Feds Accused of Withholding Social Media Surveillance Files

SAN FRANCISCO (CN) - A public records lawsuit filed Thursday seeks to pry loose files on the government's alleged mass surveillance and retention of people's social media activities, a practice civil liberties watchdogs warn could chill free speech.

"The public has a right to know how the federal government monitors social media users and speech, whether agencies are retaining social media content, and whether the government is using surveillance products to label activists and people of color as threats to public safety based on their First Amendment-protected conduct," American Civil Liberties Union attorney Hugh Handeyside said in a statement Thursday.

In a federal lawsuit filed in San Francisco, the ACLU claims that multiple government agencies are ramping up efforts to monitor social media, a surveillance tactic that "implicates the free speech of millions of social media users."

The FBI in 2012 sought suggestions on how to develop a tool to "instantly search and monitor" social media activities, and in 2016 it hired PenLink, a data analytics firm, to provide software that "parses and analyzes social media data" housed on a stand-alone server, according to online public records cited in a blog post written by Handeyside and ACLU lawyer Matt Cagle on Thursday.

Despite the existence of those online records, the FBI told the ACLU in a June 2018 letter that it could "neither confirm nor deny" the existence of information about its social media surveillance policies, guidelines, data analytic systems, and communications with private contractors.

The ACLU says these surveillance activities are particularly troubling given the history of state and federal law enforcement tracking the social media activities of Black Lives Matter activists, which was first revealed in public records obtained by The Intercept in 2015.

“Social media surveillance feeds the discriminatory real world targeting of black people, immigrants, religious minority communities, and political dissidents," Cagle said in a statement Thursday. "It’s unacceptable for the government to withhold details about this domestic spying.”

Although it maintains that the public has a right to know how the government uses technology to monitor social media, the ACLU has not directly argued that such activities are unlawful or unconstitutional. At least one federal judge has ruled that U.S. law does not prohibit automated bots from scraping massive amounts of data from online social media profiles. 

The ACLU is also seeking records on the use of social media monitoring for the Trump administration's "extreme vetting" program for visa applications. The State Department announced in March 2018 that it would start requiring nearly 14.7 million people who apply for work and tourist visas each year to disclose up to 20 social media handles used by them within the last five years.

The State Department informed the ACLU last summer that it could not produce any information on social media surveillance because the ACLU's request did "not reasonably describe the records sought." Four months later, the agency rejected an appeal of that decision.

The Department of Homeland Security, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services also failed to turn over any social media surveillance records requested by the ACLU.

The civil liberties watchdog is now asking a federal judge to order government agencies to release those records, waive all processing fees and reimburse its litigation costs.

"It’s clear from already public information that all of the agencies we’re targeting in our FOIA lawsuit engage in manual and automated surveillance of social media users and their speech," Handeyside and Cagle wrote in their blog post Thursday. "The public needs to know how the government is watching us — and we shouldn’t have to think about self-censoring what we say online."

The Department of Justice did not immediately respond to an email seeking comment Thursday.

Follow @NicholasIovino

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