A year later, the Privacy Office of the Department of Homeland Security is releasing a review of that episode, the broader issue of using disaster relief work to collect political intelligence on voters, and the potentially withholding of benefits from some with the wrong beliefs. Perhaps unsurprisingly, the new administration found more than just one “isolated incident,” describing violations of the Privacy Act of 1974, which with a few exceptions bars collection of information about First Amendment-protected speech, like political signage. Most tellingly, though, DHS investigators found — in a near-exact parallel to trends in pro-censorship programs — that a lot of the political controversy surrounding FEMA aid grew out of the vague way in which the agency’s Disaster Survivor Assistance Field Operations Guide was written.
The Field Operations Guide instructed FEMA workers to “Remove yourself from the situation if you feel threatened” when dealing with “hostile” individuals, the only problem being, as the new report notes: “The Disaster Survivor Assistance Field Operations Guide does not define the term ‘hostile.’”
“The way the guide was written, FEMA employees had leeway to skip outreach to a house if its signs made them feel uncomfortable,” one Washington-based First Amendment lawyer put it last week. “So it’s basically the same concept of a harm or distress standard we’re seeing in Europe with speech issues, where the emotional response of the observer is what matters legally, as opposed to a concrete rule.”