Federal and local law enforcement agencies have long collected information from social media for a variety of purposes, but those practices have intensified in recent years, legal experts say. With the pro bono help of attorneys, public interest groups are now bringing some of those practices into the public view.

A freedom of information suit the Brennan Center for Justice at New York University School of Law filed nearly two years ago has proved fruitful in recent weeks. On Dec. 15, the Los Angeles Police Department produced records showing it has used a monitoring tool, ABTShield, to extract information from millions of tweets as part of a pilot program in October and November 2020.


The tool, developed by a Polish software company, provided the police department with millions of tweets from users nationwide — about 70,000 every day — that involved topics such as white nationalism, civil unrest, election security and policing, as well as potential danger. The tool also tracked specific Twitter handles that discussed policing and gave updates of the George Floyd protests.

This type of monitoring results in stricter surveillance of people who attend racial justice protests, and as its use becomes more known, it will chill speech, in particular of people of color or their allies, said Mary Pat Dwyer, a former O'Melveny & Myers LLP attorney and now a fellow at the Brennan Center's Liberty and National Security Program.

"They may lose their ability to communicate freely online because they're afraid to, and they may be treated with heightened suspicion by the police if they're subjected to intensive monitoring online," she said.

Attorneys at Davis Wright Tremaine LLP, a firm with an established First Amendment practice, assisted the Brennan Center pro bono in its legal quest for the LAPD records. The litigation was crucial in pushing the department to release the records, said Davis Wright's Selina MacLaren, who along with Thomas R. Burke counseled the Brennan Center.

"You could imagine some people on Facebook feeling that 'well, LAPD is not going to find this post, so I'm going to post it now.' And the records of the Brennan Center seeking will give us a better look into how true that feeling is," she said.

The ultimate goal is accountability, advocates say. The data could fuel a conversation about how much power police departments have in aggressively monitoring social media and how much oversight is required to prevent those practices from infringing on people's free speech.

Records could also explain how much taxpayer money goes into social media monitoring tools that do things users would never expect them to do, such as scraping data or using "predictive" technology that try to guess when people may commit crimes, MacLaren said.

It took about four months for records to start being produced through the suit, which was filed in Los Angeles Superior Court. Starting with a series of memos including guidelines for social media use by officers, the Brennan Center has so far obtained over 10,000 pages of records.

Among those records is evidence that the LAPD contracted with location-based social media monitoring and analysis platforms such as Geofeedia and Dataminr, which several police departments across the country used to monitor social media activity during the George Floyd protests, and other online surveillance tools such as Media Sonar and Voyager.

In November, a trove of documents provided evidence that LAPD officers routinely created fake accounts to investigate criminal suspects and obtain information from people.

That discovery led Facebook to warn the LAPD that its use of fictitious profiles violated the company's terms and policies, and demanded the department stop. More records are expected to be produced in the coming months. The LAPD did not respond to a request for comment.

"Facebook is paying attention," MacLaren said. "They're learning along with the rest of us for the first time that the LAPD is using fake social media accounts to investigate crimes."

Other freedom of information requests the Brennan Center filed with police departments in New York City, Boston, Baltimore and Washington, D.C., are still pending.

The center has filed similar requests with the U.S. Department of Homeland Security.

"One of the primary goals of all of that work is to bring transparency to what federal agencies are doing on social media, what tools they are using, and articulating a lawful purpose for their activities online," Dwyer said.

The use of social media in various types of police activity is not new. According to a survey by the Urban Institute and the International Association of Chiefs of Police, more than 70% of law enforcement agencies in the United States regularly use social media in their investigation.

Adam Scott Wandt, an assistant professor of public policy at John Jay College of Criminal Justice who has trained FBI agents and New York Police Department officers in social media monitoring techniques, said practices for widespread monitoring have been around for a long time and act within the law.

Social media are public forums, and anything their users put on is public information that can be gathered and used without a warrant or a subpoena, Wandt said.

