Douglas Belkin of The Wall Street Journal reports the reaction of college students to overly aggressive surveillance measures by campus administrators in this era of Covid-19.
 
The vast majority of students are vaccinated. In fact, some three-quarters polled say they would support a vaccine mandate. In such an environment, colleges and universities have still managed to find the point at which students rebel against attempts at ubiquitous surveillance in the name of health.
 
“It feels like the school is blackmailing me, they get all this personal information and in exchange I get an education,” said Dan Smith, a graduate student studying labor history at Wayne State University in Detroit. “It’s the growth of the surveillance state.”
 
Belkin reports that even before the pandemic, many universities were recording students’ faces with surveillance cameras, tracking them with GPS and monitoring their messages on social media and email. Schools can also track students’ study habits through digital textbooks and log their presence in class and the library.
 
Students at one Michigan school had to band together to stop a requirement to wear a “bio button” to monitor their heart rate, temperature and respiration. Under pandemic rules, colleges are fomenting what one student group at Rutgers called “creeping authoritarianism.”
 
What Belkin’s reporting bears out is that the generation now rising through college is alert to abusive levels of surveillance. They see clearly how today’s compromises can lead to a total absence of privacy in the future.

The State Secrets privilege requires secret evidence related to national defense or foreign relations to be evaluated in camera by a judge in her or his chamber. As we have seen, in some instances the FBI and other government agencies have used the State Secrets privilege to short-circuit a defendant’s case by also asking for a jury trial – which cannot be allowed to hear the evidence.
 
These mutually exclusive requests – holding some evidence secret while invoking the Seventh Amendment right to a jury – creates the perfect Catch-22, a rule the government always wins.
 
It is for abuses like this that the use of the State Secrets privilege is coming under increasing scrutiny. The U.S. Supreme Court is currently reviewing FBI v. Fazaga – a case involving FBI penetration and bugging of a mosque by an informant – in which the privilege played a significant role in trials before lower courts. Now four Democratic senators have written to Attorney General Merrick B. Garland asking the Department of Justice to adhere to promises of greater transparency by President Biden.
 
In August, President Biden issued a media release publicly committing to “adhering to the rigorous guidance” set forth in a 12-year-old memorandum, “Policies and Procedures Governing Invocation of the State Secrets Privilege.” This memo was issued in September, 2009, by then-Attorney General Eric Holder to pledge that the Department of Justice would “provide periodic reports to appropriate oversight committees of Congress.” It also promised to refer “credible allegations of wrongdoing” hidden by the privilege to the department’s Inspector General.
 
The letter, signed by Sens. Richard Blumenthal, Robert Menendez, Cory A. Booker and Kirsten Gillibrand, challenges Garland to live up to the president’s promise and adhere to the memorandum. It noted that the memo’s promise of “periodic” reviews is not defined, but “it should be plainly obvious that intervals – now more than six years since the last report on file was submitted – by which DOJ has provided these reports to Congress frustrates meaningful and effective congressional oversight.”
 
Among the many requests the senators put to the attorney general are:

• List and identify pending cases in which the State Secrets privilege has been invoked, but which not have been addressed in a periodic report to Congress.

 

• List now-settled or otherwise resolved or closed matters in which the privilege was invoked, but which were not addressed in a periodic report to Congress.

 

• Identify all DOJ rules, guidelines, practices, procedures or similar documents that govern DOJ’s submission of periodic reports on assertions of the State Secrets privilege to the appropriate congressional oversight committees.

 

• Explain how DOJ defines “periodic” when it comes to reporting.

 

• DOJ, in addition to revealing the times the Department invokes the privilege on behalf of another department or agency, should also report the cases in which it has declined such requests.

 

• Reveal if DOJ has referred “credible allegations of government wrongdoing” related to State Secrets cases to the Inspector General.

 

• Perhaps most importantly, the Department should make its committee reports available to the public with redactions or unclassified versions.

 
The senators demand written answers by Oct. 27. It will be interesting to see if DOJ responds by that date or remains as “periodic” as Halley’s Comet.

Over the summer, the Project for Privacy and Surveillance Accountability reported that Customs and Border Protection is routinely demanding personal passwords to conduct searches of files inside the digital devices of Americans returning from abroad. Some of these inspections are performed through eyeball scans. Some are done by plugging a thumbnail drive into devices to conduct a deep scan of contents.
 
