One of the things I presented at IR13 was in a 10-minute panel presentation on the regulation of Internet by spaces such as Facebook. I wanted to use this all to brief time to enter into the discussion of a problem of police, policing, procedural rules and technological affordances – easy right?
This is going to be a paper soon but I need to get some of the ideas out so that I remember the order they are in and so that people who know better can tell me how horribly wrong, ignorant and uniformed I am about the rules of evidence in different jurisdictions.
So the central argument is that computers have been used for a long time in police work and we have created safeguards to ensure that these computers and databases are not abused. In order to prevent abuse most countries have rules dictating when the police can search databases for information about someone.
Additionally, many countries have more or less developed rules surrounding undercover work, surveillance work and the problem of what to do with excess information (i.e. information gained through surveillance but not relating to the investigation that warranted the surveillance). As you can tell I need to do more reading here. These will all be in the article but here I want to focus on a weakness in the rules of evidence, which may be presented to the courts. This weakness, I argue, may act as an encouragement to certain police officers to abuse their authority.
Facebook comes along and many government bodies (not limited to the police) are beginning to use it as an investigative tool. The anecdotal evidence I have gathered suggests no limitations within the police to using Facebook to get better photos of suspects, finding suspects by “trawling” Facebook and even going undercover to become friends with suspects.
Now here is an interesting difference between Anglo-American law and Swedish Law (I need to check if this applies to most/all civil code countries): The Anglo-American system is much better at regulating this are in favor of individual rights. Courts routinely decide whether or not information gathered is admissible. If a police officer in America gathers information illicitly it may not be part of the proceedings.
In Swedish law all information is admissible. The courts are deemed competent to handle the information and decide upon its value. If a police officer gathers information illicitly in Sweden it is still admissible in court but he may face disciplinary actions by his employer.
So here’s the thing: If an officer decides he doesn’t like the look of me. He has no right to check me up. But there is no limitation to going online.
He may then find out that some of my friends have criminal records (I have several activist friends with police records) or find politically incorrect, borderline illegal status updates I wrote while drunk (I have written drunk statements on Facebook).
This evidence may be enough to enable him to argue probable cause for a further investigation – or at least (and here is the crux of my argument) ensure that he will not be disciplined harshly in any future hearing (should such a hearing arise).
The way the rules are written Facebook provides a tool that can be used to legitimize abuse of police power. And the ways the rules are written in Swedish law are much more open to such abuse.
Here are the slides I used for the presentation
