On Monday, November 18, 2019, Judge Edward M. Chen of the U.S. District Court, Northern District of California, issued an order declining to grant a motion for partial summary judgment in a lawsuit filed by the American Civil Liberties Union against multiple federal agencies, including the U.S. Department of Justice, the Federal Bureau of Investigation, the Department of Homeland Security, and other federal immigration agencies. The ACLU seeks information, via a FOIA request, as to the federal agencies’ surveillance of social media users. Judge Chen’s ruling allows the case to move forward.
The ACLU contends that the defendant federal agencies seek to engage in “programmatic and sustained tracking of U.S. citizens and noncitizens alike” and have specifically “ramped up the monitoring and retention of immigrants’ and visa applicants’ social media information.” In response to the ACLU’s FOIA request, the FBI issued a “Glomar” response, neither confirming nor denying the existence of the records sought by the ACLU. This response prompted the ACLU to file the lawsuit in question.
The FBI filed a motion for partial summary judgment, arguing that FOIA Exemption 7(E) allows for the withholding of requested information because “[c]onfirming or denying the existence of records showing the FBI applies such techniques specific to immigration enforcement or transportation would. . . reveal FBI capabilities, or the lack thereof.” Judge Chen remarked on the tension between the ACLU’s position and the FBI’s position, noting that said tension raises several questions.
First, Judge Chen expounded on the issue of whether Exemption 7(E) requires the responding agency’s use of a technique or rather that the technique or procedure is publicly known. Judge Chen noted that, on the issue of the responding agency’s use of a technique, the ACLU presented extensive evidence to show that multiple defendant federal agencies not only engage in social media monitoring, but also coordinate and share social media monitoring information with each other. As to the issue of whether a technique or procedure is publicly known, Judge Chen commented that the weight of authority on the matter “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.”
Second, Judge Chen noted that Exemption 7(E) distinguishes between disclosures of an application of a known technique to particular facts and disclosures of an unknown law enforcement technique. Judge Chen distinguished the current case from other similar cases because requiring the FBI to answer whether documents of the kind requested exist would not, at this time, require the disclosure of said documents which might reveal the specific tools and techniques utilized by the FBI.
Finally, Judge Chen addressed the FBI’s assertion that disclosing that the FBI does not have documents pertaining to purchase or acquisition of social media surveillance products or services would show that the FBI does not have the capacity to monitor social media. This revelation would, according to the FBI, “embolden people with criminal and/or terrorist intentions, enabling them to use (or continue using) social media to plan, executive, and publicize their plans.” Judge Chen noted that Exemption 7(E) only applies to disclosure of techniques and procedures, and not to the lack of said techniques or procedures. However, Judge Chen assuaged the FBI’s concerns by pointing to the fact that multiple related agencies actually engage in social media surveillance in immigration centers and share said information with other federal agencies. Further, the fact that the FBI does not have documents pertaining to the purchase or acquisition of surveillance products or services does not mean that the agency could have developed such tools internally.
Additional Reading
Judge allows ACLU to seek FBI records on its social media monitoring, San Francisco Chronicle (November 19, 2019)
American Civil Liberties Union Foundation et al v. Department of Justice et al (Case No. 3:2019cv00290)
Order Denying Defendant’s Motion for Partial Summary Judgment (Case No. 3:2019cv00290)
