Judge Says The FBI Can't Keep Refusing To Confirm Or Deny The Existence Of Social Media Monitoring Documents

from the that-thing-we're-all-doing...-we-can't-really-say-we're-doing-it dept

The ACLU is one step closer to obtaining documents detailing the FBI's use of social media monitoring tools. The FBI replied to the ACLU's FOIA request with a Glomar and a denial.

First, it neither confirmed nor denied it had responsive records. Then it said even if it did have some, it still wouldn't release them. According to the FBI, releasing documents about the government's well-known use of social media monitoring software would somehow allow criminals to take a peek at super-secret law enforcement tools. It made these assertions despite the fact it publicly secured contracts for social media monitoring tools.

The ACLU sued. And now, it's obtained at least a partial victory. The court says it's not quite accurate to say the DOJ has already publicly acknowledged use of social media monitoring tools. Citing the ACLU's victory in an FOIA lawsuit over drone strike documents, the court points out the bar to clear first is whether it can be said the DOJ -- not the FBI -- has made it clear it's in the social media monitoring business. From the decision [PDF]:

[ACLU v. CIA] does not suggest that the known use of a technique by one agency creates public knowledge of use by a different agency, unless it is publicly known that the agency’s parent agency utilizes that technique. Here, the FBI’s parent agency is the Department of Justice, and the ACLU presents no evidence that it is publicly known that the Department of Justice utilizes the social media monitoring techniques in question.

But that's not the end of the discussion. The FBI works with several other federal agencies and the documents requested would cover any secondhand use of monitoring tools. So, is it public knowledge other federal agencies engage in social media monitoring?

Given the wide array of evidence indicating (1) that other agencies engage in social media monitoring in the immigration and transportation contexts, and (2) that those agencies cooperate, coordinate, and share information with the FBI, the Court also considers whether such evidence makes it possible to impute, for purposes of applying Exemption 7(E), social media monitoring in the immigration and transportation contexts to the FBI. The ACLU presents extensive evidence that the Department of Homeland Security (“DHS”), U.S. Customs and Border Patrol (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), Immigration and Customs Enforcement (“ICE”), and the Department of State (“DOS”) engage in social media monitoring.

Following this are six straight pages detailing these agencies and their monitoring programs, all of which have previously been discussed publicly. But that still isn't enough.

[T]he Court finds that the weight of authority suggests that the ACLU cannot seek disclosure of the FBI’s policies based on other agencies having disclosed their own policies, together with acknowledgement that they share information with the FBI.

If this seems to be going the government's way, it actually isn't. The Glomar and the attached exemption don't pair as well as the government would like. The Glomar, at least, is a step too far in the direction of unjustified opacity.

The problem for Defendants is that disclosure of social media surveillance—a well known general technique—would not reveal the specific means of surveillance. Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration- or transportation-related investigations. Merely requiring the FBI to answer whether there are documents of the kind requested would not, at this juncture, require the disclosure of those documents which might reveal specific tools and techniques utilized by the FBI.

The government then argued denying a Glomar might expose the FBI's lack of social media monitoring. The court says the FBI can't have its Glomar and its FOIA exemption if it wants to make that argument.

[T]he language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of “risk of circumvention” of the law under Exemption 7(E) to guidelines, not techniques and procedures. Hence, it is not clear whether Defendant’s negative inference argument is cognizable under Exemption 7(E).

In the end, it's the level of perceived harm that gives the ACLU a shot at obtaining these records. The FBI and DOJ claim any release of info would result in criminal mayhem due to criminals suddenly being made aware of the existence of social media monitoring programs. The court says that's just not going to happen.

[T]he risk of criminal activity escaping detection thru social media if the FBI were to reveal it has no records is substantially mitigated by two facts. First, it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI’s disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally.

This kills the FBI's Glomar. It will now have to at least confirm or deny it has records relevant to the ACLU's request. And once it's done that, it can start arguing about whether or not it can use Exemption 7(e) to keep them out of the ACLU's hands. Given the previous paragraph, it's difficult to see how the FBI can possibly justify a refusal to release any of the documents it may (or may not lol) have on hand. Social media monitoring efforts are well-known in the public and private sectors. If the FBI is doing something new and interesting with this, it might have a point. But if it's just doing the same thing other agencies are doing, it really can't justify rejecting this request.

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Filed Under: doj, fbi, foia, glomar, social media monitoring, transparency