Reclaiming Privacy Rights: A Roadmap for Organizations Fighting Digital Surveillance

08.14.24 | 19 min read | Text by Korica Simon

Surveillance has been used on civil rights activists, organizations, and protesters for decades by federal and local law enforcement. Some past victims of government spying include Martin Luther King Jr., Angela Davis, Jane Fonda, American Indian Movement, United Farm Workers, and the National Lawyers Guild. These activists and organizations were subjected to traditional surveillance tactics such as wiretapping and infiltration.

Today, surveillance looks different as technological advances have made it increasingly easy to track someone’s whereabouts, communications, and inner thoughts based on browser history, all without leaving an office. This level of digital surveillance has a chilling effect on people’s First Amendment rights, because a person may choose to censor themselves online or be reluctant to engage in political expression, such as attending a protest, due to their fear of being watched and retaliated against.

This report is the result of research that tries to answer the fundamental question: what can civil society do to fight back against the growing trend of widespread digital surveillance, particularly in the state of New York? New York is the focus of this research project because of the state’s widespread use of surveillance technology, particularly in New York City, and the strong activism within the state that works to improve the lives of marginalized communities.

Social justice organizations play an instrumental role in society through their organizing and fighting for civil rights. This report provides these organizations information on current surveillance practices and how these practices may impact the communities that they serve. The first section of the report provides a short roadmap on the recent history of digital surveillance in different contexts such as immigration, environmental justice, criminal legal system, housing, and the workplace. The next section will speak on pending and finalized legislation that could be helpful or harmful towards achieving the obliteration of surveillance. The third section will describe strategies organizations can take to help combat surveillance in their communities. Lastly, the report provides a list of legal organizations that are well versed in this arena and attuned to technological advances.

A Current History of Digital Surveillance

Before diving into action, it’s important to provide an overview of the types of surveillance that many communities may be subjected to. This section will demonstrate how widespread surveillance is and provide background stories on the surveillance activist communities face within the immigration, environmental rights, criminal legal system, housing, and workplace context.

Immigration

There have been a growing number of surveillance tactics used against activists, migrants, journalists, and attorneys in the immigration space. In 2019, NBC 7 San Diego reported that federal agencies were keeping and sharing a secret database of an attorney, journalists, organizers, and “instigators” who had previously worked at the U.S.-Mexico border. The database contained photos of each person, obtained from the person’s passport or social media accounts. It also included personal information such as the person’s work and travel history, names of their family members, and the kind of vehicle they drive. Some of these individuals reported that while traveling across the border, they were targeted for secondary screening. Border agents took their electronic devices and some individuals believed that the agents performed a warrantless search of their device, though they were unable to verify this. Journalists reported that these invasive actions affected their ability to protect their confidential sources. It’s easy to imagine that this unfounded suspicion and investigation could deter activists and journalists from continuing their work.

This isn’t the only incident of ICE keeping an eye on activists. In July 2021, The Intercept reported that U.S. Immigration and Customs Enforcement (ICE) had been surveilling activists and advocacy groups, such as Project South and Georgia Detention Watch, online and in person. This was done under the guise of safety and security as an ICE spokesperson stated “[l]ike all other law enforcement agencies, ICE follows planned protests to ensure the safety and security of its infrastructure, personnel, officers and all those involved.” Internal emails revealed that ICE officials were using Facebook to follow advocacy groups and ICE was tracking the attendees of their events.

Migrants have also been subjected to government surveillance. Over the last several years, ICE has increased its use of electronic monitoring as an alternative to holding migrants in detention centers. Since March 2024,183,935 people have been subjected to electronic monitoring by ICE, with 18,518 of those required to wear GPS ankle monitors. In 2018, ICE launched SmartLINK, an app that allows the agency to track a migrant’s whereabouts. Since April 2024, ICE has monitored over 700,000 people through the app. The agency requires migrants to do periodic check-ins using SmartLINK to confirm the user’s identity through voice recognition, geolocation, and facial recognition technology (FRT). The app has access to the user’s phone camera and has the ability to record audio. If a migrant complies with their check-ins for around 14 to 18 months, ICE may remove the person from the app to make room for new migrants who have just arrived in the country. Users of the app have expressed concern about the app’s location tracking, as it may put their undocumented family members at risk. Users have also stated that the app feels just as restrictive and invasive as an ankle monitor. Thirteen immigrant rights organizations found that electronic monitoring is not only harmful to the user’s livelihood but also hampers their personal relationships and their ability to organize in their community.

