In the 2010 Roman Polanski film, The Ghost Writer, the protagonist (played by Ewan McGregor) gains important clues to unmasking the secret behind a murder by driving the victim’s car. He simply follows the last route on the car’s GPS, leading him turn by turn to discover who the victim had visited last. At the time, it was a thrilling new twist for a neo-noir detective film.
Eleven years later, the Internet of Things is beginning to become a reality, with our cars revealing more about us than ever before. A contemporary car can accumulate 4,000 gigabytes of data every day. Our cars’ entertainment and communications systems track our address books, call logs and what we listen to. Systems made to monitor performance can report our weight, as well as where we’ve driven, and if we’ve driven there alone or with someone else. With the emergence of autonomous features, records of in-vehicle camera feeds and voice commands will become more prevalent and accessible.
In short, governments can learn much more about us than Ewan McGregor’s character did by simply driving.
The threat to privacy inherent in digital car technology is exacerbated by those seeking to collect and sell data pulled from our vehicles. One company, Ulysses, even obtains vehicle telematics data transmitted from embedded sensors around a vehicle. Ars Technica reports that Ulysses aspires to sell to the federal government such granular data, including locations, from every car on earth, excluding North Korea and Cuba.
The law, moreover, has yet to catch up to the reality that the automobile has become a digital device. In Riley v. California, the Supreme Court held that a cellphone is a “minicomputer” holding voluminous amounts of personal information, and thus should require a probable cause warrant under the Fourth Amendment to examine its texts, images and emails. But laws governing car searches are still in the analog world. The government thus asserts an “automobile exception” to the Fourth Amendment because a car, unlike a house, can be driven off with evidence. It is also not practical to seek a warrant from the side of a highway. But when it comes to the storehouse of digital data contained within a car’s computers, clearly the Riley standard should prevail.
Sens. Ron Wyden (D-OR) and Cynthia Lummis (R-WY) have recently proposed legislation to ensure that result, as have Reps. Peter Meijer (R-MI) and Ro Khanna (D-CA). Under their proposal, law enforcement will have to obtain a warrant based on probable cause before they can search data from any vehicle that does not require a commercial driver’s license. Under the “Closing the Warrantless Digital Car Search Loophole Act,” any vehicle data obtained in violation of this law would be inadmissible in court.
Sen. Wyden in a statement said:
Americans’ Fourth Amendment rights shouldn’t disappear just because they’ve stepped into a car.
He’s right. And the Project for Privacy and Surveillance Accountability (PPSA) urges Congress to enact this proposal promptly.
By ELIZABETH HOLTZMAN and MARK UDALL
NEW YORK DAILY NEWS
What can data from the smartphone in your hand tell me about you? A better question: What can’t it tell me about you?
Our digital trails tell the story of our lives, from dating apps, to medical conditions revealed by our search queries, to religious and political beliefs, to our financial difficulties or windfalls. Like the colored dots in a pointillistic portrait, these data points compose a complete portrait of individuals. Our digital devices often upload these most intimate details of our lives into “the cloud,” a system that stores and distributes our data to computers around the world. It’s as if we allowed hordes of strangers to pass around our diaries and private financial ledgers, while trusting them not to ever take a peek.
PPSA Appeals NSA’s Refusal to Respond on Potential Surveillance of Members of House and Senate Judiciary Committees
The Project for Privacy and Surveillance Accountability on Thursday appealed the National Security Agency’s blanket refusal to produce records on the possible purchase of personal information of members of the House and Senate judiciary committees from Jan. 1, 2008, to July 26, 2021.
“The agency is no doubt concerned about the potential for political embarrassment if it becomes widely known that Members of Congress were themselves subject to surveillance,” Gene Schaerr, PPSA’s general counsel, wrote in this filing. “But political concerns do not become national security concerns simply because they are held by the NSA.”
The request covers any exchange between the U.S. Intelligence Community and telecoms, data brokers and other private-sector third parties for the personal information of these Members of Congress.
This administrative appeal follows parallel appeals by PPSA with the CIA and Office of the Director of National Intelligence. All three have responded with a “Glomar” denial, which neither confirms nor denies the existence of the records being sought. PPSA awaits a response on another such FOIA request before various components of the Department of Justice.
