In late 2011, the New York Police Department swept up 43 alleged members of two gangs in Brownsville, Brooklyn, and charged them with murder and conspiracy.
The following day, the message boards of a website called Hoodup.com — usually filled with talk of basketball or speculation about “why no gangs banged out for Trayvon” — swarmed with gossip.
“This might be the end to Hoodstarz an Wavegang,” said a user named chazack referring to the gangs in the sweep. “Rockstarz might be next if they don’t be careful,” wrote bxjunglist.
But a lot of the messages focused on a peculiar detail of the arrests: that the NYPD had used the Facebook posts and Twitter feeds of the gang members to track the rivalry and violence between Hoodstarz and Wavegang for years. By the time of the sweep, police said they had linked the gangs to six killings, 32 shootings, and 36 robberies over a two-year period — based largely on bragging, taunting and information-sharing monitored by the cops on social media.
“Niggas don’t understand how dangerous this Facebook shit is..” commented 718 WAY OF LIFE. “And they repping their gang on facebook, so the FEDS don’t have to do much work when they ready to snactch these niggas up..”
TRUEblue718 weighed in: “To be real with u I’m not impressed with the recklessness..I’m paying more attention to how the police is locking them up on conspiracy charges, thats something us old head heads are paying attention to..if the youngins were smart they would be paying attention too..”
Yet the gangs of New York don’t appear to be paying attention. Since the Brownsville roundup, dubbed Operation Tidal Wave by the NYPD, police have made at least four more major sweeps in Brooklyn and Manhattan, arresting more than 130 alleged members from five different gangs. Police worked alongside criminal investigation units in district attorneys’ offices and say they used Facebook, Twitter, YouTube and Instagram — in some instances even creating fake profiles and friending the targets of their investigations — to build cases and indict individuals for murder, assault, robbery and conspiracy.
Manhattan District Attorney Cyrus Vance has started calling the Internet the “21st Century crime scene.”
“I think it’s scarcely an exaggeration to say that social media — Instagram, Twitter, Facebook – have become our most reliable informants, providing evidence of gang members planning shootings, bragging about them after they committed them, and possession of weapons and the proceeds of crime,” he said in a speech this week at Fordham Law School.
In a world of ubiquitous social media, it is no wonder Facebook and Twitter are popular from the Marcus Garvey Houses in Brownsville to the streets of East Harlem. Police Commissioner Ray Kelly has said these areas are often battlefields for loose associations of young men defending their turf, who increasingly use social media to document their affiliations and conflicts.
“Gang culture is a very expressive subculture to begin with. A lot of it is about performance, egging someone on and challenging someone,” said David Brotherton, a professor of sociology at the John Jay College of Criminal Justice. “They’re not secretive like the Mafia where they are protecting investments and all that….The subculture lends itself to this kind of madness on social media.”
Online communiqués by alleged gang members represent new, uncharted legal terrain as New York City authorities eagerly mine social media feeds to build criminal cases. Police and district attorneys hope that the evidence wrought from status updates and 140-character missives can help put gangbangers behind bars. In February, a police source told the New York Post that “when gang members threaten each other on Facebook, that’s enough to get a conspiracy charge.”
But legal precedents showing how effective or admissible such evidence is during trials are still relatively few, and not every criminal attorney is convinced of the prosecutorial power of social media, particularly when it comes to conspiracy cases.
In New York, prosecutors can charge with conspiracy individuals who have agreed to commit an “overt act” in furtherance of an agreed-upon crime. Even if only one individual commits that crime, all participants involved in the agreement may be charged with conspiracy.
What evidence prosecutors have culled from the defendants’ social media profiles isn’t exactly clear. While Vance has artfully showcased a few choice Facebook posts — like “I’m 2 Glocks strapped, rolling down 112th Madison, 116th this is the New Iraq” — the details of the alleged conspiracy will emerge only in court.
Social media remains largely untested in its power to bring about a conspiracy conviction in New York and other states. The recent gang cases are currently winding their way through the courts, with at least one trial scheduled to start this summer.
“Conspiracy is one of the most elastic things you can charge, and I think these cases are pretty weak,” said Steven Chaiken, a New York-based defense attorney who has worked homicide cases since the 1980s.
Chaiken is representing Culture Bermudez, the alleged leader of the Hoodstarz gang and charged with six counts of felony conspiracy as well as second-degree murder for his role in the death of Daniel Aleys, an innocent bystander shot in the head in Brownsville on August 31, 2011.
Online, “So much of what they say is casual conversation. The facts are twisted to try and present a case,” said Chaiken.
It is not hard to see why New York authorities are so enthusiastic about using social media in their investigations. Unlike with a traditional wiretap, which requires a warrant, police can access public social media accounts easily — and even probe private accounts using a fake identity — with no need for a warrant.
