The Identity Project and ten other civil liberties and human rights organizations filed comments today with the US Department of Homeland Security objecting to the DHS keeping records of what we say and publish and who we associate with on social media.

(See our FAQ: U.S. government monitoring of social media. The DHS isn’t the only Federal agency spying on us on social media. We submitted comments earlier this month on parallel proposals by the Department of State to expand social media monitoring that it began last year over our objections and those of many other organizations and individuals.)

The comments from civil liberties and human rights groups were submitted in response to a notice from the DHS last month that “Social media handles and aliases, associated identifiable information, and search results” would be added to DHS “Alien Files”.

Our comments were co-signed and submitted jointly on behalf of:

• The Identity Project (IDP)
• Government Information Watch
• National Workrights Institute
• Woodhull Freedom Foundation
• FirstAmendment.Com
• American-Arab Anti-Discrimination Committee (ADC)
• Cyber Privacy Project (CPP)
• Society of Professional Journalists (SPJ)
• National Coalition Against Censorship (NCAC)
• Comic Book Legal Defense Fund (CBLDF)
• Restore The Fourth, Inc.

Members of the public (regardless of whether they are U.S. citizens or residents) can submit their own comments, including anonymous comments, until midnight tonight, Washington DC time, by using the official Web form at Regulations.gov.

The DHS only published its formal Privacy Act notice for social media records in September 2017, although the DHS says it has been monitoring and keeping records of social media activities since at least 2012. The Federal Privacy Act of 1974 requires that a notice be published in the Federal Register before any new system of records about individuals is created by a Federal agency, or a new category of data or individuals is added to an existing system. Operation of a system of records without prior publication of a notice including all categories of information and individuals included in the system is a Federal crime on the part of the responsible Federal officials: “Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.”

According to comments we filed today along with other civil liberties and human rights organizations:

As described in the “Notice of Modified Privacy Act System of Records“, this system of records would include records the maintenance of which is forbidden by the Privacy Act. The Notice should be rescinded, the changes to this System of Records should not be made, and any information already collected in categories prohibited by the Privacy Act should be expunged.

The Privacy Act of 1974, 5 U.S.C. 552a(e)(7), requires that:

“Each agency that maintains a system of records shall –… maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.”

It should go without saying that records of “Social media handles and aliases, associated identifiable information, and search results” are records of how individuals exercise rights guaranteed by the First Amendment, including the right to freedom of speech, the right to freedom of the press, and the right of the people peaceably to assemble.

Social media is speech, whether in words or music or photos or videos. Records of our posts, comments, photos, videos, and other things we say on social media are, per se, records of how we exercise our First Amendment right to freedom of speech.

Social media platforms are publishing platforms. Records of what we post, share, upload, or otherwise publish on social media platforms are, per se, records of how we exercise our First Amendment right to freedom of the press.

Social media is, by definition, social. People don’t participate in social media as individuals, but in association with others. Social media network maps, lists of “friends” or “followers”, or records of who “likes” or “shares” or comments on our posts, who we associate with in other ways on social media, or how we do so are, per se, records of how we exercise our First Amendment right to assemble online – the social media equivalent of a mail cover, a telephone call log, or a list of attendees and speakers at an in-person political meeting.

The right to assemble in cyberspace is, of course, especially critical to the right to assemble across U.S. and other national borders and by citizens and residents of different countries, for whom visa and immigration rules and, in some cases, fear of government persecution or other hazards may make in-person assemblies difficult, dangerous, or impossible.

Our comments also note that DHS records of social media activities would not be limited to foreigners, visitors, or immigrants, but could include all U.S. and foreign persons regardless of citizenship, naturalization, residency, or immigration status:

“Relationship status” is a standard element of a Facebook profile, but “U.S. citizenship or immigration status” is not a typical or required element of a social media profile. The DHS … does not ask U.S. citizens, before we friend or follow a foreigner on social media, whether we are aware that this person is not a U.S. person, and that our association with this person on social media will be subject to recording in permanent DHS “Alien Files” (even if we are a U.S. citizen) which are indexed and can be retrieved by full-text search including by name or social media ID, including by the name or social media identifier of any U.S. citizen.

The scope of the record-keeping described by the Notice of Modified Privacy Act System of Records is essentially unlimited, and extends to essentially every individual in the world who interacts with other people on social media, including most U.S. citizens.

Many U.S. persons have some non-U.S. persons among their direct social media associates as friends, followers, commenters, etc. – often without knowing that they are not U.S. persons. Almost all social media users anywhere in the world, including U.S. persons, have at least some non-U.S. persons within a few degrees of indirect “association” on social media.

This System of Records would still be labeled as “Alien Files”, but its contents would not be limited to information about “aliens”. Pursuant to the Notice of Modified Privacy Act System of Records, the “Alien Files” system of records would become a general system of dragnet surveillance of social media activities by all individuals worldwide regardless of citizenship…. The DHS has no way to know, when information about social media activities is collected and recorded, whether the individuals to which it pertains are U.S. persons….

The possibility that the exercise on social media by any U.S. or foreign person of her rights to freedom of speech, freedom of the press, and freedom to assemble might be monitored and retained in a DHS system of records, searchable by names and identifiers including those of any U.S. person, and be “shared” by the DHS with third parties including other U.S. government agencies and other governments around the world, is already exerting a profound chilling effect on the exercise of First Amendment rights by individuals in the U.S. and around the world.

Operation of the modified system of records as described by the Notice of Modified Privacy Act System of Records would be in flagrant violation of the provisions of the Privacy Act limiting the keeping of records of activities protected by the First Amendment.

The Notice of Modified Privacy Act System of Records should be immediately rescinded, and any records collected pursuant to it should immediately be expunged.