The Police Commission-Four Moves to Censor SFPD Officers’ Right to View Social Media
The Police Commission-Four Moves to Censor SFPD Officers’ Right to View Social Media
To make policing more difficult for SFPD, the Police Commission-Four’s[1] newest hurdle is to make it a violation for officers to merely look at social media on their personal devices in the privacy of their homes. This is censorship. This is ludicrous.
Specifically banned social media sites named in proposed SFPD Department General Order (DGO) 6.21.03 that officers will not be allowed to “access” are: YouTube, Twitter, LinkedIn, and Facebook. This follows the commission’s efforts to prevent SFPD officers from pulling over cars with missing license plates, and the commission’s proposed policy to “monitor” (before the commission eventually restricts) SFPD officers’ ability to enter foot chases with fleeing criminals.
Social media is just digitized social interactions
Every day, officers in uniform or in plainclothes, observes people in public places. Just as one does not have an expectation of privacy when they are in public, the same concept applies when someone posts their activities on social media. There is no expectation of privacy.[2]
The Norteño driver involved in the sideshow exhibition (below) was arrested after posting on Instagram. Don’t the residents of San Francisco deserve a police department that is allowed to similarly remove guns like this from our streets? The SF Police Commission thinks otherwise.
Bragging on Instagram is just a digital form of boasting in a crowded bar. Someone is always looking; someone is always listening.
By law, SFPD officers are allowed to pose as drug users to purchase narcotics. Engaging with those same narcotics salespersons through social media is just a digital form of the same act.
In a recent Mission Local article, Police Commissioner Jesus Gabriel Yanez (spouse of an SF public defender) presented the direction of the proposed social media policy when he voiced his concerns about “missing language about probable cause for social media investigations.” Yanez’ requirement about establishing probable-cause-before-a-social-media-investigation can be conducted, is parallel to making officers wait to talk to witnesses and suspects about a homicide until after the investigator proves the interviewee is probably the suspect.
SFPD Department General Order 6.21 is censorship for off duty SFPD officers
The Police Commission-Four will dispute that DGO 6.21 restricts SFPD officers’ ability to view social media on their personal devices while they are off duty. However, here is an actual excerpt:
DGO 6.21.06 (A)(1)
How the Police Commission-Four will spin this proposed DGO
On Twitter (below), Carter-Oberstone is already spinning that the words “launch” and “official” appear in DGO 6.21.06 (A)(1) (above).
Unfortunately, SFPD officers are placed in a situation where Carter-Oberstone can rule on disciplinary violations of SFPD’s general orders, despite him imagining phantom words exist in the policies he is promoting. He is wrong. Neither does the word “launch” of “official” exist in DGO 6.21.06 (A)(1), nor is there enough clarity to even imply that was the intention of this sentence. And people wonder why SFPD officers are demoralized?
Likewise, Carter-Oberstone is misleading the public about an existing SFPD policy on social media (below).
True, SFPD has an existing social media General Order 2.09, which applies to SFPD officers disseminating work content or political commentary that would discredit the San Francisco Police Department. But that is quite different from what Carter-Oberstons is twisting on Twitter (above). In his misleading Tweet, he has conflated the dispersing of confidential SFPD matters under DGO 2.09, with his proposed DGO 6.21 that strives to censor and prevent SFPD officers’ viewing/accessing/reading abilities on social media. MCO is fluent in Boudin-speak.
Is an officer’s recent discovery of a crime on Twitter a violation under proposed DGO 6.21.06?
In my September 26, 2023 article, I detailed how The Standard’s Michael Barba wrote a series of articles exposing how an SFPD officer cavalierly categorized the race of persons he issued traffic tickets to. The leaking of confidential information to Barba on this open investigation was a criminal violation of the Brown Act.
For my article, I spoke to an unnamed SFPD officer on the likelihood it was Carter-Oberstone that made the alleged criminal leaking of Brown Act confidential information. Afterall, the investigative case was assigned to him.[3] During our conversation, the off-duty officer pulled up Carter-Oberstone’s Twitter account and alerted me that Carter-Oberstone’s reposting of Barba’s article, was a documentable—not alleged- criminal violation of the Brown Act.
This internet search on Twitter raised the issue of whether the unnamed officer violated proposed General Order 6.21 (A)(1).
· Was this a “social media search” or an “investigation?” Had the officer used his personal account to merely “access” Carter-Oberstone’s Twitter social media account, or based upon my description of the probable crime, had the officer used his personal account to conduct an “investigative search?”
· Did Carter-Oberstone have an expectation of privacy when he posted on Twitter?
· Wasn’t Carter-Oberstone posting so that people would read his thoughts? Why should SFPD officers be restricted from reading the police commissioner’s material?
· What is the difference between Carter-Oberstone posting on Twitter and asking for an article to be published in Time Magazine?
