Following Revelations of DOJ Spying, PPSA Pledges to Share Any Response from NSA on Overdue FOIA Request Regarding Surveillance of Congress
Late Thursday, news broke that the Department of Justice (DOJ) under the prior Administration accessed metadata belonging to members of the House Intelligence Committee, their aides and family members, including a minor.
The New York Times, which broke this story, called DOJ’s move an “extraordinary step of subpoenaing communications metadata from Members of Congress – a nearly unheard-of move outside corruption investigations.”
But was it? Or is it the first glint from an iceberg’s tip?
In December, 2020, PPSA anticipated this issue by filing a Freedom of Information Act request seeking records from NSA and five other departments and agencies on the possible surveillance of 48 current and former Members of Congress, including House Intelligence Committee Chairman Adam Schiff and then-Sen. Kamala Harris.
After NSA rejected this FOIA request, PPSA appealed the agency’s decision. The agency reversed its position pledging to process the records request, though the agency is now past the statutory deadline to produce responsive records.
In May, PPSA filed another FOIA request asking DOJ to produce records on how the department might be modifying, implementing or replacing two key memos establishing safeguards against the political misuse of federal investigations. PPSA had previously asked the department to make permanent rules requiring heightened scrutiny when federal officials, candidates and staff are targeted for surveillance. Meanwhile, a PPSA lawsuit to compel agency responses remains pending.
“As soon as we get information from NSA regarding the potential surveillance of Members of Congress, we’ll report that,” said Gene Schaerr, general counsel of PPSA. “And we are doubling down on our call for DOJ to make permanent rules regarding the investigation of federal officials and candidates.
“The First Amendment implications of investigations of Members of Congress are obvious,” Schaerr said. “Intelligence agencies under both Republican and Democratic administrations have shown a capacity to play fast-and-loose with surveillance. It is time to clean that up.”
Don’t Try Exercising Your Right to Record the Police in Colorado, Kansas, New Mexico, Oklahoma, Wyoming or Utah
Do you have a right to use your smartphone to record police officers in the course of their public duties? Yes – in the jurisdictions of the First, Third, Fifth, Seventh, Ninth and Eleventh Circuit Courts of Appeal. But don’t try it in Colorado, Kansas, New Mexico, Oklahoma, Wyoming or Utah, where the Tenth Circuit Court protects police officers who knowingly violate a right upheld by their own department policy and training.
Since 1995, courts have increasingly upheld the rights of Americans to film police officers, as long as they are not interfering with the officers’ official duties. Many police officers were just fine with being recorded for now-cancelled television shows such as Cops or Live PD, but when a private citizen is the one behind the camera, some still take a different view. Had the courts not intervened, the extinguishing of George Floyd’s life would likely have never been judged a crime.
Enter the Tenth Circuit Court of Appeals in Denver, which shines a light on one of the greatest paradoxes in American jurisprudence – the self-negating logic in some federal courts. In 2014, Denver police knowingly prevented a man from recording an arrest before performing an illegal search of his electronic tablet. The word “knowingly” is used here because the City of Denver made sure its officers knew citizens had a right to record the public actions of police officers, and the officers involved in the illegal search had received such training the year before.
As recounted in grand detail by the Cato Institute’s Jay Schweikert, because no judge on the Tenth Circuit Court had made a specific ruling that knowingly violating a citizen’s First Amendment rights in this context is illegal, the court punted. In Frasier v. Evans, the Tenth believed it was left with no choice but to rule that that there was no “clearly established” right to record videos of police, and that the officers involved were entitled to qualified immunity that shields them from any further civil action. Similar logic led Florida’s Fourth District Court of Appeal in May to uphold the arrest of a mother recording her son’s arrest.
Thus, the Tenth Circuit follows the same logic that kept Yossarian flying in Joseph Heller’s Catch-22. The pretzel-twisted logic of the court assures that there can never be a successful challenge to the police because there has never been a successful challenge to the police. Got it?
Even the most established of rights mean little if a federal court refuses to take action against police officers who violate those rights with impunity. Left unchecked, the threat of illegal search and seizure could cause Americans in some parts of the country to think twice before pushing the record button. This is especially true where the only legal recourse one can hope for is a federal court ruling seven years later that the police were wrong – in violation of their own policy and training – but there’s nothing to be done about it.
