David Lesch-headshotToday’s Verdict: Using Social Media To Catch a Terrorist

by David P. Lesch, Esq.

When Tashfeen Malik arrived in the United States, she easily passed three background checks by American immigration officials.  First, Homeland Security Officials checked her name against all National Security databases.  Once her visa application was sent to the State Department, her fingerprints were then matched against the same databases.  The last and final background check came when her husband, Syed Rizwan Farook, helped her apply for a “Green Card”.  That application prompted another round of criminal and security checks.  All of these screenings turned up nothing out of the ordinary.  But had one official merely looked at Ms. Malik’s Facebook account, whereby she talked openly on social media about her views on violent jihad, the tragedy of San Bernardino, California may not have happened.  

Certainly our immigration screening process is flawed.  The question is, will our leaders take the steps necessary to fix what obviously needs fixing.  

“Somebody entered the United States through the K-1 visa program and proceeded to carry out active terrorism on American soil,” the White House spokesman Josh Earnest said last week. “That program is, at a minimum, worth a very close look,” he added.

Social media use is widespread.  Over 91% of today’s online adults use social media regularly — the number one activity on the web today.  It has been reported that Twitter users send one billion tweets every two and a half days.  Instagram users upload 40 million images every day and Facebook users share almost 700,000 pieces of content every minute.  

Social media users create more than just photos, videos and tweets, they share vital information that could absolutely help our nation fend off a future terrorist attack.  Given the treasure trove of information available from social media companies, it is not surprising that those companies are served search warrants and subpoenas in criminal matters.  But usually the search requests deal with matters that have already been brought before a tribunal.  Federal law provides that in some circumstances the government may compel social media companies to produce social media evidence without a warrant.  

The “Stored Communications Act” (“SCA”) governs the ability of governmental entities to compel service providers such as Twitter and Facebook to produce content and non-content customer records in certain circumstances.  Unfortunately, the act was passed in 1986 and has not been updated to reflect society’s heavy use of new technologies such as social media.  Federal courts have called into question the constitutionality of the SCA.  

In United States v. Warshak, the Sixth Circuit of the Court of Appeals held that “the government agents violated the Fourth Amendment when they obtained the contents of defendant’s emails” without a warrant and added that “to the extent that the SCA purports to permit the government to obtain such emails without a warrant, the SCA is unconstitutional”.  The Court held that “email requires small protection under the Fourth Amendment”.  

But what about searching through an individual’s Facebook and Twitter account before they are the subject of an investigation?  Shouldn’t we have a huge room filled with employees who are doing this twenty-four hours day?  If you are voluntarily posting on social media, haven’t you forfeited your right to privacy?  Certainly Homeland Security and immigration officials should be mining social media data so as to discover potentially significant terrorist threats.  

While it is true that tens of millions of individuals enter this country and we cannot conduct exhaustive investigations and scour social media accounts of all, but surely, the United States can target particular foreign nationals seeking entry visas from those countries deemed to be harboring terrorists.  The United States Citizenship and Immigration Services should be allowed to routinely use material gathered from social media when screening those wanting to enter the country.  I believe that should be their top priority.  

Although the Department of Homeland Security is trying to strike the right balance between security, ease of movement, and privacy rights, I think that keeping the homeland safe and secure should the priority.  If you don’t want agents of the US government perusing your postings on social media, then don’t post anything.  But if you do post about your allegiance to ISIS or commitment to jihad, it’s all fair game.  And it’s time for the federal government to look through your open [media] window.  

Todays Verdict_David LeschDavid P. Lesch is an attorney and host of ‘Today’s Verdict with David Lesch‘ on Bronxnet. Today”s Verdict airs Tuesday nights at 6:30pm, Cablevision channel 67, Fios channel 33. 

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