Imagine if the police could search your home – and the contents of your iPhone and other digital devices – by asserting it was for your own good, then charge you with a crime if their warrantless snooping revealed something illegal.
A case currently before the Supreme Court, Caniglia v. Strom, risks making that terrifying hypothetical situation reality. The case asks whether the police may enter a home without a warrant in a “community-caretaking capacity.”
This exception stems from the recognition that police sometimes perform “community-caretaking” functions beyond law enforcement or keeping the peace. The Supreme Court has authorized a narrow subset of warrantless vehicle searches for police fulfilling a community-caretaking role. But the Court has never previously extended that exception to the home. The Project for Privacy and Surveillance Accountability (PPSA) Friday joined with Restore the Fourth to file an amicus brief arguing that such a loophole in the Fourth Amendment “would have been nonsensical to the Framers” and that “permitting entry into the home for such functions would have been even more outlandish.”
“If the government can enter your home without a warrant in a community-caretaking capacity,” said Gene Schaerr, PPSA general counsel, “the government will argue that it may treat electronic sources of information in just the same way. After all, the home has historically been the space most protected from government intrusion.”
Our brief argued that non-investigative searches performed in the name of community caretaking could lead to criminal prosecutions:
“Imagine, for example, that the police believe a person posed a risk to himself or others. Under a broadened view of the community-caretaking exception, the police would be free to conduct a warrantless search of the person’s smartphone to evaluate the risk. The police would then be free to browse through the person’s search history, text messages, call logs, and photos—all in the name of caretaking.”
If any illegal activity was detected, “seemingly benevolent searches would then become an engine for criminal prosecutions even though no warrant was ever obtained, and no probable cause ever existed.”
“Such a precedent could pose a monumental threat to privacy and the foundations of the Fourth Amendment,” Schaerr said. “If this principle were logically extended to our digital devices, which enjoy fewer protections than the home, the most sensitive aspects of a person’s life would be routinely accessible to the government whenever it seeks to perform a community-caretaking function. Big Brother would be watching you for your own good!”
PPSA will continue to monitor the government’s attempts to circumvent the Fourth Amendment’s warrant requirement by expanding exceptions to it.
PPSA is a nonprofit, nonpartisan organization concerned about a range of privacy and surveillance issues—from the surveillance of American citizens under the guise of foreign-intelligence gathering, to the monitoring of domestic activities under the guise of law enforcement. Restore the Fourth is a national, non-partisan civil liberties organization dedicated to the robust enforcement of the Fourth Amendment.
The Fourth Amendment forbids warrantless surveillance of Americans. As we’ve reported before, government agencies are getting around this pesky constitutional requirement by simply purchasing Americans’ private information from data brokers.
In today’s nomination hearing for the Biden Administration’s nominee for Director of National Intelligence, Sen. Ron Wyden (D-OR) asked nominee Avril Haines if she would agree to inform the American people about this growing practice.
“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 under that we do that under … so people have an understanding of the guidelines under which the intelligence community operates.”
“PPSA will keep a close eye on the DNI to see if this promised transparency is forthcoming,” said PPSA general counsel Gene Schaerr. “If it is not, expect to see more FOIA filings citing this pledge.”
In the waning days of the Trump Administration, the leadership of U.S. Customs and Border Protection seems intent on going ahead with a plan to massively increase the use of facial recognition technology at airports and other ports of entry. Under the proposed rule change, nearly all aliens entering or exiting the country would have their “faceprint” collected and stored in a government database for up to 75 years.
This database would then be made available for use by federal and state law enforcement for comparison purposes, and potentially even for use by foreign governments. In calling these plans a “civil liberties disaster in the making,” the ACLU points out consent issues with the collection of “faceprints” and describes the potential risk for “a unique and unprecedented form of persistent surveillance, one that allows the government to identify and track people without their knowledge.”
In short, it would be another step toward making us more like the People’s Republic of China.
This is an issue that PPSA is tracking closely and we will continue to do so as the transition to the incoming Biden Administration unfolds.
Passage of the latest coronavirus relief measure gave Americans something to celebrate in the darkest hours of the pandemic. Surprisingly, the Intelligence Authorization Act (IAA) for 2021—which was included in the coronavirus law—also gave privacy advocates something to celebrate.
Early versions of this year’s IAA left much to be desired. PPSA, along with our allied pro-civil liberties organizations, stood against the worst of the overreaches found in early versions of the bill. With the support of our followers and strong coalition building, PPSA played a role in striking some of the most harmful aspects of the original version of the IAA.
First, the recently passed version of the IAA dropped the requirement for the creation of a Social Media Data and Threat Analysis Center.
This troubling idea, which contained no commensurate requirements for internal guardrails or guidelines, could have easily turned into the Political Threat Analysis Center. PPSA recognized this danger and joined with a number of like-minded organizations such as Demand Progress, FreedomWorks and the ACLU in writing a bipartisan letter to House leadership that played a meaningful role in the removal of this provision.