It is time for the Supreme Court to establish that constitutional rights that exist in some parts of the country also exist in the others.
Ruling Demonstrates Need for Other Checks on Government Misconduct
Are the police breaking the law when, using their official credentials, they access a database for an illicit purpose? This week, in a 6-3 decision, the Supreme Court said no.
In 1986, in response to rising cybercrime, Congress passed the Computer Fraud and Abuse Act (CFAA) to impose criminal punishment on anyone who “intentionally accesses a computer without authorization or exceeds authorized access.”
Nathan Van Buren, while a Georgia police sergeant, ran afoul of the CFAA when he conducted a license-plate search on a law enforcement database in exchange for a bribe. Because his department’s policy authorized him to access the database only for law enforcement purposes, Van Buren was convicted for “exceed[ing his] authorized access” and sentenced to 18 months’ imprisonment.
Van Buren appealed to the Eleventh Circuit, arguing that CFAA only applies to those who obtain information to which their authorized access did not extend. The Eleventh Circuit disagreed, adopting a broader view of the statute under which someone exceeds authorized access when that person intentionally accesses information within the scope of one’s credentials, but for an inappropriate reason.
Justice Barrett, writing for the majority, rejected that broader view as contrary to the language of the statute. Interpreting the CFAA definition of “authorized access” as creating a simple “gates-up-or-down” inquiry, she concluded that the statutory language imposed criminal liability only when a person accessed a computer system—or areas within that system—beyond what their official credentials would allow. Because Van Buren’s license-plate search violated his departmental policy but was performed with valid credentials, he did not exceed his authorized access under the CFAA.
Justice Barret’s opinion warned that a broader reading of the CFAA could have the effect of “criminaliz[ing] every violation of a computer-use policy”—potentially subjecting “millions of otherwise law-abiding citizens” to criminal punishment for relatively harmless acts like sending personal emails or checking the news on a work computer.
Nevertheless, the Court’s ruling has the effect of immunizing bad-faith government actors who abuse their official computer- and database-access.
The Supreme Court’s decision highlights a critical need for other enforcement tools to check government misconduct.
While PPSA recognizes both the legal and policy reasons underlying the Court’s decision, Van Buren removes the threat of criminal prosecution as a deterrent to government computer-search abuses. If the CFAA’s broad criminal liability is too sweeping a tool to prevent the ever-present danger of government overreach, then clearly a more appropriate mechanism is needed. New legislation, perhaps targeted just to official government misconduct, could avoid overcriminalization while giving official-use policies some needed teeth.
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?
These questions arise from two growing trends at the border.
One is the announced rollout of facial recognition technology and other biometric surveillance by Customs and Border Patrol of every non-citizen who arrives at a U.S. airport – a practice the Transportation Security Administration is experimenting with for U.S. citizens. The other is the existing practice of accessing the contents of returning citizens’ cellphones, laptops and other electronic devices.
Your Passcode, Please
Regarding the latter trend, Americans are learning that our personal information is not protected by the Fourth Amendment at the border. In 2017, Sidd Bikkannavar, an employee of NASA’s Jet Propulsion Laboratory, was returning to George W. Bush Intercontinental Airport in Houston when he was detained by Customs and Border Patrol agents. He was told he could not leave until he gave CBP agents his access PIN to his phone.
Bikkannavar was deeply concerned because the phone in his possession belonged to NASA – a claim validated by a JPL barcode on the back. The device contained information that JPL was adamant not be copied or shared. CBP insists that it cannot compel someone to unlock their phone, but many like Bikkannavar report that the alternative is to live in the airport.
Such searches can be done with a surface examination of the contents – such as an eyeball scan of the files on a computer’s desktop screen. They can also be “forensic” examinations, in which a thumbdrive is plugged into device in order to perform a deep scan of its contents.
In an ACLU petition with the Electronic Frontier Foundation, now before the U.S. Supreme Court (Merchant v. Mayorkas), 11 U.S. citizens are suing over having their electronic devices examined at the border without a warrant or reasonable suspicion. Plaintiffs include a military veteran, journalists, an artist and a business owner, as well as Sidd Bikkannavar. Several of them are Muslims and people of color.
