Department of Homeland Security agencies argued that disclosing information on their social media surveillance policies will help criminals circumvent the law.
U.S. Customs and Border Protection cannot withhold information on its rules for authorizing agents to use fake identities and nongovernment accounts to spy on social media users, a federal judge ruled Wednesday.
Government lawyers had argued that disclosing the information would reveal sensitive law enforcement techniques that could help criminals elude justice. Exemption 7e of the Freedom of Information Act allows the government to keep those types of records hidden from public view.
In a lawsuit challenging government agencies’ refusal to release social media surveillance files, U.S. District Judge Edward Chen opted to review a set of disputed files behind closed doors at a hearing in camera, a Latin term meaning “in chambers.”
After peeking at the papers himself, Chen found CBP had no basis to withhold information on its social media spying procedures because the records did not reveal techniques that could help wrongdoers evade the law.
“Exemption 7(E) does not apply because the redacted portions are simply procedures for obtaining authorization to use masked monitoring and undercover engagement,” Chen wrote in a 17-page ruling. “This information cannot reasonably be expected to risk circumvention of the law.”
The legal dispute dates back to January 2019, when the ACLU sued seven federal agencies for refusing to release records on their use of social media monitoring tools. The FBI declined to acknowledge the existence of such records, arguing that doing so could reveal sensitive law enforcement information. In November 2019, Chen rejected that argument, finding social media monitoring is a “well-known general technique,” and he ordered the agency to start turning over files.
In the latest wrinkle of this public records fight, the ACLU sought to force CBP and other Homeland Security agencies to remove redactions that blacked out text in hundreds of pages of documents the government was required to disclose.
Despite finding that CBP could not conceal lines of text in a 12-page document on its social media surveillance policies, Chen largely sided with the government’s position in other disputes. He agreed the redactions met the standard for exemptions under the Freedom of Information Act.
The judge found Exemption 7e applied to several other disputed redactions because they described “investigative techniques not generally known to the public” and “specific means of deploying a particular investigative technique.”
The government also withheld information under the deliberative process privilege, which exempts pre-decisional records on the theory that disclosing them could chill candid discussions among government officials on policy issues before final rules or polices are adopted.
Chen found CBP improperly invoked that exemption to redact a list of acronyms for sub-agencies that reviewed a draft social media strategy document.
“The fact that sub-agencies were involved in reviewing the draft strategy cannot, at least in the absence of any explanation by the government, ‘reasonably be said to embody [CBP’s] policy-informed or -informing judgmental process,’” Chen wrote, citing the D.C. Circuit’s 1992 decision in Petroleum Info Corp. v. U.S. Dep’t of Interior.
Chen ordered CBP to produce unredacted versions of the documents he identified within 14 days.
The judge found CBP, Immigration and Customs Enforcement and United States Customs and Immigration Services properly invoked exemptions for deliberative process and attorney-client privileges to conceal other information in the disclosed documents.
The records addressed in Chen’s ruling Wednesday are just a small slice of the files the ACLU is seeking from a slew of other federal agencies, including the Department of Justice, FBI and the State Department. ACLU lawyer Hugh Handeyside said those departments are still working on releasing all the documents Chen ordered them to hand over in 2019.
In a phone interview Wednesday, Handeyside said making these files public will help Americans understand the extent to which the federal government is monitoring their speech.
“Sweeping surveillance of social media poses a serious threat to our civil liberties and our privacy, and it’s critical that the public have access to records on that kind of surveillance,” Handeyside said.
Handeyside declined to comment on Judge Chen’s ruling Wednesday, saying he and his colleagues are still reviewing the decision.
The Justice Department did not immediately respond to a request for comment. A CBP spokesperson declined to comment.