PPSA asked:
 
“Do Fourth Amendment rights against unreasonable searches and seizures apply at the border? Or is the border zone of airports and other ports of entry a kind of legal no man’s land?”
 
We reported on the plight of a veteran, a journalist, an artist, a businessman and an engineer at NASA’s Jet Propulsion Laboratory, who had their privacy violated in this way while going through customs. Their petition, Merchant v. Mayorkas, was denied by the U.S. Supreme Court this summer, punting on the critical question of whether Americans have Fourth Amendment rights at the border.
 
Fortunately, what cannot be achieved in the courts can be debated and perhaps passed in the Congress. Late last week, Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) introduced the Protecting Data at the Border Act, which would require law enforcement to obtain a warrant before searching the phones and laptops of Americans at the border.
 
“Americans’ Constitutional rights shouldn’t disappear at the border,” Sen. Wyden said. “The Protecting Data at the Border Act will ensure that the government, including Customs and Border Protection, must obtain a warrant to search the data of U.S. persons.”
 
This bill would harmonize the practice at the border with a landmark Supreme Court decision, Riley v. California, that ruled that law enforcement needed a warrant to search the electronic devices of a person who has been arrested.
 
The Court’s Riley decision, which was unanimous, describes how digital inspections are especially insidious. The Court declared that “cell phones differ in both a quantitative and qualitative sense from other objects that might be carried on an arrestee’s person … many of the more than 90 percent of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.” The Court concluded, “an element of pervasiveness characterizes cell phones” that is not found in physical records.
 
The Protecting Data at the Border Act follows up on the logic of Riley, extending the affirmed rights of an arrested person to all U.S. persons at the border. In addition to requiring probable cause warrants to inspect devices, the Wyden-Paul bill would:

• Prohibit officials from delaying or denying entry to the United States if a person declines to hand over passwords, PINs, and other social media account information.

 

• Require probable cause before a device could be seized.

 
It would, however, allow for emergency exceptions based on existing wiretap statutes and the USA Freedom Act. In some instances, the government would need to seek a warrant after an inspection.
 
At this time of partisan gridlock, it is heartening to see a bipartisan bill that should be an easy one for Congress to pass.

In 1970, President Richard Nixon signed the Bank Secrecy Act into law, requiring cash transactions exceeding $10,000 to be reported by banks to the Internal Revenue Service. In today’s dollars, $10,000 equals $70,000 in purchasing power. In 2021, the Biden Administration is proposing banks share data with the IRS on every American’s account in a bank, or in online money accounts such as PayPal, or Venmo, with transactions in excess of $600.
 
The Bank Secrecy Act was justified as a way to reveal money laundering from drug deals and illegal art and antiquities sales. What is the justification behind making almost every personal financial account in the United States open to warrantless government inspection? President Biden says his purpose is to “crack down on millionaires and billionaires who cheat on their taxes.” Senate Democrats, sensing the potential for a political backlash by anyone with a bank account greater than the proceeds of a lemonade stand, are discussing raising the additional disclosure requirements to accounts with balances to $10,000 or more. Required disclosures at either level would still have the effect of eliminating Americans’ last shred of financial privacy.
 
There are many dangers to Americans if this measure goes into effect. Here are three.
 
First, once the government possesses this information, it could conceivably share it with other federal agencies. There is ample legal precedent to worry about such warrantless access to our data. The Bank Secrecy Act was challenged in the U.S. Supreme Court (California Bankers Assn. v. Shultz, 1974) as a violation of the Fourth Amendment prohibition against unreasonable searches and seizures, as well as a violation of Fifth Amendment guaranteeing due process. The Court ruled in favor of the government. If the same logic allows the government to now legally possess almost all of your financial information, what is to keep any agency of the government from accessing it whenever it wants, for whatever reason it wants?
 
Second, the IRS has hardly been a bastion of data security and integrity. In 2015, cybercriminals walked away with sensitive information that put 724,000 taxpayers at risk of identity theft. This summer, the tax returns of thousands of taxpayers were stolen from IRS files either by an employee or through a cyberattack. Many details were published online by Pro Publica.
 
Third, the greatest risk from this proposal is the erosion of the Fourth Amendment to a mere nub. Under our Constitution, “unreasonable searches and seizures” of our “effects” are forbidden without a warrant issued on the basis of probable cause. If the standards of the 1974 Supreme Court ruling are extended, when every American is compelled to share their financial data with the federal government, the Fourth Amendment will be rendered meaningless.
 