Surveillance in the immigration space interferes with the ability of migrants to organize and affects journalistic reporting. It also has the tendency to make migrants afraid of being a part of a community or spending time with their undocumented family members because they are aware that they are being watched. This kind of surveillance puts everyone in their circle at risk.

Criminal Legal System

Surveillance has been used in the criminal legal system for decades, as police often use various spying tools to investigate suspects. However, whereas before police would use agents to track a suspect’s movements, today, law enforcement is able to track a suspect from their desk. Law enforcement has been able to use private companies to obtain a person’s personal data such as their cell phone records, location data, web browsing history, and more. This tracking is not limited to suspects, as law enforcement agencies have been reported to subject activists to this level of surveillance as well.

In 2018, Memphis police were accused of spying on Black activists from 2016 until 2017. Memphis Police Department’s Office of Homeland Security (MPD) was accused of creating a Facebook profile to monitor activists in the area. There was one incident in which a community organizer posted a book on their page, and MPD collected the names of everyone who liked the post. With that list, they created a dossier of those individuals and called it “Blue Suede Shoes”. MPD is far from the only law enforcement agency that has collected a list of organizers, but it is unclear what happens with these lists after they’ve been created.

During the 2020 protests, the world experienced a new level of surveillance at the hands of local law enforcement and federal agencies. In 2021, it was reported that six federal agencies used FRT during the 2020 Black Lives Matter (BLM) protests across the United States. The agencies admitted that they did use this technology to identify individuals but they stated it was used to identify those who they suspected had violated laws. In one instance, police officers were able to arrest a protester after using FRT and receiving a match. NYPD has also been accused of using the technology to identify protesters after the event and charge them with crimes.

Environmental Justice

Surveillance has also been found in the environmental justice space, from both law enforcement and private companies. Shanai Matteson is an artist and climate activist based in Palisade, Minnesota. In 2021, Matteson spoke at the “Rally for the Rivers” event which was organized around protesting a pipeline construction. At the conclusion of the rally, 200 people left and went to the construction site to protest. At some point, the police arrested a number of protestors although Matteson was not one. However, five months later, law enforcement officials found livestream videos of the event, identified who was at the rally, and charged Matteson with a misdemeanor accusing her of conspiring trespass.

During the Dakota Access Pipeline protests, we saw a private company conducting mass surveillance on individuals, in an unprecedented way. In 2016, private security firm, TigerSwan was hired by Energy Transfer Partners to surveil Dakota Access Pipeline protesters. TigerSwan monitored protesters’ social media posts, utilized aerial surveillance, employed informants, and used radio eavesdropping to spy on activists. TigerSwan used this information to make lists of “persons of interests” and pressure law enforcement to be more aggressive against the protesters. The firm also shared their intel with local law enforcement agencies and provided evidence to prosecutors to help them build cases against the protesters. After learning that Lee County, Iowa increased bail for protesters, TigerSwan stated in one of their documents that they needed to work closer with other counties to make sure protesters would be fined or arrested in order to deter them. Because TigerSwan is a private company, it was able to conduct this level of mass surveillance on protesters without much government or judicial oversight.

Housing

One of the areas people may least expect surveillance is within their housing, however those in private and public housing may deal with this issue in the near future. Between 2018 and 2019, residents of a Brooklyn apartment complex organized and resisted their landlord’s attempts to install facial recognition cameras within the building. In retaliation, the landlord threatened the organizers with loitering fines and told them, wrongfully so, that handing out flyers to fellow residents was unlawful behavior. The apartment complex justified their actions by stating that this technology would provide safety and security for their residents.

Public housing facilities have also been accused of installing surveillance systems in their communities without the consent of residents. Some of these systems contain FRT or other forms of artificial intelligence. In Scott County, Virginia, cameras at a public housing facility have FRT that searches for people barred from the facility. In New Bedford, Massachusetts, a surveillance system searches through hours of recordings to locate movement near the doorways in order to identify residents who violate overnight guest rules. The footage has been used to punish and evict residents, who may have a difficult time securing housing in the future as a result of their eviction. While the cameras are only installed in public spaces within these facilities, they still violate people’s privacy rights as residents and their guests are tracked walking to and from their homes, a place that many people consider sacred.

