theintercept--2020-07-09--Police Surveilled George Floyd Protests With Help From Twitter-Affiliated Startup Dataminr

to Twitter , controversial artificial intelligence startup Dataminr helped law enforcement digitally monitor the protests that swept the country following the killing of George Floyd , tipping off police to social media posts with the latest whereabouts and actions of demonstrators , according to documents reviewed by The Intercept and a source with direct knowledge of the matter .
The monitoring seems at odds with claims from both Twitter and Dataminr that neither company would engage in or facilitate domestic surveillance following a string of 2016 controversies .
Twitter , up until recently a longtime investor in Dataminr alongside the @ @ @ @ @ @ @ access to a content stream known as the “ firehose ” — a rare privilege among tech firms and one that lets Dataminr , recently valued at over $ 1.8 billion , scan every public tweet as soon as its author hits send .
Both companies denied that the protest monitoring meets the definition of surveillance .
Dataminr helps newsrooms , corporations , and governments around the world track crises with superhuman speed as they unfold across social media and the wider web .
Through a combination of people and software , the @ @ @ @ @ @ @ crises — wars , shootings , riots , disasters , and so forth — so that they ’ ll have a competitive edge as news is breaking .
But the meaning of that competitive edge , the supercharged ability to filter out important events from the noise of hundreds of millions of tweets and posts across social media , will vary drastically based on the customer ; the agenda of a newspaper using Dataminr to inform its breaking news coverage won ’ t be the same as the agendas of a bank or @ @ @ @ @ @ @ latter category of Dataminr ’ s business , lucrative government work , that ’ s had the firm on the defensive in recent years .
In 2016 , Twitter was forced to reckon with multiple reports that its platform was being used to enable domestic surveillance , including a Wall Street Journal report on Dataminr ’ s collaboration with American spy agencies in May ; an American Civil Liberties Union report on Geofeedia , a Dataminr competitor , in October ; and another ACLU investigation into Dataminr ’ s federal police surveillance work @ @ @ @ @ @ @ assure the public that attempts to monitor its users for purposes of surveillance were strictly forbidden under its rules , and that any violators would be kicked off the platform .
For example , then-VP Chris Moody wrote in a company blog post that “ using Twitter ’ s Public APIs or data products to track or profile protesters and activists is absolutely unacceptable and prohibited.
” In a letter to the ACLU , Twitter public policy chief Colin Crowell similarly wrote that “ the use of Twitter data for surveillance is strictly @ @ @ @ @ @ @ s product does not provide any government customers with … any form of surveillance.
” Twitter also said that Dataminr , one of its “ official partners , ” would “ no longer support direct access by fusion centers ” to information such as tweet locations ; fusion centers are controversial facilities dedicated to sharing intelligence between the federal government and local police .
Dataminr at the same time announced it would no longer provide a product for conducting geospatial analysis “ to those supporting first reponse ” and added that such clients @ @ @ @ @ @ @ ” But based on interviews , public records requests , and company documents reviewed by The Intercept , Dataminr continues to enable what is essentially surveillance by U.S. law enforcement entities , contradicting its earlier assurances to the contrary , even if it remains within some of the narrow technical boundaries it outlined four years ago , like not providing direct firehose access , tweet geolocations , or certain access to fusion centers .
Dataminr relayed tweets and other social media content about the George Floyd and Black Lives Matter protests directly to @ @ @ @ @ @ @ In so doing , it used to great effect its privileged access to Twitter data — despite current terms of service that explicitly bar software developers “ from tracking , alerting , or monitoring sensitive events ( such as protests , rallies , or community organizing meetings ) ” via Twitter .
And despite Dataminr ’ s claims that its law enforcement service merely “ delivers breaking news alerts on emergency events , such as natural disasters , fires , explosions and shootings , ” as a company spokesperson told The Intercept for @ @ @ @ @ @ @ facilitated the surveillance of recent protests , including nonviolent activity , siphoning vast amounts of social media data from across the web and converting it into tidy police intelligence packages .
Dataminr ’ s Black Lives Matter protest surveillance included persistent monitoring of social media to tip off police to the locations and activities of protests , developments within specific rallies , as well as instances of alleged “ looting ” and other property damage .
According to the source with direct knowledge of Dataminr ’ s protest monitoring , the company and @ @ @ @ @ @ @ don ’ t condone or enable surveillance are “ bullshit , ” relying on a deliberately narrowed definition .
“ It ’ s true Dataminr doesn ’ t specifically track protesters and activists individually , but at the request of the police they are tracking protests , and therefore protesters , ” this source explained .
According to internal materials reviewed by The Intercept , Dataminr meticulously tracked not only ongoing protests , but kept comprehensive records of upcoming anti-police violence rallies in cities across the country to help its staff organize their @ @ @ @ @ @ @ time and starting location within those cities .
A protest schedule seen by The Intercept shows Dataminr was explicitly surveilling dozens of protests big and small , from Detroit and Brooklyn to York , Pennsylvania , and Hampton Roads , Virginia .
Company documents also show the firm instructed members of its staff to look for instances of “ lethal force used against protesters by police or vice-versa , ” “ property damage , ” “ widespread arson or looting against government or commercial infrastructure , ” “ new instances of officer-involved shootings @ @ @ @ @ @ @ bias , ” and occasions when a “ violent protests spreads to new major American city.
” Staff were also specifically monitoring social media for posts about “ Officers involved in Floyd ’ s death ” — all of which would be forwarded to Dataminr ’ s governmental customers through a service named “ First Alert.
” The Dataminr documents on protest monitoring seen by The Intercept do not specify if they are used for news clients , police clients , or both .
But a Dataminr document from October 2019 listed within @ @ @ @ @ @ @ footprint ” the New York Police Department , Los Angeles Police Department , Chicago Police Department , and Louisiana State Police .
The LAPD told The Intercept it conducted a trial of Dataminr but chose not to enter a contract and did not use the system in connection with BLM protests .
The Louisiana State Police declined to comment , citing a state secrecy law .
NYPD did not comment and CPD could not be reached for comment .
In January 2019 , a New York court ordered the NYPD to turn over @ @ @ @ @ @ @ from a New York Civil Liberties Union lawsuit over alleged surveillance of Black Lives Matter activists .
“ Dataminr is providing information for local police , including [ many ] metropolitan police departments in cities facing protests , ” the source said .
“ They are some of Dataminr ’ s biggest clients and they set the agenda.
” Dataminr spokesperson Kerry McGee declined to comment on the company ’ s clientele .
And Dataminr alert emails sent to the Minneapolis Police Department , obtained via a public records request , show the @ @ @ @ @ @ @ Twitter content relevant to the anti-police brutality protests and forwarded it directly to police as these events unfolded , including information on apparently nonviolent protests .
The emails show Dataminr relaying the locations and images of Black Lives Matter protesters in the city where George Floyd lived and was killed , and where the nationwide wave of outrage against police abuse was launched , a fact difficult to square with the company ’ s claim that it doesn ’ t provide its governmental customers with “ any form of surveillance.
” The location @ @ @ @ @ @ @ Dataminr may not technically have direct access to the geolocational data attached to many tweets by Twitter , the texts and images of the tweets relayed to the police often contain overt geographical references , or have such references added manually by Dataminr staff .
While some of the alerts are sourced from the tweets of local and national news reporters , many are attributed to the accounts of ordinary bystanders — what the system calls “ eyewitnesses ” — who were either watching or attending the rallies and tweeting in a completely @ @ @ @ @ @ @ message relayed to the MPD on May 31 , six days after Floyd ’ s murder , Dataminr alerted police to a tweet reading “ peaceful protest outside US Bank Stadium in downtown Minneapolis .
End racism .
End police brutality .
End inequality and inequities .
