EPIC v. Department of Homeland Security: Media Monitoring

• Top News |
• EPIC's FOIA Request |
• EPIC's FOIA Lawsuit |
• FOIA Documents |
• Litigation Documents|
• News Items

Background

EPIC is pursuing a Freedom of Information Act lawsuit against the Department of Homeland Security for information about the agency's surveillance of social networks and news organizations.

In February 2011, the Department of Homeland Security announced that the agency planned to implement a program that would monitor media content, including social media data. The proposed initiatives would gather information from "online forums, blogs, public websites, and messages boards" and disseminate information to "federal, state, local, and foreign government and private sector partners." The program would be executed, in part, by individuals who established fictitious usernames and passwords to create covert social media profiles to spy on other users. The agency stated it would store personal information for up to five years.

Top News

• EPIC Asks Senate to Probe Customs & Border Protection Nominee on Facial Recognition, Drones: EPIC has sent a letter to the Senate Finance Committee with questions for the next Commissioner of U.S. Customs and Border Protection. The Committee will consider the nomination of Kevin McAleenan to head the CBP at a hearing this week. EPIC raised questions regarding (1) whether Kevin McAleenan would use DACA data for purposes unrelated to DACA eligibility; (2) CBP's use of facial recognition technology; (3) CBP's collection of social media information; (4) CBP's proposed exemption of Privacy Act safeguards for a new agency database; and (5) CBP's use of drones to conduct aerial surveillance on American citizens. EPIC asked "How will CBP ensure that the collection and use of biometric data will not expand beyond the original purpose?" and "Will CBP link images collected by drones with facial biometrics in CBP or DHS databases?" EPIC has submitted comments to DHS and CBP concerning their collection of social media information. EPIC has also filed a FOIA lawsuit seeking documents on CBP's biometric tracking programs and EPIC's Jeramie Scott has written an op-ed for The Hill about CBP's use of facial recognition technology. (Oct. 24, 2017)
• EPIC Opposes Social Media Data Collection by CBP: In comments to Custom and Border Protection, EPIC opposed the federal agency's proposal to collect social media information, including metadata, for a new intelligence database. CBP also proposed to exempt the database from protections of the Privacy Act and to create numerous "routine uses" for the information. EPIC said that CBP should narrow the Privacy Act exemptions and limit the number of routine uses. In a FOIA lawsuit against DHS, EPIC obtained documents which revealed that federal agencies gather social media comments to identify individuals critical of the government. EPIC is currently pursuing a FOIA request about a revised DHS plan to require disclosure of social media passwords before allowing entry into the country. (Oct. 24, 2017)
More top news »
EPIC Opposes DHS Plan for Social Media Surveillance » (Oct. 19, 2017)
In comments to the Department of Homeland Security, EPIC opposed a plan to add social media information to the official files of all immigrants. EPIC said the DHS proposal threatens First Amendment rights, risked abuse, and would disproportionately impact minority groups. A coalition of organizations also submitted comments to express concern about the proposal. EPIC previously opposed a Customs and Border Protection proposal to collect social media identifiers from visa applicants. In a FOIA lawsuit against DHS, EPIC obtained documents which revealed that federal agencies gather social media comments to identify individuals critical of the government. EPIC is currently pursuing a FOIA request about a revised DHS plan to require disclosure of social media passwords before allowing entry into the country.
EPIC Prevails in Internet Surveillance Case » (Nov. 21, 2016)
A federal judge in Washington, DC has granted EPIC attorney's fees in a long-running case against the Department of Homeland Security. In 2012 EPIC sued the DHS for information about a secret program to monitor Internet traffic. The "Cyber Pilot" program applied originally to defense contractors, but a 2012 Executive Order dramatically expanded the program, raising concerns about violations of federal wiretap law. EPICs lawsuit produced the release of several thousand pages on the program. In today's extensive opinion, Judge Gladys Kessler concluded that EPIC "substantially prevailed in this litigation" and that EPIC had added "to the fund of information that citizens may use in making vital political choices." The Court awarded EPIC substantial attorneys fees for its work in the case.
DHS Open Government Report Reveals Increased Backlog and Use of Law Enforcement Exemptions » (Feb. 21, 2014)
The Department of Homeland Security has released the 2013 Freedom of Information Act Report detailing the agencies attempts to comply with the federal open government law. The FOIA requires each agency to provide the numbers of requests received and processed, the time taken to respond, the outcome of each request, and other statistics. In 2013, the DHS reported a significant increase in its FOIA backlog, which rose from 28,553 unanswered requests in 2012 to 53,598 unanswered requests in 2013. Of the nine exemptions that an agency can invoke to withhold documents, DHS relied most heavily on exemption 7(C) (law enforcement records that if released would constitute an invasion of personal privacy) and 7(E) (law enforcement records that if released would disclose law enforcement techniques or procedures, which is significant because the DHS is not a law enforcement agency. DHS reported granting about 7% of requests for expedited processing. EPIC has prevailed in several FOIA lawsuits against DHS, and has also worked to reform the agency's FOIA processing practices for other requesters. For more information, see EPIC v. DHS - Body Scanner FOIA Appeal, EPIC v. DHS - Social Media Monitoring, and EPIC v. DHS - SOP 303.