NSA had issued a denial on Aug. 20, 2021, a few days after receiving the original Freedom of Information Act (FOIA) request from PPSA. “The agency’s cursory denial, made mere days after receiving the request, demonstrates its failure to conduct an adequate search for responsive records,” Schaerr wrote.
PPSA also took issue with the two legal exemptions NSA cited for withholding documents. NSA cited FOIA Exemption 1, which allows it to withhold documents in the interest of national defense or foreign policy.
PPSA responded that many of “the individuals listed in the request are no longer members of congressional judiciary committees, several no longer hold any public office at all, and some are dead.” At the very least, in many such cases, there is no justification for maintaining classification.
The NSA also cited Exemption 3, which permits non-disclosure when the documents in question are specifically exempted from disclosure by statute. PPSA responded that “the NSA Act cannot justify the NSA’s categorial Glomar response because that statute, at best, authorizes withholding merely portions or sub-categories of responsive records.”
PPSA suggested that if NSA holds to these exemptions, it should still use its authority to issue a waiver to release this data. Otherwise, refusing to answer such a troubling question only highlights concerns about a surveilled democracy at the heart of PPSA’s request. To do otherwise, “potential agency misconduct puts a shadow on the NSA and other involved agencies.”
The worst outcome for NSA, PPSA’s filing suggests, would be adversarial litigation forcing the agency to come clean.
“Those troubling violations of separation-of-powers may well have been intended to serve the Executive Branch’s own institutional purposes rather than legitimate national security interests,” Schaerr wrote.
The intelligence agencies are presumably under the oversight of Congress. But for decades, relatively few Congressional staff members were given the top secret/sensitive clearances to review materials necessary to effective oversight.
These staffers were mostly limited to working for members on a few select committees, such as the House and Senate intelligence committees, as well as the leadership offices. Often, staffers with high enough clearance to review classified materials were “detailees” from the very agencies and departments they were meant to help oversee.
That has now changed, thanks to Senate Majority Leader Chuck Schumer.
At a caucus lunch with Democrats, Sen. Schumer announced that top secret/sensitive clearance will be available for one personal aide per senator, in addition to existing clearances for staff. That means 100 more staffers will be available to assist their bosses in trying to keep the intelligence community in line with the U.S. Constitution.
“Majority Leader Schumer has taken a bold step toward improving oversight of agencies by the entire U.S. Senate,” said Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability. “With enhanced oversight, we are hopeful that more senators will get engaged with the question of why the government refuses to answer our repeated filings to discover if it has spied on Members of Congress.”
Analisa Torres, a federal judge from the Southern District of New York, made the right call last week in ordering the Department of Justice to stop the “extraction and review” of contents from two cellphones belonging to Project Veritas founder James O’Keefe.
This order followed a raid on O’Keefe’s home and that of two of his colleagues presumably to learn the identities of “tipsters” who gave the conservative journalist access to the diary of President Biden’s daughter, Ashley Biden. The FBI launched a pre-dawn raid on O’Keefe’s home, handcuffed him and removed his electronic devices.
O’Keefe told Fox News:
“They confiscated my phone. They raided my apartment. On my phone were many of my reporters’ notes, a lot of my sources unrelated to this story and a lot of confidential donor information to our news organization.”
O’Keefe acknowledges Project Veritas was given the diary, but insists he had no idea that the diary was stolen. He also maintains that he had turned it over to law enforcement, sought to turn it over to a lawyer for Ms. Biden, and had not published its contents.
Provided that O’Keefe is telling the truth that he or his colleagues were not involved in skullduggery behind the theft of a diary, his actions were no different from that of many other journalists. ACLU, which is no admirer of O’Keefe and said a reasonable observer could question if Project Veritas’s activities are journalism, nevertheless condemned the actions of the FBI as bad precedent. ACLU’s Brian Hauss wrote:
"Unless the government had good reason to believe that Project Veritas employees were directly involved in the criminal theft of the diary, it should not have subjected them to invasive searches and seizures."
The same justification for rifling through physical or digital files in this case could have been made for any number of award-winning investigative works by The Washington Post and The New York Times, where anonymous sources provided access to information. Perhaps with this in mind, Times media columnist Ben Smith tweeted: “Don’t think journalists should be cheerleading this one.”