"Government has the right to observe the public display of speech. And if a crime is committed, to do something about it," he said. "They just look at what's public. But we all know, there's a lot of stuff that's public."

Wandt conceded that social media monitoring has resulted in disparate treatment between different racial populations. Law enforcement agencies have to work to eliminate biases, he said.

"Whether it's disparities in social media investigations, or facial recognition, or stop and frisk, we all know these disparities exist," he said.

But he contended the gathering of information and evidence online is crucial to public safety.

Police departments and federal agencies routinely monitor social media before and during large events — think of a Super Bowl or New Year's Eve in Times Square — to look for problems or threats.

But the bulk of monitoring is done as part of investigations. Law enforcement has access to a massive pool of information people willingly publish on social media platforms. Sometimes, users post evidence of their crimes.

Most of the monitoring tools, including those dealing with social media, were developed after 9/11. For the most part, Wandt argued, those tools used alongside other law enforcement techniques have kept the country relatively safe from terrorist attacks.

He said concerns over their chilling effect are overblown.

"The First Amendment is not absolute," he said. "The benefit of allowing law enforcement to monitor public forums for threats far outweighs the chilling effect it might have on a few individuals who don't feel comfortable to express themselves."

Civil rights advocates fear the Jan. 6 attack on the U.S. Capitol might have emboldened federal agencies to increase monitoring of social media.

"It's a little bit difficult to get a very concrete sense of what they're currently doing and what their plans are, and sort of how that can be expected to grow in the future, because there's not a lot of transparency," Dwyer said. "We have concerns that the response to January 6 will be, both at the federal government and other law enforcement agencies, a real push to do more surveillance."

Wandt, however, is also skeptical of those concerns. Although the deadly takeover of the Capitol has resulted in an extensive criminal investigation that involved social media evidence, he said there haven't been any significant — or known — changes in the monitoring protocol.

Still, the government's acknowledged use of facial recognition on social media during the Capitol attack worries civil rights advocates that the practice could be used more widely.

In December, the Knight First Amendment Institute at Columbia University filed a series of freedom of information requests to the FBI and the Criminal Investigation Division of the U.S. Army looking for records concerning their contracting with software companies providing monitoring tools, such as Clearview AI, which applies facial recognition technology to social media posts.

The 9/11 attacks ushered an era of surveillance, and the monitoring of social media by federal agencies gathered force during the Trump administration, legal experts say. Under a policy that began in 2019, foreigners who apply for visas to the United States — approximately 14.7 million each year — have to provide all social media handles they have used during the preceding five years.

That causes people who seek a future in the country will be less willing to speak out online, knowing that the U.S. government would be scrutinizing their posts.

"This was a real significant disclosure requirement. And that struck us is unconstitutional in a number of ways," said Caroline DeCell, a staff attorney at the Knight Institute.

With the help of Simpson Thacher & Bartlett LLP attorneys working pro bono, the Knight Institute and the Brennan Center sued the U.S. State Department challenging the policy shortly after it was enacted. The suit, Doc Society v. Blinken, is in the motion-to-dismiss phase in D.C. federal court. Simpson Thacher declined to comment.

DeCell said the federal government already has the legal tools to vet individuals it suspects are lying on their visa applications, and that the systematic collection of social media handles is unnecessary and violates First Amendment rights.

It's still unclear how federal agencies utilize information found on social media and what kind of oversight there is on the practice.

"Part of the problem is that we just don't know how the State Department is interpreting this information," DeCell said. "If you as a visa applicant don't know how your posts are going to be interpreted by the person who decides whether or not you get a visa to come into the United States or to stay in the United States, then, realistically, many people are going to be quite careful about what they say online."

Upon taking office, the Biden administration ordered a review of the government agencies' use of social media information. That review is still underway.

The Homeland Security and State departments did not return a request for comment on their social media monitoring policy.

--Editing by Brian Baresch.

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