EPIC Publishes 2012 FOIA Gallery » (Mar. 12, 2012)
In celebration of Sunshine Week, EPIC published the EPIC FOIA Gallery: 2012. The gallery highlights key documents obtained by EPIC in the past year, including the Federal Bureau of Investigation's watch list guidelines, records of the Department of Homeland Security's social media monitoring program, Google's first Privacy Compliance Report, records detailing the government's FAST scanning program, records of the FBI's surveillance of Wikileaks supporters, and DHS records detailing the use of body scanners at the U.S. border. EPIC regularly files Freedom of Information Act requests and pursues lawsuits to force disclosure of critical documents that impact privacy. EPIC also publishes the authoritative FOIA litigation manual. For more, see EPIC Open Government and EPIC Bookstore: FOIA.
EPIC Obtains New Documents on DHS Media Monitoring, Urges Congress to Suspend Program » (Feb. 23, 2012)
EPIC has submitted a letter to Congress following a hearing on DHS monitoring of social networks and media organizations. In the letter, EPIC highlights new documents obtained as a result of a FOIA lawsuit and points out to inconsistencies in DHS' testimony about the program. Though DHS testified that it does not monitor for public reaction to government proposals, the documents obtained by EPIC indicate that the DHS analysts are specifically instructed to look for criticism of the agency and then to redirect reports that would otherwise be circulated to other agencies. EPIC wrote that the DHS' monitoring program should be suspended, as it exceeds the agency's statutory authority and chills First Amendment activity. For more information, see EPIC: EPIC v. DHS: Media Monitoring.
Congress Grills Department of Homeland Security » (Feb. 16, 2012)
Members of a House Committee today questioned DHS officials about the agency's monitoring of social networks and media organizations for information that "reflects adversely" on the agency or the federal government. Several members expressed support for EPIC's proposal that DHS suspend the program, warning that this activity violates First Amendment rights. New questions also arose when the DHS witnesses claimed that no other federal agencies were engaged in similar practices. According to many news sources, the FBI wants to monitor social media. The House hearing was called after EPIC obtained nearly 300 pages of documents detailing the Department of Homeland Security's activities. For more information see: EPIC v. Department of Homeland Security: Media Monitoring.
EPIC Asks Congress to Suspend DHS Social Network Monitoring Program » (Feb. 15, 2012)
In a Statement for the Record, EPIC has asked the House Committee on Homeland Security to suspend a DHS program that has permitted the agency to gather comments critical of the agency and the government by monitoring social networks and media organizations. The hearing on "DHS Monitoring of Social Networking and Media: Enhancing Intelligence Gathering and Ensuring Privacy" was called after EPIC obtained nearly 300 pages of documents detailing the Department of Homeland Security's activities. The documents, obtained as a result of EPIC's Freedom of Information Act lawsuit, include instructions from the DHS to General Dynamics to monitor media reports that "reflect adversely" on the agency or the federal government. For more information see: EPIC v. Department of Homeland Security: Media Monitoring.
EPIC - FOIA Documents Reveal Homeland Security is Monitoring Political Dissent » (Jan. 13, 2012)
As the result of EPIC v. DHS, a Freedom of Information Act lawsuit, EPIC has obtained nearly thee hundred pages of documents detailing a Department of Homeland Security's surveillance program. The documents include contracts and statements of work with General Dynamics for 24/7 media and social network monitoring and periodic reports to DHS. The documents reveal that the agency is tracking media stories that "reflect adversely" on DHS or the U.S. government. One tracking report -- "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI" -- summarizes dissent on blogs and social networking cites, quoting commenters. EPIC sent a request for these documents in April 2004 and filed suit against the agency in December. For more information, see EPIC: EPIC v. Department of Homeland Security: Media Monitoring.
EPIC Sues DHS Over Covert Surveillance of Facebook and Twitter » (Dec. 20, 2011)
EPIC has filed a Freedom of information Act lawsuit against the Department of Homeland Security to force disclosure of the details of the agency's social network monitoring program. In news reports and a Federal Register notice, the DHS has stated that it will routinely monitor the public postings of users on Twitter and Facebook. The agency plans to create fictitious user accounts and scan posts of users for key terms. User data will be stored for five years and shared with other government agencies.The legal authority for the DHS program remains unclear. EPIC filed the lawsuit after the DHS failed to reply to an April 2011 FOIA request. For more information, see EPIC: Social Networking Privacy.

