Purpose of Request[IH7] 

This request seeks to obtain information for the Requestors and the public on the surveillance and monitoring of protesters exercising their First Amendment constitutional rights at protests across the country from August 2014 to the present. The request is specifically directed at the monitoring of protest activity and public gatherings whose subject matter or theme involved police brutality, criminal justice, racial inequalities, or BLM.

Federal, State, and Local Surveillance Activities: [IH8] 

Requestors are concerned that surveillance and monitoring practices of the Federal Bureau of Investigation, the Department of Homeland Security and other federal, state, and local law enforcement entities are chilling the First Amendment protected activities of BLM organizers, activists and members of the public at large who are or who wish to speak out publicly in opposition to the alarming – indeed crisis-level – trend of police brutality and killing in the United States. Requestors’ concern is based on public reporting, first-hand experience, and corroborating anecdotal accounts from community organizers.

By way of example, last summer, public reporting disclosed that a Baltimore cyber-security firm, ZeroFox, identified prominent Ferguson organizer DeRay McKesson as a "threat actor" who demanded "continuous monitoring" to ensure public safety.[3] ZeroFox, coordinating closely with an FBI intelligence partnership program, offered a briefing at Fort Meade Army base about the data it had collected on McKesson and other leaders organizing protests around the police killing of Freddie Gray. Additionally, in December 2014, Chicago activists, citing a leaked police radio transmission, alleged that city police used a surveillance device called a Stingray to intercept their texts and phone calls during protests over the death of Eric Garner.[4] The device – a military-grade International Mobile Subscriber Identity (IMSI) device – forcibly establishes connections with all cell phones within a given radius, reroutes and captures all communications, and allows authorities to surreptitiously read texts, listen to phone calls, and, more troublingly, track a phone's physical location.[5] Meanwhile, DHS emails indicate that its surveillance has extended beyond movement organizers to the Black American community writ large. Last spring, DHS revealed the movements of protesters and attendees of a black cultural event, the Funk Music Parade, in Washington, DC[6] and a walk to end breast cancer in a historically African-American neighborhood.[7] Furthermore, it has been reported that the FBI and DHS agents have been going door-to-door of Black Lives Matter activists and community organizers in Cleveland, Ohio, asking about their plans for the Republican National Convention in July – a move that is being seen as an intimidation tactic against people’s rights to protest as well as a reminder that these agencies are monitoring political activists.[8] 

Embrace of Military and Counterterror Resources to Surveil Protests:

The FBI, DHS, and local law enforcement have also embraced a highly militarized, counter-terrorism related approach – both in terms of resources and strategy – to monitoring and surveillance, thus amplifying the chilling effect on protected political speech. In July 2014, newspaper articles pointed to the NYPD and FBI Joint Terror Task Force jointly using their counterterror units to monitor BLM protests and organizers.[9] Further, e-mails from New York City's Metropolitan Transit Authority (“MTA”) and the Metro-North Railroad showed that undercover police officers monitored the activities of known organizers at Grand Central Station during police brutality protests.[10] The monitoring was part of a joint surveillance effort by MTA counterterrorism agents and NYPD intelligence officers. In April 2015, activists released a cache of emails showing that the California Highway Patrol in conjunction with the Northern California Regional Intelligence Center – a federal funded counterterrorism fusion center – used counterterror units to monitor the social media activity of BLM activists in the Bay Area.[11] In November 2014, Law enforcement officials at the Department of Homeland Security-funded Commonwealth Fusion Center spied on the Twitter and Facebook accounts of BLM protesters in Boston.[12] Furthermore, in emails obtained by The Intercept, members of an FBI Joint Terrorism Task Force tracked the time and location of a December 2014 BLM protest at the Mall of America in Bloomington, Minnesota.[13]

First-Hand Accounts of Surveillance of Protests:

In addition, several prominent BLM organizers in Baltimore, New York City, and Ferguson, Missouri, have shared first-hand accounts of being monitored and harassed by law enforcement even when not actively engaged in protests or other constitutionally protected activities. One activist recounted to a reporter that on a day in 2014, a National Guard Humvee threateningly followed her during the Ferguson unrest, tracking her along her route home, turn for turn. In what unmistakably signals a pattern of monitoring and intimidation, another Ferguson organizer was greeted by dozens of officers during a routine trip to an area Wal-Mart, despite having never made public where she was going.[14]

