One of the main shortcomings of the Section 702 extension bill authored by the House Permanent Select Committee on Intelligence (HPSCI) is that it includes no provision to restrict the sale of our personal, sensitive information scraped from our apps, sold to the government by data brokers, and routinely accessed by about a dozen federal agencies without a warrant.
As we’ve written before, the information captured by data brokers can be more intimate than a diary, containing our financial and health records, details of our dating lives, as well as our political or religious associations. Every now and then, a revelation pops out – such as the Pentagon’s spying on a Muslim dating app. But the overall danger remains somewhat abstract to most people.
Now, thanks to Aram Sinnreich and Jesse Gilbert in Rolling Stone, we can better visualize how much usable information can be easily obtained from just one broker of consumers’ commercially available data. They contracted with Near, which aggregates smartphone location data to trace the foot traffic of about 1.6 billion people in 44 countries. To demonstrate the power of this technology, Sinnreich and Gilbert – using their laptops from their couches – purchased location data on visitors to and from former President Trump’s Mar-a-Lago estate. They wrote:
“Within a few minutes, we had a report profiling thousands of visitors to Trump’s club over the course of an entire year, including details like where they live and work, their ages, incomes, ethnicities, education levels, where they were immediately before visiting, and where they spent their time on property once they got there.”
The authors note that Near is just one of hundreds of such services. A well-funded or state-sponsored effort could easily generate rich intelligence and the stuff of blackmail by combining the information from multiple data brokers with data from hundreds of apps, including common games most people download on their smartphones. If they can do this to a former president, Sinnreich and Gilbert write, they can certainly do it to you.
This story ought to prompt Congress to seize the reauthorization of Section 702 as an opportunity to place restrictions on warrantless government access to our most personal information.
More than 50 House Members from both parties signed a letter authored by Rep. Warren Davidson (R-OH) and Zoe Lofgren (D-CA), warning House and Senate leadership not to reauthorize and extend Section 702 of the Foreign Intelligence Surveillance Act alongside the “must pass” National Defense Authorization Act (NDAA).
“If Section 702 is to be reauthorized for even a single day, it must be through standalone legislation subject to robust, open debate and amendment,” the House Members state. “This controversial law has a history of abuse, including spying on Americans, including tens of thousands of protestors as well as journalists, campaign supporters, Members of the U.S. Congress, and presidential campaigns.”
Signers include House progressive leaders like Rep. Pramila Jayapal (D-WA), Rep. Ro Khanna (D-CA), and Rep. Jamie Raskin (D-MD), as well as solid conservatives ranging from Rep. Andy Biggs (R-AZ) to Rep. Ben Cline (R-VA) to Rep. Harriett Hageman (R-WY).
“[S]lipping a short-term reauthorization into a larger bill would rightly be seen as circumventing the democratic process, ignoring the will of Congress, and disregarding the concerns of the American people,” the House Members conclude.
PPSA hopes House and Senate Leadership see the blinking red lights here. If leadership were to override the long-pent up debate over Section 702 – enacted by Congress to surveil foreigners on foreign soil but often used by the FBI and other federal agencies as a domestic spy program – it would leave a legacy of bitterness, suspicion, and distrust from which the intelligence community might never recover.
Will Dream Security Tech Be Marketed More Ethically than Pegasus?
According to the Wall Street Journal, Shalev Hulio, former chief executive of NSO Group, the company behind the controversial Pegasus spyware, has launched a new cybersecurity firm in the wake of the Israel-Hamas war. The company, Dream Security, uses artificial intelligence to identify and analyze cyber threats.
So far, the company is already valued at more than $200 million, with customers in Israel and Europe. The need is obvious: European governments and other critical infrastructure have seen increased cyber risks since Russia invaded Ukraine in February 2022. After the recent Hamas raid and atrocities, Israel itself has become a red-hot target.
Israel needs and deserves every advantage it can muster in protecting itself. But given the history of NSO and Pegasus, we must raise concern about the risks if Dream Security products were to be sold – as Pegasus was – to irresponsible and dangerous foreign governments and hostile actors. Pegasus has already been implicated in facilitating the murder of journalists and at least one dissident, spying on State Department discussions about an abducted American, and used by politicians in Spain and India against journalists and rivals.
Artificial intelligence is a nascent technology. There is no telling how it may yet impact the evolving nature of modern warfare, even if developed for defensive purposes. We support any technology that enhances the security of the Israeli people. But it is in everybody’s best interests that Dream Security commits to only doing business with responsible state and corporate actors. PPSA will be monitoring this story as it develops.
Proposes GAO Investigation of CIA’s Section 702-Like Program
As Congress debates reform of Section 702, Patrick Eddington, former CIA analyst turned Cato Institute senior fellow, offers a timely reminder of how much we don’t know about government surveillance of Americans.
In a piece in The Orange County Register, Eddington writes that for years prior to the 9/11 attacks, the CIA was “apparently conducting exactly the kind of internet ‘backbone’ surveillance now carried out under FISA Section 702 … with absolutely no judicial oversight.”
Eddington notes that it took a lawsuit under the Freedom of Information Act against the Privacy and Civil Liberties Oversight Board (PCLOB) to reveal an audit by the Inspector General of the CIA that covered 1999-2000. The audit is heavily redacted.
