Law Enforcement Investigations of Extremist Calls to Action on Social Media

Law Enforcement Investigations of Extremist Calls to Action on Social Media

INSIGHTi

Law Enforcement Investigations of Extremist
Calls to Action on Social Media
September 1, 2022
In the wake of government actions that some have viewed as partisan or political—such as the U.S.
Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the Federal Bureau of
Investigation’s (FBI’s) search of former President Trump’s residence at Mar-a-Lago—there have been
calls to action on social media platforms. Some of these calls to action have included calls for violence.
For instance, following the Supreme Court’s Dobbs decision, individuals characterized as abortion rights
extremists reportedly issued calls for violence on social media platforms. In addition, following the FBI’s
search of Mar-a-Lago, individuals characterized as right-wing extremists reportedly called for violence on
social media. As such, policymakers may be interested in how extremists and law enforcement use social
media, as well as conducting oversight over law enforcement use of social media to thwart or investigate
extremists’ threats of violence.
Extremists’ Use of Social Media
Social media plays an important role in the radicalization and mobilization of extremists in the United
States. Extremists of various beliefs and backgrounds use social media to share and consume content;
foster relationships with like-minded individuals; and, in rare instances, facilitate violent attacks. While
extremists use mainstream platforms (e.g., Facebook, Twitter), mainstream social media companies’
efforts to remove content that violates their policies, and if necessary the account responsible for the
content from their platforms, may cause extremists to switch to less moderated and encrypted social
media platforms.
Former-FBI Assistant Director Michael C. McGarrity noted in congressional testimony that domestic
terrorists’ radicalization to violence is increasingly taking place online where “social media is used for the
distribution of propaganda, recruitment, target selection, and incitement to violence.” He further
explained that the online, global nature of the threat has enabled extremists to engage with other like-
minded individuals without having to join organized groups.
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Law Enforcement Use of Social Media
Law enforcement agencies use social media as a tool for information sharing (both with other agencies
and the public) and as a source of information for active investigations. There are no federal laws that
specifically govern agencies’ use of information obtained from social media sites, but the ability to obtain
or use certain information may be influenced by social media companies’ policies and law enforcement
agencies’ own social media policies and rules of criminal procedure. When individuals post content on
social media platforms without audience restrictions, anyone—including law enforcement—can access
this content without court authorization. However, some information that individuals post on social media
might be limited to certain audiences, either due to user choice or platform policies. In instances where
law enforcement does not have public access to information, they may use various tools and techniques,
such as informants or undercover operations, to gain access. Law enforcement may also require social
media platforms to provide access to certain restricted information through a warrant, subpoena, or other
court order.
Social media companies have weighed in on social media monitoring by law enforcement, and some have
modified their policies expressly to prohibit their user data from being used by law enforcement to
monitor social media. Law enforcement agencies themselves have reportedly grappled with the extent to
which they should gather and rely on information and intelligence gleaned from social media.
Generally, federal investigations may be conducted for an authorized national security, criminal, or
foreign intelligence collection purpose and in pursuit of a clearly defined objective. Investigative activity
may not solely monitor the exercise of First Amendment rights. A perennial issue for federal law
enforcement is distinguishing between constitutionally protected speech and threats of violence subject to
enforcement action.
Criticism of Law Enforcement Handling of Extremist Threats on Social
Media and Recent Policy Changes
In some cases, extremists’ planning for attacks has been carried out in the open on social media platforms,
leading some to question why law enforcement did not prevent or better prepare for an attack. For
example, much of the planning for the January 6, 2021, attack on the U.S. Capitol took place on popular
social media platforms, and the Norfolk FBI field office reportedly posted threat information warning of
violence at the Capitol on the Law Enforcement Enterprise Portal.
The January 6th attack has reportedly changed how federal law enforcement handles online intelligence.
In 2021, the Department of Homeland Security began to gather and analyze intelligence about security
threats from public social media posts. The FBI, however, has given differing responses regarding
whether they utilize social media posts for intelligence gathering purposes. According to the FBI
Domestic Investigations and Operations Guide, the FBI is permitted to proactively search publicly
available information.
Congressional Considerations
Recently, certain government actions that have been viewed by some as being politically motivated have
resulted in an uptick in violent and extremist rhetoric against Supreme Court justices and federal law
enforcement on social media platforms. Policymakers may choose to examine the extent to which law
enforcement is able to leverage public information on social media platforms as well as restricted
information gleaned through lawful means to investigate threats of violence. In addition, policymakers
have questioned what social media companies are doing to catalog and address threats of violence made
on their platforms.

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In its National Strategy for Countering Domestic Terrorism, the Biden Administration stated that the
Department of Justice is examining whether new legislative authorities that balance safety and the
protection of civil rights and liberties are “necessary and appropriate.” The Administration did not explain
what those possible legislative authorities might be. In considering new legislative authorities and law
enforcement’s use of social media to address violent extremist threats, Congress might consider the
following: (1) whether law enforcement needs any additional authorities to help it utilize social media
information to conduct investigations or intelligence assessments; (2) whether current safeguards to
protect civil liberties when law enforcement uses public social media information for investigative
purposes are adequate; and (3) the extent to which social media information can be useful when trying to
predict who might carry out a violent act or where a violent act might occur.

Author Information

Lisa N. Sacco
Kristin Finklea
Analyst in Illicit Drugs and Crime Policy
Specialist in Domestic Security

Disclaimer
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