***

Political dissent and protest are not crimes; neither are they terrorist activities to be monitored or put-down by counterterrorism units. Nonetheless, the U.S. government, like state and local police forces, has a long, well-documented history of using surveillance, monitoring, and the concomitant threat of coercive state force to intimidate and silence political movements – particularly Black-led movements for social justice and empowerment. The revelations of FBI, DHS, and local law enforcement surveillance of BLM, only briefly summarized above, leads Requestors to fear that the current surveillance of the emerging movement for political accountability and justice is more coordinated, extensive, and systematic than has been revealed thus far and that it is intended to silence the demands of BLM and related movements.[15]

The public has a right to understand the current motives and activities of government officials and agencies involving this important policy issue, particularly at a time when again both privacy matters and mass protests are at the top of local, national, and even international political agendas.[16]

A. Definitions[IH9] 

1. Record(s). In this request the term “record(s)” includes, but is not limited to, all Records or communications preserved in electronic (including metadata) or written form, such as correspondences, emails, documents, data, videotapes, audio tapes, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, legal opinions, protocols, reports, rules, talking points, technical manuals, technical specifications, training manuals, studies, or any other Record of any kind.
2. Agreement(s). In this request the term “agreement(s)” refers to any agreement, written or otherwise; communications; contracts and/or supplements, modifications or addendums to contracts or agreements.
3. Communication(s). In this request the term “communication” means the transmittal of information (in the forms of facts, ideas, inquiries or otherwise).
4. Local Government(s). In this request the term “local” government includes state/local government, municipal corporations, tribal governments, tribal business entities, and Alaska Native Corporations.
5. Protest(s). [IH10] In this request the term “protest(s)” includes, but is not limited to, physical gatherings such as rallies, vigils, or public demonstrations of any kind.
6. Multimedia. In this request the term “multimedia” includes, but is not limited to, digital and non-digital photographs, video recordings, and audio recordings.
7. Surveillance. In this request the term “surveillance” means any form of physical or non-physical/virtual observation, monitoring, recording, or transcription, whether conducted by an individual or through automated means such as by software, aerial surveillance vehicles (“drones”) or mounted cameras.
8. Social media. In this request the term “social media” includes, but is not limited to, widely used online forums such as Twitter, Facebook, Snapchat, Instagram, Periscope, Redditt.
9. “Relevant Protests.” In this request the term “Relevant Protests” means those protests whose subject matter or theme involved police brutality, criminal justice, racial inequalities, or “Black Lives Matter” including, but not limited to:
   • the police killing of Michael Brown in Ferguson, MO by Officer Darren Wilson
   • the police killing of Freddie Gray in Baltimore, MD
   • the police killing of Eric Garner in Staten Island, NY
   • the police killing of Tamir Rice in Cleveland, OH
   • the police killing of Laquan McDonald in Chicago, IL
   • the police killing of Jamar Clark in Minneapolis, MN
   • the mass shooting incident at Mother Emmanuel AME church in Charleston, SC

10. For purposes of this FOIA request, requestors seek information related to protests that occurred in the following locations and jurisdiction:

    • Ferguson, MO
    • St. Louis, MO
    • Baltimore, MD
    • Cleveland, OH
    • New York, NY
    • Los Angeles, CA
    • Washington, DC
    • Charleston, SC
    • Chicago, IL
    • Minneapolis, MN
    • Oakland, CA

11. For purposes of this FOIA request, requestors seek information in regards to protests that occurred from August 1, 2014 to Present.

