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Working the net: Crime and social media

Cover Story

Cite as: October 2012 86 (10) LIJ, p.14

Social media is changing the face of crime from the perspective of criminals, police and lawyers.

By Carolyn Ford

Social media is reshaping law and order. The information and communication juggernaut is changing how criminals commit crime, how police fight crime, how lawyers prosecute and defend people accused of crime and how courts administer justice. All quarters are finding their way with the new technology which might be considered equal parts friend and foe. Crime is committed via social media; it is also resolved the same way.

The case of Joshua Turner and David McRory is an example of a crime committed using social media. The two Bendigo men created a Facebook page which evaluated the sexual performance of women from central Victoria. In August, they were found guilty of using a carriage service to offend and publishing objectionable material online.

The case of the technology editor whose phone vanished from his pocket on a train trip shows how crime is being solved with the help of social media. The phone had an anti-theft app installed, but whoever had the phone turned it off. The editor blogged about it, of course, and the incident went viral. Days later, the phone was turned on and the editor got an email with a map pinpointing the whereabouts of the phone. It was in another state and local tweeters warned him it was in a rough neighbourhood. The police were called to the address by local tweeters and by literally following an alarm on the phone, they found it in the backyard of the house, lying in the grass.

Locally, courts are grappling with the legality of using such devices to locate stolen goods. In Canberra recently, a man tracked his allegedly stolen iPad to a house using an anti-theft app and a GPS. Acting on the man’s information, police went to the address and allegedly found the iPad and other stolen items. The lawyer for the accused said the amateur sleuth had committed “trespass via radio wave” when he activated the iPad’s alarm. At the time of going to press, the case in the ACT Magistrate’s Court was continuing.

These examples perfectly illustrate how social media is changing the face of crime from every perspective.

Criminal lawyers say posts on Facebook and Twitter, a person’s own blog, photos on Tumblr or videos on YouTube, for example, can provide crucial evidence in the defence of an accused person.

Criminal lawyer Bill Doogue, principal of Doogue & O’Brien, says doing a social media check is now an early automatic step in his firm’s defence process.

“In defence matters, you would go straight to social media, straight to Facebook to see if they [the complainant] had a site. You would see if they had been tweeting about something related. You would want to get a copy of those posts or subpoena them fast,” Mr Doogue said.

“In a sex trial which is a belief and age case, where the accused believes the person is over 16, if the complainant has on their website that their age is 18, it’s evidence that can be used. You would instantly be grabbing it.

“It’s foolish to be indiscreet [on social media] but it’s also foolish to make a false complaint,” he said.

“We have people come into our office and say this is what happened and it’s a completely different story to what the police have been told. We have downloaded a lot of evidence which is completely inconsistent with what a client is accused of. These things [evidence gathered from social media sites] impact enormously.

“It’s giving us information that people publish. It’s giving a more honest view of a person to a jury and there cannot be anything wrong with that. It’s more about trying to say, look at the character of this person,” Mr Doogue said.

Prominent criminal lawyer Rob Stary also uses social media as a matter of course in the 3000-odd cases his firm Robert Stary Lawyers handles each year. Accused, accuser and witnesses have their social media sites checked, providing as they do an invaluable snapshot of a person and situation, he said.

“We acted for a man who, via Facebook, had enticed two underage girls to go away with him. He dumped them out of Melbourne. We got the girls’ Facebook sites and they were sexually explicit, very suggestive. We went to the DPP and said, we are going to cross-examine the girls about their Facebook postings which will be damaging and humiliating so ask them if they want to proceed. The girls were asked and they did not proceed,” Mr Stary said.

“In every case of that sort of sensitivity [of a sexual nature], we check every witness – for and against – about their Facebook site. You need to be very wary about what you are posting on your Facebook page.”

Blogger beware is a message brought home to police. The NSW Police Association’s social media policy warns that it is “becoming common” for defence lawyers to trawl police officer social media sites looking for compromising pictures, comments or “likes”.

“Police officers who put inappropriate content on social media sites can expect to have to defend their reputation at court,” says the 2011 Personal Use of Social Media Policy and Guidelines (http://tinyurl.com/8wjxh67) document.

It gives the example of a defence lawyer who tabled a photograph taken from an officer’s Facebook site “to damage the credibility” of a NSW police officer who was a prosecution witness in an assault trial. The photograph presented to the jury showed the male police officer in a “very intoxicated state wearing a bikini”.

Another example given is the New York defence lawyer who got his client’s charge downgraded from carrying a loaded weapon to resisting arrest by arguing that the arresting officer planted the gun on the defendant as an excuse for breaking his ribs during the arrest. The lawyer damaged the officer’s credibility, the policy document said, by entering evidence from the officer’s social media sites on which he had said he was devious, watched a film about a corrupt police officer to brush up on procedure and had posted advice on how to assault people during an arrest.

Victoria Police Safer Communities Unit Inspector Tony Langdon said the organisation had a social media policy and awareness training.

“We have specialised training [for police] for barristers and lawyers checking out personal pages [of police].

“It’s such a challenge for all businesses and government departments to educate their staff in relation to what’s appropriate use. Their reputation can be destroyed by inappropriate social media activity . . . it’s a Pandora’s box.”

The world wide web is a rich seam of information for criminals, too.

“It’s another platform for the criminal element to conduct their business. That’s the challenge for law enforcement and government – to understand that and treat it accordingly,” Inspector Langdon said.