Second, the advocacy of our coalition might have also played a role in the dropping of an FBI informant hotline aimed at purported espionage activity by Asian-Americans. While the threat of spies sent or recruited by the People’s Republic of China is very real, PPSA is firm in its belief that a Stasi-style informant system risks doing more harm to civil liberties than good. Instead, PPSA supports the included requirement that the impacts of surveillance on the civil liberties of Chinese-Americans be studied annually.
Third, we won a major defensive victory when the final version of the IAA dropped language stating that it is “the sense of Congress” that intelligence agencies are authorized to conduct any needed surveillance not specifically precluded by law.
Such a provision would have essentially enshrined the worst interpretations of Executive Order 12333. While PPSA is thankful for the removal of this language, this is more of a Dunkirk than a D-Day. We must remain vigilant against those who view EO 12333 as a license for unfettered executive branch spying.
Overall, the state of surveillance in 2021 should give privacy advocates reason to feel optimistic. Meaningful change has been accomplished while harmful provisions have been prevented.
In the wake of the disgraceful attack on the U.S. Capitol, we point out that existing investigative tools are allowing law enforcement to arrest the rioters and ring leaders. We should be skeptical of any attempt to use that assault, as heinous as it was, as the basis for yet another anti-terrorism law that subverts the U.S. Constitution.
We’ve seen how effectively the federal government has bypassed that pesky Fourth Amendment requirement for a probable cause warrant by engaging in mass collection of call record data when nobody was looking … or now by simply buying our digital data from data brokers. A similar issue, really a national privacy crisis, is taking place at the local level with something called a “stingray.”
This is slang for a cell-site simulator, which tricks your cellphone into responding to it as if it were a cell tower. It is kind of the digital equivalent of an undercover agent posing as a friend who then snoops around on your phone when your back is turned. Using stingrays, local authorities can and do access data on phones in an area that can be as wide as two miles, sucking up data on everyone, not just the intended target. Authorities will tout it as a way to preempt terrorists and violent criminals, but it is often used by police in routine investigations of nonviolent crimes. In many jurisdictions, what would stop unscrupulous investigators from using stingrays to snoop on political opponents?
California is privacy-challenged in many ways, especially in its attitude toward the privacy of donors to causes that can be targeted for harassment and abuse. When it comes to stingrays, however, the Golden State has taken some reasonable steps. A 2015 California law requires local governments to hold public hearings to include some democratic oversight of how this technology is used in a community. Every state should have a similar law. Such hearings would provide one important forum for addressing the significant constitutional concerns from indiscriminate surveillance and data collection.
In defiance of this requirement, the city of Vallejo authorized its police chief to develop the department’s privacy and usage policy without a public hearing. The lack of public involvement perhaps accounts for Vallejo’s more free-wheeling invasion of privacy as compared to other California jurisdictions: Vallejo’s usage rate for its cell site simulator is approximately 60 percent higher than the usage of the city of San Jose’s police department, despite the fact that San Jose’s population is nine times larger than that of Vallejo.
Late last year, a California state court issued a final decision interpreting the state law in a writ of mandate requiring compliance with the public approval process for Vallejo’s stingrays. Superior Court Judge Bradley Nelson ruled:
“Because any policy’s personal purpose is to safeguard, within acceptable limitations, the privacy and civil liberties of the members of the public whose cellular communications are intercepted, public comment on any proposed policy before it is adopted also has a constitutional dimension.”
One scholar who has followed this closely is Marilyn Fidler, who reports that “California law is the only state I encountered in my research that mandates a comprehensive, public governance process at the local level, which I have argued is particularly important to regulating police surveillance.”
No doubt public hearings are necessary for transparency and democratic oversight. But this should not be a substitute for clear information on the scope and uses of this technology, as well as on what rules are in place to ensure use of stingrays are used within constitutional bounds. This is especially needed given that the ACLU reports the use of stingrays by at least 14 federal agencies.
The FBI has long sought to get around the encryption of data in our personal digital devices. It has tried, and often failed, to coerce Apple and other companies to give it a backdoor into our devices. As the ACLU notes, “between our emails, text messages, location information, social media activity, and more, our cellphones hold almost our entire lives.”
That is why the ACLU was more than a little alarmed to learn of the FBI’s Electronic Device Analysis Unit (EDAU), an in-house team capable of breaking into our personal devices. ACLU reports it has discovered public records that indicate that EDAU appears able to access encrypted information from a locked iPhone.
Concerned, the ACLU filed a Freedom of Information Act request to the Department of Justice and the FBI seeking records about EDAU and its activities. What it received in response was a “Glomar” response – which refuses to confirm or deny the existence of any such records.
