As people nationwide rallied last year to support the Standing Rock Sioux’s attempts to block the Dakota Access Pipeline, a private security firm with experience fighting in Iraq and Afghanistan launched an intrusive military-style surveillance and counterintelligence campaign against the activists and their allies, according to internal company documents.
Its surveillance targets included everyone from Native American demonstrators to the actress Shailene Woodley, along with organizations including Black Lives Matter, 350.org, Veterans for Peace, the Catholic Worker Movement, and Food and Water Watch. The records label the protesters “jihadists” and seek to justify escalating action against them.
The activities of the company spanned, but were not limited to, the four states through which the pipeline passes: South Dakota, North Dakota, Iowa and Illinois. The documents also show that its surveillance efforts continued after the breakup of the Standing Rock camps this winter, including at ongoing pipeline protests in southeastern Pennsylvania, Iowa and South Dakota.
The internal documents from the firm, called TigerSwan, take the form of situation reports, or “sitreps,” prepared between September and April for its employer, Texas-based pipeline developer Energy Transfer Partners. The records detail a range of tactics that experts from the American Civil Liberties Union, National Lawyers Guild and Electronic Frontier Foundation say would likely be illegal if conducted by law enforcement.
A private security company probably doesn’t face the same prohibitions, legal scholars say, but the collaboration between TigerSwan and local, state and federal authorities detailed in the firm’s internal reports raised red flags. Several legal experts described the contractor’s tactics as disturbing and perhaps unprecedented.
“It’s like a Big Brother society, with a private corporation – with even less restraints than the government – totally interfering with our right to privacy, free speech, assembly, and religious freedom,” said prominent civil rights attorney Jeff Haas, who works with the National Lawyers Guild and represents several of the nearly 800 people arrested while opposing the pipeline.
If the government can’t do it, he said, “Why should a private corporation working for another private corporation be able to?”
TigerSwan did not respond to requests for comment. Energy Transfer Partners said it would not answer questions related to its security procedures but acknowledged that it had shared some information with law enforcement.
The tactics used against the self-described “water protectors” were first reported last weekend by The Intercept, which based its coverage on documents provided by a contractor who worked with TigerSwan, according to the news outlet. Grist independently obtained more than a dozen similar documents prior to The Intercept’s report.
According to the situation reports provided to Grist, TigerSwan also conducted surveillance of a church in Chicago, a 17-year-old girl in Iowa, and an AmeriCorps volunteer in Akron, among others. Reports of the actress Woodley’s arrest and the number of social media views she racked up were included in the reports.
The company specifically focused some of its most intense efforts on people of color – including Native American groups (like the Red Warrior Society and the American Indian Movement), members of Black Lives Matter, Palestinian activists, and those it labeled as “Islamists.”
In addition to intrusive surveillance, the leaked documents reveal that the security firm attempted to create divisions between activists, manipulate and discredit pipeline opponents, and collect evidence that law enforcement could use to prosecute Standing Rock activists.
The ACLU’s human rights program director, Jamil Dakwar, said the records obtained by the news outlets suggest the company was painting an exaggerated picture to persuade both Energy Transfer Partners and law enforcement to take a more aggressive stance. “They are operating with no transparency, no accountability,” Dakwar said.
Self-defense or ‘hand-to-hand combat’Last September, security guards employed by a company called Silverton deployed dogs against demonstrators near Standing Rock, resulting in several injuries, negative media attention and an investigation – the dog handlers “were not registered as security officers” in the state of North Dakota, according to local officials.
Energy Transfer Partners put TigerSwan in charge of Dakota Access security, consolidating several contractors under its umbrella – including Silverton, which kept operating even after the dog incident, according to the leaked documents.
Based in North Carolina, TigerSwan has offices throughout the world, tens of millions of dollars worth of contracts with the federal government for security services abroad, and an Army Special Forces veteran as its chairman.
Many of the Standing Rock supporters named in the TigerSwan situation reports told Grist they had no idea that they had been under surveillance, and some disputed much of what the firm reported about them.
“This company is demented,” said Clayton Thomas-Müller, a member of the Canadian Mathias Colomb Cree Nation, and a campaigner with 350.org – a nonprofit frequently cited in the reports. TigerSwan reported on Thomas-Müller’s trip to the camps, though his purpose was simply to bring donated clothes from Winnipeg to the protesters at Standing Rock, he said.
In September, the leaked documents show, TigerSwan set up an “information operations campaign” targeting the Standing Rock activists – which, according to the nonprofit RAND Corporation, is defined in military and security circles as including “the collection of tactical information about an adversary as well as the dissemination of propaganda in pursuit of a competitive advantage over an opponent.”
TigerSwan’s Oct. 3 report describes trying to delegitimize the protests by exploiting “ongoing native versus non-native rifts, and tribal rifts between peaceful and violent elements.” Several situation reports also refer to “source reporting” and “informant collection,” suggesting the use of infiltrators in the Standing Rock camps and protest groups.
The documents often portray protesters in what their targets say are exaggerated terms, apparently to inflate the potential danger they posed. For example, the Nov. 9 report ominously warns: “An element of the Black Panther Party from Chicago is active within the camps in ND. A member of that delegation led 30–40 activists in hand-to-hand combat training in Camp 2.”