# JusticeForFloyd # Minneapolisprotest # BlackLivesMatters , ” along with a photo snapped by the tweeter .
The accompanying caption , provided by Dataminr ’ s human staff , specified that this group of protesters had been “ seen at US Bank Stadium on 400 block @ @ @ @ @ @ @ notification sent to the MPD three days prior tipped off police to this supposed public safety threat : “ Protesters seen sitting on street in front of security officers in Oakdale , MN.
” Another monitored tweet and accompanying photo relayed to MPD by Dataminr reads , simply , “ Peaceful protest at Lake & Lyndale.
” First Alert also scans other popular platforms like Snapchat and Facebook , the latter being particularly useful for protest organizers trying to rapidly mobilize their communities .
On at least one occasion , according to MPD @ @ @ @ @ @ @ police to a protest ’ s Facebook event page before it had begun .
Some of Dataminr ’ s alerts passed along dubious information .
For example , on May 28 , the company passed along a discredited claim about billionaire philanthropist George Soros , informing the MPD that “ Commentator Candace Owens claims Minneapolis , MN chief of police says many protesters are not from the city and claims investor George Soros is funding protesters through Open Society Foundation.
” This apparently glaring contradiction by Dataminr , still publicly claiming it would @ @ @ @ @ @ @ the surveillance of protests , hasn ’ t been lost on the company ’ s staff .
At a virtual staff meeting in June , a recording of which was obtained by The Intercept , a Dataminr manager attempted to explain why the company ’ s persistent monitoring of First Amendment activity on behalf of the police was not , in fact , surveillance .
The manager , identified by the source as executive vice president Jason Wilcox , granted that there were likely Dataminr staff pondering some difficult questions : “ How @ @ @ @ @ @ @ company , how does our platform , play in these types of unfolding events that are out there ?
” — an allusion to the nationwide protests that were by then in their heady first week .
“ We sell to law enforcement .
What does that mean ?
” Wilcox ’ s defense of Dataminr was based mostly on a sort of linguistic distinction : that relaying data to the police isn ’ t a form of surveillance , but a form of ideologically neutral newsgathering .
In an alternate euphemism , @ @ @ @ @ @ @ police as “ situational awareness through real time events , [ in ] many of which people ’ s lives are at stake , and they can respond more quickly and save lives.
” This is generally the same reason Twitter and Dataminr ’ s PR teams describe this governmental product as a source of “ news alerts , ” not intelligence — a rationale that largely obscures the major differences between what , say , a newspaper might do with rapidly updated information about a protest against policing versus what the police @ @ @ @ @ @ @ data .
Wilcox added that Dataminr ’ s protest surveillance , far from presenting any chilling effect on political expression or free assembly , was a force of progressivism and reform : “ We alert on events where members of law enforcement overstep their bounds , ” Wilcox claimed .
“ We found abuse of power .
… Ultimately what we ’ re doing is we ’ re providing a check and balance for [ police ] .
… Those alerts provide context to the world keeping people safe , and enabling people @ @ @ @ @ @ @ isn ’ t about trying to invade user privacy , but quite the opposite .
It helps magnify their voice.
” Asked about the comments , Dataminr ’ s McGee wrote , “ Dataminr does not comment on internal company meetings.
” Wilcox did not respond to a request for comment .
Wilcox also defended Dataminr ’ s work with police by emphasizing the firm ’ s close ties to Twitter , the great firehose benefactor , which , according to Wilcox , “ is often one of the first social media platforms @ @ @ @ @ @ @ they seem to be most attuned to it , they ’ re very concerned with ensuring that their platform is not misused.
” Dataminr ’ s internal justification of its work for police also rested in part on the argument that it ’ s not as nefarious as it could be : “ We look at lots of different companies leveraging social media , and they have often , not everyone , but often , a very different set of goals , ” Wilcox explained .
“ Their goal is to help with @ @ @ @ @ @ @ they track users as they go across different social media platforms , they follow what a person says over time .
And we do not do that.
” Wilcox named a few other mechanisms he said showed how he ’ d “ worked hard to ensure that our technology can not be casually misused here , ” namely built-in limits on what keywords police can use to tailor their “ news alerts.
” But according to the source with direct knowledge of Dataminr ’ s protest monitoring , this is misleading : There @ @ @ @ @ @ @ that would prevent police from filtering or manually searching the intelligence they receive from Dataminr for specific terms , such as “ # BLM ” or “ antifa.
” Once a protest tweet is run through Dataminr ’ s system and spit out the other end into a police department ’ s inboxes , in other words , Dataminr loses control over how the information is used .
This image of technological restraint also differs considerably from the pitch Dataminr gives police .
An apparent 2019 Dataminr slide deck from a company presentation @ @ @ @ @ @ @ recent online data dump known as “ BlueLeaks , ” stated that “ Dataminr ’ s mission is to integrate all publicly available data signals to create the dominant information discovery platform , ” and touted a client ’ s ability to customize “ user-defined criteria ” for alerts like “ topic selection ” and “ geographic filters.
” The end goal : “ Reduce the time between an event and client action.
” When asked about Dataminr ’ s work with law enforcement as outlined above , both Twitter and Dataminr adopted @ @ @ @ @ @ @ t surveillance because we have a policy against surveillance , which therefore means we don ’ t engage in surveillance .
Neither firm would comment or discuss how exactly the above does not meet the definition of surveillance , nor would they provide the institutional definitions of such as defined by either company .
“ We see a societal benefit in public Twitter data being used for news alerting , first responder support , and disaster relief , ” said Twitter spokesperson Lindsay McCallum , who added that Dataminr ’ s First Alert @ @ @ @ @ @ @ developer policy ” banning surveillance .
“ First Alert is not permitted to be used for surveillance of any kind by First Alert users , ” Dataminr ’ s McGee told The Intercept .
In response to a screenshot copy of the tweet Dataminr forwarded to Minneapolis police regarding the exact location of a group of protesters , McGee claimed that this was flagged for the department because it showed traffic problems , not protesters .
“ Alerts on an intersection being blocked are news alerts , not monitoring protests or surveillance , @ @ @ @ @ @ @ news organization would also cover major intersections being blocked as a news story — this is not surveillance.
” But to some surveillance scholars , legal experts , and activists , there ’ s little doubt about what Dataminr is up to , and what Twitter is enabling , no matter what careful terminology they use .
According to Brandi Collins-Dexter , a campaign director with the civil rights group Color of Change , Dataminr ’ s practices are an example of “ if it walks like a duck and talks like a @ @ @ @ @ @ @ .
“ We know that law enforcement agencies spend a breathtaking amount of money to aggressively track , target , and surveil Black communities , ” said Collins-Dexter .
“ Twitter can ’ t have it both ways , courting Black activists and marketing themselves as the pre-eminent tool for organizing against injustice , while turning a blind eye to the number of companies that are contracting with them for the clear intent of surveillance.
” Steven Renderos , the executive director of civil rights group MediaJustice , echoed this sentiment .
“ @ @ @ @ @ @ @ is providing services to police and it ’ s flawed logic to think there ’ s no harm in turning over Twitter posts to cops , ” said Renderos .
“ The police have a history of using social media to track Black activists .
Dataminr ’ s practices is just the latest example of how tech companies are fueling racist policing in the United States.
” “ If Dataminr is sharing posts about demonstrations and protesters with police , that would be incredibly concerning and it would be difficult to understand how @ @ @ @ @ @ @ surveillance in violation of Twitter ’ s own policies , ” said Matt Cagle , an attorney with the ACLU of Northern California .
“ Social networks like Twitter need to protect users and ensure that developers are not sharing their First Amendment expression with law enforcement agencies , a practice that potentially exposes people — particularly Black , Indigenous , and people of color — to further surveillance and state violence.
