As Standing Rock Water Protectors protested the building of the Dakota Access Pipeline, a private security company hired by another private company seeking to build the pipeline, coordinated with federal and local law enforcement, including the FBI, in tracking the protesters.

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It is well known that many corporations view free speech as a threat to their profit margins. While any FBI surveillance of dissent offends civil liberties, the FBI’s collusion with private corporations raises deeply troubling questions for our democracy. Unfortunately, this is only the latest instance of “private-public” surveillance partnerships.

TigerSwan at Standing Rock

The Intercept obtained 100 pages of documents from TigerSwan, a private security firm that “originated as a U.S. military and State Department contractor helping to execute the global war on terror[…]” TigerSwan, true to its roots in fighting the war on terror, referred to the Standing Rock Water Protectors an “insurgency.” For example, one document contained this choice passage:

aggressive intelligence preparation of the battlefield and active coordination between intelligence and security elements are now a proven method of defeating pipeline insurgencies.

TigerSwan combed social media for information about activists, conducted aerial surveillance, and infiltrated protest groups. This information was not only used privately; daily intelligence briefings, which included the names of activists, were shared with local police departments and the “Intel Group,” which included both the FBI and DHS. These highly inflammatory materials not only referred to protesters as “terrorists” and made reference to “the battlefield,” they contained the identities of protesters and personal information gathered not just from social media, but infiltrators, as well. Particular attention was paid to Palestinian-American protesters due to the fact that TigerSwan assumed they were Muslims. In addition to sharing “intelligence,” TigerSwan worked to turn over evidence that could be used to prosecute protesters.

TigerSwan’s mission was not just to provide “security,” but to protect the company’s reputation and thus malign that of the protesters. It is not the job of any federal or local agency to defend the reputation of a private company. That TigerSwan was being paid by the company building DAPL to make themselves look good and the protesters look bad means that they had a serious conflict of interest when sharing intelligence with federal and local agencies or compiling evidence to be used in criminal prosecutions.

Not the First Time

This is the not the first time that private corporations have relied on private security and intelligence forces to spy on and monitor dissent. It also not the first time the FBI has shown itself to be overly entangled with private interest.

In April 2012, the FBI held a joint strategy session with TransCananda, the company building the Keystone XL Pipeline. This meeting came not at the request of TransCanada, but of the FBI. The FBI produced documents for the meeting featuring both the FBI’s logo and TransCanada’s corporate logo, something that former FBI agent and current fellow at the Brennan Center Mike German found surprising. FBI agents have shown an interest in anti-Keystone XL pipeline activistism, conceding that a Houston field office investigation into activists violated the FBI’s own guidelines.

Documents from a National Labor Relations Board hearing revealed that in 2013, when Walmart learned that Occupy activists might participate in labor protests they contacted the FBI Joint Terrorism Task Force. To this date, exactly what the FBI’s relationship with Walmart was is unknown. Walmart’s own global security division also worked with defense contractor Lockheed Martin in monitoring the protesters.

Remember the Pinktertons

Corporations paying private companies to suppress dissent is not new. Throughout the 19th century, companies paid the infamous Pinkerton Detective Agency to act as labor spies and violently break strikes. The Department of Justice frequently employed the Pinkerton Detective Agency to do the work of a federal police force. Widespread outrage at the Pinkerton’s strikebreaking tactics, however, led Congress to pass the Anti-Pinkerton Act in 1893, which forbid the federal or D.C. government from hiring anyone employed by the Pinkerton Detective Agency “or similar agency.”

Traditionally, the “similar agency” clause was interpreted to mean that groups that did “detective work” (i.e. investigative work distinguished from “protective” work) could not receive government contracts, even if the contracts were not for investigative work. This changed in the late 1970s, after the Fifth Circuit interpreted the statute to only prohibit the government from hiring a “quasi-military force.”

Of course, TigerSwan is employed not by the FBI, but by the company building DAPL, which wouldn’t violate the law as understood, but raises significant conflict of interest concerns when the FBI or any police department uses their “intelligence” . And, as a private for-profit corporation that engages in investigative work on political activists they raise many of the concerns as the Pinkertons did.

Congress needs to exercise its oversight powers to first and foremost determine what role the FBI and other federal agencies played in surveilling protests at Standing Rock. Second, Congress must investigate whether local law enforcement agencies infringed upon the federally protected rights of the Standing Rock Water Protectors. Third, Congress needs to find out what the FBI’s relationship is with private, for-profit entities whose mission is to discredit First Amendment protected activity, whether they be security firms or the company that employs them.

The FBI is an arm of the US government and thus, in theory, works for the US people. It does not work for oil and gas companies or Walmart. Congress must ensure that the FBI understands this.