SAN FRANCISCO (CN) — A federal judge on Friday questioned whether the U.S. Department of Homeland Security can legally withhold records on its use of social media surveillance tools to monitor citizens and immigrants.
“I have no idea what it is,” U.S. District Judge Edward Chen said, referring to the context surrounding a blacked-out piece of text in a 12-page document from 2015 on social media surveillance rules for U.S. Customs and Border Protection.
Chen suggested that Customs and other Homeland Security agencies failed to adequately explain why specific lines were redacted in hundreds of pages of documents turned over as part of a lawsuit over public records on social media surveillance.
The Justice Department says those redactions are necessary to protect sensitive law enforcement techniques that, if known, could help criminals to evade the law. That is one category of information exempt from disclosure under the Freedom of Information Act. The government is also invoking exemptions for deliberative process and attorney-client privilege.
The legal tussle dates back to January 2019 when the ACLU sued seven federal agencies for refusing to release records on their use of social media monitoring tools. The FBI declined to even acknowledge the existence of such records, arguing that doing so could reveal sensitive law enforcement information. In November 2019, Chen rejected that argument, finding social media monitoring is a “well-known general technique,” and he ordered the agency to start turning over files.
ACLU lawyer Hugh Handeyside said in a phone interview this week that these records can help Americans understand the extent to which the federal government is surveilling their speech.
"Even though social media profiles are public, that doesn’t mean the government should be monitoring that information in a dragnet fashion without any suspicion of wrongdoing," Handeyside said.
On Friday, Chen waded into the latest wrinkle of the public records fight. He oversaw a hearing on dueling motions for summary judgment. The judge will decide if Homeland Security agencies can legally black out details from disclosed files and whether Immigration and Customs Enforcement conducted an adequate search for records.
The government says disclosing details of the Customs and Border Protection rules for masked monitoring and undercover engagement could help criminals by revealing in what scenarios certain techniques are used and how often the surveillance methods are employed.
“You could use this information to understand in greater detail how CBP is using this and tailor one’s approach on social media accordingly,” Justice Department lawyer Vinita Andrapalliyal told the judge.
Noting that the government’s use of these tools is widely known, Handeyside insisted their disclosure will not benefit criminals. It is generally known that people can make their social media profiles private or forgo social media activity to evade surveillance, he said.
“The notion that there could really be a diminishing of the effectiveness of those techniques or some sort of law enforcement consequence really strains credulity in many ways,” Handeyside said.
In a separate set of documents from Customs and Border Protection, the agency invoked deliberative process exemptions to black out parts of questions and answers on how it uses social media monitoring to screen travelers.
Handeyside said these sections look like talking points for questions posed by the media or members of Congress. He argued that kind of information is not part of an agency decision-making process and it can't be withheld.
“There’s no particular policy decision to which these documents pertain,” he said.
Andrapalliyal countered that a draft version of talking points can be considered deliberative and withheld from the public.
“You’re looking at a particular preliminary view of an agency that has not been manifested yet,” Andrapalliyal said.
Judge Chen said information can't be withheld just because it was written before a decision was made. It must be something that was considered by a decision maker to formulate a policy position, he said.
“I don’t see this as something prepared to help an agency make its decision,” Chen said.
The ACLU is also asking for ICE to conduct a more adequate search for records on its use of social media surveillance tools.
Handeyside said ICE’s Enforcement and Removal Operations division produced only 45 pages of documents, despite evidence of the agency's multiple contracts with private companies to collect data from social media profiles.
“ICE is trying to tell the court that despite contracting with various entities for millions of dollars for products that, according to publicly available descriptions, surveil and monitor social media content, that ICE has no policy, memoranda or guidance on the use of those products,” Handey said. “It’s simply illogical and implausible that would be the case.”
Andrapalliyal replied that the number of pages produced by a search is irrelevant. An adequate search can be conducted and turn up zero documents, she said.
“The standard’s not whether the search is complete,” she said. “The standard is whether the search is adequate.”
After a 90-minute hearing, Chen ordered the government to submit 500 to 600 pages of unredacted documents for him to review in camera, or behind closed doors, to determine if the redactions are justified. He also ordered both sides to meet, confer and try to reach an agreement on a new search for ICE records.
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