With protests heating up over the Dakota Access Pipeline, and tensions rising between law enforcement and supporters of the Standing Rock Sioux tribe, the demonstration to stop the 1,170-mile oil pipeline has gone viral.
In a show of "clicktivism," more than 1.4 million people on Facebook used geolocation tagging to "check in" to the Standing Rock Indian Reservation page. The flurry of check-ins spread across Facebook after reports surfaced that the local sheriff's department in North Dakota relied on Facebook to "find out who is at [Standing Rock] in order to target them in attempts to disrupt the prayer camps."
But can checking in at Standing Rock actually help? Will it really confuse police? Can anyone interfere with a crackdown on protesters by clicking a button on Facebook?
Without really knowing what kind of surveillance technology the police there are relying on, it's actually impossible to know. And that's a problem that should alarm anyone concerned about First Amendment rights.
Since the check-in push went viral on Facebook, plenty of articles surfaced pointing out that the online effort to support pipeline protesters won't help. The myth-busting site Snopes labeled claims that checking in to Standing Rock would confuse police "unproven," filing it under political conspiracy theory.
Snopes quoted the Morton County, N.D., Sheriff’s Department carefully worded denial that they were monitoring Facebook. "The Morton County Sheriff’s Department is not and does not follow Facebook check-ins for the protest camp or any location. This claim/rumor is absolutely false."
But this denial ignores the long history of partnerships between police departments and tech companies that do the actual work of scraping social media for information on protests and other political activities. Most of these tech firms require clients to sign nondisclosure agreements (NDAs) before working with them.
For example, the American Civil Liberties Union recently found that social media monitoring firm Geofeedia marketed itself to law enforcement agencies as capable of monitoring protests by scraping social media data through partnerships with Twitter, Instagram, and Facebook.
After the ACLU released its research, Facebook cut the company's access to its Topic Feed API, but it remains unclear if Geofeedia can monitor location check-ins. Thus, Morton County may be telling the truth when they insist that they don't monitor Facebook. But, they might be outsourcing it.
Despite Facebook's official policy that requires government agencies using the site to publicly identify themselves, more than 80 percent of police respondents to a LexisNexis survey found no issue with setting up fake personas online as part of an investigation.
According to the 2015 study of social media use by the International Associations of Chiefs of Police, 67.2 percent of respondents used social media to create at least one "undercover identity to monitor or gather information."
Even if the Morton County Sheriff's Department isn't monitoring social media, police departments have access to a wide range of surveillance and tracking technology. IMSI-catchers, sometimes called "Stingrays" in reference to an early model sold by Harris Corporation, can locate cellphones and intercept calls and texts by pretending to be a real cellphone tower, vacuuming up any and all communications within range (and frequently disrupting normal service).
It's difficult to know which departments deploy Stingrays since their use typically comes with an NDA that forbids law enforcement from talking about the technology.
IMSI-catchers work by tracking phones that are associated with an individual. That's why many people – including activists, protesters, and organizers – who want to avoid surveillance will use a pre-paid "burner" phones to communicate sensitive information.
But there’s a surveillance program for that, too.
Reports from October indicated that AT&T's Hemisphere Project, thought to be limited to drug crimes, is in fact a widely sold tool for law enforcement agencies throughout the country to track individuals across multiple phone numbers. With just an administrative subpoena that doesn't require probable cause, police departments can ask AT&T to comb trillions of call records to identify replacement phones based on call and geolocation patterns.
Hemisphere also requires police to sign an NDA with similar language to the IMSI-catcher NDAs, and leaked documents about the program emphasize that “All requestors are instructed to never refer to Hemisphere in any official document.”
Adam Bates at the Cato Institute’s Project on Criminal Justice sees these advances in technology as overcoming legal restrictions on police activities.
"In 1958, the Supreme Court ruled that the state of Alabama could not compel the NAACP to turn over its membership lists to the government, reasoning that to do so would put unacceptable pressure on the NAACP members' freedom to associate with one another," Mr. Bates told me. "In 2016, the government can't require, say, a Muslim Student Association to turn over its membership list, but police are free to monitor Facebook check ins or thumb through the publicly available pictures on Instagram."
Without more transparency into the modern surveillance tools that police are using around the country, it's impossible to know where law enforcement is crossing the line and violating long-standing boundaries to protect privacy and First Amendment rights.
Regardless of how effective it is, antisurveillance activist Lizzy Jean, who works with the tech advocacy group Fight for the Future, said the check-in campaign at Standing Rock is a turning point.
"When users were given the opportunity to engage a simple mechanism to contribute to a collective action in order to evade surveillance, they took it in unprecedented numbers," Jean said. "It's massive. It means that people understand that they're being watched, and that they don’t want to be. And they’re willing to take tangible steps to render their data unusable."
Jeff Landale is the executive assistant at X-Lab, a venture focusing on tech policy interventions. Follow Jeff on Twitter @JeffLandale.