The methods the police used to identify and embroil Reed in his present legal morass offer a case study in how law enforcement authorities across the country are turning the very technologies protesters are using to organize their anti-police uprising against alleged bad actors in their midst. Investigators are combing through Facebook, Twitter and Instagram, seeking to identify potentially violent extremists, looters and vandals and finding ways to charge them after — and in some cases before — they sow real-world chaos. The technique has alarmed civil liberties advocates, who say the strategy could chill online speech, while law enforcement officials say it’s no different from strategies they’ve employed in the past.
“It is time to stop watching the violence and to confront and stop it,” Attorney General William Barr said as he rolled out the federal crackdown, which has been carried out by U.S. attorneys throughout the country in conjunction with local authorities and the Criminal Division at Justice Department headquarters in Washington, and has resulted in criminal charges against more than five dozen people. “The continued violence and destruction of property endangers the lives and livelihoods of others, and interferes with the rights of peaceful protestors, as well as all other citizens.”
The DOJ has cited numerous social media posts and videos when building criminal cases against people for allegedly illegal activity that happened during or alongside recent protests against police brutality, a review of federal charging documents shows. The killing of George Floyd by a Minneapolis police officer sparked the massive nationwide outcry, and the vast majority of protests have been peaceful. But in some cities, both large and small, people have looted businesses, damaged police cars and lit buildings on fire — and then posted about it online.
In some cases, defendants are alleged to have posted videos on Facebook Live showing them talking about criminal activity or even engaging in it. In one video, defendant Jhajuan Sabb discussed throwing bricks and bombs at government buildings, and chatted about how to make an explosive with a glass bottle, a rag and lighter fluid. Then someone watching offered to sell Molotov cocktails for “$10 a bomb.”
“I’m telling you how to make a bomb yourself,” Sabb replied. “Why would I buy your bomb when I’m about to make my own bomb?”
A female voice then interjected: “You’re going to go to jail.”
The prediction was correct. Sabb was arrested and is being detained pending his trial. The government has not alleged that he engaged in any of the behavior he talked about on Facebook.
“As a general matter, I think social media surveillance by the government raises serious concerns about free speech and privacy, and also racial and religious profiling,” said Vera Eidelman, a staff attorney at the ACLU’s Speech, Privacy, and Technology Project. “And research shows that when people know that what they are saying is being watched, they feel more inhibited. They don’t feel as free to share unpopular or radical viewpoints, and they also don’t feel as free to speak generally or to share more private thoughts.”
A federal law enforcement official who requested anonymity to candidly discuss investigative tools said it could constrain agencies’ effectiveness if they couldn’t use public social media posts as evidence.
“If their logic is that law enforcement should turn away and avert their gaze when they see something in public that could be illegal or incriminating, I am not sure how effective protecting the public the police could be,” the official said. “For instance, would this extend to barring the police from checking ‘Craig’s List’ for goods reported stolen from a local break-in? What about looking through the glass case of a local pawn shop for stolen items? Where would they like the line to be drawn?”
Social media posts have proven useful to authorities in different ways. For instance, after arresting one defendant, Carlos Matchett — who they allegedly saw encouraging the looting of an Atlantic City outlet mall — police found a Facebook page that appeared to be his. One post, published shortly before his arrest, read, “LET’S START a RIOT.” Another post included video of Matchett “encouraging and directing” people to rob a store, and “indicating that he would provide cover so that they could steal goods from within.” Matchett now faces felony charges and, like the other defendants, is being detained pending trial.
Another defendant, Matthew Lee Rupert, allegedly posted a two-hourlong Facebook Live video depicting him and others throwing explosives at law enforcement.
“They got SWAT trucks up there,” Rupert said in the video. “I’ve got some bombs if some of you all want to throw them back … bomb them back … here I got some more … light it and throw it.”
The video showed him asking for lighter fluid, going into a Sprint store and saying “I lit it on fire,” after coming back out.
“RUPERT then goes to a nearby Office Depot and, at time stamp 1:55:54, stated, ‘I’m going in to get shit,’” the complaint reads. “At time stamp 1:54:59, RUPERT videos himself taking items from the store.”
So far, criminal defense attorneys have cited no specific instances of unlawful overreach by federal authorities, and all the cases are in very early stages. But Karen Gullo of the Electronic Frontier Foundation said law enforcement’s scrutiny of social media could make people afraid to discuss controversial topics.
“When law enforcement collects and scrutinizes social media, it chills and deters free speech and association, not just of the people being monitored, but all the people who communicate with them,” she said in a statement. “We have spoken out against social media monitoring of immigrants by DHS and State Department monitoring of social media accounts of foreign visitors to the United States. Social media monitoring is a longstanding police practice by police surveilling dissident movements. Unless carefully restricted, this monitoring can undermine our First Amendment rights to associate, assemble, and protest, and our Fourth Amendment rights to be free from unreasonable searches and seizures.”
If anything, the complaints show Facebook has proven a valuable tool for law enforcement in investigating criminal activity associated with protests.
And it indicates that despite the president’s dark intimations about antifa domestic terrorists driving the looting, some of the people involved may not exactly be criminal masterminds.
One alleged criminal, charged with using the internet to incite a riot, stands accused of posting a video of himself looting on Facebook Live. The defendant, Shamar Betts, put up a Facebook post including the time and location for planned looting, and then showed up there and posted video of himself carrying goods that appeared to be stolen.
But the complaint also shows the difficulty of drawing sharp lines between the political demands of the protesters, and the alleged motives of those accused of rioting and looting. “They tryna portray me to be some type of monster yet I’m a fucking hero,” Betts wrote in a message that followed a deleted post “inciting the riot,” the complaint reads. “[I]f we don’t stand for something we’ll fall for anything love my black people #J4G.”