” Andrew Ferguson , a visiting law professor at American University , rejected the companies ’ contention that because Dataminr only @ @ @ @ @ @ @ only capable of news gathering — as if police snapping pictures of demonstrators would be better understood as photojournalism , not photo surveillance .
“ Monitoring activities and forwarding information to police is clearly surveillance , ” explained Ferguson , author of “ The Rise of Big Data Policing : Surveillance , Race , and the Future of Law Enforcement.
” “ If the police were a data-based advertising company we would say this was consumer surveillance .
If the police were tracking protestors directly we would call it government surveillance .
A @ @ @ @ @ @ @ it ‘ news ’ is still surveillance.
” Whether Twitter ’ s hundreds of millions of users will buy the argument that automatically relaying tweets to the police is mere innocent newsgathering remains an open question , but for most of them a moot one : Outside of laborious public records requests , it ’ s hard to imagine how someone could learn if their protest tweets were swallowed into the algorithms by a government contractor .
Or , one could think of it the way Jason Wilcox urged his staff : “ @ @ @ @ @ @ @ to amplify that for everybody .
… It ’ s pretty impressive .
It ’ s an amazing event .
”

Leveraging close ties to Twitter, controversial artificial intelligence startup Dataminr helped law enforcement digitally monitor the protests that swept the country following the killing of George Floyd, tipping off police to social media posts with the latest whereabouts and actions of demonstrators, according to documents reviewed by The Intercept and a source with direct knowledge of the matter.
The monitoring seems at odds with claims from both Twitter and Dataminr that neither company would engage in or facilitate domestic surveillance following a string of 2016 controversies. Twitter, up until recently a longtime investor in Dataminr alongside the CIA, provides the company with full access to a content stream known as the “firehose” — a rare privilege among tech firms and one that lets Dataminr, recently valued at over $1.8 billion, scan every public tweet as soon as its author hits send. Both companies denied that the protest monitoring meets the definition of surveillance.
A History of Police Work
Dataminr helps newsrooms, corporations, and governments around the world track crises with superhuman speed as they unfold across social media and the wider web. Through a combination of people and software, the company alerts organizations to chatter around global crises — wars, shootings, riots, disasters, and so forth — so that they’ll have a competitive edge as news is breaking. But the meaning of that competitive edge, the supercharged ability to filter out important events from the noise of hundreds of millions of tweets and posts across social media, will vary drastically based on the customer; the agenda of a newspaper using Dataminr to inform its breaking news coverage won’t be the same as the agendas of a bank or the FBI. It’s this latter category of Dataminr’s business, lucrative government work, that’s had the firm on the defensive in recent years.
In 2016, Twitter was forced to reckon with multiple reports that its platform was being used to enable domestic surveillance, including a Wall Street Journal report on Dataminr’s collaboration with American spy agencies in May; an American Civil Liberties Union report on Geofeedia, a Dataminr competitor, in October; and another ACLU investigation into Dataminr’s federal police surveillance work in December. The company sought to assure the public that attempts to monitor its users for purposes of surveillance were strictly forbidden under its rules, and that any violators would be kicked off the platform. For example, then-VP Chris Moody wrote in a company blog post that “using Twitter’s Public APIs or data products to track or profile protesters and activists is absolutely unacceptable and prohibited.” In a letter to the ACLU, Twitter public policy chief Colin Crowell similarly wrote that “the use of Twitter data for surveillance is strictly prohibited” and that “Datatminr’s product does not provide any government customers with … any form of surveillance.”
Twitter also said that Dataminr, one of its “official partners,” would “no longer support direct access by fusion centers” to information such as tweet locations; fusion centers are controversial facilities dedicated to sharing intelligence between the federal government and local police. Dataminr at the same time announced it would no longer provide a product for conducting geospatial analysis “to those supporting first reponse” and added that such clients did not have “direct firehose access.”
But based on interviews, public records requests, and company documents reviewed by The Intercept, Dataminr continues to enable what is essentially surveillance by U.S. law enforcement entities, contradicting its earlier assurances to the contrary, even if it remains within some of the narrow technical boundaries it outlined four years ago, like not providing direct firehose access, tweet geolocations, or certain access to fusion centers.
Dataminr relayed tweets and other social media content about the George Floyd and Black Lives Matter protests directly to police, apparently across the country. In so doing, it used to great effect its privileged access to Twitter data — despite current terms of service that explicitly bar software developers “from tracking, alerting, or monitoring sensitive events (such as protests, rallies, or community organizing meetings)” via Twitter.
And despite Dataminr’s claims that its law enforcement service merely “delivers breaking news alerts on emergency events, such as natural disasters, fires, explosions and shootings,” as a company spokesperson told The Intercept for a previous report, the company has facilitated the surveillance of recent protests, including nonviolent activity, siphoning vast amounts of social media data from across the web and converting it into tidy police intelligence packages.
Keeping an Eye on Peaceful Protests
Dataminr’s Black Lives Matter protest surveillance included persistent monitoring of social media to tip off police to the locations and activities of protests, developments within specific rallies, as well as instances of alleged “looting” and other property damage. According to the source with direct knowledge of Dataminr’s protest monitoring, the company and Twitter’s past claims that they don’t condone or enable surveillance are “bullshit,” relying on a deliberately narrowed definition. “It’s true Dataminr doesn’t specifically track protesters and activists individually, but at the request of the police they are tracking protests, and therefore protesters,” this source explained.
“At the request of the police they are tracking protests, and therefore protesters.”
According to internal materials reviewed by The Intercept, Dataminr meticulously tracked not only ongoing protests, but kept comprehensive records of upcoming anti-police violence rallies in cities across the country to help its staff organize their monitoring efforts, including events’ expected time and starting location within those cities. A protest schedule seen by The Intercept shows Dataminr was explicitly surveilling dozens of protests big and small, from Detroit and Brooklyn to York, Pennsylvania, and Hampton Roads, Virginia.
Company documents also show the firm instructed members of its staff to look for instances of “lethal force used against protesters by police or vice-versa,” “property damage,” “widespread arson or looting against government or commercial infrastructure,” “new instances of officer-involved shootings or death with potential interpretation of racial bias,” and occasions when a “violent protests spreads to new major American city.” Staff were also specifically monitoring social media for posts about “Officers involved in Floyd’s death” — all of which would be forwarded to Dataminr’s governmental customers through a service named “First Alert.”
The Dataminr documents on protest monitoring seen by The Intercept do not specify if they are used for news clients, police clients, or both. But a Dataminr document from October 2019 listed within the company’s “law enforcement footprint” the New York Police Department, Los Angeles Police Department, Chicago Police Department, and Louisiana State Police. The LAPD told The Intercept it conducted a trial of Dataminr but chose not to enter a contract and did not use the system in connection with BLM protests. The Louisiana State Police declined to comment, citing a state secrecy law. NYPD did not comment and CPD could not be reached for comment. In January 2019, a New York court ordered the NYPD to turn over records about its use of Dataminr resulting from a New York Civil Liberties Union lawsuit over alleged surveillance of Black Lives Matter activists.
“Dataminr is providing information for local police, including [many] metropolitan police departments in cities facing protests,” the source said. “They are some of Dataminr’s biggest clients and they set the agenda.” Dataminr spokesperson Kerry McGee declined to comment on the company’s clientele.
And Dataminr alert emails sent to the Minneapolis Police Department, obtained via a public records request, show the company collected, bundled, and captioned Twitter content relevant to the anti-police brutality protests and forwarded it directly to police as these events unfolded, including information on apparently nonviolent protests. The emails show Dataminr relaying the locations and images of Black Lives Matter protesters in the city where George Floyd lived and was killed, and where the nationwide wave of outrage against police abuse was launched, a fact difficult to square with the company’s claim that it doesn’t provide its governmental customers with “any form of surveillance.” The location information in the alerts underline that while Dataminr may not technically have direct access to the geolocational data attached to many tweets by Twitter, the texts and images of the tweets relayed to the police often contain overt geographical references, or have such references added manually by Dataminr staff.
