EPIC v. Department of Homeland Security: Media Monitoring
EPIC is pursuing a Freedom of Information Act lawsuit against the Department of Homeland Security for information about the agency's surveillance of social networks and news organizations.
In February 2011, the Department of Homeland Security announced that the agency planned to implement a program that would monitor media content, including social media data. The proposed initiatives would gather information from "online forums, blogs, public websites, and messages boards" and disseminate information to "federal, state, local, and foreign government and private sector partners." The program would be executed, in part, by individuals who established fictitious usernames and passwords to create covert social media profiles to spy on other users. The agency stated it would store personal information for up to five years.
- EPIC Prevails in Internet Surveillance Case: A federal judge in Washington, DC has granted EPIC attorney's fees in a long-running case against the Department of Homeland Security. In 2012 EPIC sued the DHS for information about a secret program to monitor Internet traffic. The "Cyber Pilot" program applied originally to defense contractors, but a 2012 Executive Order dramatically expanded the program, raising concerns about violations of federal wiretap law. EPICs lawsuit produced the release of several thousand pages on the program. In today's extensive opinion, Judge Gladys Kessler concluded that EPIC "substantially prevailed in this litigation" and that EPIC had added "to the fund of information that citizens may use in making vital political choices." The Court awarded EPIC substantial attorneys fees for its work in the case. (Nov. 21, 2016)
- DHS Open Government Report Reveals Increased Backlog and Use of Law Enforcement Exemptions: The Department of Homeland Security has released the 2013 Freedom of Information Act Report detailing the agencies attempts to comply with the federal open government law. The FOIA requires each agency to provide the numbers of requests received and processed, the time taken to respond, the outcome of each request, and other statistics. In 2013, the DHS reported a significant increase in its FOIA backlog, which rose from 28,553 unanswered requests in 2012 to 53,598 unanswered requests in 2013. Of the nine exemptions that an agency can invoke to withhold documents, DHS relied most heavily on exemption 7(C) (law enforcement records that if released would constitute an invasion of personal privacy) and 7(E) (law enforcement records that if released would disclose law enforcement techniques or procedures, which is significant because the DHS is not a law enforcement agency. DHS reported granting about 7% of requests for expedited processing. EPIC has prevailed in several FOIA lawsuits against DHS, and has also worked to reform the agency's FOIA processing practices for other requesters. For more information, see EPIC v. DHS - Body Scanner FOIA Appeal, EPIC v. DHS - Social Media Monitoring, and EPIC v. DHS - SOP 303. (Feb. 21, 2014) More top news »
In April 12, 2011, EPIC submitted a FOIA request to the DHS seeking agency records detailing the media monitoring program.The request sought the following documents:
- All contracts, proposals, and communications between the federal government and third parties, including, but not limited to, H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, and/or parent or subsidiary companies, that include provisions concerning the capability of social media monitoring technology to capture, store, aggregate, analyze, and/or match personally-identifiable information.
- All contracts, proposals, and communications between DHS and any states, localities, tribes, territories, and foreign governments, and/or their agencies or subsidiaries, and/or any corporate entities, including but not limited to H.B. Gary Federal, Palantir Technologies, and/or Berico Technologies, regarding the implementation of any social media monitoring initiative.
- All documents used by DHS for internal training of staff and personnel regarding social media monitoring, including any correspondence and communications between DHS, internal staff and personnel, and/or privacy officers, regarding the receipt, use, and/or implementation of training and evaluation documents.
- All documents detailing the technical specifications of social media monitoring software and analytic tools, including any security measures to protect records of collected information and analysis.
- All documents concerning data breaches of records generated by social media monitoring technology.
On April 28, 2011, the agency acknowledged receipt of EPIC's FOIA request, but denied the request for expedited processing and did not make any substantive determination regarding the FOIA request. The DHS did not disclose any records in response to EPIC's FOIA request. On May 18, 2011, EPIC appealed the DHS's failure to make a timely substantive determination as well as the agency's denial of EPIC's expedited processing request. The DHS failed to respond to EPIC's administrative appeal and failed to disclose any records.
On December 20, 2011, EPIC filed a lawsuit against the DHS to compel the disclosure of documents relating to the agency's media monitoring program.
In January 2012, the DHS disclosed 285 pages of agency records in response to EPIC's FOIA lawsuit.
EPIC's FOIA request and lawsuit forced disclosure of the following records concerning the DHS's media monitoring program:
- January 2012 Disclosure - 285 pages (including contracts, price estimates, Privacy Impact Assessment, and communications concerning DHS Media Monitoring program)
- February 2012 Disclosure Cover Letter
- February 2012 Disclosure
- May 2012 Disclosure
- June 2012 Disclosure Cover Letter
- June 2012 Disclosure
January 2012 Disclosure
EPIC's FOIA lawsuit forced the DHS to disclose 285 pages of records. The documents include contracts, price estimates, Privacy Impact Assessment, and communications concerning DHS Media Monitoring program. These records make public, for the first time, details of the DHS's efforts to spy on social network users and journalists.
