Privacy SOS

DHS social media hearing reveals how secretive, unaccountable is the agency

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The House Committee on Homeland Security's subcommittee on counterterrorism and intelligence this morning held a hearing on DHS' recently revealed social network monitoring program, officially called the "Publicly Available Social Media Monitoring and Situational Awareness Initiative System of Records." The program collects information available on social media, shares it with other government agencies (including those in other countries) and private companies, and retains it for five years.

Testifying on behalf of DHS was Chief Privacy Officer Mary Ellen Callahan and Director of the DHS Office of Operations and Planning Richard Chávez. Notably absent at the hearing was any representative from a civil liberties organization, or a rep from the private company DHS has contracted to actually execute its social media spying operation, General Dynamics. Those voices would have been useful, it turns out, particularly given that the committee was partially spurred to action by a FOIA lawsuit against DHS, filed by a civil liberties group, that revealed improper spying on speech.

Subcommittee chairman Patrick Meehan (PA) opened the line of questioning, after the DHS representatives gave very bland and largely meaningless statements. He wanted to know what DHS was doing to ensure that the agency's social media spying didn't chill free speech or criticism of the government.

Unfortunately, he didn't get any good answers. From the transcript, Meehan began:

We are talking about monitoring online information in blogs, in websites, in message boards. Some of these have sort of the indicia of quasi privacy communities, so to speak. Help us understand what you are doing to assure that individual communication is not leading to individuals being identified by the government, and what you are doing to assure that we are not creating a chilling effect so that somebody in the community who is concerned about a particular issue will be more reluctant to write a letter to the editor, to post something on a blog.
We're all very concerned…about what looks as if it is a directive within the contract you have with a private contractor who is employed to help you gather information: identifying media reports that reflect adversely on the US government…So in effect we are asking somebody to go out and let us know what people are saying that's negative about us. This appears to be what was asked for in the contract with General Dynamics. So I'd like you to tell me what we are doing to assure that private commentary is not being misused, and what we can do to assure that the activities of monitoring are not going to create some kind of chilling effect on individuals willingness and readiness not only to comment, but frankly, to make comments which may be critical of the government.
Great question. Too bad DHS doesn't have a good answer to it.
Callahan skirted around the central question of chilling political speech, telling the committee: "To be very clear, it is the what, not the who that is being identified and that we are concerned with…we are just focusing on the event, the situation, and not worried about the individual." But this statement runs contrary to admissions made in the agency's own documents, which show that the program in fact gathers personally identifiable information on journalists and bloggers. In DHS' words, it captures the PII of:
Indeed, Callahan's own privacy impact assessment clearly states: "some personal information may be captured. Most information is stored as free text and any word, phrase, or number is searchable." So there's the first deception.
Meehan next asked Callahan about the chain of command: "Who's directing what's being monitored?" Neither DHS representative had an answer to this most basic question, instead saying that the spying is directed by "keywords" and "commercial" software, suggesting that it is driven by data-mining algorithms that are programmed with keywords. 
Callahan said that the keywords the system uses are things like "disaster" and so on, but in fact the list includes words like "border," "agro," "social media," and "worm," among a number of names of foreign countries and other random words. Callahan repeated numerous times during her testimony that the keywords were about disasters — you know, about disasters and the like — when in fact the list is incredibly long and includes hundreds of words that have nothing to do with natural disasters. (scroll to page 17 of that document to see the list)
Q: Who is in charge? A: Um…
Meehan pressed Callahan on the issue of oversight. Who is really running this show, he asked? Who is directing General Dynamics? Callahan repeated that the program is based off of keyword searches and algorithms. And then, again: "We do not collect information about individuals."
Meehan interrupted her at this point, clearly frustrated by the lack of useful information DHS was willing to provide the subcommittee and the public, and Callahan's refusal to answer his questions about the chain of command:
We know about the disasters, I don't think we are worried about the disasters. What we are worried about is in individual circumstances where there may be issues out there…And I point back again to the Michigan circumstance where there was a controversial decision by the government and DHS played a role in assessing community response to that incident. That wasn't a natural disaster, that was an incident that was created by the government, and the government was then monitoring the community response. Who's making the protections against circumstances under which the government is playing a role in not just analyzing but filtering back, recording and reporting about things that people in the community have said about governmental activity?
To this, Callahan punted entirely, telling the subcommittee that she'd have to get back to them in order to answer these most basic questions: who is running the show? Who is protecting the public? (Note: the latter is actually her job.)
(Note: The Michigan case Meehan addressed was revealed after the Electronic Privacy Information Center (EPIC) sued DHS for records about its social media spying operation. The records revealed that "the agency is tracking media stories that "reflect adversely" on DHS or the U.S. government. One tracking report — "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI" — summarizes dissent on blogs and social networking cites, quoting commenters," writes EPIC.)
"I am deeply troubled"
The representatives on the subcommittee were clearly not impressed with DHS' performance. One member, Rep. Jackie Speier (CA), came out forcefully when it was her turn to speak, urging that EPIC be allowed to speak at the next hearing on the issue, and urging DHS to follow EPIC's recommendations vis a vis its social media spying program. (EPIC has called for the program to be scrapped.) Social media is a powerful tool in our society, she said, noting that the outcry on Twitter was largely what stopped SOPA in its tracks. It is therefore important to keep the space safe for free criticism of the government, she said.
"I am deeply troubled by EPIC's submitted testimony," Speier told DHS at the hearing. She went on to admonish the agency for ignoring EPIC's request and forcing the organization to sue DHS in order to get the records out. "You need to respond before getting sued," Speier said.
She then turned to the substance of the program, notably the collection of personally identifiable information on journalists: "I find that outrageous," she said. Crucially, Rep. Speier told DHS that she wants them to change General Dynamic's contract and instruct them not to gather information on journalists. Callahan replied that DHS only collects publicly available information on journalists. Speier was not impressed.
I'm suggesting to you that it is irrelevant, you do not need it, and you should suspend that part of the contract. This is not a political operation. This should not be a political operation. And you should not be collecting public opinion information. EPIC makes three recommendations…and I for one wholeheartedly agree with their recommendations.
Among the other probing questions from the elected officials was a series from Representative Bennie Thompson (MS), who wanted to know why General Dynamics had been contracted to do this "internal" government work for DHS. Chavez' response might hurt your brain:
They [General Dynamics] are skilled technicians in surfing the web.
Yeah you read that right. DHS is paying a private corporation $11 million to spy on our Twitter and Facebook use because the company has "skilled technicians" who are really good at "surfing the web." Cue the laugh track.
The hearing continued in such a manner for another hour, as lawmakers peppered DHS with good questions and DHS mostly provided lackluster, circuitous responses. Yet more comic relief came when privacy officer Callahan struck on a theme to explain why the social media monitoring was in fact helpful for ordinary people: long lines at TSA. 
We should appreciate this program, she kept saying, because if someone tweets that there is a long line at a TSA checkpoint, the General Dynamics spooks who are watching the internet will be able to contact that airport and urge them to hurry up a little bit.
That wasn't considered a joke. But increasingly, it appears as if DHS is; and Congress appears to be catching on.
Let's hope that the subcommittee follows up with the agency on its criticisms today, and steps up the level of congressional oversight to ensure that we aren't being improperly spied upon with our own tax dollars. 
(PSSST: Hi, DHS! General Dynamics!)

© 2021 ACLU of Massachusetts.