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.”
But Will Doctrine Survive Upcoming Reviews by U.S. Supreme Court?
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, the FBI 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.
Government disbands unit that snooped on employees, letter writers
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.
Several of our civil liberties peers have joined us in mounting campaigns to urge followers to contact key Members of Congress to hold hearings on the Fourth Amendment Is Not for Sale Act. Free Press Action is now offering a portal to contact all Members of Congress.
Free Press Action’s language is succinct and its purpose is clear.
“If you have a smartphone or tablet, chances are that federal agencies know where you are right now. Agencies like ICE, U.S Customs and Border Protection, the FBI and others are buying sensitive data, including location data, from the apps we download on our devices — and they’re gaining all of this information without a warrant.
“How can this be? In short, federal intelligence and law enforcement agencies are circumventing Congress, the Constitution and the courts by exploiting a loophole in the law. The laws regulating how the government acquires your data were written before the age of apps and digital data brokers — and federal agencies are taking advantage.”
The Fourth Amendment Is Not for Sale Act would close this loophole, ensuring that federal agencies can’t buy our private location data from apps or digital data brokers. Free Press Action urges hearings in the House and Senate Judiciary committees to move this legislation forward.
Click to the Free Press Action portal to tell Congress to pass the Fourth Amendment Is Not for Sale Act.
The word “lacuna” comes from a Latin expression that meant “to jump into a pit.” The gaps and redactions in government responses to Freedom of Information Act (FOIA) request can sometimes feel like a leap into the void. But occasionally, the government reveals a glimpse of something hidden in the void.
Start with the Office of the Director of National Intelligence, which admitted to at least one 2019 order from the Foreign Intelligence Surveillance Act court that involved the collection of web browsing data from a U.S. web page. The Project for Privacy and Surveillance Accountability responded with a FOIA request on Feb. 4 asking the FBI to produce agency records mentioning the collection of web browsing data either originating in the United States or related to any U.S. person or person located within the United States.
PPSA also asked for records on reports, rules, regulations, memoranda, policies, communications or training materials that discuss such collection.
The FBI responded quickly, on Feb. 22, claiming the “request is overly broad … it does not provide enough detail to enable personnel to locate records ‘with a reasonable amount of effort.’” On Aug. 27, the FBI came back with another explanation that releasing the material “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”
However, attached to that second response was the cover page for a document, “Advanced Electronic Surveillance and Searches Policy Directives and Policy Guide.” The cover sheet shows that this document, published on July 17, 2013, was reviewed (and presumably updated) on July 26, 2019.
“This shows that the FBI has a secret policy governing the collection of web browsing data of Americans,” said Gene Schaerr, PPSA general counsel. “Web browsing data is deeply personal information. It can highlight a person’s religious beliefs, political allegiances, and personal relationships.
“Surely the Fourth Amendment implications of a broad policy governing the surveillance of the browsing history of people within the United States is worthy of public disclosure and discussions,” Schaerr said.
The Project for Privacy and Surveillance Accountability today joins 18 other civil liberties organizations in calling on the Biden Administration to appoint qualified nominees to fill three empty seats on the Privacy and Civil Liberties Oversight Board (PCLOB).
PCLOB is an independent, bipartisan privacy watchdog established by Congress to bring transparency and accountability to federal surveillance in counterterrorism programs. At present, this bipartisan board lacks a chair and cannot attain a quorum. Worse, PCLOB has recently degenerated into an intelligence agency lapdog instead of a watchdog. It is an embarrassment to rubber stamps everywhere.
PCLOB needs more than a quorum. It needs nominees who are curious, have expertise, are energetic and willing to perform the watchdog function.
EO 12333 is an executive order issued by President Reagan in 1981 to organize the government’s collection, analysis and use of foreign intelligence and counterintelligence. Sen. Richard Burr, former chair of the Senate Intelligence Committee, astonished the civil liberties community last year when he said that 12333 allows the executive branch to do whatever it wants, without statutory authority. Many privacy experts remain concerned that with the expiration of Section 215 of the Patriot Act, the “business records provision,” intelligence agencies have simply switched to 12333, in which the executive branch provides its own legal authority.
So what light did PCLOB shed on these vital issues? After six years of examination, it created what is in essence a high-school level book report. One can literally glean as much information from Google and Wikipedia … this, after six years of what PCLOB called a “deep dive review” of classified information.
Freedom of Information Act (FOIA) request. This FOIA was filed in response to an earlier request filed by Patrick Eddington of the CATO Institute for records on EO 12333. PPSA is still waiting for the production of those records.
“We have seen what can happen when Board members fail to vigorously pursue the Board’s oversight mission,” the coalition letter says. “Years of work can be reduced to reports that provide little if any information or, worse, remain hidden from public view.”
