It's no secret the FBI engages in social media surveillance. It has a contract with Dataminr to sift through tweets directly from Twitter's firehose. For years it has engaged in suspicionless pre-investigation "assessments," which compile every publicly-available piece of information the agency can gather without a warrant or subpoena. (Assessments also allow the agency to gather info from law enforcement-only databases, but that's not the issue at hand here.) From this starting point, the FBI can decide whether or not the person it targeted in its non-investigation investigation is worth investigating.
Public posts on social media services have zero expectation of privacy. All the same, one likes to believe the government has better things to do with its limited resources than scour the public-facing web for unlawful tweets or whatever. Clearly, the software the agency uses limits manpower expenditures while allowing the feds to act as unseen followers/friends of thousands of people's social media timelines, but it's still haystacks someone needs to make sense of.
The FBI's social media surveillance is an open secret. Of course, now that it's being pressed for details by the ACLU, it's trying to pretend it has no idea what everyone -- including the FBI -- is talking about.
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.
It's been more than eight months since the ACLU asked for records. All it's received is categorical non-denial. So, the ACLU is suing the agency (and a few others) to force the release of these records. The FBI's public acknowledgment of its surveillance really isn't going to help it keep these records hidden. Here are a few publicly-available resources that suggest the FBI should be able to do far more than pretend it can't say anything at all about its social media surveillance programs. From the lawsuit [PDF]:
DOJ and its component agencies use social media surveillance for law enforcement purposes. In 2012, the FBI sought information from contractors on a planned automated tool that would enable the FBI to search and monitor information on social media platforms. The FBI also revealed in November 2016 that it would acquire social media monitoring software that would give it full access to Twitter data, searchable using customizable filters “tailored to operational needs.” Federal Bureau of Investigation, Requisition Number DJF17-1300-PR00000555, Limited Source Justification at 1 (Nov. 8, 2016).
News reports further indicate that the FBI has established a social media surveillance task force. See Chip Gibbons, “The FBI Is Setting Up a Task Force to Monitor Social Media,” The Nation, Feb. 1, 2018. The purpose and scope of the task force remain unclear.
Why should we care if the government is sweeping up content from our public social media accounts? Well, because of the side effects, which include damage to First Amendment protections and the possibility of finding yourself in the custody of government agents thanks to their innate inability to consider comments in context.
Online speech is generally subject to the full protections of the First Amendment and should not serve as the basis for surveillance, investigation, or other adverse government actions, like placing people on watchlists. Government surveillance and retention of online speech without any connection to the investigation of actual criminal conduct makes it more likely that innocent people will wrongly be investigated, surveilled, or watchlisted. Additionally, public awareness that the government systematically monitors social media discourages the expression of disfavored or potentially controversial speech, which the First Amendment protects.
The FBI -- and other federal agencies -- need to let the public know what they're doing with all this "public" information. If they feel the lack of privacy protections makes it ok to engage in widespread monitoring of social media accounts, the least they can do in return is explain how this information will be used and what safeguards, if any, are in place to deter abuse or erroneous investigations.