It is not just surveillance through new technologies that present challenges for protesters’ rights, but the ability of law enforcement to identify individuals, build dossiers, and exchange this information within and across law enforcement agencies, frequently creating unjustified suspicion towards demonstrators.
Consider Memphis, Tennessee. After a group of nonviolent activists protested in front of the mayor’s residence in 2016, protesters were reportedly added to a “blacklist” of people who could not enter city hall without a police escort. In 2021, it came to light through a public records request that the Tennessee Department of Safety and Homeland Security was maintaining dossiers on over 50 activists who had participated in Black Lives Matter protests in Memphis in 2020, including a journalist and those who had never been arrested for any infraction. This information included names, addresses, social media pictures, familial relations, and even the identity of some of the activists’ romantic partners.
In response to these and other surveillance concerns, a judge granted the ACLU a modified consent decree in 2021 that allowed the Memphis police department to attend protests with surveillance equipment, like body cameras. However, the decree barred the police from using the equipment to gather intelligence on First Amendment activity unless it was collected in the course of a lawful criminal investigation. The decree also required any investigation reasonably likely to involve the collection of information about the exercise of First Amendment rights must immediately be brought to the attention of the Director of Police or a designee for review and authorization. Finally, the decree stated the police could not coordinate with any outside public or private agency to engage in conduct prohibited under the decree.
Civil liberties advocates have been particularly concerned about the federal government’s role in collecting and dispersing information about protesters to federal and local law enforcement. For example, a Department of Homeland Security report released to the public in 2022 determined that during the 2020 racial justice protests in Portland, Oregon, the Department developed dossiers, or Operation Background Reports, on protesters arrested at Black Lives Matter demonstrations, including those “arrested for trivial criminal infractions having little or no connection to domestic terrorism.” The information in these dossiers included “lists of friends, family, and social media associates.” The acting undersecretary of intelligence and analysis at DHS called on analysts to label arrested protesters “Violent Antifa Anarchists Inspired” by default even though “specific facts” were never found “to support such a characterization.” Analysts had to rebuff calls by top Trump officials to create dossiers “against everyone participating in the Portland protest,” regardless of whether they had been accused of committing any crime.
Fusion centers, which act as a clearinghouse of information between local, state, and federal officials, have been frequently accused of being used to track nonviolent protesters and issue law enforcement bulletins mischaracterizing their activities. For instance, a federal fusion center was used in 2018 to investigate and disseminate information under “suspicious activity reports” on nonviolent protesters of a natural gas pipeline project in Oregon. Law enforcement reportedly built dossiers on pipeline activists that were not engaged in any criminal conduct, which included social media profiles and information provided by private security employed by the company constructing the pipeline project. Similarly, during the 2020 Black Lives Matter protests fusion centers repeatedly issued bulletins mischaracterizing nonviolent protests at threats, “often citing rumors or disinformation spread by anonymous social media posters or right-wing media sites.”