Whatever one thinks of O’Keefe and his gonzo journalism from the right, the heavy-handed surveillance of any journalist is a deterrent to reporting, prior restraint inimical to the First Amendment by misusing the Fourth.
PPSA Brief: “Don’t Allow Seventh Amendment to Destroy First and Fourth Amendment rights"
In the recent Supreme Court oral argument for FBI v. Fazaga, most of the questions from the Justices focused on the technical relationship between the state-secrets privilege – which allows the government to withhold classified information from a trial – and the Foreign Intelligence Surveillance Act (FISA).
The Justices showed considerable skepticism about the U.S. 9th Circuit Court of Appeals ruling that held that Section 1806(f) of FISA permits a federal district judge to privately review information from surveillance. Most of the questions centered around this statute, while leaving unaddressed many of the monumental constitutional concerns. But as we’ve explained before, at heart in this case is whether the courthouse door can remain open in any fashion to injured citizens once the government invokes the state-secrets doctrine to hide evidence of potential constitutional violations by that same government and its agents.
In their deliberations, PPSA hopes the Justices return to the core issues set out in our amicus brief, where we explained that this “case, at bottom, asks how parties whose constitutional rights have been violated by the government can vindicate those rights if the government invokes the state-secrets doctrine.”
Our brief notes the irony of the FBI agents claiming that the government’s state-secret doctrine would deprive them of their Seventh Amendment rights as well. In oral argument, Justice Samuel Alito criticized the idea that a judge could review secret evidence and find against the FBI and its agents without their attorneys being present. “Isn’t that the Star Chamber?” he asked.
Justice Amy Coney Barrett also briefly touched upon the constitutional concerns raised by use of the state-secrets doctrine to fully suppress any review of supposedly sensitive evidence. But she too was more concerned about the impact that allowing limited the access to such evidence might have on the constitutional rights of the defendants, ignoring the far greater impact denying access has on the constitutional rights of the plaintiffs. She expressed concern that the individual defendants would be forced to “just go in with their hands behind their back” and would be left “sitting ducks.”
But both justices, however, ignored that the disabling of rights works both ways.
Justice Barrett was correctly concerned about the impact of the state-secrets doctrine on defendant’s right to a jury trial. But she should have also focused on the far greater impact that doctrine has on the constitutional rights of the plaintiffs – both to have a jury trial of their claims, as well as to vindicate the underlying alleged violations of their First and Fourth Amendment rights. As PPSA demonstrated in its amicus brief to the Court, once the state-secrets doctrine is invoked, plaintiffs are also in a bind and their rights are often sacrificed to the supposedly greater constitutional claims of defendants – the very persons who allegedly violated the constitution in the first place.
In such cases, individual FBI agents invoke their Seventh Amendment right to a jury trial and since the evidence is deemed too sensitive to be shared with a jury, the government succeeds in short circuiting the trial and closing the right of American citizens to seek redress for violations of their rights.
As we wrote: “In both instances of claimed constitutional violations, the responsibility must be with the government to provide a remedy. Whether through the Foreign Intelligence Surveillance Act (FISA) procedures or otherwise, constitutional rights must carry a remedy or else they are meaningless.”
The current application of the state-secrets privilege combined with the invocation of the Seventh Amendment allows the government to completely disregard the First and Fourth Amendment rights of the plaintiffs. PPSA argued that whenever there is such an infringed right, there must be a remedy.
PPSA noted a variety of ways to protect the interests of defendant FBI agents against the seemingly self-serving invocation of the state-secrets doctrine by the government. At a minimum, the cost of such a tactic should be borne by the government, not by either plaintiffs or defendants, with indemnification of defendants if necessary.
Alternatively, a trial could be had with security-cleared counsel and jurors or with limited restrictions on what the jury could hear, either of which preserves constitutional protections better than having no trial at all.
“To hold otherwise, as the federal respondents urge this Court to do, would completely close the courthouse door to Fazaga and others like him whenever national security is implicated. But that would allow the Seventh Amendment to destroy the First or Fourth, or both.”
The Project for Privacy and Surveillance Accountability filed a motion late Wednesday evening asking the U.S. District Court of the District of Columbia to order the federal government to disclose any documents related to possible surveillance of 48 current and former Members of Congress by the intelligence community.
