It has emerged that the woman who with her husband shot 14 people to death in San Bernardino, California had posted her support of violent jihad on social media even before immigrating to the United media terrorism.jpg

As reported in the New York Times over the weekend, U.S. government officials not only missed these postings in checking into the background of Tashfeen Malik, but “there is a debate” inside the Department of Homeland Security about whether it is even appropriate to review social media as part of background checks.

To someone who uses social media every day in order to build a fuller picture of people we look at, this attitude is incomprehensible.

Looking at someone’s public social media is by definition not an invasion of privacy: We are not discussing reviewing confidential email traffic, but instead postings that were intended to be public whether under a pseudonym or not.

Not that prospective immigrants to the U.S. have much of a claim to privacy rights. Even U.S. citizens are subject to searches at the border that would be declared unconstitutional under the 4th Amendment if they were conducted inside the country.

But even for citizens inside the country, social media with a few restrictions is completely fair game and is an indispensable tool for any investigator. The younger the subject, the more we depend on social media to identify, locate and profile people.

The main limits on social media use for lawyers are these: we may not “friend” people under false pretenses, and in some jurisdictions using an agent to “friend” people without having the agent disclose the real reason for the friend request can be deemed unethical.

But for anything on a social media page accessible to anyone else with an account, social media postings are as confidential as a published article, a website or blog without password protection, or the contents of a speech made on a street corner. If Facebook changes its rules and a comment that was once private becomes public, it is the job of the account holder to reclassify the postings they wish to keep private. That goes for U.S. citizens as well as people seeking the privilege of travel or immigration to the U.S.

The New York Times story implies that the reason some officials shy away from social media checks is that these take too long, and that some in the government are considering social media backgrounds for people from high-risk countries.

Good idea, if years late.

One former Homeland Security official told the Times that “We run people against watch lists and that’s how we decided if they get extra screening.”

Fine, but where do we think the compilers of watch lists get their information? If they are not using social media, they are probably missing a ton of good intelligence, right there in the open.