Workplace Surveillance

Workers have been subjected to increasing surveillance over the last few years and one of the most infamous infringers is Amazon. The company has been accused of deploying many tactics in order to stop union organizing such as monitoring employee message boards and private Facebook groups. Amazon has also been accused of posting a job for an intelligence analyst who would be in charge of monitoring labor organizing threats.

Amazon has several resources within their facilities to monitor their employees such as employee ID badges which can be used to track an employee’s location and can allow the company to discover which of their employees are participating in organizing. Amazon facilities have surveillance cameras that are capable of allowing supervisors to track their workers and human monitors who walk around the facilities in order to keep an eye on the workers. Amazon has been accused of identifying union organizers and rotating them throughout the workplace, to prevent the organizers from having prolonged contact with the same employees. One source stated that workers were not allowed to socialize with each other as a manager would come and break them up.

Whole Foods, which is owned by Amazon, has also been accused of using surveillance to track union organizing. It was reported in 2020 that Whole Foods was using a heat map to track stores that could be at risk of unionization based on the distance from the store to the closest union, diversity within the store, team member sentiment, and additional factors.

Digital Surveillance: Where we are now

There have been a few promising federal and state bills introduced in the last few years that would provide vast protections for activists and journalists. On the other hand, there are also recent bills that have been passed that would increase government surveillance and cause more harm to these communities. This section provides a brief overview on where things currently stand.

Federal Legislation

In April 2021, U.S. Senators Ron Wyden (D-OR), Rand Paul (R-KY), and 18 additional senators introduced the Fourth Amendment is Not For Sale Act. For years, data brokers have been able to sell people’s personal information, such as their location data, to law enforcement and intelligence agencies without judicial oversight. Federal law fails to protect people’s data from being sold in this matter, so this bill would work to close this legal loophole and require the government to obtain a court order in order to buy a person’s data. This bill would prohibit law enforcement agencies from purchasing a person’s information from a third party, prohibit government agencies from sharing a person’s records with law enforcement and intelligence agencies, and require the agencies to obtain a court order before obtaining someone’s records. This bill was passed in the House and received by the Senate in April 2024 with little movement since then.

Another promising bill is the Protect Reporters from Exploitive State Spying (PRESS) Act, which was introduced in June 2023 by U.S. Senators Ron Wyden (D-OR), Mike Lee (R-UT), and Richard Durbin (D-IL). Law enforcement agencies have been secretly obtaining subpoenas for reporters’ emails and phone records in order to determine their confidential sources. The bill would protect a reporter’s data that is held by a third party from being secretly obtained from the government without having an opportunity to challenge the subpoena. As of now, this bill has passed the House and has been received in the Senate and referred to the Committee on the Judiciary.

On the opposite end of the spectrum, there has been legislation passed that expands surveillance such as the National Security Supplemental Appropriations Act bill, which was introduced in February 2024 and passed in April 2024. The bill provides $204 million to the FBI for DNA collection at the border. $170 million goes towards autonomous surveillance towers, mobile video surveillance systems, and drones at the border.

Digital Surveillance in New York State

Turning to New York specifically, there has been some positive movement towards obtaining information on the prevalence of government surveillance and curtailing the recent overreach as well. Recently, the NYPD was ordered by the New York Supreme Court to disclose 2,700 documents and emails related to its surveillance of the 2020 BLM protests between March and September 2020. This information can provide some clarity into the mystery around what surveillance tools were used during this time period, since much of the information known about this time period has come from FOIA requests instead of the NYPD voluntarily disclosing their surveillance practices.

In 2020, the Public Oversight of Surveillance Technology (POST) Act passed. This act required the NYPD to disclose the surveillance tools it uses and publish the impact of those technologies. NYPD is required to publish reports on these surveillance tools, informing the public about how it plans to use these tools and the potential impacts on New Yorkers’ civil liberties and rights. The Brennan Center has written about the shortcomings of the law, largely due to the NYPD failing to adhere to the provisions. In February 2024, a bill adding provisions to the POST Act was introduced to the New York City Council. The provisions would require NYPD to provide the Department of Investigation a list of all surveillance technologies currently in use and provide their retention policies for the information they collected from the technologies. This bill was referred to the Committee on Public Safety in February 2024.

