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Explainer

Federal Government Social Media Surveillance, Explained

The government’s increased monitoring of social media raises concerns for civil rights and civil liberties.

Published: February 9, 2022

The follow­ing is adap­ted from a Bren­nan Center resource on social media monit­or­ing by the U.S. govern­ment.

Social media has become a signi­fic­ant source of inform­a­tion for U.S. law enforce­ment and intel­li­gence agen­cies for purposes ranging from conduct­ing invest­ig­a­tions to screen­ing trav­el­ers. This raises a host of civil rights and civil liber­ties concerns. Someone’s social media pres­ence can reveal an astound­ing amount of personal inform­a­tion: beliefs, profes­sional and personal networks, health condi­tions, sexu­al­ity, and more.

With that in mind, this grow­ing — and largely unreg­u­lated — use of social media by the govern­ment is rife with risks for free­dom of speech, assembly, and reli­gion, partic­u­larly for Black, Latino, and Muslim communit­ies, who are already targeted the most by law enforce­ment and intel­li­gence efforts. Many of the agen­cies currently conduct­ing social media surveil­lance today have a history of using this and other types of monit­or­ing to target minor­it­ies and social move­ments.

Which federal agen­cies are conduct­ing surveil­lance on social media plat­forms?

The three agen­cies that use social media the most for monit­or­ing, target­ing and inform­a­tion collec­tion are the Depart­ment of Home­land Secur­ity, the Federal Bureau of Invest­ig­a­tion, and the State Depart­ment.

However, many other federal agen­cies monitor social media, includ­ing the Drug Enforce­ment Admin­is­tra­tion, the U.S. Postal Service, the Internal Revenue Service, the Social Secur­ity Admin­is­tra­tion, the U.S. Marshals Service, and the Bureau of Alco­hol, Tobacco, Fire­arms and Explos­ives.

Why do federal agen­cies monitor social media?

Federal agen­cies use social media for four main purposes. 

Invest­ig­a­tions: Law enforce­ment agen­cies monitor social media to assist with crim­inal and civil invest­ig­a­tions, some of which may not require a prior show­ing of crim­inal activ­ity. Without any factual basis, FBI agents can open a type of inquiry called an “assess­ment” if they have an “author­ized purpose” like prevent­ing crime or terror­ism, during which they can carry out searches of publicly avail­able online inform­a­tion. Subsequent invest­ig­at­ive stages, which require some factual basis, open the door for more invas­ive surveil­lance tactics, such as the monit­or­ing and record­ing of chats, direct messages, and other private online commu­nic­a­tions in real time. ICE agents can look at public social media content as well as oper­ate under­cover online to monitor private online commu­nic­a­tions, but the circum­stances under which the latter is permit­ted are not publicly known.

Threat detec­tion: FBI agents can monitor public social media post­ings even without open­ing an assess­ment or other invest­ig­a­tion. Vari­ous compon­ents within DHS, includ­ing its Office of Intel­li­gence & Analysis, also monitor social media, aiming to identify poten­tial threats of viol­ence or terror­ism.

Situ­ational aware­ness: The federal govern­ment also uses social media to provide an “ear to the ground” when coordin­at­ing a response to break­ing events. A range of DHS offices — includ­ing the Office of Oper­a­tions Coordin­a­tion and Plan­ningCustoms and Border Protec­tion and the Federal Emer­gency Manage­ment Agency — keep tabs on a broad list of websites and keywords being discussed on social media plat­forms. Such monit­or­ing can help keep people informed about devel­op­ments during a crisis, identify those in need of help, and determ­ine “threats or dangers” to DHS person­nel and facil­it­ies. However, privacy impact assess­ments of these programs suggest there are few limits on the content that can be reviewed.                                                                                                       

Immig­ra­tion and travel screen­ing: The social media accounts of trav­el­ers and immig­rants coming into the United States are used to vet them upon entry, as well as to monitor them while they live here. Those apply­ing for a range of immig­ra­tion bene­fits also undergo social media checks to verify their inform­a­tion and determ­ine if they pose a secur­ity risk.

How can this kind of surveil­lance be harm­ful?

Among other issues, govern­ment monit­or­ing and use of social media can result in wrong­ful alleg­a­tions of crim­inal activ­ity, chilling of people’s will­ing­ness to talk and connect openly online, inva­sions of privacy, and some­times high-stakes misin­ter­pret­a­tions of social media activ­ity.

While all Amer­ic­ans may be harmed by unres­tric­ted social media monit­or­ing, protest­ors and histor­ic­ally margin­al­ized communit­ies typic­ally bear the brunt of suspi­cion­less surveil­lance. Echo­ing wrong­do­ings from the civil rights erathere are many examples of the FBI and DHS using social media to surveil those speak­ing out against the govern­ment.

Both agen­cies have monitored Black Lives Matter activ­ists. DHS has focused social media surveil­lance on immig­ra­tion activ­ists. Middle East­ern and South Asian communit­ies have often been partic­u­lar targets of the govern­ment’s discrim­in­at­ory travel and immig­ra­tion screen­ing prac­tices, includ­ing social media screen­ing. The State Depart­ment’s collec­tion of social media handles on visa forms came out of Pres­id­ent Trump’s Muslim ban, and DHS offi­cials barred a Palestinian student coming to study at Harvard from enter­ing the coun­try based on his friends’ social media posts.

