2021 Recap: PPSA Defending Privacy in Law, Word and Deed

​The Project for Privacy and Surveillance Accountability looks back at 2021 as a year of achievement, just not in the arena we expected. Significant reform measures to roll back intrusive government surveillance appeared poised to pass in this session of Congress. But lingering bitterness between the two parties from the 2020 election and the Jan. 6 Capitol riot left a rift that made constructive action on most legislative fronts all but impossible.
 
So we pivoted to oppose overreaching government surveillance in the courts, filing briefs in key cases, targeting Freedom of Information Act requests on shadowy programs in need of sunlight, and working with coalition allies to inform and inspire Members of Congress, so they will be ready to act when the current legislative logjam breaks.
 
Surveillance

• Unmasking – PPSA has noted an alarming rise in recent years in the number of unmaskings of U.S. citizens by intelligence agencies. This upward trend in requests to remove the anonymity of Americans who are incidentally caught up in warrantless surveillance has now continued across multiple presidential administrations. PPSA is continuing its years-long legal battle to expose the full extent of this harmful practice, most recently filing an appeal against the NSA and other intelligence agencies after their refusal to respond to Freedom of Information requests on the subject.

 

• Spying on Members of Congress – PPSA has long been aware of the possibility that intelligence agencies are surveilling the communications of Members of Congress. Whether it is using the backdoor of warrantless foreign surveillance combined with unmasking, the DOJ’s seizing of phone records in an attempt to find congressional leakers, or simply buying data from brokers, such intrusions on the independence and security of elected officials cannot be tolerated. PPSA continues its efforts to bring transparency to this issue and is currently appealing refusals from the NSA and other agencies to produce records on possible Congressional surveillance.

 

• State Secrets – PPSA continues to oppose the use of a legal maneuver, the state secrets privilege, which allows the government to hide the full extent of its surveillance activities. This evidentiary rule, which limits the ability of even the Supreme Court to review some cases, is extreme and often used to simply stall an otherwise meritorious claim against the government. This state secrets privilege is at the heart of a pending Supreme Court case, FBI v. Fazaga, in which PPSA has filed a brief in support of Americans’ right to have the facts of their claims fully heard in court.

 
Privacy

• Data Collection – PPSA continues to be concerned about the extent of government collection of data belonging to U.S. citizens. In March, PPSA filed a FOIA request seeking answers on an admission from the government that web browsing data of a U.S. webpage was surveilled. PPSA is also wary of the seemingly commonplace practice of the government buying data of surveillance targets, including Americans, from data brokers. Our online profiles contain a wealth of sensitive and private information and should not be available for purchase by government watchers. PPSA’s efforts on this front included an op-ed in RealClearPolitics authored by former Sen. Mark Udall and former Rep. Bob Goodlatte, both senior policy advisors for PPSA.

 

• Defending the Fourth Amendment in Court – Courtroom advocacy has always been at the heart of PPSA’s agenda. This continued with our strongest Supreme Court term to date. PPSA filed briefs in two successful Supreme Court challenges to illegal searches and seizures. Caniglia v. Strom and Lange v. California, which respectively limited the community caretaking and exigent circumstances exceptions to the Fourth Amendment’s requirement to obtain a search warrant, show just how effective courtroom advocacy can be.

 

• The Fourth Amendment is Not for Sale Act – The growing practice of government agencies simply buying our data from online brokers is a gross violation of the Fourth Amendment. We are actively supporting legislation, The Fourth Amendment is Not for Sale Act, as an effective way to close this loophole and end this practice by requiring government agencies to obtain probable cause warrants when they buy our personal information. PPSA has advocated for passage of this bill since its introduction and has recently partnered with seven other civil liberties organizations to urge House Judiciary Chair Rep. Jerry Nadler to grant the bill a hearing. Mark Udall and Bob Goodlatte argued against the buying of our personal information by the government from data brokers in a Chicago Tribune op-ed. Later, Mark Udall joined with former U.S. Rep. Elizabeth Holtzman to make the same argument in The New York Daily News.

 
Secret Authorities

• Executive Order 12333 ­– PPSA continues to be alert to the abuse of non-statutory surveillance powers. The past year has seen the lapse of several legal authorities believed to be central to the government’s surveillance powers. The lack of reaction from the intelligence community to the expiration of these authorities points toward some alternate program and shadowy authority. The most likely is Executive Order 12333, which former Senate Intelligence Committee Chair Sen. Richard Burr described as an authority the executive branch believes it has inherently, without a statutory basis. PPSA filed suit against the Privacy and Civil Liberties Oversight Board (PCLOB) to determine the extent to which this watchdog agency is performing its oversight role regarding non-statutory (read: lawless) surveillance.

 

• Secret FISA Court Rulings – PPSA continues to support other civil liberties organizations in their efforts to bring accountability and transparency to government surveillance. Of note was a brief filed in support of the ACLU’s challenge to the constitutionality of the secret opinions of the FISA Court.

 
Actions with Coalition Partners

• PCLOB Reform – It has become clear that the Privacy and Civil Liberties Board, meant to be a privacy watchdog, is not up to the task of overseeing the activities of the intelligence community. At no time was this more obvious than in PCLOB’s report on the effect of Executive Order 12333 on privacy and civil liberties. This report, six years in the making, provided only a top-level examination of 12333 with information that could be gleaned from a quick Google search or reading the order’s Wikipedia page. Concerned, PPSA joined with 18 other civil liberties organizations to urge the Biden Administration to appoint qualified nominees to fill three PCLOB vacancies.

 

• Legislative and Legal Efforts – PPSA continues to seek and provide support to like minded organizations wherever we can. PPSA’s support of the ACLU in its challenge of secret FISA Court activities serves as a good example. PPSA also seeks to lead in the civil liberties community with our support of the Fourth Amendment is Not for Sale Act, helping to bring about a coalition to support the bill serving as a prime example.

 
Throughout the year, PPSA has stayed close to Congress, working with coalition partners to educate Members and staff, and holding productive discussions with House and Senate leaders on key committees. We look forward to a productive 2022, both in the courtroom and in the halls of Congress.