Beating Back the Rise of Law Enforcement’s Digital Surveillance of Protestors: 2017 in Review
In 2017, we’ve seen a dramatic rise in the number of high-profile cases where law enforcement has deployed digital surveillance techniques against political activists. From the arrest and prosecution of hundreds of January 20, 2017 Inauguration Day (J20) protestors to the systematic targeting, surveilling and infiltration of Water Protectors in Standing Rock, North Dakota, and the Black Lives Matter Movement over social media, law enforcement and private security firms have taken advantage of the wealth of information available online to thwart activists’ credibility and efficacy.
While government surveillance and investigation of opposition groups may not be anything new, the tools and methods for conducting such surveillance and the sheer scope of information that can be captured about these groups is staggering. The magnitude of information now available in the digital age via platforms like Facebook, Instagram, and Twitter, continues to grow exponentially, documenting your location information, contact networks, calendars, and communications. Independently, consent-less access to these discrete data-points may seem little more than intrusive, but when aggregated together, this information creates a very intimate portrait of our day-to-day lives that law enforcement can and has used against dissenting voices.
When law enforcement comes knocking, it is increasingly up to the social media platforms and their users to stand up and call for help in protecting user rights and privacy. That’s exactly what happened in the J20 cases. This past summer, the U.S. Department of Justice (DOJ) tried to gag Facebook from warning its users about the DOJ’s demand for their information using a court-issued gag order. Rather than capitulate to government pressure, Facebook reached out to the community for help and we answered the call.
EFF and our allies told the court to invalidate the gag order because it infringed upon Facebook’s constitutional rights to free and anonymous speech and association. The First Amendment simply cannot abide the government’s forced silencing of Facebook from informing its users that the DOJ has obtained their data. Such compelled silence would deprive individuals of their right to seek government redress over invasions into their online anonymity and would presumptively restrain online speech, without any binding standards, fixed deadlines, or judicial review.
Fortunately, the DOJ finally came to its senses after EFF and our allies called public attention to the constitutional violations wrought by its gagging of Facebook, and moved to vacate its gag orders with the court rather than face the dressing down that was sure to come if the case had proceeded to argument. While we’re pleased with the result here, the DOJ still routinely uses gag orders that go far beyond the very narrow circumstances allowed by the First Amendment. We must remain vigilant in 2018 to see that the courts rein in such abuse of power. For if experience is any indication, the government will push its boundaries until someone stands up to them.
For example, in the fall of 2017, the DOJ demanded user information on over 1.3-million visitors to the disruptJ20 website via a search warrant. Thankfully, disruptj20’s webhost, Dreamhost, refused to produce the data and, like Facebook, reached out to the community for support and filed a motion in opposition to the DOJ’s request.
With the amplified public attention brought to the issue by EFF and other media groups, the DOJ finally backed down and narrowed the scope of its warrant to exclude most visitor logs, set a temporal limit for records, and withdrew its demand for unpublished content, like draft blog posts and photos. While the DOJ didn’t go quite as far as we’d like in reining in its request for protesters’ digital information, this was still a crucial win in the battle for user privacy and freedom of anonymous speech and association.
Despite ever-increasing law enforcement intrusion into protestors’ digital lives, we must stand strong against fear and self-censorship and look to one another to raise and answer the call for robust user privacy practices and protections from our social media platforms. When we speak together, history has shown that our voices are strong enough to turn the tide back on the government’s digital intrusion into constitutionally protected activity. Join us as we continue the fight in 2018.
The six defendants in the first J20 trial were found not guilty on all counts by a jury on Dec. 21, 2017 . A second trial for a separate group of defendants will be scheduled in the New Year.