The motion is the latest development in a lawsuit seeking responses to earlier Freedom of Information Act (FOIA) requests concerning the possible surveillance of Members of Congress of all political leanings. Listed targets span from then-Sen. Kamala Harris to Sen. Marco Rubio, from House Intelligence Chairman Adam Schiff to former Rep. Trey Gowdy, all with intelligence oversight responsibility.
“Our motion aims at three issues critical to our democracy,” said Gene Schaerr, PPSA general counsel. “It demonstrates how casually and indiscriminately the government invokes a blanket non-answer reply, called a Glomar response, to lawful requests. It calls into question a serious separation of powers issue in which the executive branch seems to be spying on the legislative branch. And it reveals the disturbing possibility that the committees tasked with the oversight of the intelligence community are being secretly ‘overseen’ by those very agencies.”
PPSA filed its lawsuit in December, 2020, against the Department of Justice and FBI, the Office of the Director of National Intelligence, the National Security Agency, the Central Intelligence Agency and the Department of State. In September, all agencies came back with a “Glomar response” – which neither “confirms nor denies” the existence of such records.
“The Glomar response began as an extraordinary step taken to preserve one of the nation’s most highly classified secrets – the covert raising of a sunken Soviet ballistic missile submarine,” Schaerr said. “This non-textual judicial limitation to the government’s FOIA-mandated disclosure obligations has gradually been stretched into a kind of common-law state secrets privilege used to stonewall and hide evidence of potential malfeasance.”
“Whether or not these agencies have surveilled Members of Congress is not akin to secretly salvaging a nuclear-armed submarine from a foreign power,” Schaerr said. “So why the Glomar responses?”
The PPSA motion reminded the court that the government has a record of spying on Congress. In 2017, the Department of Justice subpoenaed the private phone data of two members the House Intelligence Committee and their families. In 2014, the CIA hacked into a Senate intelligence network used to investigate that agency’s torture program. The Director of the CIA, John Brennan, lied about the agency’s surveillance, saying “we wouldn’t do that.”
The PPSA motion also points out that the intelligence community has elaborate policies for handling information about Congressional identities and for classifying information about Members of Congress. These policies admit to the existence of at least some responsive records that could be disclosed.
“So they have no records on Members of Congress?” Schaerr asked. “That beggars belief.”
In Wednesday night’s motion, PPSA declared that “even under any reasonably limited view of the Glomar privilege for highly sensitive matters” the government failed to justify its obstruction under any of the exclusive and narrow exemptions of the Freedom of Information Act.
“Either these agencies surveil the very Members of Congress charged with overseeing them, or they do not,” Schaerr said. “Given the importance of that issue, and these agencies’ history of doing just that, we’re asking the court to force them to provide an answer.”
The “Glomar response” is the government’s way of giving a non-answer reply to Freedom of Information Act (FOIA) requests. The template for this bureaucratic form of “no comment” derives from a mid-1970s case in which journalists sought information about the CIA’s secret project to use a salvage vessel, the Hughes Glomar Explorer, to bring a submerged Soviet submarine to the surface.
The customary formulation, which The Project for Privacy and Surveillance Accountability has met with many times, is: “We can neither confirm nor deny that our agency has any records matching your request.” No one actually says, “This letter will erupt into flame in five seconds,” but it does have that flavor.
PPSA has at least been able to pry information from the NSA to track the numbers and fluctuations in Glomar responses in recent years. The chart below does this, with a gap in the records from 1992 to 1996. (This chart excludes requests that failed to meet the technical criteria of the agencies and therefore required further follow up.)
Starting in 1996, one can see a dramatic increase in the number of Glomar responses from 1.56 percent of FOIA filings in 1996 to almost 13 percent in 2001. The years of the George W. Bush presidency, interestingly, show a sharp decline in Glomar responses, even while the administration was executing aggressive surveillance programs in the aftermath of 2001, before rising again in 2006.
The takeaway here is that a remedy devised to defend classified projects vital to the national defense has become a routine way to knock aside legal inquiries authorized by law. PPSA has even received Glomar responses from the Director of National Intelligence to a FOIA request seeking information on the possible surveillance of Members of Congress serving on the two intelligence oversight committees in the House and Senate.
Rest assured, PPSA will confirm – not deny – further data from future responses to our requests.
