CBP Provided Insufficient Social Media Guidance and Training to Agents
Prior to media reports regarding misconduct on "I'm 10-15," CBP provided limited guidance and no training to employees on the use of social media. On April 9, 2015, CBP released guidance that incorporated the Office of Government Ethics' legal advisory, The Standards of Conduct as Applied to Personal Social Media Use. CBP's guidance noted the increasing popularity of social media and reminded employees that the governmentwide Standards of Ethical Conduct for Employees in the Executive Branch also applied to social media.[49]
On February 8, 2018, CBP published a memo that stated, "[T]he Agency was made aware of a private Facebook group page that only a specific group of CBP employees could access, on which inappropriate and offensive posts were made."[50] The memo reminded employees that CBP's Standards of Conduct apply to social media posts.
The February 8, 2018, memo explained that employees are required to follow social media policies on private social media pages and while off duty.
During internal investigations, several Border Patrol agents said they did not know about or did not receive CBP social media policies.[51] Another agent said that "he could not get in trouble, since it was off-duty."[52] The CBP deciding official acknowledged that there was no tracking to ensure employees read CBP's social media policy.[53]
Other Border Patrol agents told CBP investigators that they believed the "I'm 10-15" Facebook group was a private space where co-workers could make jokes, have fun, and complain about work. Supervisory Border Patrol Agent #2 described his and other posts as being "done as banter, locker room talk, guys being guys."[54] The deciding official said that comments made in jest are not excusable, explaining that these "actions seriously damage the professional image that the Agency strives to project."[55]
On July 3, 2019—two days after the first public reporting about the offensive Facebook group—CBP denounced the posts on its intranet and reminded employees of CBP's rules governing social media usage.[56] Senior leadership directed the immediate development of mandatory annual social media training for every CBP employee.[57] On December 20, 2019, CBP updated its social media policy to include interim guidance on employees' personal use of social media.[58]
In May 2021, the Department of Homeland Security (DHS) Office of Inspector General (OIG) released findings of an investigation into CBP leadership's handling of this Facebook group. OIG found that prior CBP training on social media was not well received, even by agency management. The acting chief of one sector station said the training "was punishment for all, due to the actions of a few." DHS officials also told OIG that agents did not take the training seriously and were disruptive during class. One official said that "agents considered the training ‘window dressing,' and treated it as a joke, because they believed the sector would not make changes to incorporate the policies being taught."[59]
OIG also found that senior CBP leaders had questioned the legality of CBP's social media policies and disputed whether the posts on the "I'm 10-15" group were inappropriate. OIG concluded, "These differing opinions and uncertainty about the legality of CBP policies could undermine CBP's efforts to enforce the policies."[60] CBP's slides accompanying its mandatory social media training quoted the Supreme Court's ruling in Garcetti v. Ceballos:
When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.[61]