James Madison, who introduced that amendment along with the rest of the Bill of Rights, saw clearly that economic privacy is inseparable from political liberty. He wrote:

“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties or his possessions.” 

The Fourth Amendment requires that a probable cause warrant be issued “particularly describing the place to be searched, and the persons or things to be seized.” But how does one define particularity in the age of digital networks and the cloud?
 
This question acquires fresh urgency after Thomas Brewster of Forbes noticed a court document accidentally unsealed by the Department of Justice. The document showed that the government had asked Google to divulge the identities of anyone who had searched for the name, phone number and address of a sex trafficking victim, as well as her mother’s name, over a 16-day span. Google was also directed to provide Google accounts and IP addresses of those who made these searches.
 
Because such orders are kept under seal, there is no way to know how common they are. One such order made public was in 2020 for any individual who searched for the address of an arson victim in the government’s racketeering case against singer R. Kelly. Two others involved a fraud case in Minnesota and a serial bomber in Austin. 
 
In the case of the sex-trafficked victim, the keyword search – while limited to two people and a small number of searches – also included a request for CookieIDs. These are identifiers that can be used to group together every search from a particular device over a given duration. This gives law enforcement an ability to widen its view, and to see every website the owner of that device has visited.
 
In such a world, unimagined by the Founders, where does particularity end? A computer or other digital device certainly qualifies as a particular object, but its reach is global, allowing for a deep and pervasive search of a person’s interests, beliefs and contacts.
 
To be sure, law enforcement needs tools to catch sex traffickers or bombers. But by their very nature, keyword searches could easily become dragnets in which no particular person or group is the target. Instead, a keyword search can act like a fishing trawler dragging its net along the ocean floor – exactly the kind of open-ended investigation the Founders feared and explicitly forbade.
 
The worst aspect of this practice is that these warrants are executed in secret.
 
PPSA urges the Department of Justice to annually release the number of warrants for keyword searches it has sought and obtained. We ask Attorney General Merrick Garland to issue a policy directive, beyond those currently in place to protect journalists, that would define the scope of keyword searches within precise and necessary limits.
 
States should also codify these standards as well for state and urban police departments.

When the FBI asks the Foreign Intelligence Surveillance Act court for permission to surveil an American on national security grounds, the agency’s application must be supported by a file documenting grounds for the FBI’s suspicion. The FBI calls this a “Woods file.”
 
This documentation is more than a mere procedural step. It validates the need for the surveillance, in effect supplying probable cause to the FISA judge in ex parte hearings in which only the government is present.
 
Spurred to investigate by the Carter Page “unmasking” fiasco, Justice Department Inspector General Michael Horowitz took a sampling of 29 FISA applications. He released his findings in December, 2019, that included many errors and missing documentation, four of which were material to a case.
 
Now his office has examined more than 7,000 FISA applications from 2015 to 2020. Many of them were terrorism or counter-intelligence cases. Some 183 of them, about 2.6 percent, have a Woods file that is either incomplete or missing entirely. Rounding back to the original 29 applications examined, Horowitz’s team found “over 400 instances of non-compliance with the Woods Procedures.”
 
His report concludes with ten recommendations for the FBI and the Department of Justice’s National Security Division. Inspector General Horowitz has done a commendable job. But his recommendations will be implemented in secret by the FBI. We would have to trust that agency not to veer off again into rogue behavior, as it has done countless times before – from the days of COINTELPRO to its current refusal to respond to PPSA’s Freedom of Information Act requests about possible surveillance of Members of Congress.
 
Congress should step in to implement reforms, including the Lee-Leahy Amendment, which would bring into the FISA court proceedings scrutiny of FBI applications from civil liberty experts with high-level security clearances. These friends of the court would act as proxies for those who may never know they were targets of surveillance.

The Project for Privacy and Surveillance Accountability filed a brief today in FBI v. Fazaga, an upcoming U.S. Supreme Court case that will test the ability of the government to rely on the State Secrets privilege to close off American citizens’ access to justice.
 
The facts of the case are simple and shocking. The FBI paid an informant to pretend to convert to Islam to infiltrate a mosque and plant listening devices. The plaintiffs allege there was no probable cause and that they were targeted because of their religion. The informant was instructed to surveil Americans for being devout followers of Islam, the more “Muslim” a person was, the “more suspicious” the FBI considered him.
 
