In a win for surveillance reform advocates, the House Rules Committee agreed this week to allow an amendment aimed at curbing the government’s unconstitutional backdoor surveillance of Americans to proceed to a vote by the full House. This bipartisan amendment, co-sponsored by several representatives, including Reps. Zoe Lofgren (D-CA) and Thomas Massie (R-KY), represents one of the most tangible attempts in recent years to rein in warrantless government surveillance.
PPSA had hoped for a vote this week, but Congress did what it does best – delay. Now civil libertarians foresee a likely vote when the amendment to the Commerce, Justice and Science appropriations bill is considered after Congress returns from its August recess.
The Lofgren-Massie Amendment would prohibit funding for “backdoor searches” of the communications – calls and emails – of Americans “incidentally” caught up in surveillance of foreign targets. PPSA has supported this amendment from the beginning and recently joined 27 other civil liberties groups in signing a letter urging Congress to pass it. This is an opportunity to protect the rights of all Americans that Congress simply cannot miss.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) has long provided a loophole for the government to search through the communications of Americans without a warrant. FISA gives the government wide latitude to collect information for foreign intelligence purposes in which the collection of Americans’ communications is inevitable. In practice, thousands of Americans have been subjected to warrantless surveillance simply by communicating with a foreigner. The Federal Bureau of Investigation and the National Security Agency have been so lax in the surveillance of U.S. citizens (and other “U.S. persons”) that they were publicly rebuked by the FISA court for repeatedly ignoring court orders and the law.
While the letter of the law states the purpose of 702 collection is foreign intelligence, it is becoming increasingly clear that “incidental collection” is often a primary purpose of the surveillance. Sharon Bradford Franklin of the Center for Democracy and Technology explains how this works:
Current law permits the government in most cases to search through the communications collected under Section 702 to seek information about a particular U.S. person without obtaining a warrant or any other type of court approval. The government calls this practice conducting a ‘U.S. person query,’ since they are searching through or ‘querying’ collected 702 data using an identifier associated with a particular U.S. person.
The NSA’s querying procedures permit the agency to conduct such queries provided that personnel have submitted a statement of facts showing that use of the U.S. person identifier as a selection term is ‘reasonably likely to retrieve foreign intelligence information,’ and the NSA’s General Counsel has approved the use of that U.S. identifier for queries. Many civil liberties advocates appropriately refer to this practice as conducting a backdoor search, because no warrant or other judicial approval is required either at the ‘front end’ when the communications are collected, or prior to searching through collected information using the U.S. person identifier. Although Congress added a requirement in 2018 for the FBI to seek court approval in a small subset of cases, this rule does not cover the vast majority of circumstances in which the FBI actually conducts U.S. person queries at the assessment state.
The most recent estimate of the number of such backdoor searches by the Office of the Director of National Intelligence shows that the NSA in 2020 conducted such searches for the contents of communications more than 7,000 times, and 9,000 in each of the prior years. In a move worthy of a Hollywood accountant, this is likely an undercount as current FBI rules for example only require the agency to disclose certain queries for oversight purposes.
Despite its genuine original purpose of collecting solely foreign intelligence, Section 702 has unquestionably become a way for federal law enforcement to avoid the Fourth Amendment and the requirement for probable cause and a warrant.
PPSA will be alert and active over the summer in urging our supporters to tell Congress that it must pass the Lofgren-Massie Amendment and end these unconstitutional backdoor searches of U.S. citizens.
PPSA Freedom of Information Act Request: Has the Government Purchased Data to Spy on Members of Congress?
This week the Project for Privacy and Surveillance Accountability filed Freedom of Information requests with the Office of the Director of National Intelligence and other intelligence agencies asking for records concerning the possible purchases of information on the communications of current and former Members of Congress who have served on the U.S. House and Senate judiciary committees.
This action is inspired by two intersecting events recently brought to light. One is the revelation that two Members of Congress, their staff and family members, were the targets of surveillance efforts by the Trump Administration, which seized their metadata from Apple. The other is the heightened scrutiny from Sen. Ron Wyden of government agencies’ practice of getting around the need for warrants by simply purchasing metadata from data brokers.