Clearly, the draft of General Order 6.21, devised with the intentional exclusion of all subject matter experts’ input, is poorly written and will be litigated for years to come. But that’s the Commission Four’s intent: write nebulous policy so that SFPD officers are afraid to go near a policy, even at the cost of sacrificing good police work.
The cloudy definition of an “investigative social media account.” Or how can a police officer have a social media account that is not investigative?
DGO 6.21 defines an investigative as a social media account as:
Wait, wait, I’m confused. I mean, what officer goes out there and opens a social media account “JoetheNarc?”
First, 99.9% of investigating undercover officers “conceal their law enforcement identity’ with screennames like, “Joe94107.” So, doesn’t that mean that the Police Commission has now made every SFPD officer’s personal social media account technically an “investigative” account? And second, what happens when Joe, with a Facebook account “Joe94107” checks in on classmates before his 20-year high school reunion and stumbles into Bill posting a recent video of himself robbing a liquor store?
· Was Joe94107 not even allowed to access Facebook under DGO 6.21.06 because he did not spell out his complete name?
· Was Joe supposed to immediately turn off his computer after his discovery, because he had effectively “launched” an investigation?
· The initial “purpose” of Joe opening this account was not for a “law enforcement purpose,” so doesn’t that mean that Joe doesn’t meet the DGO 6.21 criteria, and this account will be forever excluded as an “investigative account?”
· Can Joe handoff the investigation task to his wife to further investigate on her computer because according to the Police Commission-Four, civilians have more rights to view social media than off duty law enforcement officers?
· Poorly written DGO 6.21.06 prevents “all investigations,” not just “law enforcement investigations.” Therefore, wouldn’t searching or “accessing” a recipe on Instagram technically be an investigation about meals?
But wait, the Police Commission-Four will argue that DGO 6.21 provides a safe harbor for “exigent circumstances” if there is “imminent danger to life or property.” Good luck to officers on this one. Do they really want the Police Commission-Four to rule on their employment status based on whether or not the victim’s losses from a car break-in were not reimbursed by an insurance policy?
Censorship by any other name is still censorship
With San Francisco’s double standard, Commissioner Carter-Overstone can criminally violate the Brown Act and the City Attorney will do nothing. But if you extend your Facebook search to an “investigation,” Carter-Oberstone can fire you?
Sources are claiming that proposed social media DGO 6.21 is being pushed with the help of the SF Public Defender’s office and the San Francisco Bar Association, not only is the policy convoluted, but it is being designed by the agenda people that have no practical law enforcement experience. (Maybe the time has come to put someone on the commission that has law enforcement experience.) San Francisco would be better served if the SF Bar Association focused on policing dishonest and impaired counsel while the Public Defender's Office should be spending time in court defending their indigent clients.
The Police Commission-Four’s proposed social media policy is too complicated! It’s too bureaucratic! It’s censorship! It will only make the city less safe.
Here is what you can do to voice your opposition to the Police Commission-Four’s proposed censorship policies
The Police Commission-Four’s proposed censorship policy is both an overreach and is nonsensical. You can let them know your disagreement by spending 30 seconds completing this Jot form, which will generate an email to each of the SF Police Commissioners.
https://form.jotform.com/232630753330145
[1] The “Police Commission Four” are the three Board of Supervisor-appointed commissioners composed of 1) former public defender, Cindy Elias, 2) public defender Ilona Solomon Yanez’s husband, and 3) Kevin Benedicto who spends all day liking Max Carter-Oberstone’s tweets. The fourth commissioner is Max Carter Oberstone who duped the mayor into believing he was a moderate.
[2] In US v. Mergildro, United States District Court 883 F. Supp 2d 523, the Court held that, even if a poster restricted his posts to friends, there was no expectation of privacy once he distributed criminal photos to friends. That is because the friends were free to disseminate photos without restrictions.
[3] The theory of Carter-Oberstone being the leaker was reinforced by his similar handling of a badly skewed traffic stop article written recently by the Chronicle’s Susie Neilson. Like Barba, she remained silent to questions on how she accessed the mysterious SFPD database. On Twitter, Carter-Oberstone came to Neilson’s defense. After my article was published, on Twitter, Carter-Oberstone provided Barba’s excuse.
1) The Standard never mentioned anything about SFPD “mistakenly sharing” data. That excuse is just another fabrication by Carter-Oberstone.
2) How did Carter-Oberstone learn that SFPD received the data accidentally from SFPD if he is not talking to Barba?
3) Carter-Oberstone stating he did “not leak confidential documents” technically does not exclude that he generated the data analysis and then leaked the analysis and officers’ name(s) to Barba- just that he did not share specific documents. More Boudin-speak.
4) What step did I miss?
5) Who is incompetent?