at the hearing. First, posts, comments, photographs, and other interactions on social media do not always have an obvious interpretation. Does a Facebook “like,” for instance, mean a user is expressing approval of a post’s content, disapproval but delight that an issue is being discussed, a simple thumbs-up for a friend, or something else? In Jelani’s case, he explained that he liked posts to avoid being noticed or called out by his peers; his online engagement was part of his safety strategy, just like not walking alone at night. In his mind, such activity in no way represented approval or showed that he participated in violence.
Moreover, NYPD’s gang database, and presumably the social media patrols that come with it, disproportionately target communities of color. As Chief Shea testified, while New York City is at least 45% white, 65% of those on the database are black, 4% are white Hispanic, and 10% black Hispanic. Confusing matters, Shea then stated that 95% of the individuals on the database were people of color, without clarifying how the department mixes the categories. Regardless, this means that the vast majority of those on the database are people of color. This racial skew evokes the department’s practice of stop-and-frisk, where about 83% of stops from 2004 to 2012 involved blacks or Hispanics.
This kind of discriminatory application goes against the values found in the Handschu Agreement, court-ordered guidelines that limit how the NYPD can investigate political activities. These guidelines require that NYPD investigations “not intrude upon rights of expression or association in a manner that discriminates on the basis of race, religion or ethnicity.”
The NYPD’s social media patrols and surveillance also implicate the First Amendment right to freedom of expression. As the Supreme Court has recognized, social media is the “modern public square” and “perhaps the most powerful mechanism available to a private citizen to make his or her voice heard.” The Court observed that social media users can “debate religion and politics,” “look for work [or] advertise for employees,” or “petition their elected representatives.” Knowing your online activity is monitored may shape what you say online or make you less likely to use social media altogether, undermining participation in a wide range of social and political activities; indeed, it is no surprise that Jelani Henry now mostly avoids such platforms.
Notably, the NYPD’s social media surveillance also violates Facebook’s own policies. A 2012 NYPD Operations Order permits NYPD officers to create and use online aliases — essentially undercover accounts — with supervisor approval.
The New York Times reported that NYPD officers have impersonated fictitious female teenagers, sending friend requests to youth as a way to view content that is available only to a user’s “friends.” This practice violates Facebook’s policies,
which forbid the creation of such accounts; as Facebook itself has told the federal government, it has no exception for law enforcement activities.
In light of these concerns, the NYPD must be more transparent about when and how it patrols and monitors social media in its gang-related work. Indeed, the Handschu guidelines already require some disclosure when social media posts are relied on as part of a political investigation. The department should release statistics about how many people it follows on social media; how long someone is typically followed; the outcome of audits overseeing these contacts; a representative sample of the reasons for placing youth into the gang databases based on social media data; and whether (as suggested by anecdotal evidence) officers or detectives ask youth or other individuals for social media passwords. Without this critical transparency, there will be no way to assess the NYPD’s use of social media to surveil New Yorkers, to limit misuse, and to hold the department accountable.
The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice. Reprinted with kind permission.