PPSA urges President Biden to appoint qualified nominees as soon as possible.
PPSA Files Lawsuit Today to Learn: Does the FBI Spy on Members of Congress Who Question Its Surveillance, Unmasking Practices?
The Project for Privacy and Surveillance Accountability filed a lawsuit today in the U.S. District Court of the District of Columbia against the Department of Justice and FBI. PPSA is seeking records in which Members of Congress queried U.S. intelligence agencies about surveilling them and their colleagues.
“Spying on Members of Congress for suggesting that they’ve been spied on would be the kind of circular logic our government excels at,” said Gene Schaerr, PPSA general counsel. “Could Congressional criticism prompt government surveillance of these very Members?”
Members of Congress who have questioned the surveillance policies of administrations of both parties continue to voice suspicion that they may have been spied upon by the agencies they oversee. With this concern in mind, PPSA filed a Freedom of Information Act (FOIA) request with the FBI on Dec. 13, 2019, asking for information on the unmasking of a dozen members and former members of Congress who had made public inquiries into the U.S. intelligence community’s surveillance of them. PPSA specifically targeted correspondence between intelligence agencies and these Members of Congress, Congressional leadership and intelligence agencies about the unmasking of Members of Congress.
PPSA’s lawsuit holds that if Members of Congress have queried these agencies, as they have publicly said they have, then the records of this correspondence must surely exist.
On Oct. 13, 2020, the FBI denied the FOIA request and issued a “Glomar” non-response response that neither confirms nor denies the existence of such records. Having further exhausted all administrative remedies, PPSA today filed a lawsuit to compel the Department of Justice to produce these records.
“Americans deserve to know if a Member of Congress can be targeted for surveillance for daring to question the activities of intelligence agencies,” Schaerr said. “Under our Constitution, it is Congress that should oversee intelligence agencies, not the other way around.”
We commend Apple for delaying the rollout of its iPhone update to scan images and compare them to a database of Child Sexual Abuse Materials (CSAM). While everyone recognizes that Apple’s motives are commendable, there are more than a few devils in its details.
Apple pledged to use digital tools that would compare encrypted images stored in the cloud to CSAM databases in a way that not even Apple could use to access. Apple also pledged to have a rigorous auditing process.
An excerpt from TechCrunch explains the hidden dangers with this approach:
[S]ecurity experts and privacy advocates have expressed concern that the system could be abused by highly resourced actors, like governments, to implicate innocent victims or to manipulate the system to detect other materials that authoritarian nation states find objectionable.
TechCrunch also reports that researchers were able to create the means to trick the system into thinking two entirely different images were the same. Under this scenario, it is easy to imagine that a repressive foreign government could silence a critic in the United States or elsewhere by framing him or her as a collector of child pornography.
Over the next few months, Apple, outside experts and civil liberties organizations should join forces to look for ways to weed out illegal images without opening a backdoor into consumer accounts.
Consider: With a single click from a smartphone or capture from a public camera, the government can now identify you and sweep your social media. This means that at a glance, the government can know how you vote, your religious beliefs, your relationships and activities.
The power of this technology for surveillance is chilling, but also tempting for those tasked with law enforcement and intelligence collection. The General Accounting Office last week reported that 10 of 24 federal agencies surveyed plan to broaden their use of facial recognition technology by 2023. Ten agencies are also investing in research and development for the technology.
At the forefront in commercializing this technology is Clearview AI, the controversial startup that is a leader in providing facial recognition capability to public entities. In late August, Business Insider discovered a contract between Clearview and the U.S. Army’s Criminal Investigation Command.
At the same time, the story broke that Clearview AI’s controversial facial-recognition system has been trialed by police, government agencies, and universities around the world. BuzzFeed News revealed that Clearview, following the grocery store model of giving away free samples, is offering its technology on a trial basis to law enforcement agencies, governments, and academic institutions in 24 countries, including the UK, Brazil, and Saudi Arabia.
The only negative news for Clearview in the last week came in an Illinois state court, where the company stands accused of violating the Illinois Biometric Information Privacy Act. This ACLU and ACLU of Illinois lawsuit against Clearview moved forward when a judge rejected Clearview’s contention that the First Amendment protected its surveillance activities.
The use of facial recognition technology, if not checked, will soon be ubiquitous and inescapable. A recent House Judiciary Committee hearing on the government’s pervasive use of facial recognition technology brought leading Democrats and Republicans together to warn of the potential of this technology to encroach on our fundamental rights as Americans.
Chairman Jerrold Nadler began the hearing by noting “facial recognition technology has proliferated in a manner largely unchecked by Congress.” He spoke of a rising tension between this technology that is now a commonplace fixture in our lives, but one the American people have little understanding how pervasive and powerful it actually is.