B. Request for Information[IH11] 

1. Communications, including records demonstrating or related to communications, between the FBI or DHS and state and local enforcement entities in the jurisdictions listed above relating to the Relevant Protests.
2. Records, including memos, talking points, policies or protocols, regarding any type of coordination between the FBI or DHS and state and local enforcement entities in the jurisdictions listed above relating to the Relevant Protests.
3. Communications, and records, such as memos, policies, protocols, manuals, talking points, or threat assessments, relating to Relevant Protests.
4. Communications, and records, regarding the placement of individuals and/or groups and organizations associated with the Relevant Protests into the Nationwide Suspicious Activity Reporting system.
5. Records or communication, including, but not limited to, emails, policies, protocols, memos, operation manuals, regarding the proposed or actual deployment and use of International Mobile Subscriber Identity (IMSI) catchers[17] during the Relevant Protests.
6. Any multimedia produced by, or in the possession, of the FBI or DHS [in the course of surveillance of] the Relevant Protests; and any records or communications indicating the existence of or consideration of producing such multimedia.
7. Records or communication, including emails, policies, protocols, memos, operation manuals, regarding the use of social media monitoring during the Relevant Protests. Records or communication, regarding the use of social media surveillance software, including but not limited to programs such as Geofeedia, LifeRaft and Media Sonar.[18]
8. Records or communication, received or regarding the existence, development or compilation of information by DHS or FBI, on specifically named individuals or groups associated with the Relevant Protests.[19]
9. Records or communication, including, but not limited to, emails, policies, protocols, memos, operation manuals, regarding the deployment and use of aerial surveillance vehicles or drones during the Relevant Protests.

C. Format of Production[IH12] 

Please search for responsive records regardless of format, medium, or physical characteristics, and including electronic records. Please provide the requested documents in the following format:

• Saved on a CD, CD-ROM or DVD;
• In PDF or TIF format;
• In electronically searchable format;
• Each record in a separately saved PDF file;
• “Parent-child” relationships maintained, meaning that the requester must be able to identify the attachments with emails;
• Any data records in native format (i.e. Excel spreadsheets in Excel);
• Emails should include BCC and any other hidden fields;
• With any other metadata preserved.

D. The Requesters[IH13] 

Color of Change (“COC”) is nonprofit civil rights advocacy and communications organization in the United States. ColorOfChange.org exists to strengthen Black America's political voice. Its mission is to empower its members to make government more responsive to the concerns of Black Americans and to bring about positive political and social change for everyone. Using the Internet, COC enables its members to speak in unison, with an amplified political voice. COC keeps the public informed about the most pressing issues for Black people in America and gives them ways to act. It also lobbies elected representatives using email, the telephone, and face-to-face meetings. COC brings attention to the needs and concerns of the public by holding coordinated events in different parts of the country, running TV and print advertisements, and pushes for the news media to cover highlighted issues. COC also collaborates with other groups doing related work to magnify its impact. Color of Change has no commercial interest in the requested documents and will transmit the requested information on its website and social media to inform the public. The requested materials may also be used as the foundation for op-eds and other traditional media advocacy.

The Center for Constitutional Rights (“CCR”) is a non-profit, public interest, legal, and public education organization that engages in litigation, public advocacy, and the production of publications in the fields of civil and international human rights. CCR’s diverse dockets include litigation and advocacy around policing, and racial and ethnic profiling. CCR is a member of several networks nationally and provides legal support to civil rights movements. One of CCR’s primary activities is the publication of newsletters, know-you-rights handbooks, legal analysis of current immigration law issues, and other similar materials for public dissemination. These and other materials are available through CCR’s Development, Communications, and Education & Outreach Departments. CCR operates a website, www.ccrjustice.org, which addresses the issues on which the Center works. The website includes material on topical civil and racial justice rights issues and material concerning CCR’s work. All of this material is freely available to the public. In addition, CCR regularly issues press releases and a regularly updated blog, as well as “action alerts” sent to over 50,000 members that notify supporters and the general public about developments and operations pertaining to CCR’s work. CCR staff members often serve as sources for journalist and media outlets, including on issues related to racial justice, police brutality, racial discrimination, and the right to dissent.