“It’s useful for law enforcement to help themselves — find out who’s involved and who is not,” said Matthew Galluzzo, a defense attorney who was a Manhattan prosecutor for seven years. “It used to be the other way around, you had to go to the physical world to see who was involved. They can almost work backwards a little bit.”
But using social media to demonstrate a conspiracy raises unique questions that weren’t present with traditional wiretaps. Is being “friends” with someone on Facebook enough to establish the links of a criminal network? Is a cryptic message about “clapping” someone off a surfboard on Twitter, as police say members of the Hoodstarz gang did, proof of an agreement and intent to murder?
While the NYPD appears to have taken the lead by adopting and enshrining its social media tactics within its Gang Division, cops and prosecutors are asking the same questions across the country. A survey of more 1,200 law enforcement agencies and professionals showed a wide use of social media in investigations, and 74 percent of respondents who didn’t use it yet intended to start.
“Prosecutors all over the country are hip to this,” said Galluzo.
In several cases in other states, defense attorneys have successfully challenged the authenticity of social media evidence by arguing that accounts were hacked. In Maryland, a judge found that the date of birth and a photograph were insufficient to prove the account owner actually wrote a message the prosecution attributed to her. And in Connecticut, a judge determined that the evidence was not authentic just because the claimed author “held and managed the account.”
Though the same rules of evidence for paper documents or electronic recordings apply to social media, it can be more difficult to admit during a trial because it is so easily falsified, as evidenced by NYPD’s use of fake accounts to “friend” individuals.
Prosecutors face challenges in proving that the defendant was the one responsible for the posts or tweets, as well as deciphering the tone or criminal intent of messages. Many gang members use aliases, making it difficult to prove the identity of a person online. And just because someone makes a tough-sounding boast online doesn’t necessarily mean they intend to actually do what they say.
In order to verify social media content, authorities often still need subpoenas and search warrants to force social media companies to hand over user information such as locations, ISP information or geotags.
On Facebook’s website, law enforcement authorities can find guidelines on how to submit subpoenas or court orders, but the company says it only responds to such requests when it is required to do so by law. “We work with law enforcement to the extent required by law, and as needed to keep the site and those who use it safe,” said a spokesperson for Facebook. “We devote significant resources evaluating requests for user information, and adhere to the letter of these laws when responding to requests for information.”
Twitter has similar guidelines but notes that user information is not always accurate because the company doesn’t require email verification or identity authentication.
In a sign of growing confidence that they can secure user information through subpoenas or court orders, government agencies issued more requests for user information from Twitter in the first half of 2012 than in all of 2011. In the last six months of 2012, government requests rose again by 20 percent, to 815, and Twitter turned over information 69 percent of the time.
The flood of requests follows a highly publicized case that Twitter lost in New York appellate court in the fall of 2012. A judge refused to quash a subpoena from the Manhattan DA’s office for user information of an Occupy Wall Street protestor, despite Twitter’s argument that the user had a right to privacy under the Fourth Amendment.
In February, NYPD Commissioner Ray Kelly said his department’s aggressive strategy of patrolling social media is directly related to the 33 percent decrease in the city’s murder rate in 2012. He calls the initiative the “Crew Cut” concept, in which Strategy Enforcement Teams or “SETs” target younger males committing crimes in small geographic areas. Last year, Kelly doubled the size of these units to 300 members.
The teams operate in eight different precincts, including the 73rd in Brownsville where the Hoodstarz operated. “In each initiative, the teams help us monitor social media and we gather information we can use on these groups,” Kelly told the New York Post. “We think that it’s working. We started in October, and it’s paying dividends now.”
The Post quoted an anonymous police source as saying: “If you have a victim who is assaulted, they won’t talk to police…. But when gang members threaten each other on Facebook, that’s enough to get a conspiracy charge.”
This is an overstatement, according to Matthew Galluzzo. Messages alone aren’t enough for a prosecutor to sink a defendant, he said: “At the end of the day, they have to prove some physical act in the real world.”
But the NYPD may have good reason to publicly tout the effectiveness of a strategy that has so far remained untested in a courtroom. “They are feeding the public an expectation, a public that is going to end up on juries,” said Steve Chaiken. “They’ll hear this evidence and be predisposed to give it more credit.”
As more cases go to trial in the coming year, legal experts will be watching to see how judges navigate admitting social media as evidence and go about ascertaining its validity. If judges use the federal Racketeering Influenced and Corrupt Organization (RICO) Act as a guide in this unchartered territory, social media may well be a powerful tool for prosecutors because the requirements for evidence of conspiracy are so low. RICO “is all about ‘he said she said,’” said David Brotherton.
That could be the undoing for gangs in New York City, even if the causal connection between what is said on social media and an actual crime is flimsy. “A lot of the gang members are so stupid, they say the most stupid things full of bravado,” said Brotherton. “They just can’t shut up.”