NCLA Urges D.C. Court to End FBI’s Stonewalling over Payments to Social Media Platforms
Questions concerning social media censorship at root of New Civil Liberties Alliance v. Federal Bureau of Investigation and Department of Justice
Washington, DC – The New Civil Liberties Alliance has filed a motion for summary judgment in NCLA v. FBI and Department of Justice at the U.S. District Court for the District of Columbia. NCLA asks the Court to compel the FBI to produce records responsive to a Freedom of Information Act (FOIA) request NCLA submitted in January 2023, concerning payments the FBI reportedly made to social media companies, media organizations, and other nongovernment entities. NCLA seeks to determine whether the FBI used taxpayer funds to compensate the platforms for complying with government takedown requests and/or requests to modify or aggressively enforce their content moderation policies or algorithms to align content with the government’s views.
Rather than even conduct a search for records, the FBI rejected NCLA’s FOIA request outright. The agency categorically invoked a FOIA exemption applicable only to records “compiled for law enforcement purposes” that reveal law enforcement techniques or procedures and risk circumventing the law. Using that exemption, the FBI claimed it could neither confirm nor deny whether any responsive records even existed. But well-settled precedent establishes that the FBI could not assume that every record has a protected law-enforcement purpose.
Nor can the FBI claim that responsive records would reveal techniques or permit circumvention. For years, the FBI has publicly acknowledged that, pursuant to statute, it has reimbursed Twitter and other providers for costs incurred in responding to legal process. It cannot now plausibly claim that acknowledging the existence of every bit of data concerning this category of reimbursement-related records is too sensitive to disclose under FOIA.
The FBI’s response violates FOIA and continues the FBI’s obfuscation regarding its potential role in facilitating social media censorship. The FBI has failed to take the steps clearly mandated by statute and D.C. case law. The public is entitled to statutory compliance from the Bureau and to understand the scope of its financial dealings with social media companies and other platforms that shape the modern public square, especially to the extent it used tax dollars to encourage private platforms to suppress protected speech as “misinformation” or “disinformation.”
NCLA released the following statements:
“The FBI is effectively saying: ‘We will not search, we will not explain, and we also will not acknowledge the existence of records that we’ve already acknowledged exist.’ That’s … not how FOIA works. If the Bureau used taxpayer money to fund online censorship, the American people deserves to know about it.”
— Casey Norman, Litigation Counsel, NCLA
“The FBI’s nonchalant refusal to adhere to FOIA’s requirements until it is sued defeats the entire purpose for FOIA, but it is all too common. Hopefully the Court wrings some clarity and compliance from the FBI.”
— Zhonette Brown, General Counsel and Senior Litigation Counsel, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.