by Jayson Hawkins
According to reports in several media outlets, including the Washington Post, the FBI contracted in March 2022 with tech company Babel Street for 5,000 licenses to use Babel X software for searches of broad swaths of social media. The contract, reportedly worth $27 million dollars, could give the FBI the tools to collect vast amounts of data from publicly viewable posts and examine that data according to a combination of parameters.
Babel Street has previously come under scrutiny for selling cell phone location data to a variety of federal agencies, including the FBI and ICE, allowing these agencies to bypass search warrant requirements established by the U.S. Supreme Court’s ruling protecting cell phone privacy. Babel X examines viewable posts on Twitter, Facebook, YouTube, Instagram, and several other widely used sites. According to the contract, the FBI expects to conduct around 2,000 keyword searches each month.
This tool will only allow the FBI to collect data it could obtain without a warrant. But the question is one of scale. Analysts at techdirt.com liken Babel X’s data collection power to “an extremely productive fire hose.” The key is managing the software that allows users to sort through the data in a meaningful way. Otherwise, searches of social media produce mountains of unusable data.
Multiple concerns have been raised about the FBI’s use of Babel X. Some courts have expressed concern about government use of powerful data collection tools, even though it is widely understood that any post viewable by the public can be viewed by police. These concerns stem from the “reasonable expectation of privacy,” which assumes that while other people can see the posts, people do not have a reason to expect the government can eavesdrop at will or collect posts in bulk and subject them to analytical software.
The root of these concerns is that the presence of government watchers will have a chilling effect on free speech. In other words, people might feel compelled to self-censor to avoid the attention of law enforcement or restrict their candid posts to private accounts.
That environment is not conducive to free speech, according to Matt Cagle of the American Civil Liberties Union. “The First Amendment protects online speech, period,” he declared. “People should not have to exercise their free speech behind privacy settings in order to avoid being surveilled.”
These concerns have thus far not deterred the FBI. The Bureau issued a statement asserting the use of Babel X is legal, useful, and essential to the ongoing war-on terror—which has become the standard boilerplate justification invoked by all government agencies for virtually anything that pushes the boundaries of legality or the spirit of the law. No portion of the statement offered assurances that policies would be put in place to regulate data collection or retention, nor did it mention the Privacy Impact Assessment that the Bureau is legally required to compile. It is unclear if Congress will exercise its oversight authority.
Barring an unexpected change of course, the FBI will soon be collecting massive amounts of data with its new tools and gaining unprecedented insight into the online lives of Americans.
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