O, Be Careful, Little Facebooker, What You Like

There’s an old Sunday School song that begins: “O be careful little eyes what you see …” Subsequent verses caution little ears about what they hear, little hands about what they do, little feet about where they go, and little mouths about what they say. Why? Because “There’s a Father up above / And He’s looking down in love.”

Today’s teachers might add a verse cautioning little Facebook users to be careful what they “like.” Because there are unseen eyes watching those decisions, too–and with far less charitable motivations.

That’s what Igor Goldenshtein learned after he and his co-defendant were stopped with (allegedly) 100 pounds of marijuana in their vehicle. Both defendants moved to suppress all evidence gained from this traffic stop on the grounds that police hadn’t had enough basis to pull them over. In a Feb. 22, 2011 decision, United States Magistrate Judge Russell Vineyard in Atlanta denied that motion, finding that law enforcement officers had reasonable grounds to suspect the defendants–in part because of a group that Goldenshtein had “liked” on Facebook.

Police don’t need probable cause to pull you over; all they need a “reasonable suspicion” that you’re doing something illegal. As Magistrate Judge Vineyard explained, “[l]aw enforcement agents may briefly detain individuals for purposes of investigating a crime if they have a reasonable, articulable suspicion based on objective facts that the individual has engaged in, or is about to engage in, criminal activity.” What is more, “[a] reasonable suspicion of criminal activity may be formed by observing exclusively legal activity.” United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000) (citations omitted, emphasis added). So even if everything they see you doing is legal, it can still justify a brief detention if–taken together–it is sufficiently suspicious.

Magistrate Judge Vineyard’s opinion lays out everything that investigators had seen Goldenshtein do that aroused their suspicions. There were a fair number of examples, including unregistered, “quick turn” chartered plane flights, unusually bulky luggage, and making a sudden U-turn after seeing a police car.

But the court and investigators also paid close attention to the fact that Goldenshtein had “liked” The Ballast Collective–“a medical marijuana growing and distribution group”–on his Facebook page. “While this fact standing alone does not give rise to reasonable
suspicion,” wrote Magistrate Judge Vineyard, “and although the group is legal under California law, it does show that Goldenshtein had at least some interest in or connection to marijuana growing and distribution. All of this information was suspicious enough” to justify the further surveillance that federal agents performed on him.

Would the surveillance and the stop have been justified even without this tidbit from Goldenshtein’s Facebook page? Maybe; it’s hard for outsiders to the case to say based on this lone opinion. And maybe there’s more to this “Ballast Collective” than the court let on. Either way, this fact-specific ruling sets no precedent for anyone other than these two defendants.

But this decision is significant. It serves as a reminder that law enforcement agents are watching what we do on our social media sites. And it shows that we don’t necessarily even have to say something stupid or incriminating in order to catch their attention. Even something as simple and innocuous as clicking an organization’s “Like” button could later be a sufficient basis to justify law enforcement officers in temporarily detaining you. And especially in light of how ubiquitous and popular “Like” buttons and other social tools are becoming, that prospect is a little unnerving.

It’s easy enough to shrug that off in the context of a run-of-the-mill drug case. But how far could such reasoning go? I’ll admit to being a fan of Buffy the Vampire Slayer, whose protagonist happened to be both reasonably attractive and (for the first few seasons) a high school student. Is liking that show (or Twilight, or Pretty Little Liars, or one of the scores of other teen melodramas) “suspicious enough” to justify searching someone’s computers for kiddie porn? Is liking the Michigan Militia’s page (or that of any given Middle Eastern organization) “suspicious enough” to justify wiretapping someone’s phones on suspicion of terrorist activity?

Of course, the answer has to be “maybe,” depending on the totality of the circumstances. There could be circumstances in which publicly “liking” such a group does, in fact, fit a pattern of questionable behavior. But the (in)significance of a “like” also has to be taken into account. How many of us have clicked a “like” button, joined a group, or made some other similarly fleeting contact online on a momentary whim, never to be remembered again? Standing alone, clicking “like” is no more significant than laughing at someone’s joke–except that this laugh, like everything else we do online, is recorded and on public display forever.

Let me be clear on one additional point: by raising these questions, I mean no disrespect to Magistrate Judge Vineyard or his reasoning in the Goldenshtein case. The decision merely alerts us to what we should already know, but so often forget–that law enforcement is watching what we do online, and that they can and do act on that information.

So be careful with that little “like” button.

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