On December 7, 2021, the Brennan Center submitted a request under the Freedom of Information Act (FOIA) to the Department of Homeland Security (DHS), DHS’s Office of Intelligence and Analysis (I&A), and Immigration and Customs Enforcement (ICE) for information on the purchase and use of tools developed by Voyager Labs, ShadowDragon, and Logically Inc. to monitor social media. On December 9, 2021, the Brennan Center submitted an identical request to Customs and Border Protection (CBP).
On August 18, 2022, the Brennan Center sued DHS and ICE for their inadequate response to our request and failure to produce responsive documents. With our lawsuit, we are asking the court to compel the agencies to fulfill their obligations under FOIA. On September 12, 2022, the Brennan Center amended its complaint to reflect updated information regarding I&A’s search for records. We are represented pro bono in this matter by Davis Wright Tremaine.
Read the FOIA request here.
Read the amended complaint here.
Social media monitoring refers to the use of social media platforms like Facebook, Twitter, and Instagram to gather information about people, groups, or activities. Publicly available records indicate DHS engages vendors to support its social media monitoring efforts. For example, an article in the Intercept revealed that ICE had two contracts for ShadowDragon products. The Brennan Center located a third contract from ICE to purchase ShadowDragon products, specifically OI Monitor and SocialNet. Another company, Voyager Labs, markets its materials as useful for issue areas in which DHS operates — including matters in its exclusive authority, like border security. In addition, DHS officials have stated publicly that the Department is seeking third-party vendors to enhance its social media monitoring efforts in the wake of the January 6, 2021, insurrection. While those vendors have not been definitively identified, DHS has had at least preliminary conversations with Logically Inc.
The department’s previous social media monitoring activities illustrate the urgent need for transparency regarding its use of third-party tools. In February 2017, the DHS Inspector General raised concerns that DHS components, including ICE, had initiated pilots for social media screening in immigration proceedings — which DHS planned to expand — without establishing criteria for measuring their performance or effectiveness. More recently, an internal review report finalized in January 2021 (but not released publicly until the fall of 2021) uncovered that I&A employees had inappropriately compiled intelligence reports on a journalist based on his social media postings. The report also highlights the difficulty of discerning actual threats from hyperbole in social media posts, bringing the usefulness of broadscale social media monitoring into question. Additionally, the DHS Inspector General released a report in September 2021, finding that CBP agents had improperly placed lookouts on U.S. citizens involved in the 2018–2019 migrant caravan, including journalists, attorneys, and activists, based in part on information the agents uncovered on social media.
The public lacks adequate information about DHS’s current social media monitoring capabilities and operations. The Brennan Center seeks information from DHS, I&A, ICE, and CBP about recordkeeping, purchase agreements, use, audits, communications, trainings, legal justifications, information sharing communications, nondisclosure agreements, vendor communications, and internal communications regarding products and services created by ShadowDragon, Voyager Labs, or Logically Inc.
Office of Intelligence and Analysis
Updated September 19, 2022: On December 7, 2021, I&A acknowledged its receipt of the Brennan Center’s FOIA request. On January 5, 2022, the Brennan Center reached out to I&A after the office missed its deadline to respond to the FOIA request. On January 12, 2022, I&A informed the Brennan Center that it would invoke a ten-day extension to respond to the request. On April 19, 2022, the Brennan Center submitted an appeal to DHS (which serves as the custodian for FOIA appeals to I&A) after I&A failed to respond to the request within the statutory timeframe. The same day, DHS confirmed receipt of the appeal. On August 2, 2022, DHS sent a letter to the Brennan Center acknowledging the appeal. Also on August 2, 2022, I&A sent the Brennan Center a letter notifying us that it had conducted its search and concluded that I&A does not use services from ShadowDragon, Voyager Labs, or Logically Inc., and would therefore close the request and appeal. The same day, I&A closed the original request, even though it had not produced any documents to the Brennan Center.
I&A sent its August 2 notice regarding the outcome of its search to an outdated email address and the Brennan Center was not aware of I&A’s search and response until after filing the original complaint; we therefore filed an amended complaint on September 12, 2022.
Immigration and Customs Enforcement
Updated August 18, 2022: On January 13, 2022, ICE sent a letter to the Brennan Center acknowledging the FOIA request. On April 19, 2022, the Brennan Center submitted an appeal to ICE after it failed to respond to the request within the statutory timeframe. The same day, DHS confirmed receipt of the appeal. On July 12, 2022, ICE closed the Brennan Center’s request even though it had not produced any documents or substantive responses.
Customs and Border Protection
Updated August 18, 2022: On December 15, 2021, CBP sent the Brennan Center a letter acknowledging its receipt of the FOIA request. On January 18, 2022, CBP informed the Brennan Center that the request had been designated as “not an agency record,” and that it would therefore close the request. On January 21, 2022, CBP informed the Brennan Center that it had referred the FOIA request to ICE after determining that the records sought “are not under the purview of U.S. Customs and Border Protection.” On February 11, 2022, the Brennan Center submitted an appeal challenging the adequacy of CBP’s search for responsive records before transferring the request to ICE. On April 20, 2022, CBP issued its determination, concurring that the agency’s initial search for responsive records was inadequate and stating that the agency had run another search for records to satisfy its obligations under FOIA. This second search did not produce any responsive records, so CBP affirmed its decision to transfer the request to ICE.
Department of Homeland Security
Updated February 7, 2022: On December 7, 2021, DHS acknowledged its receipt of the Brennan Center’s FOIA request. On December 9, 2021, DHS sent the Brennan Center a final response letter, stating that it would forward the FOIA request to I&A, and closed the request.