Pennsylvanians Should Know How the State Police Is Monitoring Social Media

By Andrew Christy, Criminal Justice and Poverty Attorney, ACLU of Pennsylvania

“Sunshine is the best disinfectant.”

That’s a line that is used so much that it’s become almost trite. But it’s oft-repeated because it is so true. And here in the Keystone State, the Pennsylvania State Police is doing everything in its power to block access to its policy on monitoring social media. So we’re headed to the state Supreme Court to get it.

The ACLU of Pennsylvania’s attempt to obtain the state police’s social media monitoring policy has been a two-year odyssey that started in March 2017. Using the state’s Right-to-Know Law, we submitted a request for the policy. In response, the state police’s open records officer sent us a nine-page document that was so heavily redacted that it was nonsensical. Some pages showed only the headers of some sections. Other pages were completely blacked out. No reasonable person could conclude that such a response was transparent or in the spirit of open records.

This is the Pennsylvania State Police’s idea of an “open record.”

Pennsylvania’s Right-to-Know Law allows a person to appeal a denial or a partial denial of a request to the commonwealth’s Office of Open Records, an independent state agency that is intended to be a neutral arbiter in disputes over requests. After reviewing the state police’s social media policy in camera — a legal term that means the review is conducted privately and not as part of the public record — the OOR agreed with us that the policy should be an open record and that the state police’s claim that it could deny the request under the “public-safety” exception in the law was not plausible.

Score one for transparency.

But, as noted above, the saga did not end there. As they have the right to do, the state police appealed that decision to the Commonwealth Court, one of Pennsylvania’s appeals courts. Without reviewing the contents of the policy, the court sided with law enforcement and upheld the state police’s decision to give us the largely redacted policy.

It’s important to pause here for a moment and consider the implications of the court’s decision. By not reviewing the state police’s policy, which would have given the court an understanding of the rationale for redacting most of the document, the Commonwealth Court effectively gave state police — and any other law enforcement agency in Pennsylvania — a blank check to apply the public safety exception of the Right-to-Know Law to any open records request. That is a dangerous precedent and will allow law enforcement to act unchecked and without public accountability.

That’s why we’re taking this case to the Supreme Court of Pennsylvania. The public has a right to know how its state police monitors social media. We know that law enforcement can and has utilized social media to track activity protected by the First Amendment. This is not a hypothetical scenario from a dystopian science fiction novel. It’s real.

In 2018, the ACLU of Massachusetts released a report that found that the Boston Police Department had used software for tracking social media activity for a brief time in 2014 and then throughout 2015 and tracked keywords that included #MuslimLivesMatter, “protest,” “Ferguson,” and “ummah,” the Arabic word for community. The Boston police’s monitoring program swept up thousands of records, including a Facebook post by a then-City Councilmember who had mentioned Ferguson, Missouri, in writing about poverty and homelessness.

Fittingly, in a lesson on why public transparency is so important, Boston police dropped the program after a public backlash in 2016, when the department asked for bids on a $1.4 million dollar contract for another monitoring program, according to the Boston Globe.

In 2016, the ACLU of California found that the software company Geofeedia was marketing it’s monitoring product to law enforcement agencies as a means for tracking protests and referred to unions and activists as “overt threats.”

And we’re no strangers to such a controversy here in Pennsylvania. In 2010, another state agency, the Office of Homeland Security, contracted with a private company to provide daily bulletins of the activities of anti-fracking activists, antiwar organizers, animal rights demonstrators, and Muslims observing Ramadan, deeming them all threats to public safety. The director of the office was forced to resign over the incident, and then-Gov. Edward Rendell described the actions of the office as “extraordinarily embarrassing.”

That’s why we want to know what policy the Pennsylvania State Police has in place to control and restrict how social media monitoring is used in investigations. Power applied under cover of darkness can be extremely dangerous and damaging. We hope that the Supreme Court of Pennsylvania will shine some light on what the state police is doing.

