The United States Law Week

FBI Must Disclose Existence of Social Media Monitoring Program

Nov. 19, 2019, 3:56 PM

The FBI can’t refuse to confirm or deny the existence of records pertaining to its social media monitoring program in response to an ACLU Freedom of Information Act request, a California federal district court said.

The FBI’s response was inappropriate because answering the ACLU’s questions won’t reveal any specific means of surveillance, the opinion by Judge Edward M. Chen of the U.S. District Court for the Northern District of California said.

The ACLU claimed the government was taking steps to monitor social media websites to track U.S. citizens and non-citizens as part of its “extreme vetting” of immigrants, and that it was worried about the impact the program would have on speech and privacy.

The ACLU sought information about the FBI’s social media related policies and guidance, records concerning the purchase and acquisition of social media surveillance technologies, and records concerning the algorithms and analytics used to operate the program.

The FBI cited FOIA Exemption 7(E) for records compiled for law enforcement purposes, and issued a Glomar response, refusing to confirm or deny the existence of any responsive records.

Exemption 7(E) applies to techniques and procedures generally unknown to the public, and the ACLU didn’t provide any evidence that the FBI has disclosed anything about its social media monitoring, the court said. But the exemption doesn’t “protect disclosures of an application of a known technique to particular facts,” it said.

Rejecting the Glomar response will only require the FBI to reveal the application of a known technique to immigration and transportation related investigations, the court said. Answering whether there are documents of the kind requested won’t, at this stage of the proceedings, require disclosure of those documents which might reveal specific tools and techniques, it said.

The case is Am. Civil Liberties Union Found. v. DOJ, 2019 BL 443104, N.D. Cal., No. 19-cv-00290-EMC, 11/18/19.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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