ACLU Found. v. DOJ, No. 19-00290, 2019 WL 6117421 (N.D. Cal. Nov. 18, 2019) (Chen, J.)

ACLU Found. v. DOJ, No. 19-00290, 2019 WL 6117421 (N.D. Cal. Nov. 18, 2019) (Chen, J.)

Re:  Requests for records concerning government's monitoring of social media

Disposition:  Denying defendant's motion for partial summary judgment
 

• Exemption 7(E), Glomar:  The court holds that "Defendant has not met its burden of justifying the FBI's Glomar response."  First, regarding disclosure by other agencies, "the Court finds that the weight of authority suggests that [plaintiff] cannot seek disclosure of the FBI's policies based on other agencies having disclosed their own policies, together with acknowledgement that they share information with the FBI."  The court relates that "[g]iven the wide array of evidence indicating (1) that other agencies engage in social media monitoring in the immigration and transportation contexts, and (2) that those agencies cooperate, coordinate, and share information with the FBI, the Court also considers whether such evidence makes it possible to impute, for purposes of applying Exemption 7(E), social media monitoring in the immigration and transportation contexts to the FBI."  The court finds that "[w]ithin the more exacting context of official disclosure, courts have declined to 'infer official disclosure of information . . . [from the] release of information by another agency, or even by Congress.'"  Second, regarding defendant's Glomar directly, the court finds that "[t]he problem for Defendants is that disclosure of social media surveillance – a well known general technique – would not reveal the specific means of surveillance."  "Denying a Glomar response would only reveal in general the application of a known technique by the FBI to immigration- or transportation-related investigations."  "Merely requiring the FBI to answer whether there are documents of the kind requested would not, at this juncture, require the disclosure of those documents which might reveal specific tools and techniques utilized by the FBI."  Third, the court relates that "[d]efendant argues with some logical force that denying the Glomar response could disclose the Agency's lack of capability."  "However, the language of Exemption 7(E) refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure, and the Ninth Circuit has limited the application of 'risk of circumvention' of the law under Exemption 7(E) to guidelines, not techniques and procedures."  "Hence, it is not clear whether Defendant's negative inference argument is cognizable under Exemption 7(E)."  "For purposes of this motion, the Court assumes it is."  "Nonetheless, the risk of criminal activity escaping detection thru social media if the FBI were to reveal it has no records is substantially mitigated by two facts."  "First, it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information."  "This lessens the risk that people will be emboldened by the FBI's disclosure to spread criminal or terrorist messages through social media."  "Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally."