The Brennan Center for Justice, a nonprofit legal think tank and advocacy organization at New York University, is suing the federal government and Department of Homeland Security to obtain records on how it uses a trio of social media surveillance contractors.
In December 2021, the center filed a Freedom of Information Act request with DHS, Immigration and Customs Enforcement, Customs and Border Protection and the Office of Intelligence and Analysis for a host of records related to the agencies’ use of three social media surveillance vendors: Voyager Labs, Logically Inc. and ShadowDragon.
DHS and its agencies initially acknowledged the FOIA and assigned it a case number, but after blowing past a number of estimated timelines for providing the documents the case was assigned to Intelligence and Analysis and further requests for an update were ignored, according to the lawsuit filed by the Center.
“Defendants DHS and ICE have failed to comply with their obligations under FOIA,” the lawsuit claims. “As of the date of this filing, Defendant ICE has not issued a final determination in response to Plaintiff’s Request despite closing it. Defendant DHS transferred the Request to its Office of Intelligence & Analysis (“I&A”), which subsequently closed the Request without issuing a determination or responding to the Brennan Center’s administrative appeal.”
The three companies were identified through searches on federal procurement websites and reporting from outlets like The Intercept as having active contracts in place with the federal government and DHS for social media monitoring related to background checks. The requested documents include records on how the vendors and their technology were used, contracts and purchase orders, training materials, audits, legal justifications, email communications the agencies had with the vendors, and non-disclosure agreements.
The center is also attempting to determine whether the government has ever leveraged the technologies or services from these contracts for reasons other than a background check. One example they cite is a story from the Wall Street Journal in August 2021 where DHS officials discuss hiring third-party firms to analyze social media for signs of extremist violence after the Jan. 6, 2021, attacks on the U.S. Capitol.
The FOIA and subsequent legal action are designed in part to determine whether the government’s social media monitoring has suffered from mission creep. Beyond DHS, large swaths of the federal government engage in social media monitoring, though not always under the same rules and restrictions. Others known to use the technology include the FBI; Department of State; Drug Enforcement Administration; U.S. Postal Service; the IRS; the Bureau of Alcohol, Tobacco and Firearms; and the U.S. Marshalls Service.
“Given the meager public information about the vendors with which DHS has contracted as well as the outsized impact of social media monitoring on the lives and constitutional liberties of everyday Americans that the records requested will illuminate, the documents sought are of the greatest public importance,” the lawsuit reads. “To that end, disclosure of this information will contribute significantly to public understanding of the operations and activities of the federal government, specifically DHS’s and ICE’s social media monitoring operations and their use of third-party providers to surveil individuals online.”
The center is asking a judge to order the immediate release of the requested records, for DHS to pay for their attorney fees related to the case and grant any further relief the judge deems “just and proper.”