This is peculiar. After all, ACLU learned of EDAU through public documents. So such documents are known to exist. The FBI has no basis to deny ACLU’s request.
The ACLU then took the next logical step. Yesterday, it asked a federal court to intervene and order DOJ and the FBI to turn over all responsive documents relating to the EDAU.
ACLU said: “We’re demanding the government release records concerning any policies applicable to the EDAU, its technological capability to unlock or access electronic devices, and its requests for, purchase of, or uses of software that could enable it to bypass encryption.”
The FBI might claim authority to surveil cellphone data with probable cause warrants as required by the Constitution. If that’s the case, then, why the secrecy? There is no reason for the FBI to withhold information about the scope and duties of this new unit.
Many civil liberties organizations have long asserted that facial recognition software could have a disparate impact on minorities. If that sounds like a stretch, consider the revelation that Chinese telecom giant Huawei and several other major Chinese tech firms developed software for that country’s ubiquitous facial recognition system to identity and track people with Uighur origins, the Turkic Muslim people in that country’s far west.
The independent research and watchdog group, IPVM, reports that Huawei inadvertently posted documents revealing its racist software in an online corporate interoperability report. In reaction, Antoine Griezmann, a major French soccer star and Huawei brand ambassador cut his ties to Huawei. A senior Huawei executive in Denmark has also resigned in protest.
This revelation reminds us of the ubiquitous nature of surveillance in China, and the potential for misuse of technology in our own country.
PPSA Sues Six Intelligence Agencies to Produce Records: Have NSA, FBI, CIA Surveilled Members of Congress Who Oversee Them?
The Project for Privacy and Surveillance Accountability (PPSA) today filed suit 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 seeking records that would reveal if these agencies have been surveilling current and former Members of Congress with oversight responsibility of these agencies.
Almost fifty Members are named as being potentially surveilled in the lawsuit. They range across all political leanings, from House Intelligence chairman Adam Schiff to former Rep. Trey Gowdy, from Vice President-elect Kamala Harris to Sen. Marco Rubio.
PPSA had filed Freedom of Information Act (FOIA) requests with these six agencies as early as January 27, 2020. The law requires these agencies to give a timely and substantive response, either the prompt release of the requested documents, or an explanation of why these records are excluded from a FOIA request by statute.
“Their silence speaks volumes,” said Gene Schaerr, PPSA general counsel. “They clearly do not want to answer our requests.”
The FOIA request concerns two intelligence practices under the Foreign Intelligence Surveillance Act (FISA) and its Section 702, which allows foreign surveillance but forbids spying on “U.S. persons” located inside the United States.
The secret FISA court released an opinion stating that in the 2016 election cycle some Americans had their names upstreamed, in violation of government policy. That opinion described the upstreaming of Americans as raising a “serious Fourth Amendment issue.”
The list of 48 current and former members of committees with intelligence oversight responsibility includes:
In an unprecedented step, the Centers for Disease Control is requiring states to enter into data-use agreements that will share personal information of people receiving the coronavirus vaccine with the federal government. The CDC is calling for the handover of information on vaccinated people, including their names, addresses, dates of birth and ethnicities.
There are undoubtedly sound public health reasons for wanting to know this information. But the government must weigh those benefits against concerns both practical and privacy-related. First, there is the worry expressed by New York Gov. Andrew Cuomo that such a list will prompt some groups, such as undocumented immigrants, to be unwilling to receive a vaccine.
Also of concern is the potential for misuse of this data. What exactly are the internal safeguards and guarantees that CDC can make that this information will not be used for any purposes outside of public health? The federal government should ensure that agencies such as ICE or the IRS will not be able to access this information. Otherwise, a vaccine registry would be decidedly unhealthy for privacy.
This is a developing issue that PPSA will continue to follow.
The secret court of the Foreign Intelligence Surveillance Act (FISA) behaves more like an administrative agency than an actual court. CATO scholar Julian Sanchez archly describes the FISA docket history, which includes only requests for surveillance that have been approved, as a “history of yes.”
For those who want to know more about this secret court, how it operates, how its judges are chosen, how the FISA system reinforces the “ideological hegemony” that favors surveillance, we recommend this podcast in which the Electronic Frontier Foundation’s Executive Director Cindy Cohn and its Director of Strategy Danny O’Brien interview CATO scholar Julian Sanchez.
Sanchez makes the case for bringing more technical advice to the court, as well as speaking in favor of a measure PPSA has long been in favor of – the inclusion of independent, outside experts to represent civil liberties interests before FISA judges. This measure, advanced by Sens. Mike Lee and Patrick Leahy and promoted by PPSA, received 77 votes in the Senate before being derailed in the House.
For anyone looking for a better understanding of FISA and its secret court, this EFF podcast with CATO scholar Julian Sanchez is an excellent resource.