Judge Says the FBI Can’t Keep Refusing to Confirm or Deny the Existence of Social Media Monitoring Documents

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. . .

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.

(Read more from “Judge Says the FBI Can’t Keep Refusing to Confirm or Deny the Existence of Social Media Monitoring Documents” HERE)

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