Department of Homeland Security trashes 1st Amendment protects for individuals

“Time for Answers About Those Intelligence Reports DHS Filed About Me” Benjamin Wittes. Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Does the legitimate need to prevent violence in connection with protests justify large-scale collection of material utterly unconnected to reasonable fears of violence? Here’s @BenjaminWittes explaining why he’s suing the Department of Homeland Security:

So I have crafted a legal response designed to shed light broadly on what happened at DHS with respect to intelligence reporting based on people’s First Amendment-protected activity. My hope is that this might give others the information they need to seek their own legal remedies for situations that might involve more egregious misconduct than I faced.

Let me explain.

It is toxic to democracy for an intelligence agency to collect and report on journalists for the act of doing journalism. The intelligence community is not supposed to collect on people solely on the basis of their First Amendment-protected activities. Yet that is exactly what happened when I&A filed its reports about me and Mike Baker of the New York Times.

There was no suggestion that either Baker or I had done anything inappropriate. All of the material I had published was unclassified. And it was decidedly nonobvious how any of the agency’s authorized bases for collection or reporting might cover my tweets in any event. This is precisely the kind of intelligence report that absolutely should not happen.

That said, in a practical sense, the activity was so dumb that it didn’t do me any harm. Having the government circulate my tweets is no particular skin off my back. I didn’t suffer any damages from being the subject of a pair of intelligence reports that contain only information I broadcast to anyone who clicks the “follow” button on Twitter. My speech was not chilled. And DHS, to its credit, quickly acknowledged its error. As I wrote at the time,

there is nothing—at least not in my view—wrong with DHS sharing my tweets internally within the government. I write in order for people to read my thoughts, and that includes law enforcement and intelligence officials, along with hundreds of thousands of others. I doubt that anyone has a reasonable expectation of privacy in a Twitter feed intentionally made available to the public, but I certainly don’t harbor any such illusion about mine. If government officials want to share my tweets among themselves, that’s great. That’s what the feed is for.

And, indeed, had the author of these reports merely sent around an email to colleagues saying, “Hey look, @benjaminwittes just posted an internal document”—which is really all these reports say—I would not be remotely concerned about it. Indeed, the first of the two tweets reports on a document that more or less does exactly that in noting that I had published leaked information. Similarly, had someone written to the DHS inspector general asking for a leak investigation based on the tweets, that would have seemed entirely sensible too. Had people shared the tweets socially or professionally within the government, that also would have been fine.

But, the matter bothered me for two reasons. The first was that I want to understand how someone thought it was appropriate to dress up such sharing of social media material as “intelligence”—and how that somehow failed to trip any of the wires designed to prevent spying on journalists or monitoring of First Amendment-protected activity. 

The second and more important concern is subtler: If the rules at I&A were so relaxed as to allow for collection and reporting of this material under these circumstances, what else was I&A treating as “intelligence” that might be routine First Amendment-protected activity? My specific concern here is not further spying on me or even reporting involving journalism. It’s intelligence reporting concerning protesters.

Political protesting, after all, is every bit as protected by the First Amendment as is journalism. And the context of my reporting at the time related to aggressive DHS guidance with respect to collecting and reporting on Black Lives Matter protesters. If DHS could file open-source intelligence reports about my social media, what might it have been doing with respect to those who were objecting in public protests to the killing of George Floyd and others by police officers?

The Case, filings and claims at the Lawfare Blog