Once taken to court over these violations of Americans’ First and Fourth Amendment rights, the government immediately moved to dismiss claims of religious discrimination  by invoking the State Secrets privilege. This doctrine effectively shuts down judicial inquiry by blocking access to the facts needed to prove (or to defend against) charges of unconstitutional conduct. The government’s assertion of this privilege is so extreme that it holds that the Supreme Court itself cannot exercise judicial review over the secret opinions of the Foreign Intelligence Surveillance Act (FISA) court.
 
The government’s handling of Fazaga reveals the slippery ways in which it distorts the law and the Constitution to protect itself from any accountability.
 
Here’s the legal formula the government uses.
 
First, government lawyers invoke the State Secrets privilege. This compels a judge to review the protected materials in her chambers so the secret information at the heart of the case can be privately and securely considered. But other parties and their counsel are denied the ability to review any claimed “state secrets” and thus cannot make or defend against any claim of wrongdoing. Having boxed in the court and the parties, the government agents who committed the constitutional violations – who were also sued – then claim to be denied their Seventh Amendment right to a jury trial because their employer has blocked the evidence and therefore insist that the claim be dismissed.
 
The result is to shield the most relevant facts from being litigated and to short-circuit the case, effectively denying plaintiffs their right to make their case to a jury – or, indeed, to any trial at all.
 
“The assertion that the victims of alleged constitutional violations must bear the cost of government’s refusal to release information relating to such violations gets things backwards,” said Erik Jaffe, PPSA president. “While there may indeed be occasions where national security concerns prevent a full public airing of certain facts in a case, that should not entirely prevent it from going forward. In this case, some form of constitutional remedy is better than no remedy at all. If ordinary juries are indeed incapable of hearing certain evidence without threatening national security, then court precedents allow for bypassing juries in exceptional cases. Cases involving claims that national security trumps the Constitution should certainly qualify as exceptional.
 
“We urge the Court to recognize that the government or its agents should not be able to avoid accountability by an all-too-clever, two-step process of invoking obscure evidentiary rules to suppress evidence central to the case and then have its agents self-servingly hide behind a claimed Seventh Amendment right to have a jury evaluate facts that they are forbidden to hear,” Jaffe said. “To accept the government’s argument would be to completely close the courthouse doors to any American whenever national security is invoked to avoid scrutiny of the government’s unconstitutional conduct.”

The American Civil Liberties Union replied to a U.S. government brief last week over whether the U.S. Supreme Court has the authority to review rulings from lower, secret courts that relinquish the power to disclose secret court opinions from the judiciary to the executive branch.
 
At stake is whether Americans have a First Amendment right to be informed of the extent of government surveillance described in opinions issued by two lower U.S. courts.
 
“When the founders wrote the Bill of Rights, they had in mind the secret Star Chamber of King Charles as a negative example of what not to allow,” said Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability. “The existence of a secret surveillance court in Washington today is, to say the least, an anomaly in the American system. This court hears only from one side – the government’s side. And its opinions before 2015 have largely been kept under lock and key. At the very least, we should know the opinions of this secret court so we can assess the degree to which the government is peering into our lives.”

Created in 1978, the Foreign Intelligence Surveillance Court (FISC) conducts secret hearings on foreign intelligence through the government’s collection of phone records, emails, and internet browsing data. American citizens and persons in the United States are often caught up in surveillance dragnets approved by FISC. The FISC and its superior court, the Foreign Intelligence Surveillance Court of Review (FISCR) ruled on whether the First Amendment guarantees the public a qualified right of access to FISC opinions.
 
The courts’ decisions? They ruled that the publication of these judicial opinions is up to the executive branch alone to decide. “This case raises a significant question,” PPSA declared in an amicus brief filed in May. “How can the American people learn of, debate, and cast informed votes relating to the Executive Branch’s surveillance activities performed in their names—and, for that matter, authorized by FISC and FISCR—if the government refuses to disclose that information?”

“This is an astonishing abdication of the right of U.S. courts, established under Article III, to exercise judicial power in all cases,” Schaerr said. “Surely the Supreme Court will take umbrage at the supine surrender of judicial authority by the lower courts.”
 
