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Federal judge rules FBI can be asked whether it has records of social media surveillance

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A US federal judge has ruled that the American Civil Liberties Union (ACLU) can ask the FBI to confirm or deny whether it has records of social media surveillance, including those deployed to monitor activities on Twitter.

The lawsuit against the US State Department, the Justice Department, and immigration agencies dates back to January – and the ACLU filed it after they refused to confirm or deny that social media monitoring tools are being used – reaching for the so-called Glomar response.

This legal argument made by government agencies means that they believe such disclosures would reveal the way in which these investigations are conducted, and put them at risk.

The FBI also cited exemption from FOIA – the Freedom of Information Act, on which ACLU based its lawsuit. The exemption states law enforcement information gathering techniques that are not known to the public can be kept secret.

However, the court found that FBI’s surveillance of social media is a publicly known fact, the disclosure of which would not put the agency’s operations in danger – especially since what it has to do at this stage is simply say whether or not these records exist.

Techdirt writes that ACLU has won “at least a partial victory” with this ruling that rejected FBI’s Glomar response.

The article recalls that the FBI has gone for this argument to counter ACLU’s request despite publicly seeking contractors to supply it with social media monitoring tools.

“Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration – or transportation-related investigations,” the San Francisco court said in its ruling.

Another argument made by the agency was that the possibility of revealing that there are no social media surveillance tools in use would also negatively impact the FBI. But the court disagreed since the FOIA exemption doesn’t provide for the “negative inference argument.”

This means that the FBI will have to go ahead and confirm or deny having records from social media surveillance. But it remains to be seen if the FOIA exemption rule will be enough to prevent the ACLU from actually accessing these records.

Techdirt is hopeful that the ruling handed down by the federal court means the agency will have to disclose these documents – unless, that is, the FBI is “doing something new and interesting” that other agencies are not yet known to be doing in the field of social media monitoring.

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