Is social media surveil­lance a good way to gather inform­a­tion on poten­tial threats?

Not partic­u­larly. Take it from the former acting chief of DHS’s Office of Intel­li­gence & Analysis, who said, “Actual intent to carry out viol­ence can be diffi­cult to discern from the angry, hyper­bolic — and consti­tu­tion­ally protec­ted — speech and inform­a­tion commonly found on social media.”

Social media conver­sa­tions are diffi­cult to inter­pret because they are often highly contex­tual and riddled with slang, jokes, memes, sarcasm, and refer­ences to popu­lar culture, not to mention heated rhet­oric. Broad threat detec­tion on social media, discon­nec­ted from any specific suspi­cion of wrong­do­ing, gener­ates reams of useless inform­a­tion, which can unpro­duct­ively crowd out inform­a­tion on real public safety concerns.

What internal rules bind these agen­cies’ use of social media? 

Some agen­cies, like the FBI, DHS, State Depart­ment and IRS, have released inform­a­tion on the rules govern­ing their use of social media in certain contexts. Other agen­cies — such as the ATF, DEA, Postal Service, and Social Secur­ity Admin­is­tra­tion — have not made any inform­a­tion public. What is known about their use of social media has emerged from media cover­age, some of which has attrac­ted scru­tiny.

Do any laws limit the U.S. govern­ment’s activ­ity in this space?

Yes. Surveil­lance is clearly uncon­sti­tu­tional when a person is specific­ally targeted for the exer­cise of rights protec­ted by the First Amend­ment or on the basis of a char­ac­ter­istic protec­ted by the Four­teenth Amend­ment, such as race or ethni­city. Social media monit­or­ing may also viol­ate the First Amend­ment when it burdens consti­tu­tion­ally protec­ted activ­ity without contrib­ut­ing to a legit­im­ate govern­ment object­ive.

Addi­tion­ally, the Fourth Amend­ment protects people from “unreas­on­able searches and seizures” by the govern­ment, includ­ing searches of data in which people have a “reas­on­able expect­a­tion of privacy.” Social media posts are public, but courts are increas­ingly recog­niz­ing that when the govern­ment can collect far more inform­a­tion at a much lower cost than tradi­tional surveil­lance, the Fourth Amend­ment may protect that data.

The most notable stat­utory limit is the Privacy Act, which limits the collec­tion, stor­age, and shar­ing of person­ally iden­ti­fi­able inform­a­tion about U.S. citizens and perman­ent resid­ents, includ­ing social media data. While it bars main­tain­ing records that describe the exer­cise of a person’s First Amend­ment rights, the stat­ute contains an excep­tion for such records “within the scope of an author­ized law enforce­ment activ­ity.”

Do the social media plat­forms have a say in all this?

Social media plat­forms can and do set rules that limit the govern­ment’s abil­ity to conduct surveil­lance on their users. Face­book’s terms of service require users to identify them­selves by their “real names,” with no excep­tion for law enforce­ment. After the ACLU exposed that social media monit­or­ing compan­ies were pitch­ing their services to law enforce­ment agen­cies as a way to monitor protest­ors against racial injustice, Twit­ter and Face­book/Instagram changed or clari­fied their rules to prohibit the use of their data for surveil­lance.

That’s not to say the govern­ment always plays by the rules: for instance, the FBI and other federal law enforce­ment agen­cies permit their agents to use false iden­tit­ies, and the enforce­ment of most plat­form rules tends to be murky.

Do federal agen­cies share the info they collect from social media?

Federal agen­cies may share inform­a­tion they collect from social media across all levels of govern­ment and the private sector and will some­times even disclose data to foreign govern­ments (as with iden­ti­fi­ers on travel and immig­ra­tion forms). Mostly, inform­a­tion is shared domest­ic­ally with state and local law enforce­ment.

This unfettered data shar­ing magni­fies the risks of abus­ive prac­tices: once social media data is dissem­in­ated, the origin­at­ing agency has little control over how that inform­a­tion is used, how long it is kept, whether it could be misin­ter­preted, or how it might spur over­reach.

Are private contract­ors involved in social media surveil­lance?

Yes. The FBI and DHS both hire private compan­ies to conduct social media monit­or­ing on their behalf. One firm was awar­ded a contract with the FBI in 2020 to scour social media and proact­ively identify “national secur­ity and public safety-related events” that had yet to be repor­ted to law enforce­ment. 

The use of private firms raises concerns about trans­par­ency and account­ab­il­ity. Contract­ors are not subject to free­dom of inform­a­tion laws, nor to many of the same legal or insti­tu­tional constraints as public agen­cies, obscur­ing how monit­or­ing is being carried out.

In addi­tion, some private tools use arti­fi­cial intel­li­gence to make risk assess­ments about the poten­tial for viol­ence from social media content. But because viol­ent crim­inal and terror­ist acts are stat­ist­ic­ally rare, predict­ing these acts reli­ably is beyond the capa­city of humans and AI alike, as more than 50 tech­no­lo­gists wrote in oppos­ing an ICE proposal aimed at predict­ing whether indi­vidu­als would commit terror­ism or other crimes.