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Postal Service Social Media Tracking Tests Crime Unit’s Power

April 26, 2022, 9:15 AM

A U.S. Postal Service law enforcement program that has monitored social media for references to protests pushes the limits of the agency’s authority, raising questions about the future of these surveillance activities.

Tracking by the U.S. Postal Inspection Service’s online investigative program has coincided with Black Lives Matter protests in 2020 and the Jan. 6 riot at the U.S. Capitol in 2021, according to government reports.

In certain cases, it has exceeded the agency’s legal powers over postal crimes, according to a recent watchdog report by the USPS Office of Inspector General. The report calls for a review of the program by September.

Leaders of the Postal Inspection Service agreed to conduct a review but disputed the report’s main finding. The service argued that its online searches don’t have to be limited to terms that are directly related to postal crimes.

The inspector general issued its watchdog report in response to a request from Congress, where lawmakers have shown bipartisan interest in stronger oversight of the postal crimes unit’s online activities. The House Committee on Oversight and Reform questioned the USPS investigative program’s scope and accountability, asking whether added controls are needed.

“There’s this fundamental mismatch” between the watchdog’s conclusion and the agency’s reaction, said Aaron Mackey, senior staff attorney at the nonprofit Electronic Frontier Foundation. Mackey called the investigative program “a fishing expedition” that raises privacy and civil liberties concerns for the people caught up in intelligence gathering.

EFF is suing the postal service for records on its social media surveillance activities. Little was known about the investigative program, established in 2018, before the watchdog report came out in March.

Postal Connection

The law enforcement arm of the USPS is responsible for protecting its employees, operations, and infrastructure from activities that could impact safety and security, according to a statement from the Postal Inspection Service.

The Postal Inspection Service “disagrees with the overarching conclusion” of the inspector general report that found the unit exceeded its authority and conducted improper intelligence searches, the statement said. “The activities conducted by the Postal Inspection Service were within its legal authority as set forth by federal statutes and case law,” it said.

A connection to postal law enforcement was not always made clear when the program used an unidentified intelligence tool to monitor social media and message platforms for keywords like “protest,” “attack,” and “destroy,” the watchdog found. Its report also said requests for assistance from a postal inspector, including 14 requests to use facial recognition technology, sometimes contained little or no explanation.

The Postal Inspection Service used Clearview AI’s facial recognition technology to help identify individuals suspected of criminal activity that took place in the summer of 2020 during a period of “civil unrest, riots, or protests,” according to a separate review by the U.S. Government Accountability Office. This time period coincided with nationwide Black Lives Matter demonstrations over racial bias in policing and police violence.

The criminal activity at issue included damaging U.S. Postal Service property, stealing mail, opening mail, burglarizing U.S. Postal Service buildings, and committing arson, the GAO said.

Intelligence Bulletins

The Postal Inspection Service also showed interest in protests at the U.S. Capitol in January 2021, when supporters of former President Donald Trump disrupted the counting of Electoral College votes for the 2020 presidential election.

One of the service’s “situational awareness” intelligence bulletins highlights social media posts from individuals making a collective effort to archive data from the Jan. 6 Capitol protest. The bulletin notes that this kind of data can assist law enforcement in the analysis and identification of those involved, while potentially helping to mitigate future violent protests.

A government transparency group called Property of the People made the bulletin public. Property of the People, which uses records requests to obtain information, also published a Postal Inspection Service bulletin focused on a website dedicated to coordinating militia groups nationwide.

Bulletins like these raise questions about why the Postal Inspection Service would conduct this sort of intelligence gathering, said Cristin Monahan, non resident fellow at George Washington University’s National Security Archive.

Still, most of the investigative requests and reports that the inspector general reviewed identified a so-called “postal nexus,” meaning they were within the service’s legal authority. “Unfortunately, the bulletins that are currently publicly available probably fall into the first category,” Monahan said.

Program Pushback

The investigative effort has faced pushback from the nonprofit Electronic Privacy Information Center, which sued USPS for failing to put together and publish a formal Privacy Impact Assessment before using social media surveillance tools and facial recognition technology.

EPIC argued that such an assessment is required by a federal law that regulates the government’s use of technology. USPS countered that it’s not subject to this law and said the nonprofit lacks standing to sue over the assessment. The U.S. District Court for the District of Columbia recently sided with the agency and rejected the suit.

The case “underscores how difficult it is to get reliable information on and accountability over these surveillance activities,” said John Davisson, EPIC’s senior counsel. “There’s very little transparency, few safeguards, and accountability measures that exist for other agencies are difficult or impossible to enforce with respect to the post office.”

The USPS Office of Inspector General’s March report came at the request of the chair and ranking member of the House Committee on Oversight and Reform, who sought more information about the Postal Inspection Service’s online investigations unit after Yahoo News reported on its social media monitoring. The committee was concerned about intelligence gathering’s impact on First Amendment activity, like the right to protest.

The inspector general’s report “makes clear that the committee’s concerns were justified,” Committee Chairwoman Carolyn Maloney (D-N.Y.) said in a statement. Maloney said she supports the watchdog’s recommendation for a review of the analytics teams’ responsibilities, activities, and procedures.

“I look forward to reviewing its result,” she said.

To contact the reporter on this story: Andrea Vittorio in Washington at avittorio@bloomberglaw.com

To contact the editors responsible for this story: Tonia Moore at tmoore@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com