吃瓜大本营

鈥淪unshine is the best disinfectant.鈥�

That鈥檚 a line that is used so much that it鈥檚 become almost trite. But it鈥檚 oft-repeated because it is so true. And here in the Keystone State, the Pennsylvania State Police is doing everything in its power to block access to its policy on monitoring social media. So to the state Supreme Court to get it.

The ACLU of Pennsylvania鈥檚 attempt to obtain the state police鈥檚 social media monitoring policy has been a two-year odyssey that started in March 2017. Using the state鈥檚 Right-to-Know Law, we submitted a request for the policy. In response, the state police鈥檚 open records officer sent us a nine-page document that was so heavily redacted that it was nonsensical. Some pages showed only the headers of some sections. Other pages were completely blacked out. No reasonable person could conclude that such a response was transparent or in the spirit of open records.

Pennsylvania鈥檚 Right-to-Know Law allows a person to appeal a denial or a partial denial of a request to the commonwealth鈥檚 Office of Open Records, an independent state agency that is intended to be a neutral arbiter in disputes over requests. After reviewing the state police鈥檚 social media policy in camera 鈥� a legal term that means the review is conducted privately and not as part of the public record 鈥� the OOR agreed with us that the policy should be an open record and that the state police鈥檚 claim that it could deny the request under the 鈥減ublic-safety鈥� exception in the law was not plausible.

Score one for transparency.

But, as noted above, the saga did not end there. As they have the right to do, the state police appealed that decision to the Commonwealth Court, one of Pennsylvania鈥檚 appeals courts. Without reviewing the contents of the policy, the court sided with law enforcement and upheld the state police鈥檚 decision to give us the largely redacted policy.

It鈥檚 important to pause here for a moment and consider the implications of the court鈥檚 decision. By not reviewing the state police鈥檚 policy, which would have given the court an understanding of the rationale for redacting most of the document, the Commonwealth Court effectively gave state police 鈥� and any other law enforcement agency in Pennsylvania 鈥� a blank check to apply the public safety exception of the Right-to-Know Law to any open records request. That is a dangerous precedent and will allow law enforcement to act unchecked and without public accountability.

That鈥檚 why we鈥檙e taking this case to the Supreme Court of Pennsylvania. The public has a right to know how its state police monitors social media. We know that law enforcement can and has utilized social media to track activity protected by the First Amendment. This is not a hypothetical scenario. It鈥檚 real.

In 2018, the ACLU of Massachusetts released that found that the Boston Police Department had used software for tracking social media activity for a brief time in 2014 and then throughout 2015 and tracked keywords that included #MuslimLivesMatter, 鈥減rotest,鈥� 鈥淔erguson,鈥� and 鈥渦mmah,鈥� the Arabic word for community. The Boston police鈥檚 monitoring program swept up thousands of records, including a Facebook post by a then-City Councilmember who had mentioned Ferguson, Missouri, in writing about poverty and homelessness.

Fittingly, in a lesson on why public transparency is so important, Boston police after a public backlash in 2016, when the department asked for bids on a $1.4 million dollar contract for another monitoring program, according to the Boston Globe.

In 2016, the that the software company Geofeedia was marketing it鈥檚 monitoring product to law enforcement agencies as a means for tracking protests and referred to unions and activists as 鈥�overt threats.鈥�

And we鈥檙e no strangers to such a controversy here in Pennsylvania. In 2010, another state agency, the Office of Homeland Security, to provide daily bulletins of the activities of anti-fracking activists, antiwar organizers, animal rights demonstrators, and Muslims observing Ramadan, deeming them all threats to public safety. The director of the office was forced to resign over the incident, and then-Gov. Edward Rendell described the actions of the office as 鈥渆xtraordinarily embarrassing.鈥�

That鈥檚 why we want to know what policy the Pennsylvania State Police has in place to control and restrict how social media monitoring is used in investigations. Power applied under cover of darkness can be extremely dangerous and damaging. We hope that the Supreme Court of Pennsylvania will shine some light on what the state police is doing.