While some of the alerts are sourced from the tweets of local and national news reporters, many are attributed to the accounts of ordinary bystanders — what the system calls “eyewitnesses” — who were either watching or attending the rallies and tweeting in a completely personal capacity. In one First Alert message relayed to the MPD on May 31, six days after Floyd’s murder, Dataminr alerted police to a tweet reading “peaceful protest outside US Bank Stadium in downtown Minneapolis. End racism. End police brutality. End inequality and inequities. #JusticeForFloyd #Minneapolisprotest #BlackLivesMatters,” along with a photo snapped by the tweeter. The accompanying caption, provided by Dataminr’s human staff, specified that this group of protesters had been “seen at US Bank Stadium on 400 block of Chicago Avenue.” Another First Alert notification sent to the MPD three days prior tipped off police to this supposed public safety threat: “Protesters seen sitting on street in front of security officers in Oakdale, MN.” Another monitored tweet and accompanying photo relayed to MPD by Dataminr reads, simply, “Peaceful protest at Lake & Lyndale.”
A tweet and photo relayed to Minneapolis police reads, simply, “Peaceful protest at Lake & Lyndale.”
First Alert also scans other popular platforms like Snapchat and Facebook, the latter being particularly useful for protest organizers trying to rapidly mobilize their communities. On at least one occasion, according to MPD records, Dataminr was able to point police to a protest’s Facebook event page before it had begun.
Some of Dataminr’s alerts passed along dubious information. For example, on May 28, the company passed along a discredited claim about billionaire philanthropist George Soros, informing the MPD that “Commentator Candace Owens claims Minneapolis, MN chief of police says many protesters are not from the city and claims investor George Soros is funding protesters through Open Society Foundation.”
Surveillance as a Public Service
This apparently glaring contradiction by Dataminr, still publicly claiming it would never engage in surveillance while simultaneously facilitating the surveillance of protests, hasn’t been lost on the company’s staff. At a virtual staff meeting in June, a recording of which was obtained by The Intercept, a Dataminr manager attempted to explain why the company’s persistent monitoring of First Amendment activity on behalf of the police was not, in fact, surveillance. The manager, identified by the source as executive vice president Jason Wilcox, granted that there were likely Dataminr staff pondering some difficult questions: “How does our technology, how does our company, how does our platform, play in these types of unfolding events that are out there?” — an allusion to the nationwide protests that were by then in their heady first week. “We sell to law enforcement. What does that mean?” Wilcox’s defense of Dataminr was based mostly on a sort of linguistic distinction: that relaying data to the police isn’t a form of surveillance, but a form of ideologically neutral newsgathering. In an alternate euphemism, Wilcox described the surveillance alerts forwarded to police as “situational awareness through real time events, [in] many of which people’s lives are at stake, and they can respond more quickly and save lives.”
This is generally the same reason Twitter and Dataminr’s PR teams describe this governmental product as a source of “news alerts,” not intelligence — a rationale that largely obscures the major differences between what, say, a newspaper might do with rapidly updated information about a protest against policing versus what the police might want to do with that same data.
Do you have a story about social media monitoring you’d like to share? Contact the author on Signal at +1 978 261 7389, via email at sam.biddle@theintercept.com , or through one of these secure channels
Wilcox added that Dataminr’s protest surveillance, far from presenting any chilling effect on political expression or free assembly, was a force of progressivism and reform: “We alert on events where members of law enforcement overstep their bounds,” Wilcox claimed. “We found abuse of power. … Ultimately what we’re doing is we’re providing a check and balance for [police]. … Those alerts provide context to the world keeping people safe, and enabling people to do so in a way that isn’t about trying to invade user privacy, but quite the opposite. It helps magnify their voice.”
Asked about the comments, Dataminr’s McGee wrote, “Dataminr does not comment on internal company meetings.” Wilcox did not respond to a request for comment.
Wilcox also defended Dataminr’s work with police by emphasizing the firm’s close ties to Twitter, the great firehose benefactor, which, according to Wilcox, “is often one of the first social media platforms to reach out and protect privacy, they seem to be most attuned to it, they’re very concerned with ensuring that their platform is not misused.”
“Those alerts provide context to the world, keeping people safe.”
Dataminr’s internal justification of its work for police also rested in part on the argument that it’s not as nefarious as it could be: “We look at lots of different companies leveraging social media, and they have often, not everyone, but often, a very different set of goals,” Wilcox explained. “Their goal is to help with surveillance. They build users graphs, they track users as they go across different social media platforms, they follow what a person says over time. And we do not do that.” Wilcox named a few other mechanisms he said showed how he’d “worked hard to ensure that our technology cannot be casually misused here,” namely built-in limits on what keywords police can use to tailor their “news alerts.”
But according to the source with direct knowledge of Dataminr’s protest monitoring, this is misleading: There’s nothing built into First Alert that would prevent police from filtering or manually searching the intelligence they receive from Dataminr for specific terms, such as “#BLM” or “antifa.” Once a protest tweet is run through Dataminr’s system and spit out the other end into a police department’s inboxes, in other words, Dataminr loses control over how the information is used. This image of technological restraint also differs considerably from the pitch Dataminr gives police. An apparent 2019 Dataminr slide deck from a company presentation to the FBI, included in a recent online data dump known as “BlueLeaks,” stated that “Dataminr’s mission is to integrate all publicly available data signals to create the dominant information discovery platform,” and touted a client’s ability to customize “user-defined criteria” for alerts like “topic selection” and “geographic filters.” The end goal: “Reduce the time between an event and client action.”
Surveillance or “News Alerts”?
When asked about Dataminr’s work with law enforcement as outlined above, both Twitter and Dataminr adopted a similar defense: This isn’t surveillance because we have a policy against surveillance, which therefore means we don’t engage in surveillance. Neither firm would comment or discuss how exactly the above does not meet the definition of surveillance, nor would they provide the institutional definitions of such as defined by either company.
“We see a societal benefit in public Twitter data being used for news alerting, first responder support, and disaster relief,” said Twitter spokesperson Lindsay McCallum, who added that Dataminr’s First Alert tool “is in compliance with our developer policy” banning surveillance. “First Alert is not permitted to be used for surveillance of any kind by First Alert users,” Dataminr’s McGee told The Intercept. In response to a screenshot copy of the tweet Dataminr forwarded to Minneapolis police regarding the exact location of a group of protesters, McGee claimed that this was flagged for the department because it showed traffic problems, not protesters. “Alerts on an intersection being blocked are news alerts, not monitoring protests or surveillance,” said McGee. “A local news organization would also cover major intersections being blocked as a news story — this is not surveillance.”
But to some surveillance scholars, legal experts, and activists, there’s little doubt about what Dataminr is up to, and what Twitter is enabling, no matter what careful terminology they use. According to Brandi Collins-Dexter, a campaign director with the civil rights group Color of Change, Dataminr’s practices are an example of “if it walks like a duck and talks like a duck,” with regards to surveillance. “We know that law enforcement agencies spend a breathtaking amount of money to aggressively track, target, and surveil Black communities,” said Collins-Dexter. “Twitter can’t have it both ways, courting Black activists and marketing themselves as the pre-eminent tool for organizing against injustice, while turning a blind eye to the number of companies that are contracting with them for the clear intent of surveillance.”
“Twitter can’t have it both ways, courting Black activists and marketing themselves as the pre-eminent tool for organizing against injustice, while turning a blind eye to companies that are contracting with them for the clear intent of surveillance.”
Steven Renderos, the executive director of civil rights group MediaJustice, echoed this sentiment. “It’s troubling that that Dataminr is providing services to police and it’s flawed logic to think there’s no harm in turning over Twitter posts to cops,” said Renderos. “The police have a history of using social media to track Black activists. Dataminr’s practices is just the latest example of how tech companies are fueling racist policing in the United States.”