The list of representatives in the request include Jerrold Nadler, chairman of the House Judiciary Committee, ranking member Jim Jordan, Sen. Dick Durbin and ranking member Sen. Chuck Grassley. The whole list, drawn from both houses, include:
The Project for Privacy and Surveillance Accountability joined a coalition of 27 other groups today – including the ACLU, Americans for Prosperity, Demand Progress and FreedomWorks – to urge members of Congress to support an amendment to the Commerce, Justice and Science (CJS) Appropriations bill to close the “backdoor search” loophole.
For years, the FBI has warrantlessly and unconstitutionally searched for Americans’ information “incidentally” acquired under Section 702 of the Foreign Intelligence Surveillance Act. The FBI has routinely used loopholes in an authority meant for foreign intelligence to spy on Americans.
This amendment, offered by Reps. Lofgren (D-CA), Massie (R-KY), Jayapal (D-WA), and Davidson (R-OH), would close this loophole.
“This important bipartisan alliance is once again standing up against warrantless surveillance to protect the rights of Americans,” said Bob Goodlatte, PPSA Senior Policy Advisor. “The FBI shouldn’t be able to snoop on our conversations without getting a warrant, especially not after years of breaking the rules set by Congress and the courts. The Lofgren-Massie amendment would put an end to this dangerous and unconstitutional practice.”
The coalition’s letter is available here.
Tuesday, June 27, at 2 pm, the House Committee on Rules will decide whether this bipartisan amendment to H.R. 4505, the CJS Appropriations Bill for 2022, will get a floor vote.
If Rules permits it, House members will then be able to vote on a measure that would close the backdoor-search loophole. Lofgren-Massie would do this by prohibiting the FBI from warrantlessly searching through vast databases of foreign intelligence information specifically for Americans’ data.
Federal Court Orders “Watchdog” Agency to Respond to Records Request on Secret Surveillance Authority
A federal judge ordered the Privacy and Civil Liberties Oversight Board (PCLOB) to produce records from a Freedom of Information Request filed in September by the Project for Privacy and Surveillance Accountability.
When that FOIA substantively went long ignored, PPSA filed a lawsuit on June 9 to force a response. The FOIA and the lawsuit are meant to shed light on the use of a non-statutory authority, Executive Order 12333, that defenders of the surveillance status quo claim gives them almost unlimited authority to conduct warrantless surveillance.
Patrick Eddington of the CATO Institute had filed an earlier FOIA request asking for records from PCLOB concerning reports and correspondence with agencies about EO 12333. When the agency proved unresponsive, PPSA filed a FOIA of our own asking PCLOB to produce records mentioning the Eddington request or any denial or other responses to it. PPSA also doubled down on requests for information about 12333, as well as records on responses or denials of other requests concerning that executive order.
The order last week by the Federal District Court of the District of Columbia now requires PCLOB by Aug. 16 to produce the records or explain why such records cannot be produced.
Why is all this legal maneuvering about an executive order so important?
In 2020, Sen. Richard Burr, former chair of the Senate Select Committee on Intelligence, alarmed civil libertarians everywhere when he took to the Senate floor to declare that under 12333 authority, the executive branch can do whatever it wants, without “guardrails” or statutory authority for mass surveillance.
PPSA joins other civil liberties group in trying to take the measure of the scope and scale to which a non-statutory executive order is being invoked to conduct possible warrantless surveillance of Americans.
After almost nine months of waiting, the U.S. Department of Justice finally responded to a joint Freedom of Information Act (FOIA) request by PPSA and Demand Progress Education Fund asking upon what legal basis the government relies in conducting surveillance now that Section 215 of the Patriot Act – the business records provision – has expired. The intelligence agencies had painted an alarming picture on the Hill what could happen if Section 215 was allowed to sunset.
On March 15, 2020, Section 215 expired and the sky did not fall.
The government continues to insist the authority is important and needed, though its appeal reads like boilerplate. Observers of the intelligence community are more than a little surprised at the overall calm tone of the intelligence communities – raising the question about the value of the program, and whether the government is secretly relying on another authority to continue its surveillance.
