American Civil Liberties Union Foundation v. Department of Justice

Background

The American Civil Liberties Union Foundation and the American Civil Liberties Union Foundation of Northern California sued under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking records concerning federal agencies’ surveillance of social-media users and speech. The request covered, among other things, policies, purchases, communications with private companies and social-media platforms, and the use of social-media content in algorithmic or predictive systems.

The Federal Bureau of Investigation (FBI) initially issued a “Glomar response,” meaning that it refused to confirm or deny whether responsive records existed. The FBI later limited that response to records concerning products or services used to search, analyze, filter, monitor, or collect social-media content for immigration benefits or admission, immigration enforcement, or border and transportation screening. The Department of Justice moved for partial summary judgment on behalf of the FBI.

Legal Standard

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. In FOIA cases, the agency bears the burden of justifying its withholding. The court explained that FOIA generally favors disclosure and that its exemptions must be narrowly construed.

The FBI relied on FOIA Exemption 7(E), which protects law-enforcement records when disclosure would reveal investigative techniques or procedures. The court explained that the exemption applies to techniques not generally known to the public. It can protect the specific means by which an agency uses a known technique, but it does not protect merely applying a publicly known technique to a particular situation. A Glomar response is permitted only when confirming or denying the existence of records would cause harm covered by a FOIA exemption.

Analysis

The FBI argued that it had acknowledged generally monitoring social media as a law-enforcement technique but had not acknowledged whether it used tools to analyze social-media data together with immigration records, immigration-enforcement procedures, or transportation-security information. It contended that confirming or denying the existence of such records would reveal FBI capabilities or the lack of those capabilities.

The plaintiffs argued that the FBI’s use of social-media surveillance had already been publicly disclosed and that other federal agencies had publicly described social-media monitoring in immigration and transportation contexts. The court rejected the argument that disclosures by other agencies automatically established public knowledge of the FBI’s own use. It also noted that the plaintiffs had not shown that the Department of Justice, the FBI’s parent agency, had publicly acknowledged using the techniques at issue.

The court nevertheless concluded that the FBI’s Glomar response was not justified on the record before it. Social-media surveillance was a generally known technique, and requiring the FBI to confirm or deny whether records existed would disclose only the general application of that technique to immigration- or transportation-related investigations. It would not, at this stage, require disclosure of the records themselves or of specific tools and methods that might be protected under Exemption 7(E).

The court assumed, for purposes of the motion, that the FBI’s argument about revealing a lack of capability could be considered under Exemption 7(E). It found that the risk of criminal activity escaping detection was reduced because related agencies publicly engaged in social-media surveillance and shared information, and because the absence of records about purchased tools would not necessarily mean the FBI lacked internally developed tools. The government therefore had not met its burden of justifying the Glomar response.

Disposition

The court denied the Department of Justice’s Motion for Partial Summary Judgment with respect to the FBI. The order disposed of Docket No. 31.