“If Dataminr is sharing posts about demonstrations and protesters with police, that would be incredibly concerning and it would be difficult to understand how that practice doesn’t facilitate police surveillance in violation of Twitter’s own policies,” said Matt Cagle, an attorney with the ACLU of Northern California. “Social networks like Twitter need to protect users and ensure that developers are not sharing their First Amendment expression with law enforcement agencies, a practice that potentially exposes people — particularly Black, Indigenous, and people of color — to further surveillance and state violence.”
Andrew Ferguson, a visiting law professor at American University, rejected the companies’ contention that because Dataminr only ingests public tweets, the system is only capable of news gathering — as if police snapping pictures of demonstrators would be better understood as photojournalism, not photo surveillance. “Monitoring activities and forwarding information to police is clearly surveillance,” explained Ferguson, author of “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement.” “If the police were a data-based advertising company we would say this was consumer surveillance. If the police were tracking protestors directly we would call it government surveillance. A forwarding of the same information and calling it ‘news’ is still surveillance.”
Whether Twitter’s hundreds of millions of users will buy the argument that automatically relaying tweets to the police is mere innocent newsgathering remains an open question, but for most of them a moot one: Outside of laborious public records requests, it’s hard to imagine how someone could learn if their protest tweets were swallowed into the algorithms by a government contractor. Or, one could think of it the way Jason Wilcox urged his staff: “All those voices, where we get to amplify that for everybody. … It’s pretty impressive. It’s an amazing event.”


theintercept--2020-07-09--How the House Armed Services Committee, in the Middle of a Pandemic, Approved a Huge Military Budget

How the House Armed Services Committee, in the Middle of a Pandemic, Approved a Huge Military Budget and More War in Afghanistan

While the country is subsumed by both public health and an unemployment crisis , and is separately focused on a sustained protest movement against police abuses , a massive $ 740.5 billion military spending package was approved last week by the Democratic-controlled House Armed Services Committee .
The GOP-controlled Senate Armed Services Committee will almost certainly send the package with little to no changes to the White House for signing .
As we reported last week , pro-war and militaristic Democrats on the Committee joined with GOP Congresswoman Liz Cheney and the pro-war faction she leads to form majorities which @ @ @ @ @ @ @ .
Among those amendments was one co-sponsored by Cheney with Democratic Rep. Jason Crow of Colorado that impeded attempts by the Trump administration to withdraw troops from Afghanistan , and another amendment led by Rep. Ruben Gallego ( D-AZ ) and Cheney which blocked the White House ’ s plan to remove 10,000 troop stationed in Germany .
While those two amendments were designed to block the Trump administration ’ s efforts to bring troops home , this same bipartisan pro-war faction defeated two other amendments that would have imposed limits on the @ @ @ @ @ @ @ : one sponsored by Democratic Rep. Tulsi Gabbard to require the Trump administration to provide a national security rationale before withdrawing from the Intermediate-Range Nuclear Forces Treaty ( INF ) signed with the Soviet Union in 1987 , and another to impose limits on the ability of the U.S. to arm and otherwise assist Saudi Arabia to bomb Yemen .
Perhaps most remarkable is the amount of the military budget itself .
It is three times more than the planet ’ s second-highest military spender , China ; it is ten times more @ @ @ @ @ @ @ ; it is 15 times more than the military budget of the country most frequently invoked by Committee members as a threat to justify militarism : Russia ; and it is more than the next 15 countries combined spend on their military .
They authorized this kind of a budget in the midst of a global pandemic as tens of millions of newly unemployed Americans struggle even to pay their rent How does this happen ?
How do Democrats succeed in presenting an image of themselves based on devotion to progressive causes and @ @ @ @ @ @ @ working with Liz Cheney to ensure that vast resources are funneled to the weapons manufacturers , defense sector and lobbyists who fund their campaigns ?
Why would a country with no military threats from any sovereign nation to its borders spend almost a trillion dollars a year for buying weapons while its citizens linger without health care , access to quality schools , or jobs ?
Who are the people in Congress doing this , and why ?
These are questions that are rarely examined in media venues .
News sites , op-ed @ @ @ @ @ @ @ are obsessed with trivialities : Trump ’ s latest tweet or offhand remark in a rally ; symbolic culture war distractions in which Congress plays little role ; the offensive remarks of people who wield little power .
As a result , what the U.S. Government really does — in the bowels of the Congress and in the underbelly of sub-Committee proceedings — receives little substantive attention .
This media dynamic is exacerbated by the journalistic practice of obsessing on the areas where the two parties squabble , while steadfastly ignoring the very @ @ @ @ @ @ @ full agreement — such as approving close to a trillion dollars in military spending and ensuring the oldest war in U.S. history continues without end .
When the two parties are in agreement , as they so often are , this is boring from a media perspective , so it is typically ignored .
This has the dual-propagandistic effect of creating the appearance that the two parties never agree when they in fact agree constantly , while also suppressing those vital policies which receive overwhelming bipartisan consensus .
In reporting on the approval @ @ @ @ @ @ @ I watched all fourteen hours of the Committee proceedings .
It was remarkably revealing about how the U.S. Government really functions , who the culprits are , what their motives are in pursuing policies that so blatantly have no benefit for the people they pretend to represent , and the vast gap between the image they create for themselves and the reality of what they really do in Washington .
It is , of course , impossible to understand how the Congress works without understanding those who wield power in it .
The @ @ @ @ @ @ @ selected by Nancy Pelosi and her caucus is the obscure but powerful Rep. Adam Smith of Washington .
He has a long record of supporting pro-war policies , from the invasion of Iraq to numerous Bush/Cheney War on Terror transgressions to blocking reform of the NSA after the Snowden reporting to denouncing the Obama administration ’ s efforts to reduce the troop presence in Afghanistan .
When Chairman Smith had a progressive challenger in 2018 , who criticized him for this militarism , the defense industry , as my colleague Lee Fang reported @ @ @ @ @ @ @ ensure their loyal pro-war servant kept his perch as Chair of this crucial Committee .
A similar episode occurred the same year when a progressive challenger emerged to run against the former Marine and Iraq War veteran Jason Crow .
House Majority Leader Steney Hoyer , as Fang also revealed by publishing a secret recording , tried to bully his opponent out of the race .
Crow now joins with Liz Cheney to continue the War in Afghanistan .
Pro-war Democrats wield all the power for military and foreign policy because that is @ @ @ @ @ @ @ these Committee members return to their blue districts , they talk endlessly about topics such as the NRA , LGBTs , and reproductive rights — issues on which many do little work and over which they wield little influence — in order to manufacture brands for themselves as good , caring progressives , which is how they are re-elected over and over from very blue districts .
But as these little-discussed proceedings demonstrate , when they return to Washington , what they really do is spend their time collaborating with lobbyists for weapons @ @ @ @ @ @ @ money as possible is diverted away from social programs and into the coffers of the “ defense ” industry .
There is a pocket of anti-war and anti-imperalism resistance on the Committee and in the broader Congress , particularly on the left and to some extent on the isolationist right .
But , as the House Armed Services Committee hearing of last week proves , they are outnumbered by the Adam Smiths , Jason Crows and Liz Cheneys who work in bipartisan tandem to ensure their defeat and maintain a path of Endless @ @ @ @ @ @ @ it is impossible to overstate the central role which the concocted , wildly exaggerated “ Russia threat ” plays in all of this .
Over and over , the pro-war Committee members from both parties invoked the scary threat of Moscow and the Kremlin to justify this bloated budget of imperialism and aggression .
