SOCIAL MEDIA LEGISLATION AND LAW ENFORCEMENT PERSONNEL PRACTICES Part II
by Steve Rothlein
©2013 Steve Rothlein, PATC / LLRMI
Part I | Part II | Part III
Social Media Issues impacting Law Enforcement
In Part I of this three part series, Lou Reiter examined the issues facing a number of states which have enacted legislation governing the use of social media. Legislation clearly supersedes any policies an agency creates to control the use of social media. Nevertheless, policy and procedures are guideposts that provide structure on this emerging information technology until the judiciary provides sufficient legal direction concerning the rules of engagement involving social media. Part II of this series will identify a number of policies which have been adopted by law enforcement organizations.
In August 2010, the International Association of Chiefs of Police (IACP) published their model policy concerning the use of Social Media. They define Social Media as follows: A category of Internet- based resources that integrate user generated content and user participation. This includes, but is not limited to social networking sites (Twitter, Facebook, My Space, Flickr, Digg, etc.). [i]
Potential Law Enforcement Uses:
Social media is a valuable investigative tool when seeking evidence or information about
- missing persons;
- wanted persons;
- gang participation;
- crimes perpetrated online (i.e., cyber bullying, cyber stalking); and
- photos or videos of a crime posted by a participant or observer.
Social media can be used for community outreach and engagement by
- providing online-reporting of police misconduct complaints
- providing online-reporting commending police service
- providing crime prevention tips
- offering online-crime reporting opportunities
- sharing crime maps and data
- soliciting tips about unsolved crimes (i.e., Crimestoppers, text-a-tip).
Social media can be used to make time-sensitive notifications related to
- road closures,
- special events,
- weather emergencies, and
- missing or endangered persons. [ii]
Social networking sites for organizations such as CALEA, IACP, and LLRMI as well as all Federal agencies are enhancing information flow nationwide and promotes sharing information concerning law enforcement “Best Practices.”
Freedom of speech for police officers and other similarly situated public employees has been a difficult issue for many years. The courts have struggled to define the limits of this protected right, and the case law on this point has become complex and is still evolving. U.S. courts have long recognized that while the First Amendment’s guarantee is a vital part of our freedoms, it is not unlimited and may be curtailed when its exercise causes harm to other important government interests. The problem for the courts and for police departments has been to determine where to draw the line and how to properly inform police officers of these legal limitations. The complexity of the issue is increased by the courts’ making distinctions between statements made in a public employee’s official capacity and those made as a private citizen. This distinction is sometimes complicated by the fact that police officers are widely considered to be on duty at all times, increasing the difficulty of determining into which category the officer’s speech falls. [iii]
The IACP recommends that department personnel shall abide by the following when using social media:
- Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of their department or negatively affect the public perception of the department.
- As public employees, department personnel are cautioned that speech on- or off-duty, made pursuant to their official duties is not protected speech under the First Amendment and may form the basis for discipline if deemed detrimental to the department. Department personnel should assume that their speech and related activity on social media sites will reflect upon their office and this department.
- Department personnel shall not post, transmit, or otherwise disseminate any information to which they have access as a result of their employment without written permission from the chief executive or his or her designee.
- For safety and security reasons, department personnel are cautioned not to disclose their employment with this department nor shall they post information pertaining to any other member of the department without their permission.
Department personnel are cautioned not to do the following without agency approval:
Display department logos, uniforms, or similar identifying items on personal web pages.
Post personal photographs or provide similar means of personal recognition that may cause them to be identified as a police officer of the department.
Officers who are, or who may reasonably be expected to work in undercover operations, shall not post any form of visual or personal identification.
When using social media, department personnel should be mindful that their speech becomes part of the worldwide electronic domain. Therefore, adherence to the department’s code of conduct is required in the personal use of social media. In particular, department personnel are prohibited from the following:
Speech containing obscene or sexually explicit language, images, or acts and statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, any religion, or any protected class of individuals.
Speech involving themselves or other department personnel reflecting behavior that would reasonably be considered reckless or irresponsible.
Engaging in prohibited speech noted herein, may provide grounds for undermining or impeaching an officer’s testimony in criminal proceedings. Department personnel thus sanctioned are subject to discipline up to and including termination of office.
Department personnel shall not publish any information, audio recording, photographs or video that is or may become integral to any Department investigation.
Department personnel may not divulge information gained by reason of their authority; make any statements, speeches, appearances, and endorsements; or publish materials that could reasonably be considered to represent the views or positions of this department without express authorization.
Department personnel should be aware that they may be subject to civil litigation for:
- Publishing or posting false information that harms the reputation of another person, group, or organization (defamation);
- Publishing or posting private facts and personal information about someone without their permission that has not been previously revealed to the public, is not of legitimate public concern, and would be offensive to a reasonable person.
Department personnel should be aware that privacy settings and social media sites are constantly in flux, and they should never assume that personal information posted on such sites is protected.
Department personnel should expect that any information created, transmitted, downloaded, exchanged, or discussed in a public online forum may be accessed by the department at any time without prior notice.
Any employee becoming aware of or having knowledge of a posting or of any website or web page in violation of their departmental policy shall notify his or her supervisor immediately for follow-up action
The Legal Liability Risk Management Institute (LLRMI) policy requires that law enforcement applicants
seeking employment with an agency are required to complete an affidavit identifying their involvement with any social net working sites. The candidate shall provide the prospective agency with access to their site(s) as part of their background examination. [iv]
The LLRMI policy also requires employees under administration investigation may be ordered to provide the agency with access to the social networking site, when the subject of the investigation is directly, specifically, and narrowly related to the employee’s performance or ability to perform his or her function within the agency, or when the subject of the investigation is potentially adverse to the operation, morale, or efficiency of the agency. [v]
Conclusion: As the use of social media expands, and the rules of engagement continue to evolve, law enforcement agencies will need to closely monitor their own policies and procedures to ensure they are aligned with the “Best Practices” for law enforcement application.
The legal aspects of Social Media usage will be addressed in Part III of this article.
The IACP Model Policy was developed by the IACP Center for Social Media in conjunction with the IACP National Law Enforcement Policy Center. A large portion of this article has been adapted from Training Key #641, Social Networking and Freedom of Speech, written by Charles Friend.
[i] IACP Model Policy, Social Media, p.1, August 2010
[ii] IACP Model Policy, Social Media, p.2, August, 2010
[iii] IACP Concept and Issues Paper, Social Media, September 2010, p.2
[iv] LLRMI policy on Social Networking, 2009, p. 2
[v] LLRMI policy on Social Networking, 2009, p. 2-3
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.