FOIA suit against FBI seeks Black Lives Matter surveillance

October 25, 2016

Black Lives Matter protesters chant slogans at the Mall of America light rail station in BloomingtonTwo nonprofit groups have sued the U.S. government in New York federal court, seeking public records about the monitoring and surveillance of public protests concerning Black Lives Matter, racial inequalities, police violence and criminal justice.

The FBI and the Department of Homeland Security have failed to produce records or respond to requests within the time limits set by the Freedom of Information Act, 5 U.S.C.A. § 552, nonprofits Color of Change and Center for Constitutional Rights say in their lawsuit in the U.S. District Court for the Southern District of New York.

“Reports of defendants’ monitoring and surveillance of [Black Lives Matter] activities and protests raise concerns that defendants are targeting First- and Fourth Amendment-protected activities based on race and political viewpoints in order to chill dissent,” the complaint says.

Black Lives Matter protests

According to the lawsuit, Black Lives Matter or the Movement for Black Lives grew as a national movement in response to the death of Michael Brown, an 18-year-old shot and killed by a police officer in Ferguson, Missouri, in August 2014.

Since then, the movement has tried to draw public attention to police violence, advocating for reforms and racial justice, the suit says.

Members of the Black Lives Matter movement have engaged in constitutionally protected strategies, including public protests, demonstrations and vigils, according to the complaint.

Since the protests in Ferguson, the federal government and local law enforcement agencies have coordinated efforts to monitor social media and share information regarding the Black Lives Matter protests, the nonprofits say.

The complaint lists various news publications reporting on the government’s surveillance of the movement, including:

The reporting is based on documents obtained through FOIA requests as well as publicly disclosed reports or documents from the Department of Homeland Security, other government agencies or watchdog groups, the suit says.

Protest surveillance records requested

Color of Change and the Center for Constitutional Rights submitted their request to the FBI and the Department of Homeland Security on July 5, according to the complaint.

The nonprofits requested any records concerning surveillance of relevant protests about police violence, criminal justice and racial inequalities, the suit says.

They also sought relevant records and communications between the federal agencies and local law enforcement, according to the complaint.

The groups also requested expedited processing and a fee waiver, the suit says.

Homeland Security acknowledged receiving the request July 18. It denied the request for expedited treatment and conditionally granted the fee waiver request, the suit says.

On Sept. 27 the nonprofits received a response from the Office of Intelligence and Analysis, a DHS component, saying the OIA had searched its files but found no responsive records, the suit says.

The nonprofits appealed, arguing the OIA failed to perform an adequate search and improperly relied on FOIA exemptions, the suit says.

The plaintiffs also never heard from any other component of DHS within the statutory time limit, the suit says.

The FBI granted the nonprofits’ request for expedited processing but never responded further and failed to produce any documents within the 20-day statutory time limit, the suit says.

The suit seeks a court order requiring the defendants to conduct full, adequate searches for relevant records and disclose them to the nonprofits. It also seeks attorney fees and costs.

Color of Change et al. v. U.S. Department of Homeland Security et al., No. 16-cv-8215, complaint filed, 2016 WL 6129168 (S.D.N.Y. Oct. 20, 2016).