Having spent large amounts of time watching many hours of these Committee proceedings and speaking to several people with in-depth knowledge of the Committee , I decided it would be very worthwhile to devote this week ’ s SYSTEM @ @ @ @ @ @ @ works and what it did last week so that some much-needed light is brought to these usually-hidden proceedings .
We ’ re very proud of the show we produced this week because it fulfills the goal of providing in-depth examinations of complex but extremely consequential matters that receive far less media attention than they deserve .
The program can be viewed on the Intercept ’ s YouTube channel or on the player below :

Today’s SYSTEM UPDATE episode about this topic can be viewed on The Intercept’s YouTube channel or on the player below.
AP
While the country is subsumed by both public health and an unemployment crisis, and is separately focused on a sustained protest movement against police abuses, a massive $740.5 billion military spending package was approved last week by the Democratic-controlled House Armed Services Committee. The GOP-controlled Senate Armed Services Committee will almost certainly send the package with little to no changes to the White House for signing.
As we reported last week, pro-war and militaristic Democrats on the Committee joined with GOP Rep. Liz Cheney and the pro-war faction she leads to form majorities which approved one hawkish amendment after the next. Among those amendments was one co-sponsored by Cheney with Democratic Rep. Jason Crow of Colorado that impeded attempts by the Trump administration to withdraw troops from Afghanistan, and another amendment led by Rep. Ruben Gallego, D-Ariz., and Cheney which blocked the White House’s plan to remove 10,000 troop stationed in Germany.
While those two amendments were designed to block the Trump administration’s efforts to bring troops home, this same bipartisan pro-war faction defeated two other amendments that would have imposed limits on the Trump administration’s aggression and militarism: one sponsored by Democratic Rep. Tulsi Gabbard to require the Trump administration to provide a national security rationale before withdrawing from the Intermediate-Range Nuclear Forces Treaty, or INF, signed with the Soviet Union in 1987, and another to impose limits on the ability of the U.S. to arm and otherwise assist Saudi Arabia to bomb Yemen.
Perhaps most remarkable is the amount of the military budget itself. It is three times more than the planet’s second-highest military spender, China; it is ten times more than the third-highest spender, Saudi Arabia; it is 15 times more than the military budget of the country most frequently invoked by Committee members as a threat to justify militarism: Russia; and it is more than the next 15 countries combined spend on their military. They authorized this kind of a budget in the midst of a global pandemic as tens of millions of newly unemployed Americans struggle even to pay their rent
How does this happen? How do Democrats succeed in presenting an image of themselves based on devotion to progressive causes and the welfare of the ordinary citizen while working with Liz Cheney to ensure that vast resources are funneled to the weapons manufacturers, defense sector and lobbyists who fund their campaigns? Why would a country with no military threats from any sovereign nation to its borders spend almost a trillion dollars a year for buying weapons while its citizens linger without health care, access to quality schools, or jobs? Who are the people in Congress doing this, and why?
These are questions that are rarely examined in media venues. News sites, op-ed pages and especially 24-hour cable news are obsessed with trivialities: Trump’s latest tweet or offhand remark in a rally; symbolic culture war distractions in which Congress plays little role; the offensive remarks of people who wield little power. As a result, what the U.S. government really does — in the bowels of the Congress and in the underbelly of sub-committee proceedings — receives little substantive attention.
This media dynamic is exacerbated by the journalistic practice of obsessing on the areas where the two parties squabble, while steadfastly ignoring the very consequential and numerous areas where they find full agreement — such as approving close to a trillion dollars in military spending and ensuring the oldest war in U.S. history continues without end. When the two parties are in agreement, as they so often are, this is boring from a media perspective, so it is typically ignored. This has the dual-propagandistic effect of creating the appearance that the two parties never agree when they in fact agree constantly, while also suppressing those vital policies which receive overwhelming bipartisan consensus.
In reporting on the approval of this military budget last week, I watched all 14 hours of the committee proceedings. It was remarkably revealing about how the U.S. government really functions, who the culprits are, what their motives are in pursuing policies that so blatantly have no benefit for the people they pretend to represent, and the vast gap between the image they create for themselves and the reality of what they really do in Washington.
It is, of course, impossible to understand how the Congress works without understanding those who wield power in it. The chair of the House Armed Services Committee selected by Nancy Pelosi and her caucus is the obscure but powerful Rep. Adam Smith of Washington. He has a long record of supporting pro-war policies, from the invasion of Iraq to numerous Bush/Cheney war on terror transgressions to blocking reform of the NSA after the Snowden reporting to denouncing the Obama administration’s efforts to reduce the troop presence in Afghanistan.
When Smith had a progressive challenger in 2018, who criticized him for this militarism, the defense industry, as my colleague Lee Fang reported, poured money into his coffers to ensure their loyal pro-war servant kept his perch as chair of this crucial committee.
Photo: Alex Brandon/AP
A similar episode occurred the same year when a progressive challenger emerged to run against the former Marine and Iraq War veteran Jason Crow. House Majority Leader Steney Hoyer, as Fang also revealed by publishing a secret recording, tried to bully his opponent out of the race. Crow now joins with Liz Cheney to continue the war in Afghanistan. Pro-war Democrats wield all the power for military and foreign policy because that is who House Democratic leadership selects.
When these committee members return to their blue districts, they talk endlessly about topics such as the NRA, LGBTs, and reproductive rights — issues on which many do little work and over which they wield little influence — in order to manufacture brands for themselves as good, caring progressives, which is how they are reelected over and over from very blue districts. But as these little-discussed proceedings demonstrate, when they return to Washington, what they really do is spend their time collaborating with lobbyists for weapons manufacturers to ensure that as much taxpayer money as possible is diverted away from social programs and into the coffers of the “defense” industry.
There is a pocket of anti-war and anti-imperialism resistance on the committee and in the broader Congress, particularly on the left and to some extent on the isolationist right. But, as the House Armed Services Committee hearing of last week proves, they are outnumbered by the Adam Smiths, Jason Crows, and Liz Cheneys who work in bipartisan tandem to ensure their defeat and maintain a path of endless war for the United States.
And it is impossible to overstate the central role which the concocted, wildly exaggerated “Russia threat” plays in all of this. Over and over, the pro-war committee members from both parties invoked the scary threat of Moscow and the Kremlin to justify this bloated budget of imperialism and aggression.
Having spent large amounts of time watching many hours of these committee proceedings and speaking to several people with in-depth knowledge of the committee, I decided it would be very worthwhile to devote this week’s SYSTEM UPDATE episode to showing how this committee works and what it did last week so that some much-needed light is brought to these usually hidden proceedings. We’re very proud of the show we produced this week because it fulfills the goal of providing in-depth examinations of complex but extremely consequential matters that receive far less media attention than they deserve.
The program can be viewed on the Intercept’s YouTube channel or on the player below:


theintercept--2020-07-09--Supreme Court Says Trump Can Roll Back Access to Birth Control Under the Affordable Care Act

the U.S. Supreme Court on Wednesday upheld sweeping Trump administration exemptions to the Affordable Care Act ’ s birth control mandate that could imperil access to no-cost contraceptives for thousands of women .
Written by Justice Clarence Thomas , the majority opinion — in two consolidated cases , Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania — concludes that the exemptions were permissible , and that if birth control coverage is in trouble , it isn ’ t Trump ’ s fault .
Instead , Thomas wrote , “ it is Congress ” that has “ failed @ @ @ @ @ @ @ ” Chief Justice John Roberts and Justices Samuel Alito , Neil Gorsuch , and Brett Kavanaugh joined Thomas ’ s opinion .
Women ’ s health advocates decried the decision as yet another chipping away at reproductive rights .
“ Contraception should not be singled out from the rest of health insurance coverage , ” Lourdes Rivera , senior vice president of U.S. programs at the Center for Reproductive Rights , said in a statement .
