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Uncle Sam on Social Media: Lawsuit Accuses the Government of Abusive Surveillance

Individuals and companies frequently use social media as a platform to share thoughts and connect with others. But do we know who is following and how they are using our data?

According to a recent action filed by the American Civil Liberties Union (“ACLU”), multiple federal agencies are routinely monitoring social media and investing in technologies to track users’ speech, activities, and associations.1 While more people are using social media, “advances in data mining, network analysis, and machine-learning techniques enable the government to search, scrape, and aggregate content on a vast scale quickly and continuously, or to focus and filter such content according to specific investigative priorities.”2 And, government tracking of social media allegedly happens before an investigation begins.3 In light of this, the ACLU is requesting a court to compel certain federal agencies to respond to the ACLU’s Freedom of Information Act request regarding the surveillance.

The federal lawsuit, filed in San Francisco, raises several concerns regarding this type of surveillance. For example, although online speech is generally protected under the First Amendment, government tracking of “online speech without any connection to the investigation of actual criminal conduct makes it more likely that innocent people will wrongly be investigated, surveilled, or watchlisted.”4 Additionally, “suspicionless” surveillance may undermine the due process and fairness we expect in government processes, especially if they “are influenced by secret algorithms that analyze information obtained from social media without necessary context or rules to prevent abuse.”5

This lawsuit reminds all companies that use social media to have appropriate policies in place. They should have a clear understanding of (1) where information is posted, (2) who can post information, and (3) how accessible that information is to the general public. Assume the government is watching and act accordingly.

Visit our website to learn more about V&E’s Government Investigations & White Collar Criminal Defense practice. For more information, please contact Vinson & Elkins lawyers Jennifer Freel or Meghan Natenson.

1 American Civil Liberties Union Foundation et al. v. Dep’t of Justice et al., No. 19-cv-00290, Complaint, (N.D. Cal. Jan. 17, 2019).

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.