“That’s definitely talking about me,” Kelly Hayes said when read the report over the phone. “But that’s definitely a misrepresentation.”
Hayes is a member of the Menominee Tribe; she’s not a Black Panther, she said, identifying herself as part of a collective of indigenous and black organizers from Chicago “aimed at the defense of communities of color.” She taught what she describes as several “small pockets of women and fem folks” very basic self-defense classes, adding that she has never engaged in violent action.
The classes she taught were not advertised in the camp or on social media. “It was a word-of-mouth thing,” she said, and thus could only have been reported from someone on the ground in the camps.
“That really does say something about how infiltrated everything must have been,” she said.
Hayes made several trips to Standing Rock, the first during the early stages of the movement in spring 2016, when there were no more than a few dozen people at the camps – which later grew to house thousands. She ran the first direct action and blockade training sessions at Standing Rock, and came back subsequently to run more.
“We are educators, and we are protesters, and we are community members – and we’re doing movement work,” she said. “It sounds to me like these for-profit individuals were trying to make things sound more exciting and important to impress their employers.”
TigerSwan’s activities also reached well beyond the protest camps. A significant portion of the Nov. 11 situation report, for instance, is devoted to monitoring organizations and people of interest to the firm in the greater Chicago area, including the surveillance of a “local anti-DAPL church” and people who protested in the wake of Donald Trump victory in last year’s election.
The company also reported on anti-pipeline sentiments at a second church in Illinois’ capital, Springfield, and, according to an earlier situation report, was probing links between Black Lives Matter Chicago and groups at local universities that it discovered via social media.
“I’m not entirely surprised that they would hone in on the black and brown organizing,” Hayes said. “They’re spending a lot of money, right, to infiltrate and figure out who we are and how we connect? That fear comes from a recognition of our power.”
Is any of this even legal?U.S. laws regarding surveillance and other counterintelligence tactics don’t appear to specifically govern TigerSwan, an overseas military contractor operating as a private security force on American soil.
Several legal experts said the example it presents might be unprecedented. What happens when “private police” share information and act in concert with — or potentially at the behest of – public law enforcement agencies, but are not covered by the same laws?
That’s the sort of question that Harvard’s Kennedy School of Government asked police chiefs from across the country to consider at a 2014 symposium. The chiefs concluded that it would be a bad idea to hire an elite special-forces unit recently demobilized from Afghanistan to provide hostage-rescue services to a city police department.
“Military units are more oriented toward the use of decisive force against enemies, and less toward apprehending violators and achieving peaceful solutions,” the police chiefs reasoned. The private companies, they said, had profit motivation that could create “perverse incentives.”
Legal experts told Grist that the same sort of concerns apply to TigerSwan’s involvement at Standing Rock – especially as detailed in the leaked “situation report” documents.
TigerSwan’s Oct. 10 report, for example, says that its “social media cell has harnessed a URL coding technique to discover hidden profiles and groups associated with the protesters allowing the firm to access private social media information. ... Self-incriminating information can be gathered on protesters to be used at a later date.” TigerSwan gained access to a private Facebook page created by Cohen’s group, Mississippi Stand, which provided information on rides to get members to protests.
“If they were getting unauthorized access to Facebook profiles – not the public stuff, but things that they shouldn’t have – then that could potentially be a violation of the Computer Fraud and Abuse Act, the federal anti-hacking law,” said David Greene, senior staff attorney and civil liberties director at the San Francisco-based Electronic Frontier Foundation.
Greene said that if TigerSwan simply exploited a Facebook vulnerability, it wouldn’t be a violation. The company would have had to break a security measure that the social network had in place for it to be a legal matter – and it’s unclear if that happened, based on the limited details provided in the records.
Stephanie Lacambra, a criminal defense attorney at the Electronic Frontier Foundation, said the activities are potentially serious enough, however, that a subpoena should be sought to find out exactly what TigerSwan did.
Jeff Haas with the National Lawyers Guild said he’s particularly concerned about the relationship between TigerSwan and law enforcement agencies. The documents provided to Grist detail multiple occasions that the firm met with or shared information with police and sheriff’s departments.
The Morton County Sheriff’s Department – where Standing Rock is located – told Grist that it communicated with TigerSwan “in order to monitor and respond to illegal protest activity.” But it asserted that the sheriff’s department was responsible for maintaining safety on public land, while TigerSwan ran security on DAPL property.
“For a while, the courts have ruled that you’re not entitled to infiltrate or spy on people unless you have probable cause to believe they’ve committed a crime,” Haas said. “The government couldn’t meet that standard probably here.”
But the information provided by TigerSwan could have helped police forces overcome that prohibition. Elizabeth Joh, a private security legal scholar at the University of California, Davis, referred to such techniques as a “potential end run on the basic constitutional restraints we place upon police.”
Haas agreed. “It’s like we have a second level of government interference of surveillance that’s shared with official government forces, but how do you control that? I’m not sure the law is totally clear, but this could be a way to basically get around the Constitution. And until these documents got leaked, it was certainly a way to get around the public knowing about it.”
High Country News published this article on HCN.org on June 1.