“ Today ’ s ruling has given bosses the power to dictate how their employees can and @ @ @ @ @ @ @ allowing them to intrude into their employees ’ private decisions based on whatever personal beliefs their employers happen to hold.
” At issue was a provision of the Affordable Care Act that for the first time created health care parity for women , who had long been charged higher insurance premiums while still having to pay substantial out-of-pocket fees for basic services , including contraceptives .
The ACA guaranteed that a suite of women ’ s health services would be covered , and it directed the Health Resources and Services Administration , an @ @ @ @ @ @ @ Human Services , to develop the specific list , which ultimately included no-cost birth control .
Under the ACA ’ s birth control provisions , more than 61 million women received no-cost access to all Food and Drug Administration-approved contraceptives , a benefit that has saved women more than $ 1.4 billion per year .
Access to birth control reduces the number of unintended pregnancies and encourages birth spacing , which leads to better outcomes for mothers and babies .
Birth control promotes gender and racial equality and is linked to greater educational @ @ @ @ @ @ @ Still , as soon as the ink dried on the provision , a number of religious organizations balked , saying that providing birth control coverage violated their religious freedom .
The Obama administration had already guaranteed that churches would be exempt from having to provide coverage , and it subsequently devised a workaround for related organizations to opt out .
Those groups would merely have to say that they objected , and insurers would provide the coverage directly to the affected employees .
But some organizations , including the Little Sisters of the @ @ @ @ @ @ @ that runs nursing homes , said that wasn ’ t enough .
They argued that having to signal their desire to deny coverage implicated them in a process that would ultimately lead to contraceptives being provided to their employees .
The dispute bounced around in the courts until the spring of 2017 , when Trump announced that his administration would fix things , with a clear indication that the plan was to give the religious organizations exactly what they wanted .
But ultimately , the administration went further , penning new rules that @ @ @ @ @ @ @ publicly traded companies — to deny coverage based on religious grounds .
The rules also created a carveout for employers to object for “ moral ” reasons , which encompasses pretty much anything .
At issue before the Supreme Court was whether the government had statutory authority to broadly expand conscience exemptions to the birth control mandate , how the Religious Freedom Restoration Act might be implicated , and whether the exemptions violated certain principles of the Administrative Procedures Act , which governs how agencies develop and issue regulations .
In the court @ @ @ @ @ @ @ that there were no procedural defects that would render the new exemptions moot under the Administrative Procedures Act .
More importantly , he wrote that the ACA itself did not specify which women ’ s services should be covered and instead gave the Health Resources and Services Administration “ sweeping authority ” to do so .
“ This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings , ” he wrote .
“ This same capacious grant of authority … leaves its discretion equally unchecked in @ @ @ @ @ @ @ who is exempt from providing those services .
In other words , the controversy at issue was created by Congress , which did not specifically require birth control coverage under the ACA or constrain the agency ’ s power to tinker with coverage requirements .
In a footnote , Thomas writes that the HRSA could exercise its discretion and yank birth control coverage altogether , “ yet another indication of Congress ’ failure to provide strong protections for contraceptive coverage.
” In dissent , Justice Ruth Bader Ginsburg ( joined by Justice Sonia @ @ @ @ @ @ @ .
While the HRSA had “ broad discretion to determine what preventive services insurers should provide for women , ” she wrote , the ACA mandates that those services “ shall ” be covered .
“ In accommodating claims of religious freedom , this court has taken a balanced approach , one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs , ” Ginsburg wrote — such as employees who do not share the religious predilections of their employers @ @ @ @ @ @ @ time , the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.
” Notably , Thomas ’ s majority opinion sidesteps the direct question of whether the Religious Freedom Restoration Act compelled the government to enact the sweeping exemptions .
RFRA prohibits the government from “ substantially ” burdening the free exercise of religion except where it can demonstrate that the burden is the “ least restrictive means ” of furthering “ a compelling government interest.
” The question of whether RFRA applies @ @ @ @ @ @ @ into the litigation of the ACA ’ s birth control mandate .
The Obama administration determined that its accommodation — where an employer with religious convictions could opt out of coverage — fit the bill while maintaining important health services for women , while other groups , such as the Little Sisters , disagreed .
That brings us to the two concurring opinions in the case , one written by Alito ( joined by Gorsuch ) and the other written by Justice Elena Kagan ( joined by Justice Stephen Breyer ) .
Together @ @ @ @ @ @ @ litigation to come on the question of the contraceptive mandate and the power to exclude large swaths of employers .
Let ’ s consider Kagan ’ s first .
While she and Breyer say they ’ re not entirely sure that the HRSA had the authority to decide who should be exempt from covering women ’ s health services , under court precedent they were compelled to endorse the government ’ s position — and thus join the majority decision .
But the cases now move back to the lower court , which @ @ @ @ @ @ @ .
There , Kagan wrote , the government ’ s actions may warrant additional scrutiny because there remains a question of whether the exemptions were reasoned or “ arbitrary and capricious.
” “ An agency acting within its sphere of delegated authority can of course flunk the test of ‘ reasoned decision-making , ’ ” she wrote .
“ The agency does so when it has not given ‘ a satisfactory explanation for its action ’ — when it has failed to draw a ‘ rational connection ’ between the problem it has @ @ @ @ @ @ @ The government ’ s attempts to solve the accommodation problem with sweeping exemptions “ give every appearance of coming up short , ” she wrote .
And this is precisely why Alito in his concurrence says that the court majority should have concluded that RFRA required the Trump administration ’ s coverage exemptions .
The Obama accommodation didn ’ t serve the Little Sisters , he wrote .
And he doubts the government has demonstrated a compelling interest in ensuring access to no-cost birth control .
( If Congress thought it so compelling @ @ @ @ @ @ @ , why didn ’ t it extend that benefit to “ women who do not work outside the home , ” he wrote . )
“ If RFRA requires this exemption , the departments did not act in an arbitrary and capricious manner in granting in , ” he wrote .
The fact that the majority failed to make that finding , he added , “ will prolong the legal battle in which the Little Sisters have now been engaged for seven years.
” Both Thomas and Alito lean heavily into the idea @ @ @ @ @ @ @ right to deny their employees contraceptive coverage has imposed a nearly impossible burden on the Little Sisters .
“ For over 150 years , the Little Sisters have engaged in faithful service and sacrifice , motivated by a religious calling to surrender all for the sake of their brother , ” Thomas wrote .
“ But for the past seven years they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today ’ s decision — have had to fight for the ability to continue @ @ @ @ @ @ @ sincerely held religious beliefs.
” But this isn ’ t exactly true .
The Little Sisters were never required to provide birth control coverage to their employees because they are insured under a “ church plan , ” which was always exempt .
And even if that weren ’ t the case , a permanent injunction in 2018 barred the government from ever enforcing the mandate against them .
The nuns have worked to stay involved in the litigation even though they haven ’ t had any unresolved legal beef to settle .
@ @ @ @ @ @ @ shouldn ’ t even be the face of this case .
But they certainly offer more sympathetic optics for a decision to deny countless women access to contraceptives than the Trump administration or some corporation — like the craft-supply store Hobby Lobby or custom cabinet maker Conestoga Wood Specialties Corporation , which have also challenged the mandate as violating their religious beliefs .
Regardless , not everyone is waiting to see where the legal dispute may go from here .
In response to the court ’ s decision , four members of Congress @ @ @ @ @ @ @ , Barbara Lee , and Lois Frankel — announced Wednesday morning they would be filing legislation that would block the Trump exemptions from ever taking effect .
“ A decision about whether to use birth control is one that should be between a patient and their doctor , ” the lawmakers said in a joint statement .
“ Giving an employer the ability to interject themselves in that decision — by limiting a patient ’ s access to free birth control — is unconscionable .
”

In a 7-2 decision, the U.S. Supreme Court on Wednesday upheld sweeping Trump administration exemptions to the Affordable Care Act’s birth control mandate that could imperil access to no-cost contraceptives for thousands of women.
