EFF Amicus Brief: The Privacy Act Requires the FBI to Delete Files of Its Internet Speech Surveillance

By | August 10, 2018

U.S. law makes clear that the government cannot keep surveillance records on a person or group because of their political views or the way that they express their First Amendment rights. Unfortunately, the FBI has flouted these laws by maintaining records of its probe of two people whose website criticized U.S. policy in the Middle East. EFF is urging a court to make this right.

EFF filed an amicus brief in support of an ACLU of Northern California lawsuit to enforce privacy protections that Congress put in place in the 1970s against government surveillance.  Rigorous enforcement of this law is needed to prevent the FBI from maintaining information it collects on the Internet about our First Amendment activity for many years after that information is no longer relevant to an ongoing investigation.

After the FBI tracked Dr. Martin Luther King, Jr. and other civil rights activists, the Army monitored domestic protests, and President Nixon ordered surveillance of his political opponents, Congress stepped in and passed the Privacy Act of 1974, which established rules about what types of information the government can collect and keep about people. The Act gives individuals the right to access records the government has on them and change or even delete that information.  One of the most protective provisions is a prohibition against maintaining records of First Amendment activity, but law enforcement was given an exception for “authorized law enforcement purposes.”

In this case, plaintiffs Mr. Raimondo and Mr. Garris ran the website antiwar.com, where they wrote pieces criticizing U.S policy in the Middle East in the early 2000s. After reposting a widely available FBI document, they caught the notice of the FBI, which began tracking the website and the two men through a practice called “threat assessment.” The FBI did not find any wrongdoing or basis to further investigate. Nonetheless, the FBI maintained for many years a record of the postings on this advocacy website and its writers. The First Amendment clearly protects their online journalism and advocacy. Now they are requesting that the FBI expunge their surveillance files.

FBI assessments are the lowest level of investigation under the Attorney General’s guidelines for FBI investigations.  When agents undertake assessments, they aren’t supervised, and they don’t have to justify opening an assessment based on specific facts. Rather, they just have to assert an authorized purpose in a criminal, national security, or foreign intelligence investigation. The Attorney General’s guidelines for this practice actually encourage agents to search the Internet for public information about targets. This may include people’s online blogs, posts in a public Facebook group, and even comments on a news article. Then agents store this online First Amendment activity in FBI files that can last in perpetuity.

The Privacy Act’s protection for free expression was written out of fear of on-the-ground surveillance of protestors, but the modern law enforcement practice of searching the Internet for an individual’s entire online presence is far more invasive. Collecting and then keeping historic records of speech chills the ability of people and organizations to use the Internet as a platform for the open exchange of ideas. And it is all too likely that FBI agents will target this high tech investigative power against racial minorities and political dissidents. This fear is heightened by the FBI’s ongoing surveillance of Black Lives Matter and Muslim Americans, and the controversy surrounding the FBI’s ill-advised designation of non-existent so-called “Black Identity Extremists” as a dangerous movement.

Which is why we filed an amicus brief in the Ninth Circuit Court of Appeals. EFF is committed to fighting ever-expanding federal surveillance policies. It is critical that we enforce the protections that have already been written into law, like the federal Privacy Act’s ban on maintaining records of First Amendment activity. If you’ve been improperly surveilled, you should have an easily-available mechanism to delete records that never should have been collected and kept in the first place.

 

Category: Privacy
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