NYPD police commissioner Ray Kelly issued a five-page memo last week, giving officers permission to created fake Facebook profiles to assist with electronic probes. Officers will be able to register their alias with the department and obtain a laptop whose internet-access cannot be traced back to the police in any way. Facebook's Terms of Service explicitly prohibit individuals from registering under phony names, a precept the memo fails to mention.
The New York Daily News story on Kelly's memo quotes Jethro Eisenstein, the lawyer whose 1971 lawsuit led to new police guidelines regarding political activity: "If there is no criminal predicate the Handschu rules permit certain kind of trolling, looking around on the web. But that trolling is limited to the rules of what the public can do." The Handschu agreement, named after lead plaintiff Barbara Handschu, grew out of an acquittal; 21 Black Panther Party members had been on trial for conspiracy, but the prosecution watched their case evaporate after the extent of NYPD spying was revealed.
The agreement dictated that only the Public Security Section of the NYPD could investigate activity after obtaining a warrant. Since the 1985 ruling, lawmakers have aimed to chip away at the regulations, predictably using 9/11 as the necessary pretext for eroding the force of the landmark ruling. "Today we live in a more dangerous, constantly changing world, one with challenges and threats that were never envisioned when the Handschu guidelines were written," Kelly said, after a request to modify the guidelines to fit the loose parameters of the War on Terror. David Cohen, former CIA officer, and NYPD’s deputy commissioner for intelligence led the charge for dulling of Handschu. Cohen, largely, got what he wanted. Nonetheless, the abbreviated restrictions were probably violated during their (tragically underreported) Muslim spying scandal, in which Cohen wanted a source in every mosque within a 250-mile range.
The possibly illegal surveillance strategy generates immediate concerns about the recent Kelly memo, but so does another NYPD/Facebook controversy: the 17 officers who were disciplined last month for posting racist comments on the “No More West Indian Day Parade Detail" page. "I say have the parade one more year,” one officer commented, “and when they all gather drop a bomb and wipe them all out.” The vitriolic posts, coupled with the questionable interpretation of the law that enabled the spying to occur, raise a number of questions: How could the NYPD monitor the use of aliases on untraceable laptops? Would prior disciplinary action, or a history of bias, rescind one's laptop privileges? What kind of precedent is the NYPD setting by openly disregarding Facebook's TOS? Would the NYPD merely patrol public pages or friend people under false pretenses? Maybe take the time to construct the profile of an attractive woman, or a political organization, and begin friending Urdu speakers or those involved in Occupy?
As for the Facebook corporation’s connection to the memo, resistance is probably futile, and one wonders how much they would even put up. Today Twitter begrudgingly handed over three months worth of tweets to the judge in a case against an OWS to avoid paying gargantuan fines. Kelly's department seems to be setting itself up for similar situations, if it demonstrates the same level of caution that has defined his reign. Adjust your privacy settings.