After suing to enforce their FOIA request, PPSA and Demand Progress finally received a copy of an October 29, 2020 letter that Stephen Boyd, Assistant Attorney General, had sent to Senators Patrick Leahy (D-VT) and Mike Lee (R-UT). In response to their querying, the Assistant Attorney General’s letter read: “The Department of Justice can confirm that, with the sunset of these provisions of FISA, the Federal Bureau of Investigation (FBI) has not used these important national security tools for foreign intelligence investigations initiated after March 15, 2020. Nor has the FBI relied on E.O. 12333 or any other Article II authority to conduct collection activities previously authorized under these FISA provisions.” So warrantless surveillance of Americans is not taking place, right?
Crucially, the Assistant Attorney General followed up: “However[…] the Government has relied upon the exception in the sunset provisions to seek business record production orders and/or surveillance orders with roving authority in a limited number of circumstances for foreign intelligence investigations that began before March 15, 2020.”
In other words, any investigation that was ongoing before that date could now use this loophole to circumvent the sunset of previous investigatory authorities. This is expected, but may be a concern if the government employs elastic definitions of what constitutes an “investigation.”
Section 215, known as the “business records provision” of the PATRIOT Act (later amended and reauthorized by the USA FREEDOM Act), governed the warrantless surveillance of a wide range of personal information held by businesses. To acquire such sensitive records, all the FBI had to do was assert the data sought was relevant to a foreign intelligence investigation. With the expiration of Section 215, Members of Congress and civil liberties organizations want to know the current legal basis for government surveillance. The expired sections also included a “roving wiretap” and “lone wolf” provisions. The former allows the government to continue surveilling a court-approved individual when they attempt to circumvent surveillance, while the latter allows the government to surveil foreign individuals engaged in international terrorism without connections to larger terrorist groups.
PPSA and Demand Progress Education Fund filed our FOIA request in October 2020 with the Department of Justice to bring to light the legal basis for mass domestic surveillance of Americans in the absence of Congressional authorization. This effort was spearheaded by former U.S. Sen. Mark Udall (D-CO) and former House Judiciary Committee Chairman Bob Goodlatte (R-VA). And their work built off of a previous letter sent in July of 2020 by Senators Leahy and Lee. The senators’ letter to Attorney General William Barr and National Intelligence Director John Ratcliffe demanded an answer to whether federal agencies had terminated surveillance authorized by the expired provisions. We now know they have not.
Among the questions asked by Sens. Leahy and Lee is whether the DOJ could:
PPSA and Demand Progress Education Fund will report any further developments that shine additional light into this dark region of the intelligence community and its practices.
The Project for Privacy and Surveillance Accountability filed a lawsuit today in the U.S. District Court for the District of Columbia to compel 18 federal offices and agencies –including the FBI, the Drug Enforcement Administration and the Office of the Attorney General – to comply with an ignored Freedom of Information Act (FOIA) request to produce records on the polices and use of cell-site simulators.
The devices in question, colloquially known as “stingrays,” give government the ability to spoof thousands of cellphones into giving up their data. Stingrays can collect vast amounts of cell phone metadata, location information, text messages, and more within a geofenced area. Stingrays can sweep up sensitive and personal information, not just from a suspect, but from hundreds or thousands of people in the vicinity, all without them knowledge.
On March 29, PPSA filed a FOIA request with the Department of Justice to produce records on policies governing the extent to which the federal government, in coordination with state and local law enforcement agencies, is using cell-site simulator technology for domestic surveillance. All federal agencies are required by law to respond to a FOIA request within 20 business days, excluding “unusual circumstances.” At this time, PPSA has not received a response from any of the DOJ divisions to which the FOIA request was sent. This lawsuit is in response to that failure to respond.
Because stingrays indiscriminately retrieve information from any person within range, they could constitute one of the largest breaches of Fourth Amendment rights since the Snowden revelations.
While this technology is regulated in theory, its application is widely employed by the federal and state governments. In 2018, the ACLU documented at least 14 federal agencies that use stingrays, as well as 75 state agencies. Since then, there has been little insight into how federal and state agencies are actually deploying this increasingly affordable and ubiquitous technology.
Among the agencies cited in the ACLU report are the FBI, the DEA, ICE, the NSA, the IRS, Customs and Border Protection, and three branches of the U.S. military. Each of these agencies and branches potentially has access to the secretly obtained information of hundreds of millions of Americans.
Stingrays pose critical constitutional challenges, especially to the Fourth Amendment, which protects Americans from unreasonable searches and seizures. Because stingrays indiscriminately retrieve information from any person within range, they could constitute one of the largest breaches of Fourth Amendment rights since the Snowden revelations.