John Durham’s investigation of the 2016 election has managed to outlive the passions of that era. But now that the Durham investigation has its first arrest – former Brookings Institution analyst and Russian national Igor Danchenko – unanswered questions from that time should capture the imagination of anyone who cares about preventing government interference in elections.
Danchenko has been hit with five counts of lying to the FBI, principally about his role in the now-infamous Steele dossier that the Department of Justice Inspector General later found to be a fount of misinformation. One issue, raised by Andrew McCarthy in The New York Post, should be of interest for civil liberties groups of all stripes. When the FBI appears before the Foreign Intelligence Surveillance Court it must present evidence about a threat to national security. But this is not what happened. McCarthy writes:
One question that Durham must be pressing is: What took the Bureau so long? The Obama Justice Department brought the FBI’s sworn claims to the secret federal Foreign Intelligence Surveillance Court in October 2016. Though the FBI is supposed to verify its allegations before going to court, it apparently did not interview Danchenko, the main source for the dossier, until January 2017 – by which time it was obtaining its second 90-day spy warrant.
And the FBI’s efforts, mind you, included the presentation of false evidence before the FISA Court, later leading to the conviction of an FBI lawyer. Curiouser and Curiouser, as Alice would say. Durham’s investigation promises to lay bare a conspiracy to plant false evidence in the minds of judges, the media and the voting public.
From Google to Gong, the names of digital companies can be enough to make one giggle. Gaggle, however, is no laughing matter.
This digital surveillance company is enjoying rapid growth by offering school districts the ability to monitor the emails, class assignments, chat messages, attachments and personal writings of students who sign on to school accounts. Gaggle’s algorithm subjects student content to keyword searches that spit out results for profanity, references to pornography, suicide and violence. These results are sent to administrators, who often act out of alarm before understanding the linguistic and situational context of words that have been redflagged.
That this system has value is not disputed. Gaggle executives told The74 website that the software’s ability to spot potential suicides saved as many as 1,400 youths during the 2020-21 school year. It has saved children from pedophiles and reported death threats.
On the other hand, student surveillance software has all the discretion and sensitivity one would expect from a computer system. For example, the software is reported to have outed an LGBTQ student to parents. It also has no ability to provide context. One 13-year-old Minneapolis student, who attempted to kill himself and underwent the care of an outpatient psychiatric facility, shared his story with his teacher in a school assignment – only to be traumatized when school district security needlessly sprang into action.
Gaggle spits out many false positives. In one case reported by The74, Gaggle conflated profanity in fiction submissions submitted to a student editor for the student’s own comments. The authors themselves received no such alerts.
Eighty-one percent of teachers use at least some type of monitoring software.
The use of student surveillance software began to skyrocket during the pandemic and is still growing. The Center for Democracy and Technology reports that 81 percent of teachers use at least some type of monitoring software. Student surveillance technologies track the websites students visit and identify trends when students use school devices or are signed into school accounts. Gaggle continues to track the 5 million students under its purview 24-7.
No wonder the Center for Democracy and Technology reports that 58 percent of students who say that their school uses monitoring software agrees with the statement: “I do not share my true thoughts or ideas because I know what I do online is being monitored.”
Many school districts claim they are merely adhering to the Children’s Internet Protection Act, which requires schools and libraries that receive federal funds – virtually every public school – to filter and monitor online activity to prevent children from accessing material that is “harmful to minors.” When this law was passed, most Members of Congress were probably thinking of the use of shared desktop computers in libraires and classrooms, not the mobile world in which students’ devices are repositories of all of their personal information.
Three Democratic senators – Richard Blumenthal (D-CT), Edward J. Markey (D-MA), and Elizabeth Warren (D-MA) – sent a lengthy letter to Gaggle’s CEO to express concern “that your company’s products may extend beyond the intent of CIPA to serve to surveil student activity or reinforce biases.” They then provided 12 questions, many with an exhaustive list of sub-questions, regarding disclosures, data handling and potential biases.
As with so many technologies, Gaggle and its competitors offer real benefits – in this case, life-saving ones – while adding one more capability to the comprehensive surveillance of the American people. In higher education, PPSA recently reported on rising student protests against the “surveillance state” on many college campuses. At the very least, we need a better understanding of the scope of student surveillance and control over programs that watch millions of Americans children day and night.