EPIC's FOIA Request

In April 12, 2011, EPIC submitted a FOIA request to the DHS seeking agency records detailing the media monitoring program.The request sought the following documents:

• All contracts, proposals, and communications between the federal government and third parties, including, but not limited to, H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, and/or parent or subsidiary companies, that include provisions concerning the capability of social media monitoring technology to capture, store, aggregate, analyze, and/or match personally-identifiable information.
• All contracts, proposals, and communications between DHS and any states, localities, tribes, territories, and foreign governments, and/or their agencies or subsidiaries, and/or any corporate entities, including but not limited to H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, regarding the implementation of any social media monitoring initiative.
• All documents used by DHS for internal training of staff and personnel regarding social media monitoring, including any correspondence and communications between DHS, internal staff and personnel, and/or privacy officers, regarding the receipt, use, and/or implementation of training and evaluation documents.
• All documents detailing the technical specifications of social media monitoring software and analytic tools, including any security measures to protect records of collected information and analysis.
• All documents concerning data breaches of records generated by social media monitoring technology.

On April 28, 2011, the agency acknowledged receipt of EPIC's FOIA request, but denied the request for expedited processing and did not make any substantive determination regarding the FOIA request. The DHS did not disclose any records in response to EPIC's FOIA request. On May 18, 2011, EPIC appealed the DHS's failure to make a timely substantive determination as well as the agency's denial of EPIC's expedited processing request. The DHS failed to respond to EPIC's administrative appeal and failed to disclose any records.

EPIC's FOIA Lawsuit

On December 20, 2011, EPIC filed a lawsuit against the DHS to compel the disclosure of documents relating to the agency's media monitoring program.

In January 2012, the DHS disclosed 285 pages of agency records in response to EPIC's FOIA lawsuit.

FOIA Documents

EPIC's FOIA request and lawsuit forced disclosure of the following records concerning the DHS's media monitoring program:

• January 2012 Disclosure - 285 pages (including contracts, price estimates, Privacy Impact Assessment, and communications concerning DHS Media Monitoring program)
• February 2012 Disclosure Cover Letter
• February 2012 Disclosure
• May 2012 Disclosure
• June 2012 Disclosure Cover Letter
• June 2012 Disclosure

January 2012 Disclosure

EPIC's FOIA lawsuit forced the DHS to disclose 285 pages of records. The documents include contracts, price estimates, Privacy Impact Assessment, and communications concerning DHS Media Monitoring program. These records make public, for the first time, details of the DHS's efforts to spy on social network users and journalists.

The records reveal that the DHS is paying General Dynamics to monitor the news. The agency instructed the company to monitor for "[media] reports that reflect adversely on the U.S. Government, DHS, or prevent, protect, respond government activities."

The DHS is attempting to "capture public reaction to major government proposals."

The DHS instructed the social media monitoring company to generate "reports on DHS, Components, and other Federal Agencies: positive and negative reports on FEMA, CIA, CBP, ICE, etc. as well as organizations outside the DHS."

One of the example social network monitoring summaries is titled "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI." The report summarizes dissent on blogs and social networking cites, quoting commenters.

