Demonstrators gather in Memphis, Tennessee, earlier this year to mark the 50th anniversary of the assassination of Martin Luther King, Jr.
Demonstrators gather in Memphis, Tennessee, earlier this year to mark the 50th anniversary of the assassination of Martin Luther King, Jr. Shawn Escoffery

As ACLU lawyers prepare for an upcoming trial with the Memphis Police Department, the things they’ve learned about the law enforcement agency’s spying habits have “surprised” them.

When the ACLU of Tennessee filed a lawsuit against the Memphis Police Department in March 2017, its lawyers accused the police department of spying on local protesters in violation of a consent decree. The lawsuit was based on the existence of a “City Hall Escort List” created by Memphis police* and mostly filled with names of Black Lives Matter activists to be flagged by police if ever on City Hall grounds. However, after deposing key police officials and collecting hundreds of pages of documented evidence, ACLU lawyers learned that this was just a fraction of what was going on. Based on court documents the ACLU filed this week in the case, they also found out about these actions:

  • The “City Hall Escort List” not only flagged the names of certain Black Lives Matter-affiliated activists, but it also included “associates in fact”—people connected to those activists via social media, prior arrests, or “often seen at unlawful assemblies with” them.

  • Police prepared “joint intelligence briefs,” or JIBs, that initially were about protests against police violence in Memphis, but quickly became a dossier of any kind of anti-police violence activity happening across the nation, namely “any of the organizations that arose out of Ferguson” or that were part of the Black Lives Matter network, even it had nothing to do with Memphis.

  • These intel briefings weren’t just shared within the police department; they were also shared with Shelby County sheriff and government officials, the county school district, the Tennessee Department of Homeland Security, the U.S. Department of Justice, the U.S. Military, the Memphis Light, Gas, & Water municipal utility company, the Tennessee Valley Authority (a regional electricity utility company), and, curiously, the private companies FedEx and Autozone.

  • The police used “social media collator” software, such as Geofeedia and NC4, to easily search and monitor open-source data and other social media “chatter” concerning protest activities.

  • Police also set up a dummy social media account under the name “Bob Smith” to access information and correspond with people whose social media profiles were private and not accessible to the public.

  • Undercover and plain-clothed officers used this intel to monitor African American-hosted events and activities even if they weren’t protests—like flash mob dance rallies. Among the events the police monitored in stealth mode: several black church meetings; a memorial service for Darrius Stewart, a teenager who was shot and killed by a Memphis police officer in 2015; a black-owned food truck festival; and a gathering at a local park where an organization gave out free book bags and school supplies to students.

The ACLU of Tennessee filed a motion this week asking the judge to render a decision based on all the information gathered, instead of going to trial, which is currently scheduled for August. These operations are questionable enough on their own, but police surveillance of protesters has been forbidden in Memphis since a 1978 consent decree, after the police department was accused of carrying out similar spying functions on civil rights activists dating back to 1968, when Martin Luther King was in the city advocating on behalf of sanitation workers.

The information unearthed about the police department’s recent activities shows that such surveillance operatives have evolved, though. Back in King’s day, Memphis police were planting undercover agents in activist circles to gather intel—today, they continue to do that, but are also going undercover in people’s private social media accounts and using the city’s SkyCop cameras to discreetly profile and monitor activists throughout the city.

“The information we got about just how the police were monitoring protesters both through social media and surveillance, and through undercover means, was not something we anticipated when we filed the lawsuit,” said ACLU-TN Legal Director Thomas H. Castelli. “We knew they were using social media collators, but we didn’t know how they were using them. The use of covert social media accounts to friend people [on Facebook], or to break through open source barriers to find out more information from individuals was somewhat surprising to us.”

But the city says the ACLU is holding police to outdated norms that don’t reflect newer technologies.

“The ACLU of Tennessee’s lawsuit is based on its allegations of violations of a 1978 consent decree,” said City Chief Legal Officer Bruce McMullen in a statement from the city. “Its interpretation of that 40-year old consent decree is out of step with modern police techniques. The consent decree was drafted before the internet – before smartphones, body cameras, or any type of digital cameras."

The joint intelligence briefings the Memphis police created not only included photographs of people involved in protests (or even “those who posted about the possibility of protest action,” according to court documents) but also sensitive information such as drivers’ license details, juvenile arrest records, and mental health histories. Agents used a tool called the i2 Analyst’s Notebook to construct a matrix or “map of associations” between the various activists they were watching—basically, a Facebook of protesters used by police to track their movements.

Some of the intelligence the police agents collected from social media turned out to be wrong, or literally fake news. In one of the briefings, exhibited in court documents, police distributed warnings to its law enforcement network about a “Day of Rage”—a Purge-like revolt that was supposed to occur on July 15, 2016, in several cities where violence could be expected. The police said they scooped this intel up from Black Lives Matter social accounts. But nothing happened on July 15 and Black Lives Matter had publicly disavowed having anything to do with the fake event and the rumors promoting it. It turned out to be a hoax, as Al-Jazeera reported.

This is the kind of misfortune that black activists can’t afford in a climate where Russian hackers have posed as online provocateurs to stir up racial polarization and discord to sway elections. Meanwhile, as George Joseph has reported for The Intercept and The Appeal, Black Lives Matter groups have been tracked and monitored by the FBI, with some possibly identified by state and federal authorities as “black identity extremists.”

While the ACLU’s lawsuit mostly focuses on enforcing the consent decree, Castelli says they would challenge the police departments tactics even if there was no decree in place.

“If the decree didn’t exist, there may be a different approach to calling out this kind of surveillance,” said Castelli. “It’s problematic and can have chilling effects on people exercising their constitutional rights. Police in general have a tremendous amount of power and they can have a coercive effect, so we would be condemning these practices as bad for free speech and public policy.”

*CORRECTION: An earlier post erroneously stated that the City Hall Escort List was created at Memphis Mayor Jim Strickland’s request. A version of the list existed prior to Strickland's tenure, according to the city.

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