A new lawsuit alleges that the D.C. government and the Metropolitan Police Department are withholding records about how police use social media to investigate crimes and monitor protests. The Brennan Center for Justice and Data for Black Lives sued the D.C. government on Tuesday, arguing that the city has been largely unresponsive to a FOIA request filed by the organizations 14 months ago.

The FOIA request asked for an array of records and documents related to MPD’s use of social media, including policies governing how officers are allowed to use social media for investigations, whether they can create fictitious or undercover online personas, and how they can collect, maintain, and analyze data they collect from social media. The request asked for information about any contracts between MPD and third-party social media monitoring companies. It also sought communications or agreements between MPD and federal law enforcement around social media — including any collaboration MPD had with federal law enforcement to monitor social media in connection with protests against police violence in June of 2020.

“We think these are tactics and tools that are incredibly important to know about and to have real public debate about,” says Rachel Levinson-Waldman, deputy director of the Liberty and National Security Program at the Brennan Center for Justice. “We also have a real concern that, as with many or most police surveillance tools and use of police power generally, it’s going to be deployed disproportionately against communities of color, both in terms of activists of color, but also even in the context of criminal investigations.”

The lawsuit comes as MPD faces broader scrutiny over its responsiveness to public records requests. A separate suit filed last month said MPD kept a “watchlist” of critics and then withheld or delayed responses to their FOIA requests.

“By filing our lawsuit, we join other local journ­al­ists and activ­ists in push­ing the MPD to comply with its FOIA oblig­a­tions despite a history of avoid­ance,” wrote Levinson-Waldman and Mary Pat Dwyer, a fellow with the Brennan Center for Justice, in a post describing the reasons for the suit.

It also comes after years of concern from Black activists about MPD surveillance and more recent nationwide concerns about how police and the FBI used surveillance during widespread protests against police violence in 2020.

A spokesperson for MPD did not respond to a request for comment on the lawsuit and the department’s social media policies by the time of publication.

The Brennan Center and Data for Black Lives filed the initial public records request in December 2020. In September 2021, the lawsuit says, MPD responded with a partial set of documents and pointed to additional information available online. The suit says, however, that response contained only a “fraction” of what they asked for and that it came six months after the 90-day deadline mandated by D.C. law — and only after “persistent” follow-up and the threat of legal action. The lawsuit further states that the records MPD did provide indicate the existence of other documents that the department failed to make public, including records of the social media monitoring softwares the department has used.

“The fact that MPD missed so many obviously responsive documents confirms that MPD failed to conduct an adequate search for records, as required by FOIA,” reads the suit.

For example, in the records MPD provided to the Brennan Center and Data for Black Lives, MPD said the only social media monitoring application it had access to was Dataminr — a software that D.C.’s Homeland Security Emergency Management Agency (HSEMA) purchased and shared with other agencies through a memorandum of understanding. But public procurement records indicate that HSEMA purchased another social media monitoring application called Babel Street — a technology that HSEMA “likely shares with MPD,” according to the suit. The suit also cites public records showing a $10,000 dollar training that 10 D.C. police officers received from Dataminr – a training that MPD did not disclose in response to the FOIA request.

A social media training document that MPD sent to the Brennan Center and Data for Black Lives mentioned several other social media monitoring services, suggesting that MPD might be training its officers on about a dozen other social media monitoring services they haven’t disclosed. But the department did not hand over any records concerning their use, according to the lawsuit.

Levinson-Waldman said the organizations are also fighting for documents that indicate the extent to which MPD uses “undercover” accounts on social media — a move that would likely be in violation of the terms of service for major social media platforms like Facebook.

“If you’re on Facebook, you’re only supposed to have one account that’s supposed to represent basically your real name and your real persona,” says Levinson-Waldman. “Setting up an account that depicts you as somebody other than who you are is a violation of their policies.”

Levinson-Waldman also argues that it’s essential for the public and the D.C. Council, which performs oversight of the police department, to understand the policies that govern police social media use. In a city where homicides have been connected to disputes that play out over social media, police use of these platforms might be helpful for solving crimes. But, Levinson-Waldman says, “the real concern is: what are the guardrails around the use of social media, and how substantial are they?”

If police are using social media to determine who they investigate or arrest — and if prosecutors are basing their requests for detention or incarceration based on information in social media posts, Levinson-Waldman says, “that’s really vulnerable to misuse.”

Levinson-Waldman says the Brennan Center and its partners have been filing similar public records requests to other large police departments and are coming across similar delays and barriers, though departments in New York and Boston have provided far more records than MPD. In response to a lawsuit, the L.A. Police Department did produce over 10,000 pages of relevant records, which showed repeated circumstances in which the LAPD used social media tools to surveil activists and racial justice protests, including when there was no proof of criminal activity.

The LAPD records the Brennan Center obtained also showed that officers were instructed by the police chief to ask for residents’ social media handles during field interviews after police stops.

Reporting from the Southern Poverty Law Center’s publication Hatewatch indicates that MPD has used social media in some capacity to monitor the online activities of Black-led activist groups in the city. Tuesday’s lawsuit seeks to compel MPD to produce records that would reveal more about the extent of the surveillance — and any boundaries the police department has set to limit it.

“When police use social media to collect information about or keep tabs on people they perceive as suspicious, it has a disparate impact on historically overpoliced communities, especially communities of color,” says the lawsuit. “It also leads to and supercharges surveillance and police presence at protests and other First Amendment-protected activities, with a particular impact on activists of color. These tactics have a chilling effect on free speech and communications, both online and off.”