The DHS instructed the company to "Monitor public social communications on the Internet." The records list the websites that will be monitored, including the comments sections of [The New York Times, The Los Angeles Times, the Huffington Post, the Drudge Report, Wired, and ABC News.]"

Pre-Litigation Documents

• EPIC's FOIA Request, Apr. 12, 2011 (pdf)

Litigation Documents

EPIC v. DHS, Civ. Action No. 11-02261 (D.D.C.)

• EPIC's Complaint Against the DHS, Dec. 20, 2011, Civ. Action No. 11-02261 (D.D.C.) (pdf)
• DHS' Answer (pdf)
• DHS' Motion for Summary Judgment (pdf)
• EPIC's Opposition To DHS' Motion For Summary Judgment, Cross Motion For Summary Judgment, And Request For Oral Hearing (pdf)
• EPIC's Memorandum Of Points And Authorities In Opposition To DHS' Motion For Summary Judgment And In Support Of EPIC's Cross-Motion For Summary Judgment (pdf)
• DHS' Combined Reply In Support Of Its Motion For Summary Judgment, And Memorandum In Opposition To EPIC's Cross Motion For Summary Judgment (pdf)
• EPIC's Reply In Support Of Cross-Motion For Summary Judgment (pdf)
• Memorandum Opinion (pdf)
• Order (pdf)

Documents

• Privacy Compliance Review of the NOC Publicaly Available Social Media Monitoring and Situational Awareness, May 1, 2015 (pdf)
• Privacy Impact Assessment for the Office of Operations Coordination and Planning: Publicly Available Social Media Monitoring and Situational Awareness Initiative Update, Apr. 1, 2013 (pdf)

News Items

• Homeland Security Is Tracking Black Lives Matter. Is That Legal?, Brandon Ellington Patterson, Mother Jones, July 30, 2015.
• Black Lives Matter Protests Monitored By Federal Department Of Homeland Security Since Ferguson: Report, Julia Glum, International Business Times, July 26, 2015.
• Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson, George Joseph, The Intercept, July 24 2015.
• Counter-Terrorism Officials Helped Track Black Lives Matter Protesters , Darwin BondGraham, East Bay Express, Apr. 15, 2015.
• Officials Cast Wide Net in Monitoring Occupy Protests, Colin Moynihan, The New York Times, May 22, 2014.
• Homeland Security Needs Better Social Media Rules, Inspector General Report Says, Jack Gillum, Huffington Post, Sept. 13, 2013.
• Department of Homeland Security Uses Twitter for Monitoring Citizens, Emily Santon, U.S. News, July 18, 2013.
• DHS List of Words You Should Never Ever Blog or Tweet. Ever., Kevin Fogarty, IT World, May 31, 2012.
• Do You Worry About DHS Looking at Your Social Media Conversations?”, Robert N. Charette, IEEE Spectrum, May 29, 2012.
• DHS Social Media Monitoring Practices Revealed Under FOIA, Mark Rockwell, Government Security News, May 29, 2012.
• Dept. of Homeland Security Forced to Release List of Keywords Used to Monitor Social Networking Sites, Reuven Cohen, Forbes, May 26, 2012.
• Homeland Analysis Told to Monitor Policy Debates in Social Media, Charlie Savage, N.Y. Times, Feb. 22, 2012.
• Travelers Say They Were Denied Entry to U.S. for Twitter Jokes, J. David Goodman, N.Y. Times, Jan. 30, 2012.
• DHS Media Monitoring Could Chill Public Dissent, EPIC Warns, Computer World, Jan. 16, 2012.
• DHS Monitoring of Social Media Worries Civil Liberties Advocates, Ellen Nakashima, Washington Post, Jan. 13, 2012.
• Federal Contractor Monitored Social Network Sites, Charlie Savage, N.Y. Times, Jan. 13, 2012.
• Federal Security Program Monitored Public Opinion, Charlie Savage, NY Times, Jan. 13, 2012.
• Homeland Security Watches Twitter, Social Media, Mark Hosenball, Reuters, Jan. 11, 2012.
• Which Keywords on Twitter Get the Government’s Attention?, The Blaze, Dec. 28, 2011.
• Privacy Group Sues DHS Over Social Media Monitoring Program, FOX News, Dec. 24, 2011.