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excerpted from: Amna Toor,“Our Identity Is Often What's Triggering Surveillance”: How Government Surveillance of #Blacklivesmatter Violates the First Amendment Freedom of Association, 44 Rutgers Computer and Technology Law Journal 286 (2018) (Note and Comment) (275 Footnotes) (Full Document)


BlacklivesMatterBirth of the #BlackLivesMatter Movement-- Formation of a Social Movement and a Target of Government Surveillance February 26, 2017 marked the five-year anniversary of the fatal shooting of seventeen-year old Trayvon Martin, an unarmed African American teen who was last seen purchasing a bag of Skittles and a can of AriZona Iced Tea from a 7-Eleven located in Sanford, Florida, before his chance encounter with George Zimmerman, “a [twenty-eight year old] neighborhood watch volunteer.” While Martin's tragic death generated a national dialogue on institutional racism, gun violence, and discriminatory policing practice, it was the jury's verdict of not guilty and acquittal of Zimmerman's charges of second-degree murder and manslaughter that ignited a social media storm. As a response to Zimmerman's acquittal, an activist named Alicia Garza turned to Facebook and posted a “love letter to black people” that soon became viral:

The sad part is, there's a section of America who is cheering and celebrating right now. and that makes me sick to my stomach. We GOTTA get it together y'all ... stop saying we are not surprised. that's a damn shame in itself. I continue to be surprised at how little Black lives matter. And I will continue that. stop giving up on black life.

Black people. I love you. I love us. Our lives matter. Garza's emotionally charged reaction on social media was initially a medium to convey her sentiment of solidarity with the black community, and to express her disappointment and frustration about the Martin-Zimmerman decision; however, the Facebook post planted the first seeds of what would grow to become the “[twenty-first] century['s] civil rights movement,” now widely known as the Black Lives Matter Movement (“BLM Movement”). A few of Garza's contemporaries set up Tumblr and Twitter accounts under the “black lives matter” slogan, and thus the hashtag, #BlackLivesMatter, was formally introduced to the Internet.

Since its inception, the hashtag has been used as a network connecting civil rights organizations, activists, politicians, and individuals pressing for social and political change. While the Sanford shooting inspired the beginnings of a social justice movement, it was the August 2014 police shooting in Ferguson, Missouri, of eighteen-year old Michael Brown that launched the BLM Movement into motion. Much like the #OccupyWallStreet, the #BlackLivesMatter expanded beyond the realm of social media, and the digital protest soon “took to the streets.” As the list of names of individuals encountering police brutality expanded, so did the movement calling for action, police accountability, and the recognition of the contribution and value of black lives.

Amid the tense political environment, reports have made their way into the public eye revealing that the Department of Homeland Security (“DHS”), the Federal Bureau of Investigation (“FBI”), and local law enforcement have been conducting surveillance across social media platforms to gather information on #BlackLivesMatter protests and individual activists, and tracking the BLM Movement since 2014. In July 2016, Color of Change (“COC”) and the Center for Constitutional Rights (“CCR”) filed a request with the DHS and FBI under the Freedom of Information Act (“FOIA”) for information regarding their policies “on the surveillance” of protests and social media accounts addressing the BLM Movement, and other similarly situated subjects such as police brutality and race in America. After failing to receive the requested information, COC and CCR filed a complaint with the United States District Court in the Southern District of New York in October 2016, seeking to compel the DHS and FBI to produce records containing the requested information.

While the government agencies' delay in providing information pertaining to the monitoring of public protests and assembly of those uniting under the banner of #BlackLivesMatter is alarming as it brings into question the nature and extent of surveillance conducted, a far greater concern is the constitutional right(s) implicated by such surveillance. In New York Times Co. v. Sullivan, Justice Brennan recognized the importance of preserving the right to freely engage in discussion without fear of censorship:

Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

Sullivan dealt with a defamation claim brought by an elected official against the New York Times for publishing an advertisement that allegedly contained libelous statements about the police department in Montgomery, Alabama. It is against this backdrop that Justice Brennan found an emerging “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” While the medium for expression has expanded since Sullivan, the principles established in Sullivan can be applied to platforms introduced as a result of modern technology, such as the Internet. In Reno v. ACLU, the Supreme Court affirmed that First Amendment protections extends to the Internet--a “dynamic, multifaceted category of communication [which] includes not only traditional print and news services” and by which one “can become a town crier with a voice that resonates farther than it could from any soapbox” or “[t]hrough the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”

