The FBI ‘Can Neither Confirm nor Deny’ That It Monitors Your Social Media Posts
In recent years, the federal government has significantly ramped up its efforts to monitor people on social media. The FBI, for one, has repeatedly acknowledged that it engages in surveillance of social media posts. So it was surprising when the bureau responded to our Freedom of Information Act request on this kind of surveillance by saying that it “can neither confirm nor deny the existence of records.”
The six other federal agencies we submitted the FOIA request to haven’t produced a single document. The request, filed last May, seeks information on how the agencies collect and analyze posts from Facebook, Twitter, and other social media sites.
Today we sued the agencies to get some answers, because the public has a right to know about the exact nature of social media surveillance — especially whether agencies are monitoring and retaining social media posts, or using surveillance products that label activists and people of color as threats to public safety based on their First Amendment-protected activities.
Based on what little information is publicly available, it’s clear that the federal government routinely tracks domestic social media users, with a particular focus on immigrants.
For example, according to official government websites, the FBI has sought to create an application that would enable it to “” information on social media platforms. It completed stating that it intended to contract with Dataminr, a data analytics and machine-learning vendor that for sharing data with federal “fusion centers,” to obtain “the mission critical social media monitoring needed by the FBI.” And it with Pen-Link, another big data analytics firm, for “software that parses and analyzes social media data.”
Meanwhile, the State Department has plans to collect usernames from nearly all of the 14.7 million people who annually apply for work or tourist visas. And the Department of Homeland Security and its agencies have repeatedly expanded their manual and automated social media surveillance in efforts that include the misguided “extreme vetting initiative.”
Federal law enforcement surveillance of social media associated with Black Lives Matter has already been exposed, continuing a decades-long pattern of government monitoring of minority activists and communities.
The government could be using commercial surveillance software to conduct this surveillance: Documents obtained by the ACLU of Northern California in 2016 revealed how companies marketing this software had built products specifically for law enforcement monitoring. The disclosure of the documents in policy changes from Twitter and Facebook.
Social media surveillance raises a number of red flags. First, it discourages people from speaking freely — a phenomenon that and bear out.
Indeed, in its letter responding to our FOIA request, the FBI said that simply acknowledging its use of social media surveillance would “risk circumvention of the law.” The bureau seems to be saying that if people knew that the government is monitoring what they’re saying on social media, they’d be less likely to say it. That looks like an admission of the chilling effect that the First Amendment aims to prevent. But because almost all online speech is lawful, it doesn’t make sense to argue that social media users are “circumventing” the law if they limit what they say online.
Aside from chilling expression, government monitoring of social media raises the risk that innocent people will be wrongly investigated or put on government watchlists based on that speech.
It’s clear from already public information that all of the agencies we’re targeting in our FOIA lawsuit engage in manual and automated surveillance of social media users and their speech, and it’s unacceptable for the government to withhold details about this domestic spying. The public needs to know how the government is watching us — and we shouldn’t have to think about self-censoring what we say online.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.