Judge Finds Memphis Illegally Spied on Activists

However, McCalla ordered Memphis to revise its regulations and social media guidelines to define “political intelligence” so it better conforms to the consent decree, and design training with the changes in mind.

“MPD officers did not understand that the consent decree provided a specific definition of ‘political intelligence,’ because the city failed to tell them,” the ruling states. “Even simple, selective training given to [certain] units may have completely prevented all violations in this case.”

The judge ordered the city to submit a list of the searches it performed on its social media collators every three months. The court will appoint an independent monitor to observe the implementation to the court’s orders, whom the city will pay for.

McCalla also awarded the ACLU of Tennessee attorney’s fees.

In a statement sent by city spokeswoman Ursula Madden, Memphis said it took steps to follow the decree before the August trial began.

“MPD now has a strict protocol for initiating an investigation that would require an officer to monitor social media platforms—and did so, well before this ruling,” the city said. “The court believes that we can do better, and we agree.”

The Rev. Ashton Alexander said he always had an inclination that the Memphis Police Department was monitoring members of Black Lives Matter as they held monthly meetings at his church, nothing that squad cars were often parked outside the building.

Memphis police named his Pilgrim Rest Baptist Church in its intelligence briefings, a fact Alexander learned just before the trial began in August.

Alexander said he opened his building up to the meetings because he wanted to show that Black Lives Matter’s concerns of justice and equality were not antithetical to the concerns of his congregation.

“I thought [the surveillance] was downright sinful because this is a meeting that is supposed to promote social change,” Alexander told Courthouse News in August. “Nobody at the meeting was conspiring to do anything that was criminal.”

He added, “I think this is a good example of the state expanding what its role should be.”

Independent journalist Wendi Thomas learned that the Memphis Police Department’s undercover Facebook account “Bob Smith” was monitoring her as she sat in the gallery listening to the first day of the trial.

“Because of the things I write and because, frankly, of the reaction I've gotten over the years from some white people, white leaders, I have always assumed the police were watching me,” Thomas told Courthouse News at the time.

Still, after the shock wore off, it made the 2016 Nieman Foundation for Journalism fellow and editor and publisher of MLK50 furious.

Over the years, Thomas has received death and rape threats, such as when she wrote about Memphis’ now-removed statue of Ku Klux Klan founder Nathan Bedford Forrest, and she said she felt the police never took the threats seriously.  She now takes precautions, such as taking different routes to and from her home.

As a local, Thomas hears the police department’s plea that they “desperately need more feet on the street,” and so she said she finds its monitoring of nonviolent individuals “mind-boggling.”

Memphis has moved to vacate the consent decree, and Judge McCalla noted the court will issue a separate ruling on that.

The judge agreed technology changed drastically since 1978 and it will continue to change in the future. Today, Memphis has recorded and stores “terabytes of video footage” and McCalla admitted that storing that information is probably not investigative in nature, making that portion of consent decree outdated.

Across the country, law enforcement uses technology such as facial recognition and StingRay cellphone tracking, McCalla noted.

“While certain terms of the consent decree may be outdated, the concepts are not, and the dilemma faced by the city is not new,” McCalla wrote. “Every community must determine how much of its citizens’ privacy it is willing to sacrifice in the name of public safety. The idea that police should be limited in their powers predates 2018 and 1978.”

But by conforming to its decade-old consent decree, McCalla said Memphis is carrying out what few cities in the nation have done: creating a policy that protects privacy in the age of algorithms, cameras, social media and artificial intelligence.

“The court recognizes this may be a heavy burden; being a pioneer usually is,” he wrote.

Follow @jcksndnl

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