Written by Justice Clarence Thomas, the majority opinion — in two consolidated cases, Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania — concludes that the exemptions were permissible, and that if birth control coverage is in trouble, it isn’t Trump’s fault. Instead, Thomas wrote, “it is Congress” that has “failed to provide the protection for contraceptive coverage.” Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined Thomas’s opinion.
Women’s health advocates decried the decision as yet another chipping away at reproductive rights. “Contraception should not be singled out from the rest of health insurance coverage,” Lourdes Rivera, senior vice president of U.S. programs at the Center for Reproductive Rights, said in a statement. “Today’s ruling has given bosses the power to dictate how their employees can and cannot use their health insurance — allowing them to intrude into their employees’ private decisions based on whatever personal beliefs their employers happen to hold.”
At issue was a provision of the Affordable Care Act that for the first time created health care parity for women, who had long been charged higher insurance premiums while still having to pay substantial out-of-pocket fees for basic services, including contraceptives. The ACA guaranteed that a suite of women’s health services would be covered, and it directed the Health Resources and Services Administration, an agency of the Department of Health and Human Services, to develop the specific list, which ultimately included no-cost birth control.
Under the ACA’s birth control provisions, more than 61 million women received no-cost access to all Food and Drug Administration-approved contraceptives, a benefit that has saved women more than $1.4 billion per year. Access to birth control reduces the number of unintended pregnancies and encourages birth spacing, which leads to better outcomes for mothers and babies. Birth control promotes gender and racial equality and is linked to greater educational attainment and increased earnings for women.
Still, as soon as the ink dried on the provision, a number of religious organizations balked, saying that providing birth control coverage violated their religious freedom. The Obama administration had already guaranteed that churches would be exempt from having to provide coverage, and it subsequently devised a workaround for related organizations to opt out. Those groups would merely have to say that they objected, and insurers would provide the coverage directly to the affected employees. But some organizations, including the Little Sisters of the Poor, a Catholic order of nuns that runs nursing homes, said that wasn’t enough. They argued that having to signal their desire to deny coverage implicated them in a process that would ultimately lead to contraceptives being provided to their employees.
The dispute bounced around in the courts until the spring of 2017, when Trump announced that his administration would fix things, with a clear indication that the plan was to give the religious organizations exactly what they wanted. But ultimately, the administration went further, penning new rules that would allow nearly any employer — including publicly traded companies — to deny coverage based on religious grounds. The rules also created a carveout for employers to object for “moral” reasons, which encompasses pretty much anything.
At issue before the Supreme Court was whether the government had statutory authority to broadly expand conscience exemptions to the birth control mandate, how the Religious Freedom Restoration Act might be implicated, and whether the exemptions violated certain principles of the Administrative Procedures Act, which governs how agencies develop and issue regulations.
In the court’s majority opinion, Thomas wrote that there were no procedural defects that would render the new exemptions moot under the Administrative Procedures Act. More importantly, he wrote that the ACA itself did not specify which women’s services should be covered and instead gave the Health Resources and Services Administration “sweeping authority” to do so. “This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings,” he wrote. “This same capacious grant of authority … leaves its discretion equally unchecked in other areas” — including in deciding who is exempt from providing those services.
In other words, the controversy at issue was created by Congress, which did not specifically require birth control coverage under the ACA or constrain the agency’s power to tinker with coverage requirements. In a footnote, Thomas writes that the HRSA could exercise its discretion and yank birth control coverage altogether, “yet another indication of Congress’ failure to provide strong protections for contraceptive coverage.”
“The court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
In dissent, Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor) argues that this is nonsense. While the HRSA had “broad discretion to determine what preventive services insurers should provide for women,” she wrote, the ACA mandates that those services “shall” be covered.
“In accommodating claims of religious freedom, this court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” Ginsburg wrote — such as employees who do not share the religious predilections of their employers. “Today, for the first time, the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Notably, Thomas’s majority opinion sidesteps the direct question of whether the Religious Freedom Restoration Act compelled the government to enact the sweeping exemptions.
RFRA prohibits the government from “substantially” burdening the free exercise of religion except where it can demonstrate that the burden is the “least restrictive means” of furthering “a compelling government interest.” The question of whether RFRA applies, and how, has been baked into the litigation of the ACA’s birth control mandate. The Obama administration determined that its accommodation — where an employer with religious convictions could opt out of coverage — fit the bill while maintaining important health services for women, while other groups, such as the Little Sisters, disagreed.
That brings us to the two concurring opinions in the case, one written by Alito (joined by Gorsuch) and the other written by Justice Elena Kagan (joined by Justice Stephen Breyer). Together they signal that there could be more litigation to come on the question of the contraceptive mandate and the power to exclude large swaths of employers.
Let’s consider Kagan’s first. While she and Breyer say they’re not entirely sure that the HRSA had the authority to decide who should be exempt from covering women’s health services, under court precedent they were compelled to endorse the government’s position — and thus join the majority decision. But the cases now move back to the lower court, which had blocked the exemptions from taking effect. There, Kagan wrote, the government’s actions may warrant additional scrutiny because there remains a question of whether the exemptions were reasoned or “arbitrary and capricious.”
“An agency acting within its sphere of delegated authority can of course flunk the test of ‘reasoned decision-making,’” she wrote. “The agency does so when it has not given ‘a satisfactory explanation for its action’ — when it has failed to draw a ‘rational connection’ between the problem it has and the solution it has chosen.”
The government’s attempts to solve the accommodation problem with sweeping exemptions “give every appearance of coming up short,” she wrote.
And this is precisely why Alito in his concurrence says that the court majority should have concluded that RFRA required the Trump administration’s coverage exemptions. The Obama accommodation didn’t serve the Little Sisters, he wrote. And he doubts the government has demonstrated a compelling interest in ensuring access to no-cost birth control. (If Congress thought it so compelling to make “free contraceptives” available, why didn’t it extend that benefit to “women who do not work outside the home,” he wrote.)
“If RFRA requires this exemption, the departments did not act in an arbitrary and capricious manner in granting in,” he wrote. The fact that the majority failed to make that finding, he added, “will prolong the legal battle in which the Little Sisters have now been engaged for seven years.”
The Little Sisters shouldn’t even be the face of this case. But they certainly offer more sympathetic optics for a decision to deny countless women access to contraceptives.
Both Thomas and Alito lean heavily into the idea that the prolonged legal fight for the right to deny their employees contraceptive coverage has imposed a nearly impossible burden on the Little Sisters. “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother,” Thomas wrote. “But for the past seven years they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision — have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”
But this isn’t exactly true. The Little Sisters were never required to provide birth control coverage to their employees because they are insured under a “church plan,” which was always exempt. And even if that weren’t the case, a permanent injunction in 2018 barred the government from ever enforcing the mandate against them. The nuns have worked to stay involved in the litigation even though they haven’t had any unresolved legal beef to settle.
In other words, the Little Sisters shouldn’t even be the face of this case. But they certainly offer more sympathetic optics for a decision to deny countless women access to contraceptives than the Trump administration or some corporation — like the craft-supply store Hobby Lobby or custom cabinet maker Conestoga Wood Specialties Corporation, which have also challenged the mandate as violating their religious beliefs.
Regardless, not everyone is waiting to see where the legal dispute may go from here. In response to the court’s decision, four members of Congress — Reps. Diana DeGette, Judy Chu, Barbara Lee, and Lois Frankel — announced Wednesday morning they would be filing legislation that would block the Trump exemptions from ever taking effect. “A decision about whether to use birth control is one that should be between a patient and their doctor,” the lawmakers said in a joint statement. “Giving an employer the ability to interject themselves in that decision — by limiting a patient’s access to free birth control — is unconscionable.”