The records reveal that the DHS is paying General Dynamics to monitor the news. The agency instructed the company to monitor for "[media] reports that reflect adversely on the U.S. Government, DHS, or prevent, protect, respond government activities."
The DHS is attempting to "capture public reaction to major government proposals."
The DHS instructed the social media monitoring company to generate "reports on DHS, Components, and other Federal Agencies: positive and negative reports on FEMA, CIA, CBP, ICE, etc. as well as organizations outside the DHS."
One of the example social network monitoring summaries is titled "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI." The report summarizes dissent on blogs and social networking cites, quoting commenters.
The DHS instructed the company to "Monitor public social communications on the Internet." The records list the websites that will be monitored, including the comments sections of [The New York Times, The Los Angeles Times, the Huffington Post, the Drudge Report, Wired, and ABC News.]"
- EPIC's FOIA Request, Apr. 12, 2011 (pdf)
EPIC v. DHS, Civ. Action No. 11-02261 (D.D.C.)
- EPIC's Complaint Against the DHS, Dec. 20, 2011, Civ. Action No. 11-02261 (D.D.C.) (pdf)
- DHS' Answer (pdf)
- DHS' Motion for Summary Judgment (pdf)
- EPIC's Opposition To DHS' Motion For Summary Judgment, Cross Motion For Summary Judgment, And Request For Oral Hearing (pdf)
- EPIC's Memorandum Of Points And Authorities In Opposition To DHS' Motion For Summary Judgment And In Support Of EPIC's Cross-Motion For Summary Judgment (pdf)
- DHS' Combined Reply In Support Of Its Motion For Summary Judgment, And Memorandum In Opposition To EPIC's Cross Motion For Summary Judgment (pdf)
- EPIC's Reply In Support Of Cross-Motion For Summary Judgment (pdf)
- Memorandum Opinion (pdf)
- Order (pdf)
- Privacy Compliance Review of the NOC Publicaly Available Social Media Monitoring and Situational Awareness, May 1, 2015 (pdf)
- Privacy Impact Assessment for the Office of Operations Coordination and Planning: Publicly Available Social Media Monitoring and Situational Awareness Initiative Update, Apr. 1, 2013 (pdf)
- Homeland Security Is Tracking Black Lives Matter. Is That Legal?, Brandon Ellington Patterson, Mother Jones, July 30, 2015.
- Black Lives Matter Protests Monitored By Federal Department Of Homeland Security Since Ferguson: Report, Julia Glum, International Business Times, July 26, 2015.
- Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson, George Joseph, The Intercept, July 24 2015.
- Counter-Terrorism Officials Helped Track Black Lives Matter Protesters , Darwin BondGraham, East Bay Express, Apr. 15, 2015.
- Officials Cast Wide Net in Monitoring Occupy Protests, Colin Moynihan, The New York Times, May 22, 2014.
- Homeland Security Needs Better Social Media Rules, Inspector General Report Says, Jack Gillum, Huffington Post, Sept. 13, 2013.
- Department of Homeland Security Uses Twitter for Monitoring Citizens, Emily Santon, U.S. News, July 18, 2013.
- DHS List of Words You Should Never Ever Blog or Tweet. Ever., Kevin Fogarty, IT World, May 31, 2012.
- Do You Worry About DHS Looking at Your Social Media Conversations?”, Robert N. Charette, IEEE Spectrum, May 29, 2012.
- DHS Social Media Monitoring Practices Revealed Under FOIA, Mark Rockwell, Government Security News, May 29, 2012.
- Dept. of Homeland Security Forced to Release List of Keywords Used to Monitor Social Networking Sites, Reuven Cohen, Forbes, May 26, 2012.
- Homeland Analysis Told to Monitor Policy Debates in Social Media, Charlie Savage, N.Y. Times, Feb. 22, 2012.
- Travelers Say They Were Denied Entry to U.S. for Twitter Jokes, J. David Goodman, N.Y. Times, Jan. 30, 2012.
- DHS Media Monitoring Could Chill Public Dissent, EPIC Warns, Computer World, Jan. 16, 2012.
- DHS Monitoring of Social Media Worries Civil Liberties Advocates, Ellen Nakashima, Washington Post, Jan. 13, 2012.
- Federal Contractor Monitored Social Network Sites, Charlie Savage, N.Y. Times, Jan. 13, 2012.
- Federal Security Program Monitored Public Opinion, Charlie Savage, NY Times, Jan. 13, 2012.
- Homeland Security Watches Twitter, Social Media, Mark Hosenball, Reuters, Jan. 11, 2012.
- Which Keywords on Twitter Get the Government’s Attention?, The Blaze, Dec. 28, 2011.
- Privacy Group Sues DHS Over Social Media Monitoring Program, FOX News, Dec. 24, 2011.
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Communications Law and Policy
Jerry Kang and Alan Butler