The U.S. government’s brief argues that the FISC and FISCR courts acted correctly for a “lack of jurisdiction.” The petition filed by the ACLU, the Knight First Amendment Institute at Columbia University, the Media Freedom and Information Access Clinic at Yale Law School, and former Solicitor General Ted Olson, seeks the release of these opinions, with necessary redactions to protect vital government secrets. The ACLU petition is a masterpiece of legal reasoning laced with restrained indignation. It is worth reading:
 
At bottom, the government contends that no court has jurisdiction to decide whether citizens have a First Amendment right of access to the Foreign Intelligence Surveillance Court’s opinions.
 
“Think about that,” Schaerr said. “The government is saying the U.S. Supreme Court lacks jurisdiction to decide First Amendment claims concerning lower court rulings.”
 
The ACLU brief states that the Supreme Court has jurisdiction to resolve the petitioners’ First Amendment claim to release the opinions. Failure to do so, they write, “would raise a serious constitutional question.”
 
“I would actually go a little further,” Schaerr said. “Failure to release these opinions would quietly precipitate a constitutional crisis.”

A U.S. federal appeals court Wednesday struck a blow against government transparency with the dismissal of a long-running lawsuit against the National Security Agency (NSA) for purported mass interception and searches of Americans' international internet communications.
 
In a 2-1 decision, the Fourth Circuit Court of Appeals refused to resurrect the challenge against the NSA by the Wikimedia Foundation, which runs Wikipedia, and instead sided with the government’s defense, which claimed a “State Secrets” privilege. 
 
The court’s majority opinion reveals the nature of this privilege, something right out of Joseph Heller’s Catch-22. Judge Albert Diaz wrote for the majority that he agreed with a lower court’s termination of the suit.
 
The majority reached this conclusion without reviewing the evidence of potential harm to the government’s national security interest.
 
Judge Diana Gribbon Motz wrote a stinging dissent that the ruling: “stands for a sweeping proposition: A suit may be dismissed under the State Secrets doctrine, after minimal judicial review, even when the government premises its only defenses on far-fetched hypotheticals."
 
Few dispute the need for some government secrecy, but this blanket defense and its cousin – the Glomar response – has been invoked to such an alarming extent that we have no way of knowing whether the government is acting in good faith or covering up bad actions. PPSA recently reported that the government has relied on the Glomar defense – neither confirming nor denying – even when asked if it has been purchasing the private digital information of Members of Congress from data brokers.
 
Fortunately, the Supreme Court has an opportunity to clarify this case.
 
This fall, SCOTUS will hear Federal Bureau of Investigation v. Fazaga, a case about the covert infiltration and bugging of a mosque and Muslim communities in Southern California in which the government has invoked the State Secrets privilege.
 
This follows the Court’s acceptance of another State Secrets case involving a Palestinian man captured after the 9/11 attacks and held in prison at the U.S. base in Guantanamo Bay, Cuba. This detainee, who accuses the government of torturing him, requests information that is blocked by the government’s invocation of the State Secrets privilege.
 
These two cases mark the first reviews of the State Secrets doctrine in a decade.
 
In a forthcoming amicus brief, PPSA will demonstrate that plaintiffs with substantial claims deserve to uncover enough factual material to argue their cases. We are confident this can be done while protecting secrets important to the safety of Americans.

Years ago, poultry inspectors in a large state were ridiculed when they appealed to the state legislature to provide them with firearms.
 
One can see why the inspectors wanted to be armed. There is a certain glamor attached to being law enforcement, the smell of cordite at the firing range, the weight of a gun belt, the badge and the respect that goes with it. These inspectors were denied guns, however, because they did not need them to do their job.
 
In the federal government, with so many small offices within divisions inside agencies within departments, there are pockets of officials who are running programs that are poorly conceived and poorly supervised. One of them, the Investigations and Threat Management Service (ITMS) inside the Commerce Department, was a privacy nightmare.
 
For fifteen years, the 13-person ITMS ran criminal probes and counterespionage activities apparently with little oversight. They rummaged through the offices and computers of Commerce Department employees. They investigated Americans who made disparaging comments about the Census on their social media accounts. And they opened investigations into people who wrote letters to the Secretary of Commerce (always a dead giveaway of the sleeper agents among us).
 
Worse, a five-month investigation by Commerce Department lawyers found that the ITMS lacked “adequate legal authority” to even run the criminal probes it had pursued for 15 years. This lack of authority did not keep ITMS agents from running names through classified databases.
 
Like a bad cop show, ITMS is now being cancelled. The Commerce Department announced earlier this month it would close this office. But one wonders how many other offices are role-playing at the expense of our privacy.