How to Take Action Against Surveillance

There are numerous ways organizations can take action in order to combat the use of mass surveillance in their communities. This section will provide a few examples of actions that organizations can undertake in protecting their community right now, such as legislative action, forming working groups, sharing protest safety procedures, conducting Freedom of Information Act (FOIA) requests, and spreading the word.

Legislation

As demonstrated above, legislation can provide a promising avenue towards ending the overreach of widespread government surveillance of vulnerable communities. It’s important for organizations to have journalists who are willing to report on the issues their community may be facing, such as in the immigration space. The PRESS Act can help journalists who travel to the U.S.-Mexico border to report on issues affecting migrants and humanitarian organizations. Unfortunately, these journalists have been subjected to intimidation tactics while working on their stories which may prevent them from continuing their work. The PRESS Act would prevent government agencies from secretly obtaining subpoenas for reporters’ sources, but there is additional legislation needed to prevent law enforcement agencies from targeting journalists, activists, and attorneys who are providing assistance to migrants. Law enforcement should be prevented from performing warrantless searches, interrogating these individuals about their work without just cause, and creating dossiers of these individuals with illegitimately obtained personal information.

Legislation would also immensely benefit future protesters exercising their rights to free speech and assembly, and could have prevented many harms that occurred during the BLM protests. Since those protests, a few states and around 18 cities, such as Boston and Portland, have passed legislation banning government agencies from using FRT or layed out restrictions on how the technology can be used. But years later, some of these governments would roll back this legislation and allow law enforcement to utilize the technology to investigate crimes, such as New Orleans and Virginia which initially banned local police from using the tool. Vermont, a state that previously had a near complete ban on police use of FRT, passed legislation that would allow the police to use it for investigations in certain instances. Pushes can be made in New York and elsewhere to persuade legislators to care about privacy concerns as much as they care about crime.

Legislation can also be pushed to prevent government agencies from surveilling residents in public housing while they are at their homes. Additionally, legislation can prevent law enforcement agencies from making dossiers of individuals based on the content the person follows or likes on social media. There is a lot of room for growth in this arena since the law has failed to keep up with technological advances. Advocacy organizations can propose or draft bill text with other organizations, meet with legislators, or sign onto letters in support or opposition of pending bills related to digital surveillance and data privacy rights.

Form a local working group to review proposed technology

In 2020, Syracuse mayor Ben Walsh formed the Syracuse Surveillance Technology Working Group, which provides residents an opportunity to comment on proposed uses of surveillance technology by city departments. The group is composed of 12-15 individuals from different community groups in Syracuse, as well as some City of Syracuse employees that are selected by the mayor.

When a city department is interested in utilizing a technology, they submit the request to the working group for review. The group advertises to the public through social media and local news channels to get widespread input. The group obtains comments from the public about their opinion and concerns about the technology and the group conducts their own research as well. The group then produces a report for the city with recommendations and explains how the technology may affect the Syracuse community. The mayor then approves or disapproves of the technology based on the report. Thus far, the group has reviewed automated license plate readers, body-worn cameras, street cameras, and more.

This working group provides the public an opportunity to conduct their own research on the proposed technologies and voice their opinions in a public forum. With many local government agencies wanting to explore the use of technologies like facial recognition, this could give activists a chance to have their opinions heard on these issues before they are implemented. This working group concept could be incorporated in other cities and provide some oversight and input into surveillance technologies that local agencies are utilizing on their residents.

Share protest safety procedures

There are a few measures organizations can recommend to help individuals protect their privacy while they are at a protest. The Surveillance Technology Oversight Project has done a wonderful job creating a safety guide for protesters who wish to protect their digital privacy while organizing. The guide provides information on protecting location data, DNA, and cell phone data. Some of the tips include turning one’s cell phone on airplane mode so that location cannot be tracked, considering what information one posts and shares on social media since it can be observed, and consider what transportation one takes to the protest as vehicles could be tracked via automated license plate readers. This information could be shared by organizations within their communities to ensure activists are doing what they can to protect their information as well as their fellow co-activists. Following these recommendations could prevent activists from being unjustly targeted by law enforcement, such as in the case of Shanai Matteson, the climate activist and artist in Minnesota referenced earlier.