In an earlier version of this case, a federal district court had ruled that a reasonable suspicion was needed to manually or forensically examine a device. The U.S. Court of Appeals for the First Circuit overturned that ruling. But lower courts have held that forensic searches of electronic devices require reasonable suspicion of a crime.
Will the Supreme Court resolve these contradictions?
Your Face on File
CBP is also proposing to collect and store facial surveillance of non-citizens at every point of entry into the United States. TSA is conducting tests with volunteers for this technology at Washington’s Reagan National Airport, including U.S. citizens.
The stated intent is to shorten lines. Despite this technology’s convenience, however, facial recognition has the sinister aspect of subjecting people to continuing surveillance. Targets can be tracked by hidden security cameras or covertly operated cellphones without their knowledge, much less permission. ACLU writes: “Once government acquires a person’s faceprint, it creates a risk of a unique and unprecedented form of persistent surveillance, one that allows the government to identify and track people without their knowledge.”
Given the high false-positive rate of facial recognition technology for people of color – witness the ordeal of Robert Williams of Detroit, who was arrested after a false positive – and the fact that DHS plans to hold individual’s facial data for 75 years, it is easy see how this technology could lead to abuses. It is also easy to imagine how TSA’s experiment could lead to the use of this technology to surveil U.S. citizens and create a database of American faces.
All of these issues point to the need for clarity: Does the Fourth Amendment apply at the border or not? The U.S. Supreme Court has ruled that “the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior.”
But different how?
The arrival of powerful and intrusive technology should persuade the Supreme Court to at least consider where to draw the lines.
Lawsuit Concerns Secretive Powers of Executive Order 12333
The Project for Privacy and Surveillance Accountability filed suit today against the Privacy and Civil Liberties Oversight Board that will be a major test case of whether laws governing Freedom of Information Act requests must be obeyed. It also seeks to reveal the extent to which the Board has performed – or not performed – its watchdog role over non-statutory surveillance authorities conducted in secret.
“PCLOB is tasked with oversight of U.S. intelligence agencies, to protect against the possibility of abuse of civil liberties,” said Gene Schaerr, PPSA general counsel. “It is supposed to be our watchdog against such encroachments. The need for this lawsuit demonstrates, in fact, that PCLOB is more like a lazy pooch sleeping at the feet of its masters.
“We will demonstrate to the court that the Board is ignoring the law,” he said.
PPSA’s filing builds on a FOIA request from Patrick Eddington of the CATO Institute asking for records in April, 2019, from the Board concerning reports, and correspondence with agencies, about Executive Order 12333.
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.
The Board confirmed to Eddington that it completed at least one “deep dive report” under Executive Order 12333 concerning at least one federal agency, but withheld that report. It refused to release any records regarding agency refusals to provide information requested by the Board. In a follow on letter to the Board, PPSA concluded: “It appears from these responses that the Board has censored itself at the direction of the very agency subject to its oversight.”
PPSA filed its own FOIA request on Sept. 16, 2020, 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.
“We gave the Board far more than the maximum thirty business days from our FOIA request,” Schaerr said. “It is time to turn to the courts to determine if the laws governing FOIA requests must be respected by PCLOB, or if the law can be effectively ignored.”
“The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public – and it is also unconstitutional,” write three seasoned civil liberties experts in today’s New York Times.
The op-ed, signed by David Cole, legal director of the American Civil Liberties Union, Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, and former Solicitor General Theodore Olson, supports an ACLU petition to the U.S. Supreme Court to consider the Foreign Intelligence Surveillance Court’s secret opinions.
They recount some useful history. That court authorized the government to collect records on most phone calls made or received in the United States, detailing who called whom, when, and for how long – all without any suspicion of illegal activity.
In another opinion, the court upheld the government’s practice of scanning Americans’ emails for intelligence purposes as those communications enter and leave the country.
More recently, it permitted the FBI to fish for information about Americans in huge databases of international emails, online messages and web chats obtained without probable cause.
Four days ago, PPSA filed an amicus brief in support of the ACLU petition. PPSA asked the Court to consider the following question:
“How can the American people learn of, debate, and cast informed votes relating to what the Executive Branch—or, for that matter FISC [the ‘secret surveillance court’] —is doing in their names if the government refuses to disclose that information?”