Police are warned to be wary of being befriended online. Just as law enforcement agencies use social media sites to gather intelligence, so do criminals. There is the concern that if a criminal lures a police officer into a compromising situation, online or otherwise, then that officer is vulnerable to extortion.

Former Australian Federal Police Commissioner, Mick Keelty, has warned of the danger of social media to undercover officers whose identities need to be hidden. He says covert operations and even the lives of officers are at risk because the internet gives total access to everybody’s lives. According to Mr Keelty, 85 per cent of recruits into undercover agencies in Australia use social media.

Another 85 per cent of the recruits had had photos of themselves uploaded onto the internet by other people.

Police are equally robust about using social media to build their cases, according to criminal lawyers.

Mr Doogue said: “The police are not shy about going for it as well – and not shy about telling people not to post about it [their matter]. It’s an adversarial system and so the police try to shield their cases. We say, ‘you are better not to talk or post about this. You are in trouble, don’t make it worse’.”

Rob Stary said: “It’s definitely a major tool for police now. Social media is used to entrap people. There have been sting operations where people have been arrested for grooming young people for sexual service.”

Law enforcement agencies in Australia and overseas are using social media across the board, from warning people of a dangerous situation via emergency SMS to trying to solve small neighbourhood crimes to major investigative work.

In August, police in Oakland, California, sent a text alert via Nixle, a notification system, to thousands of residents warning them of a local shooting which had happened just minutes earlier.

“Stay out of area,” said one alert. “Multiple shooting victims reported. Medical on-scene. Police are evacuating a nearby, affected business.”

Eventually, police had the suspect in custody and another alert went out. “Possible suspect in custody. No imminent public safety threat appears to exist in immediate area.”

Nixle is a social media tool, used by thousands of US law enforcement agencies, to send out real-time alerts on major crimes in progress, traffic reports, bushfires, tornadoes and missing children. It has been described as a new “blue wave” of electronic community policing that lets police reach out to the public.

Equally, Nixle has been used as a private messaging system, allowing US authorities to use it at major events like the G-20 Summit, May Day immigration protests and even the Academy Awards.

In a recent survey of 800 law enforcement agencies by the International Association of Chiefs of Police (IACP), it was found that nine out of 10 use some form of social media and more than half reported that social media had helped solve crimes.

In investigative work, police reportedly scrutinise the Facebook pages of suspects themselves, and also their online friends. Posts provide information on a suspect’s mentality and their whereabouts at various times. Although it is believed posts, preferable to easily bugged phones and easily accessed emails, are often written in code.

Inspector Langdon said: “We would never discuss our methodology about how we solve crime but it would be reasonable to say we use every avenue open to us to investigate crimes and criminal activity”.

Victoria Police has an e-crime squad whose brief gets ever broader thanks to new technology. Until a few years ago, its focus was digital forensic work. Nowadays, the unit has an investigative role. The squad’s Detective Acting Sgnt Tony Dimou said in a recent interview that e-crime was “the future of all policing”.

The squad deals with pedophiles and child exploitation in the main, but increasingly many other crimes have a digital element as well – terrorism, homicide, stalking, fraud and weapons/drugs trafficking.

The squad’s job was helped in August when federal Attorney-General Nicola Roxon announced new legislation making it easier for police to track down cyber criminals around the world. The Cybercrime Legislation Amendment Bill 2011 aims to ensure that Australian legislation is consistent with international best practice and enables domestic agencies to access and share information in international investigations.

In April, Victoria Police launched a Facebook program called Eyewatch, an initiative aimed at getting online information from the public to help solve crime. The pilot program has six Facebook pages which cover five areas of Melbourne – Darebin, Brimbank, Geelong, Hobsons Bay and Yarra Ranges – and the public transport system. The pages allow people to report anti-social and disorderly behaviour and if the trial is effective, Eyewatch pages will be rolled out across the state.

Eyewatch led police to an arrest following criminal damage to a Northcote bank. CCTV footage of vandals smashing the window of the bank was posted on the Facebook page. It prompted an anonymous tip and an 18-year-old man was arrested in June.

Inspector Langdon said Eyewatch allowed community participation in law enforcement at a level never seen before.

“We have Facebook, Twitter and blogs, and we do some alerts for emergency management, but Eyewatch is pushed down to a local level. We post incidents of crime that we seek public assistance with. It has an immediacy to it which presents opportunities.”

Away from criminal law, meanwhile, it seems obvious that social media spells more work for media lawyers. Recently, it was ruled that advertisers are responsible for third-party comments on their Facebook page, which is considered a form of advertising. Liability for those comments, which might be damaging, lies with the advertiser.

Beer brand Victoria Bitter found that out when a complaint was filed with the Advertising Standards Bureau (ASB), saying comments on its Facebook page were racist, homophobic, sexist and encouraged binge drinking. The ASB ruled VB was responsible for the user-uploaded content.

At a minimum, legal advice is now being sought on acceptable online content and terms and conditions requirements. The days of the internet as a giant cyber amusement park are well and truly over.

Useful links

  • www.facebook.com/eyewatchpublictransportpolice
  • http://melbournecriminallawyersblog.com/
  • www.police.nsw.gov.au/__data/assets/pdf_file/0007/208609/personal-use-of-social-media-policy-and-guidelines.pdf
  • www.robertstary.com.au/in-the-media
  • http://twitter.com/VictoriaPolice
  • www.vicpolicenews.com.au/component/content/article/10-pages/2272-twitter-policy.html
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