Ranking Republican Jim Jordan added that a recent GAO report “makes clear that the federal law enforcement agencies using facial recognition technology haven’t even assessed the risk when using this technology.”
Some other choice excerpts from the hearing:
Rep. Karen Bass, (D-CA), on Error Rates
“We can be certain of one thing: most if not all facial recognition systems are less accurate for people of color and women. For the most part, we can be confident that the darker your skin tone, the higher the error rate. Studies have found error rates in facial recognition software to be up to 34 percent higher for darker skinned women than lighter skinned men. It is not just sometimes wrong; it can be wrong up to a third of the time.”
Rep. Andy Biggs (R-AZ) on Constitutional Rights
“I am also concerned about the potential for First and Fourth amendment erosions that facial recognition technology can cause. Law enforcement agencies could potentially use the systems for the surveillance of individuals not involved in any suspicious activity whatsoever.”
Barry Friedman, New York University School of Law, on Different Kinds of Harms
“There are very, very serious costs, very, very serious potential harms. There are racial harms from the disparities. There are privacy harms. There are harms of giving too much power to the government, as we can all see by the use of this technology by totalitarian governments.”
Kara Frederick, The Heritage Foundation
“Reports that the Biden administration intends to expand the use of private companies unencumbered by constitutional strictures, and with a history of reckless privacy practices are troubling. Although government entities like the DHS have long used private firms to identify patterns in publicly available information, a renewed push to make use of outside expertise for domestic spying on the heels of the new White House plan to counter domestic extremism portends potential Fourth Amendment concerns.
“Now, multiple data sources can be aggregated and synchronized to allow governments to look for patterns in citizens’ behavior.
“This can engender a climate of fear, self-censorship, and the chilling of free speech and the right to peaceably assemble in public places. While authoritarian powers like China are at the bleeding edge of using facial recognition for internal control, the demonstrated inclination by governments to expand these powers in democratic nations renders the slope a slippery one. And we know that once these powers expand, they almost never contract.”
Barry Friedman informed the committee that recent studies of facial recognition technology by the National Institute of Standards and Technology (NIST) are not telling us much about the accuracy of this technology when law enforcement uses it, because the government uses it with a different process and much larger databases.
No wonder many groups – from the ACLU to the Heritage Foundation – are questioning the expansion of facial recognition technology by law enforcement. Many civil liberties groups are calling for a complete halt to the use of the technology. At the very least, absent serious “hot pursuit” cases, it makes sense to require probable cause warrants to use it. The enormous data generated by facial recognition technology should not be a stocked pond in which the authorities can always go fishing.
Do Americans who feel protected against “unreasonable searches and seizures” have an unreasonable expectation?
That clause, of course, comes from the Fourth Amendment. The Founders’ farsighted handiwork bequeathed to us the sacred gift of court-ordered warrants with which, in the interest of ordered liberty, perfectly reasonable searches and seizures can be conducted by officers of the law.
Most Americans, if they read the news, know that over the past several decades the surveillance state has notably undermined the Fourth Amendment and our sense of personal security. Add to that the ever-growing suspicion that private parties spy on our web searches, and suddenly our expectations of privacy vanish into the constitutional ether.
What would it take to push us over the precipice into a dread state of Big Brother Orwellia like the People’s Republic of China? Perhaps it would be a public-private partnership combining the will of the political state with the capability of the private sector. Remember that in any such partnership, the senior partner is always the one with the legal monopoly on coercion.
Consider Homeland Security Secretary Alejandro Mayorkas, who has emerged as an enthusiastic proponent of such an unconstitutional combination of public power and private technology. Also consider the disturbing White House confirmation that the Department of Homeland Security (DHS) has been working with big social media companies to monitor and censor Covid-related “misinformation.” Now Mayorkas intends to forge alliances with social media to search for “extremist” content.
“Who’s an extremist?” asked Bob Goodlatte, the former House Judiciary chairman who now serves as senior policy advisor to Project for Privacy and Surveillance Accountability. “In some cases, it depends on who you ask. Are all controversial people now going to be surveilled by the government for their ideology?”
Not amused, Rep. Jim Jordan, R-Ohio, wrote to the secretary, “According to recent reports, DHS intends to use third-party contractors to spy on the social media communications of American citizens for signs of ‘extremist’ threats.”
This, Jordan continued, “is even more dangerous when viewed in the context of DHS’s prior targeting of American citizens for holding benign political opinions. Although the reports indicate that DHS intends to monitor ‘extremist’ threats, the Department has a history of targeting Americans for holding ‘suspicious views,’ such as being pro-Second Amendment, favoring lower levels of immigration, or opposing the use of force by police.”
Jordan’s letter, giving a Sept. 1 deadline, demands Mayorkas provide detailed communications between DHS staff and with social media companies pertaining to his surveillance project.