Hence, protests organized around and addressing issues concerning racial justice, police brutality, and those advocating for the imperative need for reform constitute a matter of public debate, and, as such, government surveillance of social media accounts belonging to activists and protestors and the targeting of these individuals for engaging in political expression deeply offends principles of the First Amendment. However, while the Internet can be perceived as an “uninhibited, robust, and wide-open” forum on which content can be unearthed as “diverse as human thought,” and therefore requires online speech to be guarded; similarly, associations formed online warrant First Amendment protection. In particular, this Note argues that monitoring the Black Lives Matter Movement via social media accounts and tracking individuals based on what they say and express and with whom they associate with online runs afoul of the freedom of association rooted in the First Amendment. Modern-day movements, such as BLM, “speak, associate, and organize through social media [and t]heir tweets, blogs, protests, marches, and die-ins are the trumpets by which they call for reform and social justice.” Therefore, much like government attempts to control speech can suppress and discourage free thought, government surveillance of associations acts as a censor in deterring individuals from freely engaging with one another.

Part II first discusses the history of government surveillance of Black activists in America. It then provides a brief overview of the surveillance technologies used by federal agencies and local law enforcement to monitor social media accounts and activity of BLM activists and protestors. An understanding of the types of surveillance technologies employed by federal and local entities provides a foundational basis for the realization of how the First Amendment right to free association is affected by social media surveillance.

Part III examines the First Amendment jurisprudence as it relates to the freedom of association.

Part IV discusses how social media surveillance of #BlackLivesMatter-related activity endangers and by extension, imparts a chilling effect on First Amendment protected association.

Part V concludes that the use of surveillance technologies by federal agencies and law enforcement needs to be reexamined and discusses proposed solutions on how to appropriately limit and regulate government agencies' use of digital surveillance technologies.

. . .

In 1961, George Orwell envisioned a dystopian future--one in which society was embalmed by an ubiquitous and intimidating presence, referred to as “Big Brother.” In this fictional world, Orwell made a noteworthy observation: “And even technological progress only happens when its products can in some way be used for the diminution of human liberty.” While the world in 2017 is far different from Oceania, the super-state penned by Orwell, Orwell's eerie musings of how technology can affect basic freedoms is still very much relevant today.

Government surveillance of BLM-related online associations using social media monitoring devices does present a clear danger to the First Amendment right to free association. Nonetheless, while technology can pose risks to certain liberties, it can simultaneously enhance freedom. For example, social media platforms have created spaces for online associations such as #BLM to thrive. Therefore, in order for online associations and digital technologies to exist concurrently and amicably, limits should be placed on the use of digital technologies, such as SMMS, so that the freedom of association and other liberties are well protected. First, there should be an open dialogue between the government and the public about the use of surveillance technologies. As Brandi Collins, the media justice director at puts it, “We're living in sort of a COINTELPRO 2.0 time, where movements are being tracked in a severe way, but there's only so much we know.” Therefore, government agencies, such as the DHS and FBI, should abide and respond to FOIA requests for information regarding the nature and extent of surveillance that is being conducted. It is important that a conversation about digital technologies be started, so that any improper use of digital technology is amended accordingly.

Next, there must be clear guidelines and policies set defining government agencies' use of digital surveillance tools. The absence of standards provides government agencies unrestricted access to social media platforms to use digital technologies, which can lead to the targeting of innocent populations. For example, government surveillance of BLM protestors and activists online is not “colorblind” and has a proportionally discriminatory impact on individuals of African American descent, and thus results in racial profiling. Therefore, there needs to be a rigid framework developed on how and why certain individuals and groups are being labeled as threat actors. Digital surveillance technologies should, thus, categorize threats based on evidence of criminality as opposed to an individual or group's racial, religious, or ethnic identities.

Finally, the view that the #BLM involves criminal and/or terroristic activities needs to be dismantled. While the government has, from time to time, continuously dubbed the use of surveillance as vital to protect public safety, it has been simultaneously viewed as a “form of social control ... [and] a way to break down movements.” As the COINTELPRO narrative demonstrated, suspicion of Black-led movements as dangerous is often misplaced. Instead, an effort towards reaching a common ground and mutual understanding of respective goals should be made by both government entities and the #BLM. Otherwise, to trademark BLM  as anything but a movement whose seed is the extrajudicial killing of a 17-year old boy with a hood on his head and skittles in his hand, whose activists are Americans tired of racial hatred and black killings, and whose goal is to take back the voice of the oppressed and silenced Black lives in America, is terrorism in and of itself.