The work of defending civil liberties goes on

ACLU of Pennsylvania Executive Director Reggie Shuford addresses the crowd at the “Show Love for the Constitution” event. | February 15, 2017. (credit: Ben Bowens)

Dear supporter,

In some ways, our country changed on November 8. The United States elected a leader who, by all measures, is hostile to the basic foundations and principles that we stand for. President Trump and his regime deserve every ounce of pushback we can gather, and the ACLU will be on the front lines of the resistance.

And yet, at the ACLU of Pennsylvania, we have always taken the long view. Issues that are with us today were with us before November 8 and, to one degree or another, would have continued regardless of who was elected, including mass incarceration, police brutality, inequality for gay and transgender people, and efforts to compromise women’s access to reproductive healthcare.

You may have heard that there has been a major increase in giving to the ACLU since the election. While much of that growth has occurred at the national level, in fact, here in Pennsylvania, our membership has tripled. We saw a notable rise in donations after Election Day, but the real surge of giving happened after the weekend of the Muslim Ban. It was in that moment that many Pennsylvanians realized the significance of the threat to our values and to the people we most cherish.

You have put your trust in the ACLU in these challenging times. We are grateful for that trust and take it as a responsibility. Thank you.

The generous outpouring of support we’ve received in recent months has allowed us to think big about our work. It is my intention to add new staff to our existing staff of 22. Our current team has the talent, skills, and persistence to take on the many challenges before us. I also know that we can advance the cause of civil liberties throughout Pennsylvania by bringing even more talented people on board. The times demand it. Your support enables it.

In the months ahead, you’ll hear more about our Smart Justice campaign, our effort to reform, reinvent, and revamp the criminal justice system; our Transgender Public Education and Advocacy Project; the campaign for District Attorney in Philadelphia; the many bills we’re advocating for and against at the state capitol; and more litigation to push back against government excesses wherever they occur.

The ACLU of Pennsylvania is prepared to thwart the Trump administration’s worst instincts as they play out in the commonwealth.

And state and municipal officials aren’t off the hook. We’re working with immigrant communities to monitor federal immigration enforcement tactics while also standing with municipal governments that insist they won’t bend to every demand of ICE. We’re insisting that the commonwealth keeps its commitment to open beds for people who are too ill to stand trial and are being warehoused in local jails. We’re working at the state legislature to defeat efforts to hide the identity of police who seriously injure and kill people and to hide video that captures police brutality from the public. And we are active in ongoing struggles to diminish police presence in schools, to stop rollbacks of women’s reproductive healthcare, and to fight the practice of jailing people for their debts.

The ACLU of Pennsylvania has the infrastructure and the experience to defend civil rights at every turn. Consider some of our recent work:

  • Our legal team successfully freed travelers who were detained at Philadelphia International Airport the weekend of Muslim Ban 1.0, our advocacy team supported the protests at airports in Philly and Pittsburgh, and our communications staff echoed the message to #LetThemIn.
  • Two weeks ago, we settled a lawsuit against the School District of Lancaster for denying enrollment at its regular high school for older refugee students. Older refugee students will now be able to attend the regular high school instead of being segregated at an alternative school.
  • Over the last month, our legislative director has been busy at the state capitol in Harrisburg lobbying against efforts to reinstate mandatory minimum sentencing, which has been suspended for two years due to court rulings.
  • In tandem with allies, our advocacy team has launched the Philadelphia Coalition for a Just District Attorney, an effort to push the candidates for district attorney to commit to reforming the criminal justice system.
  • Last week, our lawyers filed to intervene to defend a school in Berks County that has been sued for affirming its students’ gender identity. We’re representing a transgender student and a youth advocacy organization who would be harmed if the lawsuit successfully overturns the school’s practice.

These five examples are just from the last two months. In fact, four of them happened in the last two weeks.

My favorite playwright, Pittsburgh native August Wilson, said this about gratitude in his play Two Trains Running:  “You walking around here with a ten-gallon bucket. Somebody put a little cupful in and you get mad ’cause it’s empty. You can’t go through life carrying a ten-gallon bucket. Get you a little cup. That’s all you need. Get you a little cup and somebody put a bit in and it’s half-full.”

Well, thanks to you, our ten-gallon bucket runneth over.

Onward!

Reggie Shuford
Executive Director, ACLU of Pennsylvania