E. Fee Waiver[IH14] 

The Requesters are entitled to a fee waiver pursuant to 5 U.S.C. § 552 (a)(4)(A)(iii), 6 C.F.R. § 5.11(k), and 28 C.F.R. § 16.10(k) on the grounds that “disclosure of the requested records is in the public interest because it is likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester[s].” 5 U.S.C. § 552(a)(4)(A)(iii); see also 6 C.F.R. § 5.11(k) (records furnished by DHS without charge if the information is in the public interest, and disclosure is not in the commercial interest of institution); 28 C.F.R. § 16.10 (k) (records furnished by DOJ without charge if the information is in the public interest, and disclosure is not in the commercial interest of institution). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987). Requesters meet the requirements for a fee waiver because the subject of the request concerns the operations or activities of the government; the disclosure of the information is likely to contribute to a significant public understanding of government operations or activities due to the requesters’ expertise in the subject area and ability to convey the information; the Requesters’ primary interest is in disclosure; and they have no commercial interest in the information. In addition, pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II), 6 C.F.R. § 5.11(k)(2)(iii), (k)(3)(ii), and 28 C.F.R. § 16.10(k)(2)(iii), (k)(3)(ii), the Requesters qualify as a “representatives of the news media,” defined as “any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii); see also 6 C.F.R. § 5.11(b)(6); 28 C.F.R. § 16.10(b)(6).

As described in Part D above, the Requesters are non-profit organizations dedicated to civil rights and human rights, and have a proven track-record of compiling and disseminating information and reports to the public about government functions and activities, including the government’s record and position on surveillance, protests, policing and racial justice. The Requesters have undertaken this work in the public interest and not for any private commercial interest. Similarly, the primary purpose of this FOIA request is to obtain information to further the public’s understanding of government actions and policies in regards to the surveillance of peaceful protestors. Access to this information is crucial for the Requesters and the communities they serve to evaluate governmental surveillance actions and their potential detrimental efforts.

As stated above, the Requesters have no commercial interest in this matter. The Requesters will make any information that they receive as a result of this FOIA request available to the public, including the press, at no cost. Disclosure in this case therefore meets the statutory criteria, and a fee waiver would fulfill Congress’ legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be ‘liberally construed in favor of waivers of noncommercial requesters.’”).

In the alternative, we request a limitation of processing fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II). (“[F]ees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative of the news media.”). See also 6 C.F.R. § 5.11(d)(1); 28 C.F.R. § 16.10(d)(1). If no fee waiver is granted and the fees exceed $250.00, please contact the Requesters’ undersigned counsel to obtain consent to incur additional fees.[IH15] 

F. Expedited Processing[IH16] 

The Requesters are entitled to expedited processing of this request because there is a “compelling need” for the information. 5 U.S.C. § 552(a)(6)(E)(i)(I). A “compelling need” is established when there exists an “urgency to inform the public about an actual or alleged Federal Government activity,” when the requester is a “person primarily engaged in disseminating information,” 6 C.F.R. § 5.5(d)(ii); 28 C.F.R. § 16.5(e)(ii).

There is an urgent need to inform the public of the policies and decision-making regarding government involvement in surveillance and monitoring of peaceful protestors and organizers.[20] Large campaigns and events around policing, racial equality, and BLM continue to be organized and promoted on a nearly daily basis nation-wide. [IH17] The interest from members of the public to participate in the protests and support this movement continues to grow, with the media having an equal interest to report on the issues being raised by these protests. Members of the public, particularly those interested in participating in or supporting protests, have a right to know the level of governmental surveillance of these protests and movements and the potential effects on their privacy and security.

As described in part D above, Color of Change is primarily engaged in disseminating information. COC has a proven track-record of compiling and disseminating information and reports to the public about government functions and activities, including the government’s record on surveillance of political and social movements as well as those movements’ leaders and participants. [IH18] COC will use its press and media connections as well as its considerable web infrastructure to publicly disseminate information received from this request on a national scale. Based on the findings of this request, COC will also engage directly with groups and communities found to be surveilled or under surveillance for their involvement in protected political activity.

In addition, the DOJ grants expedited processing where the subject of the request is a “matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.” 28 C.F.R. § 16.5(e) (iv). As discussed in the “Background” section above, there is widespread and exceptional media interest in BLM, in ongoing police brutality and lack of accountability, and on surveillance of political protest activities. The government’s surveillance of activity protected by the First Amendment calls into question government integrity and affects public confidence regarding accountability for police brutality.