The Project for Privacy and Surveillance Accountability today filed an appeal in a lawsuit seeking information from NSA and other U.S. intelligence agencies about the extent to which Americans, exposed in warrantless surveillance, have had their identifies shared among senior political appointees and other top officials.
American citizens or “U.S. persons” are often caught up, incidentally, in warrantless foreign surveillance. When this happens, the identities of these Americans are routinely hidden from government agents, or “masked.” But senior officials can request NSA to “unmask” those individuals if it is deemed necessary.
This should be a relatively rare occurrence. Yet for some reason, over a 12-month period between 2015 and 2016, the Obama Administration unmasked 9,217 persons. Former UN Ambassador Samantha Power, or someone acting in her name, was a grandmaster of unmasking. Power’s name was used to request unmasking of Americans more than 260 times.
Large-scale unmasking continued under the Trump administration, with 2018 seeing 16,721 unmaskings, an increase of 7,000 from the year before.
For four years now, the general counsel of PPSA has been seeking, first through FOIA filings and then through litigation in the U.S. District Court in Washington, D.C., details about unmaskings from multiple intelligence agencies. After years of records searches, court remands for inadequate searches, and Glomar responses – which neither confirm nor deny the existence of such records – the district court judge issued a final order.
This cleared the way for PPSA to file today’s appeal. PPSA will announce any major developments or findings in this suit.
Now that the Supreme Court has concluded its 2020 term, we want to give a quick update about our legal efforts to protect privacy and strengthen Fourth Amendment protections.
In September 2019, the Project for Privacy and Surveillance Accountability filed our first Supreme Court brief. We urged the Court to grant a case now called Americans for Prosperity Foundation v. Bonta. We demonstrated that the Ninth Circuit failed to apply the appropriate standard of scrutiny in a challenge against a California requirement that any charity operating in California disclose the names of its donors. We also demonstrated that California has no important interest in collecting such information.
As we advocated, the Supreme Court granted the case and earlier this month reversed the Ninth Circuit, finding the disclosure requirement facially unconstitutional.
In another 2019 case challenging the same donor requirement, now called Institute for Free Speech v. Bonta, PPSA filed a brief urging the Court to hear the case. We demonstrated that the government has a long history of abusing information in its control. Here again, the Court agreed to hear the case and, because of Americans for Prosperity Foundation, it vacated the lower court’s opinion and remanded the case for further consideration.
We also had a great term in argued cases in which we filed briefs. In two such cases, Caniglia v. Strom and Lange v. California, PPSA filed briefs arguing for a proper interpretation of the Fourth Amendment’s warrant requirement.
Both in our Caniglia brief and in our Lange brief, PPSA demonstrated that the home has always been the first among equals in Fourth Amendment cases.
Caniglia asked whether a judge-made doctrine called the community-caretaking exception to the warrant requirement extended to the home. Lange, for its part, asked whether the warrant requirement had an exception when a person suspected of a misdemeanor flees into his home. In both cases, PPSA demonstrated robust home protections are based in common law. And in both cases, the Supreme Court adopted the protections PPSA advocated.
We stood out among civil liberties organizations by demonstrating that should the Court weaken the protections historically afforded the home, it would logically weaken protections everywhere else, especially personal data on digital devices. After all, if police can enter a home without a warrant, what’s to keep them out of your iPhone?
Although Caniglia was a short opinion—only a few pages--Lange was much longer. As we have previously reported, Lange not only agreed with us on the ultimate outcome, but also cited many of the same common-law sources as our brief. We find it encouraging that the Court looked to the history and tradition of the Fourth Amendment.
Finally, one of the cases PPSA filed a brief in, ACLU v. United States, is still pending before the Court. That case asks whether the Foreign Intelligence Surveillance Court, a court that acts in secret, has discretion to release its own opinions. We showed that if it does not, then the people will lose one important way to hold the government accountable for the surveillance that it does in our name. We hope that the Court will agree to hear this case sometime next term.
In sum, we’ve had a busy—and successful—term advocating for strong Fourth Amendment protections and government accountability. We look forward to continuing our efforts in the coming term.
Microsoft Reveals Shoddiness of Legal Process