FOIA requests

Another avenue organizations may want to explore is FOIA requests, which can help an organization and the public understand what kind of surveillance their community is being subjected to. There is a cloud of secrecy surrounding which tools government agencies use to surveil people, largely because agencies refuse to share this information with the public without legal force. As stated above, the NYPD was recently ordered to turn over records that would reveal how they used FRT against BLM protesters. It is essential to have this kind of information as it will help organizations discover how law enforcement utilized this tool and help organizations fight against future use. Almost all of the stories featured above were derived from an organization submitting a FOIA request and obtaining internal documents that revealed how communities were being harmed by a government agency.

Sometimes, a party may refuse to comply with a FOIA request and the situation will escalate to legal action. As an example, in 2024, Just Futures Law, Mijente Support Group, and the Samuelson Clinic filed a lawsuit to force ICE to comply with a 2021 FOIA request that ICE failed to respond to. Because these situations can turn contentious, it’s important to have legal support when pursuing a FOIA, which can come from an attorney, a law firm, or law school clinic.

Spread the word

In order to combat these issues, people have to be informed about the mass surveillance that they are subjected to on a daily basis. Many people have expressed the sentiment “If you’re not doing anything wrong, you have nothing to hide”; however, they may not be fully versed on the implications of surveillance on vulnerable communities who have done nothing to warrant this invasion into their privacy. Some ways to spread the word can include holding public meetings on various surveillance topics with speakers, organizing against local surveillance tactics and publicizing the action, speaking with community members to see if they’ve noticed any surveillance tactics in their neighborhood, and working with other social justice, tech, or legal organizations. As stated above, a legal organization or clinic can help social justice organizations litigate FOIA requests that are not complied with as well as provide assistance with other kinds of litigation as needed. Social justice organizations can also work with think tank organizations to produce reports on civil rights violations and inform the public of rising issues. After the report is released, organizations can sign onto a letter calling on the government to stop an action or support an action.

Conclusion

There is much work to be done in the digital privacy space as the law has failed to keep up with the advancement of technology and rising surveillance concerns. However, everyone is capable of becoming well-versed in these issues, pushing for change on the state and federal level, and spreading the word throughout their communities. Privacy can be nearly impossible to achieve on an individual level, but together we can fight against efforts that degrade, dehumanize, and obstruct freedoms in our society.

Appendix 1. Legal Organizations to Know

Legal organizations in the privacy space are well versed on surveillance issues and could help social justice organizations know where to turn when individuals they serve come under surveillance. The following organizations are prominent in the privacy rights space and are performing groundbreaking work to combat government overreach.

ACLU

The ACLU has a Project on Speech, Privacy, and Technology department that focuses on the right to privacy, ensuring individuals have control of their personal information, and protecting individual’s civil liberties as new advances are made in science and technology. The project focuses on consumer privacy, internet privacy, location tracking, medical and genetic privacy, national ID, privacy at borders and checkpoints, surveillance technologies, and workplace privacy.

S.T.O.P

The Surveillance Technology Oversight Project fights government surveillance through advocacy and litigation and hopes to transform New York into a pro privacy state. S.T.O.P. organized over 100 organizations to get the POST Act approved in the state, has sued city and state agencies for records pertaining to a variety of issues such as NYPD’s use of FRT, and also publishes research papers on different surveillance technologies.

Brennan Center for Justice

The Brennan Center for Justice is a nonpartisan law and policy organization that works to defend democracy and justice. One of their initiatives is privacy and free expression. Through that project, the Brennan Center works to challenge mass surveillance policies that are overreaching and works to inform the public about these issues. The Brennan Center has been a leader in challenging the structure of the Foreign Intelligence Surveillance Court and the fact that the court only hears from the government when government agencies seek to obtain people’s data.

Center on Privacy and Technology

The Center on Privacy and Technology is a think tank focused on privacy and surveillance law and policy. The Center fights back against surveillance by conducting long-term investigations, research, and publishing reports with their findings. Their most recent report, Raiding the Genome: How the United States is abusing its immigration powers to amass DNA for Future Policing, discusses migrants having their privacy rights invaded by the Department of Homeland Security (DHS). DHS is taking DNA samples from detainees, which is later stored in the FBI’s database, CODIS.

Just Futures Law

Just Futures Law works alongside activists, organizers, and community groups to dismantle mass surveillance, incarceration, and deportation via advocacy and legal support. They have worked on ending ICE digital prisons, stopping data brokers from selling people’s data to ICE which could lead to deportation, ending the digital border wall, protecting driver data from being turned over to ICE, amongst many other projects.

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