JHTL’s mission, as written in our constitution, is to promote the education, research, and publication of ideas and issues regarding technology.  Given the inextricable linkage between technology and social justice, it is beyond time that we use our status as an honor board to provide a platform for discussion surrounding the continuous inequalities that remain persistent in our communities.  This Black Lives Matter blog series seeks to highlight the deliberate disparate treatment of Black people and to provide a space for discourse surrounding technology and social justice issues

By: Jillian Dahrooge, Managing Editor

The abuse of data surveillance is not a new concept in our technological era and remains a major concern during the current Black Lives Matter movement.  Government officials use popular social and political movements, such as Black Lives Matter, as a motive to track personal data.  These officials are using such events as a reason to “protect” citizens from any violent uprisings that may stem from the protests.

The Department of Homeland Security (“DHS”) has been reported to be surveying peaceful protests despite not having an authorized intelligence mission.[1]  DHS missions typically include searching laptops, behavioral profiling, targeting peaceful political groups, monitoring lawful protests, and conducting domestic satellite surveillance.  Nevertheless, many of these missions, especially when it comes to observing Black Lives Matter protesters, are being done without DHS having reasonable suspicion of a threat or danger from the protester.

Over the last several years, DHS intelligence analysts have unfairly targeted non-violent protest groups and created factually false intelligence reports so they are allowed to monitor the events.  For example, in 2009, one DHS component published a report warning that protestors fighting against abortion may become right-winged extremists, despite knowing that the protestors on both sides of the abortion debate were non-violent in their marches.  Slandering peaceful protest organizations and the individuals that are involved not only infringes on the rights of the protesters, but it also wastes security resources and undermines the public’s confidence in the government.

Similarly, the actions of the FBI have been challenged in their years of observing racial groups throughout the United States.  In 2017, the FBI came under intense criticism when it was uncovered that their counterterrorism division created a new domestic terrorism category called “black identity extremism.”  This category has allowed the FBI to conduct surveillance on black Americans.

Following the murder of Michael Brown, the FBI closely monitored Ferguson activists and tracked their movements across states.  Through this monitoring, the FBI warned local law enforcement that these protesting groups were dangerous and were likely to partner with Islamic State supporters, such as ISIS.  The label of “black identity extremist” allows the FBI to survey individuals on the pretense that any person with such a label is a threat to police officers and society as a whole.  While the FBI has testified to Congress that they are no longer using this term, documents and other reports recovered from the agency have shown that the FBI continues to focus on black activists.

To track individuals, the FBI opens several assessments that allow them to look into the activities of the individuals who are labeled “black separatist extremists.”  Assessments differ from full-blown investigations because there does not need to be any evidence of criminal acts or threats to national security.  When choosing individuals to assess, FBI agents are permitted to use “ethnicity, religion, or speech protected by the First Amendment” as long as this is not the only factor.  While the standard for opening an assessment is extremely low, the FBI is allowed to use extremely intrusive investigative techniques in gathering information on the individual.  These techniques include physical surveillance, use of informants, and pretextual interviews.

In the current Black Lives Matter protests, many assessments have been opened because individuals have been identified, or even falsely identified, as “violent looters.”  Further, federal and local law enforcement have increased their use of invasive and unregulated surveillance technologies.  They have used these technologies to monitor, disrupt, and map local protests.  For example, Customs and Border Protection (“CBP”) is using drones to fly over and watch protests in real-time.  Further, the Drug Enforcement Agency (“DEA”) is permitted to use “covert intelligence”, or secret, personal monitoring of an individual.  As a result, countless videos have been streamed showing the use of these tactics in many peaceful situations––proving that this intense surveillance is not being used to prevent “looting”, but to interfere with people’s privacy rights.

It is clear that federal and state government groups are overreaching in their use of surveillance techniques.  To challenge this and bring the issues to light, on June 17, 2020, activist groups wrote a letter to Congress stating their concerns.  The letter called for the following:

• cease any state and local grants that will be used to purchase surveillance technologies and to safeguard these technologies to prevent abuse;
• make clear that FBI agencies, such as CBP and DEA, cannot use their intelligence assessment for general policing––this includes surveillance of public protests;
• prohibit federal funding for mass surveillance programs; and
• close the loopholes that exist in domestic terrorism and national security laws that are likely to target activists and communities of color.

Lawmakers must bring to light and learn from the surveillance mistreatment that is happening to peaceful protestors.  For there to be any change, Congress and state lawmakers need to respond with a concrete plan that will protect Black people in the United States, especially their privacy rights.

[1] The Department of Homeland Security includes five components that lead to intelligence missions.  These groups include the U.S. Citizenship and Immigration Services, U.S. Coast Guard, U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and the Transportation Security Administration (TSA). The DHS Office of Intelligence and Analysis (OIA) manages the intelligence activities of these components and reports their missions for further analysis.  See More About Department of Homeland Security Spying, ACLU (Aug. 13, 2020), archived at https://perma.cc/6EXG-XTGH.

Student Bio: Jillian Dahrooge is a third-year law student at Suffolk University Law School who is pursuing a concentration in Intellectual Property.  She is the Managing Editor for the Journal of High Technology Law.  She currently holds a Bachelor of Arts Degree in American Studies and a minor in Human Development from Connecticut College.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.