In today’s op-ed, the authors note that the “surveillance court’s suggestion that it is not subject to the usual constraints of the First Amendment – and, indeed, that it lacks authority even to consider the First Amendment question – has only engendered suspicion of the court, and of the surveillance the court approves.”
For all these reasons, PPSA will continue to vigorously support ACLU’s petition.
PPSA today filed a brief asking the U.S. Supreme Court to consider a petition to require the federal government’s secret surveillance court to release its opinions to the public.
In April, the American Civil Liberties Union filed that petition asking the Supreme Court to review the constitutionality of the secret operations of the Foreign Intelligence Surveillance Court (FISC) and the superior Foreign Intelligence Surveillance Court of Review (FISCR).
FISC opinions, the brief notes, “rarely see daylight” – a stark exception to the access the public has to other judicial proceedings and rulings.
PPSA asks the Supreme Court to consider whether the First Amendment provides a qualified public right of access to significant opinions of FISC. The brief also asks the Court to allow FISCR to consider an appeal from the denial of such a motion.
How can the American people learn of, debate, and cast informed votes relating to what the Executive Branch—or, for that matter, FISC or FISCR—is doing in their names if the government refuses to disclose that information?
“How can the American people learn of, debate, and cast informed votes relating to what the Executive Branch—or, for that matter, FISC or FISCR—is doing in their names if the government refuses to disclose that information?” PPSA asked the Court.
The brief notes abuses by administrations of both parties have been long kept from public view by the secretive nature of ex parte FISC and FISCR proceedings.
“It is impossible to know how many misrepresentations like those in the Carter Page applications have allowed the government to circumvent the Fourth Amendment’s warrant requirement and surveil particular United States citizens, even without probable cause.”
“For the public to selectively learn of limited examples of secret wrongdoing only long after the fact … undermines constitutional checks and balances by making such disclosure a further tool of the Executive in power at any given moment.”
PPSA is asking the Court to require FISC and FISCR to publicize their decisions – subject to necessary redactions – just like any other court under Article III of the U.S. Constitution.
In the USA Freedom Act of 2015, Congress authorized qualified experts to examine the civil liberties issues in significant cases before the secret court. Despite ruling on many high-profile cases with civil liberties implications, FISC rarely appoints such an amicus. Calling this law “the veneer of adversity,” PPSA’s brief notes that the FISC appointed only two such amici in 2020, despite hundreds of government applications.
For all these reasons, and more spelled out in the brief, PPSA asks the Court to rule in favor ACLU’s petition.
PPSA Requests Records on Promises of Transparency From Avril Haines, New Director of National Intelligence
vIn January, Avril Haines was challenged by Sen. Ron Wyden (D-OR) during a hearing before the U.S. Senate Select Committee on Intelligence to consider her nomination to serve as Director of National Intelligence. Sen. Wyden asked:
“If you are confirmed, would you agree to inform Americans about any circumstances in which the intelligence community purchases their data and the legal basis for doing so?”
Ms. Haines replied:
“I would seek to try to publicize essentially a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.”
She further promised to provide “transparency so people have an understanding of the guidelines under which the intelligence community operates.”
Ms. Haines received 84 Senate votes for her confirmation, with an endorsement from Sen. Wyden. She has now been director of national intelligence for four months. At the time, the Project for Privacy and Surveillance Accountability applauded the new director’s promise of transparency. With that in mind, on Monday PPSA filed a Freedom of Information Act (FOIA) request seeking all agency records addressing Director Haines’ exchange with Sen. Wyden, as well as all agency records – prepared as part of Haines’ promised disclosures – describing the intelligence community’s purchases of Americans’ private data and the legal basis and guidelines for doing so.
PPSA’s Freedom of Information Act request seeks all agency records regarding Director Haines’ exchange with Sen. Wyden, as well as all agency records—prepared as part of Haines’ promised disclosures—describing the intelligence community’s purchases of Americans’ private data, and the legal basis and guidelines for doing so.
Director Haines’ promise of candor and transparency was widely seen as a refreshing departure from the oracular pronouncements of some in the intelligence community. PPSA hopes Director Haines sees this FOIA request as an opportunity to make good on those promises.
