The Heritage litigation stems from the conservative nonprofit foundation's April 18 FOIA request to DHS for all agency documents in which appear the terms "Babel X," "Babel," "Babel Street" or "PanAmerica."
Babel X is a controversial software program that allows users to monitor social media posts around the world in 200 languages, as well as listen to smartphone conversations in a specified geographic location.
The FOIA also requested copies of all DHS emails in which appears the term "@babelstreet.com" addressed to or from a lengthy list of agency officials, including Secretary Alejandro Mayorkas, John D. Cohen, DHS's acting undersecretary and chief intelligence officer, and 11 other individuals in the agency's Intelligence & Analysis (I&A) operation.
Finally, the FOIA sought all communications "regarding the procurement, award, and implementation of the award to PANAMERICA COMPUTERS, INC. regarding award 70T02021F7554N002.”
The maker of Babel X claims, according to the Heritage suit, that the powerful scraping software is capable of multiple avenues of digital surveillance, including “persistent cross-lingual search and discovery across multiple data sources with advanced statistical and crowd-sourcing techniques,” deciphering "relevant insights across 200+ languages with state-of-the-art, linguistics technology,” performing "sentiment analysis in 50+ major world languages,” filtering “by a wide range of variables including keywords, hashtags, language, authors, emojis, dates/times, regular expression,” conducting "ad-hoc research for in-depth insight on entities,” analyzing "themes, entities, and categories as well as detect relationships,” and "integrating all available data on a single platform.”
The complaint added that "DHS has purchased and continues to purchase a large number of Babel X products and uses those products for a variety of functions."
The Heritage complaint said the FBI contract indicates that "the FBI solicited for a product that was able to gather and analyze information from the dark web and a number of common applications, such as Twitter, Facebook, YouTube, and Snapchat.
"The FBI expects to run 20,000 discrete keyword searches a month through the collected data. The FBI contracting documents stated that the FBI’s 'intent' was to look at past events, but that 'predictive analytics' that would allow the FBI to 'point to possible actions of a subject or group' were 'desirable.'”
The software's maker told The Washington Post that the product doesn't listen to cellphone calls, according to the complaint.
In response to the Heritage FOIA, DHS officials acknowledged receiving it but then asked the foundation to narrow its request because an initial review indicated that a huge number of responsive documents were potentially involved.
After further delays, the complaint said the litigation was necessary because DHS "has failed to promptly review agency records for the purpose of locating and collecting those records that are responsive to Plaintiffs’ FOIA Request."
In addition, DHS is "wrongfully withholding non-exempt records requested by Heritage by failing to produce any records responsive to Plaintiffs’ FOIA Request," and is further "wrongfully withholding non-exempt-agency records requested by Plaintiffs by failing to segregate exempt information in otherwise non-exempt records responsive to Plaintiffs’ FOIA Request."
The suit, which was filed in the U.S. District Court for the District of Columbia, asks that DHS be ordered to conduct another search for all relevant records, as well as to "produce, within 20 days of the Court’s order, or by such other date as the Court deems appropriate, any and all non-exempt records responsive to Plaintiffs’ FOIA Request and indexes justifying the withholding of any responsive records withheld in whole or in part under claim of exemption."
A spokesman for DHS couldn't be reached by press time for comment.
Before going to DHS, Howell worked on Capitol Hill from 2013 to 2017 as an attorney for the Senate Committee on Homeland Security and Government Affairs and the House Committee on Oversight and Reform.
The present FOIA lawsuit is only the second one filed by the nonprofit since its founding in 1973.