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New York's scrutiny of concealed carry applicants' social media activity raises questions among experts

WXXI/AP- A new requirement for New Yorkers seeking permits to carry concealed handguns is raising questions about how it will be enforced and whether it could survive potential legal challenges.

Starting in September, applicants for concealed carry permits must provide local officials with a list of their current and former social media accounts from the previous three years.

It will then be up to sheriff's departments, judges or county clerks to scroll through the profiles and determine whether the applicants made statements suggesting they are capable of dangerous behavior.

The provision is part of a package of legislation signed by Gov. Kathy Hochul less than one month after mass shootings in Buffalo and Uvalde, Texas, in which the alleged gunmen left a trail of hints online before the massacres.

It's not the first time there were missed warning signs ahead of a tragedy.

Before shooting 17 students and staff members dead at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018, Nikolas Cruz posted on YouTube that he wanted to be a “professional school shooter” and shared photos of his face covered, posing with guns. The FBI took in a tip about Cruz’s YouTube comment but never followed up with Cruz.

New York's plan to scrutinize the social media activity of prospective gun owners has been applauded by many Democrats and national gun control advocacy groups, but some experts are raising questions about enforcement and free speech concerns.

Scott Malouf, a Pittsford attorney specializing in social media, said there are a number of things about the legislation that should give people pause.

"The legislation speaks of social media but doesn't define it," he said. "The bill does not say what social media is. So are my direct messages on Twitter with someone something the investigator should look at, or does it just mean my public-facing comments?"

Malouf said the focus of the provision is social media posts, but there may be more useful things for an investigator to sift through, such as where someone is spending time online, what messages they are receiving, and how that relates to their mental health.

"That may not be encompassed in the social media they use and post," he said.

Because the social media inspections will be tied to the issue of gun licenses, Malouf believes there are legitimate concerns about the potential for the violation of an individual's right to free speech under the First Amendment.

"If there are patterns where people who are critics of law enforcement are being denied pistol licenses," he said, "something like that is very vulnerable to a First Amendment challenge."

Many of the questions surrounding the new law have to do with enforcement.

Metro State University criminal justice professor James Densely told the Associated Press that it can be tricky to decode social media posts by younger people, who could simply be expressing themselves by posting a music video.

Desmond Upton Patton, a University of Pennsylvania social policy, communications, and medicine professor, told the AP that New York should instead give the job to a trained group tasked with reaching out to people online who are showing signs of radicalization or trauma and may need help.

"There's a lot of nuance and contextual issues. We speak differently; how we communication, that could be misunderstood," said Patton, who speculated whether the new approach will add to a legacy of unwarranted surveillance of Black and brown communities.