It was about six months ago that I awoke one morning to a text from Shane Harris of the Washington Post telling me to call him urgently.
When I called him, Harris informed me that I had been the subject of at least two open-source intelligence reports by the Department of Homeland Security (DHS) Office of Intelligence and Analysis (I&A), both reporting on tweets of mine related to leaked I&A documents concerning surveillance of protesters. (For those who need a refresher on the incident, I described it in detail here.)
I said at the time that I would consult with my lawyers about how to proceed, and I have spent a good deal of time thinking about it in retrospect. Last week, I filed suit. The suit does not seek damages. I’m not looking for a judgment that what DHS did was illegal.
Rather, the suit seeks only documents under my old friend, the Freedom of Information Act:
The truth of the matter, as I explain below, is that DHS’s activities with respect to me are a bigger deal in theory than they were in practice. I suspect as well that they were a bigger deal in practical terms for others than they were for me.
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.
Today I obtained the three DHS I&A intelligence reports on which @shaneharris reported yesterday--two concerning my Twitter activity and one concerning that of @ByMikeBaker of the New York Times. I am deeply grateful to all of those who have reached out with words of support.
— Benjamin Wittes (@benjaminwittes) July 31, 2020
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 result was a Freedom of Information Act request I filed on Nov. 17 of last year.
In that request, I sought four distinct categories of documents. The first is an attempt to understand the universe of intelligence reporting concerning journalism and political protests. It sought:
Open Source Intelligence Reports concerning:
a. Lawfare Editor-in-Chief Benjamin Wittes;
b. New York Times correspondent Mike Baker;
c. Any work of journalism, and/or any person employed as a journalist and/or engaged in newsgathering at the time the Open Source Intelligence Report was compiled;
d. Any person’s protected First Amendment activity; or
e. Any person’s participation in a public demonstration.
The second category sought information about:
How I&A used the above-referenced Open Source Intelligence Reports, including but not limited to:
a. Who the reports were distributed to and for what purpose(s);
b. Any data collected in connection with the reports;
c. Any files that are maintained compiling such reports with other intelligence information; or
d. Any actions taken as a result of the reports.
The third category sought information about the investigations that were announced following Harris’s revelation of the activity: “Any inquiry, investigation, and/or communications relating to the propriety of the above referenced Open Source Intelligence Reports, including but not limited to any Open Source Intelligence Reports that have been rescinded.”
Finally, a fourth category sought information about:
Policies, procedures, and/or legal guidance in effect at any time between May 25, 2020 and the present authorizing the creation and distribution of Open Source Intelligence Reports concerning:
a. Any person employed as a journalist and/or engaged in newsgathering;
b. Any work of journalism;
c. Any person’s protected First Amendment activity; or
d. Any person’s participation in a public demonstration.
DHS has, so far anyway, not acknowledged the request, much less responded to it. So last week, I sued.
It is really important to know what sort of surveillance activity the public guidance tolerates in practice with respect to the routine exercise of First Amendment rights. Indeed, the question of when it is appropriate to treat First Amendment-protected activity by U.S. persons as reportable intelligence is a complicated one. And I argued only recently that the FBI may well have taken too conservative an approach on the matter in the run-up to the Jan. 6 insurrection—apparently regarding as off-limits material that news organizations nationwide saw as a clear indication that violence was likely in connection with Congress’s counting of the electoral vote. It seems to me that the DHS activity over the summer raises the opposite question: whether the legitimate need to prevent violence in connection with protests was justifying large-scale collection of material utterly unconnected to reasonable fears of violence.
This litigation should provide a chance to shed light on that question.