Caniglia v. Strom Ends in Victory for Fourth Amendment SCOTUS Unanimously Restricts “Community Caretaking” Warrant Exception
When it comes to warrants, should your house be treated the same as your car?
In Cady v. Dombrowski (1973), the Supreme Court held that the warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. As PPSA reported in January, the Supreme Court agreed to hear Caniglia v. Strom, a case in which the police entered the home of a Rhode Island man without a warrant to seize his firearms.
That man, Edward Caniglia, came to the police’s attention after his wife reported that, during an argument, Caniglia had placed an unloaded gun on the dining room table and asked her to shoot him “and get it over with.” The next day, during a welfare check prompted by a call from Mrs. Caniglia, police encountered Mr. Caniglia on his porch. They persuaded him to agree to a psychiatric evaluation, on the condition that they not enter his home and confiscate his firearms.
But while Caniglia was having his evaluation, the police—despite their promise not to—confiscated his firearms.
Caniglia sued, claiming that the police violated the Fourth Amendment when they entered his home and seized his firearms. The First Circuit disagreed. It reasoned that the same logic that allowed the police in Cady to search a car extended to private homes.
At oral argument, several Justices hinted that they were skeptical of the First Circuit’s holding. “[I]f there’s any one principle of the Fourth Amendment,” Justice Kagan said, it is that “the home is special” and that “the automobile is distinctly not.”
In January, PPSA filed an amicus brief upholding Fourth Amendment rights against the expansion of the community caretaking exception.
In Monday’s opinion, it became clear that the other Justices agreed with Justice Kagan’s review of the Court’s Fourth Amendment cases. The opinion, written by Justice Clarence Thomas, dispensed with the First Circuit’s reasoning in only four pages. “[W]hat is reasonable for vehicles,” the Court declared, “is different from what is reasonable for homes.” And Cady itself, the Court noted, expressly recognized a distinction between a vehicle already under police control and a vehicle “parked adjacent to the dwelling place of the owner.”
PPSA regards this ruling as a major victory for the privacy of all Americans.
It would have best if the Court had more firmly rooted its opinion in the original public meaning of the Fourth Amendment rather than precedent. But the Court’s opinion did cite Florida v. Jardines (2013), which held that the “very core” of the Fourth Amendment’s guarantee is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
A letter from Sen. Ron Wyden (D-OR) to Defense Secretary Lloyd Austin reveals that our government appears to be taking a warrantless and free-wheeling approach to purchasing Americans’ private data.
At first glance, this might come as an unexpected turn against the jurisprudential tide. In 2018, the U.S. Supreme Court held that the government needs a warrant to access the location history of an American taken from communications between cell phones and a cell tower. A reasonable interpretation of this case, Carpenter, should have prompted government lawyers to question any warrantless access to Americans’ electronic data. Like a flippant teenager, government lawyers – when presented with such a new restriction by the courts – take it as a sign that everything else must be permissible. You told me not to ride my bike in traffic. You never said anything about not smoking a cigarette.
In his letter, Sen. Wyden wrote that the Defense Intelligence Agency “recently informed my office that they have adopted the position that the Fourth Amendment, and the Supreme Court’s holding in the Carpenter case, do not apply to data about Americans that government buys, and only apply to data that the government acquires via compulsion.”
Sen. Wyden has long investigated the “shady, unregulated” sale of Americans’ personal information by data brokers to government agencies. He, along with Republican Sens. Rand Paul, Mike Lee, Steve Daines and several Democratic senators, recently introduced The Fourth Amendment Is Not for Sale Act, which would restrict the ability of the government to buy our personal information from data brokers without a warrant.
Now Sen. Wyden is pressing the Department of Defense to answer questions about the legal analysis behind its theory, its scope of buying and using Americans’ data without a court order, and what the department knows – or doesn’t know – about the identities and citizenship of individuals whose data is being acquired.
The Oregon senator is also drilling down to ask if the DoD is collecting information from internet connected cars and from metadata, such as Domain Name System records. The latter could expose an individual’s internet browsing history. As we await answers, civil liberties advocates have more reason than ever to get behind The Fourth Amendment Is Not For Sale Act.