Memphis police have been violating a consent decree by snooping on local activists. Now a federal judge has ordered them to stop.
Back in the 1960s and '70s, both before and after Martin Luther King Jr.'s assassination, the city's cops kept tabs on antiwar and civil rights protestors. For years, they systematically gathered political intelligence on people who were not actually suspected of crimes but merely held and publicized certain unpopular opinions. When the secret surveillance was exposed in 1976, the mayor attempted to burn the records.
The American Civil Liberties Union (ACLU) filed suit, and a consent decree was eventually hammered out in 1978 forbidding the Memphis police from continuing this behavior.
When the Black Lives Matter movement emerged in recent years, the surveillance machine apparently fired back up again. Police kept watch on activist leaders, and City Hall established a list of 81 people who were required to have a police escort when they visited the premises. These were not people who had been arrested for violent acts against the city; they were protesters. One was the mother of a young man who had been killed by a Memphis police officer. The ACLU filed suit again last year over the new actions.
The ACLU explains further:
Evidence collected during the case revealed that the Memphis police had engaged in extensive surveillance of individuals and organizations engaging in protected political speech, including creating a fake Facebook profile to "friend" protesters' accounts and gain access to private messages; distributing "joint intelligence briefs" on protesters to the U.S. Military, the Department of Justice, the Tennessee Department of Homeland Security, AutoZone, FedEx, St. Jude's and more; and sending plainclothes officers to covertly monitor protests and community events like church services, a tree planting ceremony in memory of a teen killed by Memphis police and a Black-owned food truck festival.
Memphis has 1,000 surveillance cameras throughout the city and also makes use of license plate readers. Police deny using these tools to track protesters, but the ACLU presented emails showing that they were trying to track down images of protests for storage.
On Friday, U.S. District Judge Jon McCalla ruled that this gathering of political intelligence violated the 1978 agreement and that the "evidence clearly and convincingly shows that [Memphis'] Office of Homeland Security ('OHS') was operated for the purpose of political intelligence." Apparently this OHS was initially begun for counterterrorism purposes, but—much like those fusion centers that were created in the wake of September 11—has morphed into domestic intelligence bureaus. Similarly, a police sergeant set up a fake Facebook profile that was intended to investigate gang activity but then was repurposed to investigate political activists.
The judge also determined that the city had failed to educate the police about the decree itself and that Memphis officers were not terribly familiar with its contents. The cops were apparently unaware that they were engaging in "political intelligence" under the definition of the decree.
In response to the finding, McCalla ordered that the city revise department regulations to explain what "political intelligence" means, making it clear that it covers any investigation into the lawful exercise of First Amendment rights. (Some officers apparently believed that they were not violating the order because the investigation was not based on partisan attachments. But surveillance does not have to have a partisan motive to count as "political intelligence.") The judge further ordered more training, and processes to handle investigations where political intelligence may end up being gathered even when attempting to track down unlawful behavior. He also ordered the city to develop proper social media guidelines, and he told it to keep track of the search terms police use on social media during investigations and file reports on them.
The city, meanwhile, actually asked the judge to vacate the consent decree, claiming that changes in technology since 1978 made it obsolete. McCalla said he'd rule on that request separately, but his opinion takes a pretty dim view of the request, noting that the central ideas behind the consent decree—making certain that the police are not snooping on people because they're engaged in activism—are not tied to technology. He goes on to talk about current court cases surrounding the use of technology-based surveillance and related privacy and Fourth Amendment concerns. It doesn't look like the judge thinks this decree has outlived its purpose.