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.
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.