Members of a court-appointed team assigned to monitor the Memphis Police Department over its online surveillance of citizens offered federal Judge Jon McCalla a progress report Tuesday. The quarterly meeting stemmed from last year's ruling that MPD violated a decades-old agreement forbidding certain types of law enforcement spying.
MPD had been using fake Facebook profiles to monitor activists, which the court found to violate a 1978 consent decree between the City of Memphis and the American Civil Liberties Union.
The monitoring committee said that one challenge to creating new guidelines for officers on social media is a lack of national policies to draw from.
“There’s not necessarily a go-by, you cannot say look at city X or Y or Z, and let’s just kind of cut and paste and see what they are doing," says Edward Stanton, the monitoring team’s leader and former federal prosecutor. "This is really pioneering a new facet of where social media and legitimate law enforcement surveillance and investigative tools intersect.”
Part of the 2018 court order mandates the department formalize a social media policy governing the gathering of intelligence.
“Anytime you are the first at doing something, there’s some challenges that come along the way," Stanton says. "But in the end, I believe it will be well worth it, and I think we’ll have a stronger department and city.”
After meeting with members of Facebook’s legal team this year, the monitoring committee’s social media expert and lawyer with the Brennan Center for Justice, Rachel Levinson-Waldman, confirmed that the use of aliases or undercover accounts—even by law enforcement—violates the company’s stated rules and regulations. Facebook does not currently have a mechanism, she said, for a police officer to request permission to create an alias account.
Up until this point, MPD has been cooperating with the monitoring committee by providing thousands of pages of requested documents and making department leaders available for interviews, Stanton assured the court.
Still, at a public forum held by the team earlier this summer, citizens were skeptical that MPD was complying with the court order to end its online police surveillance of activists. Some claimed they were still being pursued by officers. About ten of those same citizens also attended Tuesday’s hearing, held during morning working hours.
They were invited to direct their concerns to the court. Stanton says he has personally met with many of the individuals and encourages public scrutiny.
“Citizens are watching—citizens are concerned, and ultimately, we want to get this right,” Stanton says. “We want to ensure that this process is fair [and] is transparent.”
Some of the new policies and procedures that MPD and the monitoring committee are discussing and reviewing remain under court seal.
At the end of Tuesday’s hearing, legal representation for the city requested a private meeting with McCalla to discuss what was referred to as a security vulnerability in relation to the ongoing monitoring process.
McCalla promised he would share the outcome of the consultation publicly to the degree that was possible.
“What the court has said...is that [McCalla] intends to hold the city to the bargain that it signed up [for] when it entered into the Kendrick Consent Decree,” Stanton says.