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By Suzanne Burdick, Ph.D.
The U.S. Department of Homeland Security’s (DHS) premier law enforcement agency monitors expecting parents’ online posts about their pregnancy and reproductive health issues, according to internal emails obtained under the Freedom of Information Act (FOIA) by the online privacy activist group, Electronic Privacy Information Center (EPIC).
The U.S. Customs and Immigration Enforcement (ICE), the DHS agency that conducts criminal investigations and enforces U.S. immigration laws, is one of a handful of government agencies that use a software tracking tool called SocialNet.
SocialNet pulls citizens’ online data from a host of websites, including BabyCenter, a reference and pregnancy tracking site where new and expecting parents can post information about their health and pregnancy experiences.
Eva Galperin — cybersecurity director for the Electronic Frontier Foundation (EFF), a leading nonprofit defending civil liberties in the digital world — said the revelation is “concerning.”
“When people post about their pregnancies to BabyCenter, they’re usually doing it without the expectation that ICE or the local police are checking up on the status of their pregnancy,” Galperin told The Defender.
“ICE could potentially be reading information about your reproductive health and about your pregnancy or your children,” she said, adding that this is particularly concerning due to the current political climate surrounding pregnancy and abortion.
ShadowDragon, an online surveillance company, developed SocialNet in 2009 and still sells it today. The tool pulls data from more than 150 online sites.
A full list of sites isn’t available, but The Intercept in September 2021 reported a partial list including Amazon, YouTube, Yahoo, Reddit, LinkedIn, Facebook and dozens more.
ShadowDragon President Elliott Anderson, in a promo video for SocialNet said, “You can pop in an email, an alias, a name, a phone number, a variety of different things, and immediately have information on your target. We can see interests, we can see who friends are, pictures, videos.”
ICE did not respond to a request for comment from The Defender about its use of SocialNet.
In addition to holding contracts with ICE, ShadowDragon has worked with the FBI, the U.S. State Department and the Drug Enforcement Administration. Galperin pointed out that multiple state and local police departments use SocialNet, too.
“We know there is an entire ecosystem of companies just like ShadowDragon selling their services to all kinds of governments and law enforcement agencies,” she said.
Jeramie D. Scott, senior counsel and director of EPIC’s Project on Surveillance Oversight, told 404 Media in an email:
“Our interactions, associations, words, habits, locations — in essence our entire digital lives — are being collected for scrutiny now and indefinitely into the future through expanding analytical tools of black box algorithms. The abuse of such tools is not an ‘if’ but a ‘when.’”
Online privacy group sues ICE over FOIA requests
EPIC on Dec. 3, 2021, made an expedited FOIA request for ICE’s communications and contracts with ShadowDragon, arguing there was a “clear urgency to inform the public about DHS’s use of the invasive investigative software.”
“The public is growing increasingly concerned by government access to technological tools that enable it to surveil individuals and collect their data,” EPIC said in its letter. “The public is also concerned about DHS and ICE’s reputation for maltreating undocumented immigrants and migrants.”
EPIC cited evidence ICE had spent at least $891,556 of taxpayer money to purchase SocialNet.
The same day, EPIC submitted another FOIA request for ICE’s communications and contracts with Babel Street, the creators of Locate X software, which U.S. law enforcement agencies signed millions of dollars worth of contracts to use.
Locate X uses data from popular mobile apps to track the movement of people’s cell phones.
After ICE failed to produce the requested materials, EPIC on March 18, 2022, filed a lawsuit in the U.S. District Court for the District of Columbia against ICE to compel disclosure.
EPIC did not immediately respond when asked by The Defender for information regarding when and to what extent ICE handed over the requested documents.
However, a Sept. 18 report by 404 Media showed a segment of an obtained document that said ICE’s Homeland Security Investigations Office of Intelligence (HSI-INTEL) has a requirement to purchase 100 licenses of ShadowDragon’s SocialNet.
Is social media surveillance by government agencies legal?
Companies like ShadowDragon specialize in what’s called open-source intelligence (OSINT).
The U.S. Code defines OSINT as “intelligence that is produced from publicly available information and is collected, exploited, and disseminated in a timely manner to an appropriate audience for the purpose of addressing a specific intelligence requirement.”
UpGuard, a company that helps businesses manage cybersecurity risk, said in a July 27 blog post that although OSINT deals with information that anyone on the internet can find, it often uncovers information that most people do not know is public.
“This lack of knowledge is where the ‘grey area’ exists for OSINT. The legality and ethics of OSINT come down to how vulnerabilities are managed,” Catherine Chipeta, UpGuard’s cybersecurity writer, said.
ShadowDragon declined to comment to The Defender on its use of OSINT and its contracts with federal, state and local law enforcement agencies.
EPIC, on a website about its lawsuit against ICE, pointed out the “dubious” legality of ICE’s use of mobile location data, noting:
“In 2018 the Supreme Court held that the government could not obtain data collected by cell site towers to track phone locations without a warrant. Carpenter v. United States, 138 S. Ct. 2206 (2018).
“Whether ICE can legally collect virtually the same information by other means — i.e., indirectly by purchasing mobile location data from firms like Babel Street — is questionable under Fourth Amendment law.”
EPIC added:
“The public should understand ICE’s relationships and dealings with firms that sell these surveillance tools, the types and amount of data ICE has access to, how ICE is using that data, what privacy protections ICE has implemented to protect the rights of the public, and whether ICE is complying with the Constitution and federal law when carrying out these investigations.”
According to the Brennan Center for Justice, at least 10 federal agencies monitor citizens’ social media.
The Brennan Center identified four ways government monitoring of social media can be detrimental:
The Brennan Center also noted while there are rules that govern federal agencies’ use of social media, there are legal limits on social media surveillance.
“Most notably,” Brennan Center said, “the Privacy Act limits the collection, storage, and sharing of personally identifiable information about U.S. citizens and permanent residents (green card holders), including social media data.”
Social media surveillance may also violate the First Amendment, which ensures freedom of speech, and the Fourteenth Amendment, which seeks to prevent discrimination by providing equal protection to all.
Suzanne Burdick, Ph.D., is a reporter and researcher for The Defender based in Fairfield, Iowa. She holds a Ph.D. in Communication Studies from the University of Texas at Austin (2021), and a master's degree in communication and leadership from Gonzaga University (2015). Her scholarship has been published in Health Communication. She has taught at various academic institutions in the United States and is fluent in Spanish.
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