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Judge: FBI must say whether it monitors social media activity

Have you ever wondered if the government is monitoring your Facebook or Instagram? They are.

According to the ACLU, the FBI and other law enforcement agencies have been increasingly monitoring the social media of both Americans and non-citizens. The group filed a Freedom of Information Act request with the Department of Justice, seeking information about how the FBI uses social media.

The ACLU pointed out that law enforcement monitoring of social media could implicate the free speech rights of social media users. In particular, the group points to a long history of state and federal law enforcement focusing on groups like Black Lives Matter, as was revealed by The Intercept in 2015.

Also, in 2012, the FBI issued a request for proposals for developing a tool that would "instantly search and monitor" social media. It then hired a data analytics firm to provide software. The ACLU's request was intended to discover information on this tool and related programs.

Despite evidence of monitoring programs, Justice Department denied the request

Nevertheless, in response to the ACLU's Freedom of Information Act request, the Justice Department declined to provide any information. It would "neither confirm nor deny" whether information exists about any policies or guidelines, data analytics or communications with private contractors.

Now, a federal judge has ordered the agency to be more forthcoming. U.S. District Judge Edward Chen ruled that the Justice Department's argument went too far. The agency defended its "neither confirm nor deny" response by claiming that releasing any information about social media monitoring could reveal the FBI's capabilities and thereby allow criminals to identify weaknesses in the program and avoid getting caught.

Judge Chen pointed out that "disclosure of social media surveillance -- a well-known general technique -- would not reveal the specific means of surveillance." In other words, merely acknowledging the existence of records relating to policies, guidelines and projects does not necessarily mean that all relevant records would have to be disclosed and all procedures revealed.

Furthermore, the judge noted that the State Department, U.S. Citizenship and Immigration Services, Customs and Border Protection, Immigration and Customs Enforcement, and the Department of Homeland Security have all acknowledged monitoring social media. Therefore, the mere knowledge of the FBI having such a program is unlikely to embolden criminals or make it easier for them to avoid detection.

The public does have the right to know what law enforcement techniques are being used against them, at least to an extent that would be reasonable while protecting investigations. Federal agencies shouldn't be allowed to spy on the general public and keep it a secret. At the very least, any product of social media monitoring should be available to criminal defense attorneys.

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