Despite the fact that millions of Americans live, work, and travel abroad, under the CIA’s Section 702-like program, the agency presumed a target was foreign when starting collection. The CIA only allegedly ended collection when it discovered the target was in fact an American. The CIA IG report admitted it “was unable to review every regulated activity.” Did other CIA collection activities ensnare the communications of Americans?
Most important, Eddington writes that the redactions prevent us from knowing if this CIA program was terminated or if it still operating.
What can be done? First, Eddington points to Rep. Nancy Mace (R-SC) and Jamie Raskin (D-MD), who last year tasked the Government Accountability Office to investigate the FBI’s use of “assessments” – de facto investigations that can be opened on any person or organization absent any criminal predicate. Eddington proposes Congress instruct GAO to expand its surveillance program inquiry to include the CIA’s surveillance program.
A good place for the GAO to start would be to determine if this program is, in fact, still in operation.
Second, Congress should look to the solutions of the Government Surveillance Reform Act to curb widespread abuses, including those in FISA’s Section 702, which also targets digital communications passing through the backbone of major telecommunications firms and internet service providers’ networks. The absence of sunlight is sure to provide a breeding ground for many abuses.
Last week, we suggested that the last days of November could prove decisive for reform of Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Now word has broken that Congressional leadership is contemplating bypassing Congressional debate by attaching Section 702 to the must-pass National Defense Authorization Act (NDAA), which keeps the military afloat, alight, and on its feet. We are hearing that some wish to attach a version authored by the House Permanent Select Committee on Intelligence (HPSCI), a bill that has at best weak, cosmetic reforms of this authority.
Such a move would arm-twist a bicameral, bipartisan majority that wants substantive reforms in Section 702. This majority exists because Section 702 is a program enacted by Congress to surveil foreigners on foreign soil but has been used by the FBI and other agencies as a domestic spying program. In a recent year, Section 702 has been used to warrantlessly capture the communications of 3.4 million Americans. If House and Senate leaders choose this path, it will force Members into an up-or-down vote on a critical bill, with limited debate and no opportunity to make last-minute amendments.
In a letter to Congressional Republicans, former House Judiciary Committee Chairman Bob Goodlatte and PPSA Senior Policy Advisor laid out what’s so wrong with HPSCI’s approach:
“There is no reason to rush this process and give the Administration what it wants by sneaking HPSCI’s deeply flawed proposal into the NDAA,” Goodlatte wrote. “In fact, the current Section 702 FISA Court certification does not expire until April 10, 2024, which means Congress has several months to put together a package of real reforms that could justify extending Section 702.”
Attaching Section 702 to the NDAA would derail the work of the House Judiciary Committee, which shares jurisdiction over intelligence programs with HPSCI. The House Judiciary Committee is well down the path of drafting a bill. Extending the NDAA would be a sign of significant disrespect for this committee and all the Members, left and right, who have shown a strong interest in debating this program.
“Instead of jamming Members and daring them to oppose the NDAA, Leadership should proceed through regular order and let the House Judiciary Committee lead the way with its bipartisan surveillance reform efforts, drawing inspiration from the Government Surveillance Reform Act of 2023,” Goodlatte wrote. “This issue is far too important to turn it into a game of political chicken in the NDAA.”
A recent opinion-editorial in The Hill casts a harsh light on the unfolding state of “digital authoritarianism” in America’s schools. Public schools are increasingly adopting artificial intelligence to monitor students and shape curricula. This trend could ultimately have the effect of stifling education, invading privacy, and changing the attitude of adult American society about pervasive surveillance.
Civil rights attorney Clarence Okoh writes that “controversial, data-driven technologies are showing up in public schools nationwide at alarming rates.” These technologies include AI-enabled systems such as “facial recognition, predictive policing, geolocation tracking, student device monitoring and even aerial drones.”
A report compiled by the Center for Democracy & Technology found that over 88 percent of schools use student device monitoring, 33 percent use facial recognition and 38 percent share student data with law enforcement. These surveillance technologies enable schools to punish students with greater frequency.
A study conducted by Johns Hopkins University found that students at high schools with prominent security measures have lower math scores, are less likely to attend college, and are suspended more often compared to students in schools with less surveillance. The study claims to factor out social and economic background data. Okoh highlights a Florida case in which the sheriff’s office has purportedly used a secret predictive policing program against vulnerable schoolchildren. At some point, the punishments of “predictive” behavior could easily become a self-fulfilling prophecy.
A group known as the People Against the Surveillance of Children and Overpolicing (PASCO) has found through litigation and open records requests that the Pasco, Florida, sheriff’s office has a secret youth database that contains the names of up to 18,000 children each academic year. According to PASCO, the sheriff’s office built this database using an algorithm that assessed confidential student records: everything from grades, attendance records, and histories of child abuse are used to assess a student’s risk of falling into “a life of crime.”
Many programs directly target minority students. Wisconsin uses a dropout prevention algorithm that uses race as a risk factor. Such modeling, mixed with surveillance software in schools, could have a demonstrably harsher impact on minority students, leading to higher suspension rates.
State legislators need to drill down into these reports and verify these claims. One avenue to explore is the role of parents in this process. Are they informed of these practices? Have they been sufficiently heard on them? We have sympathy for why some schools would feel the need to resort to such tactics. But if these facts pan out, then artificial intelligence has just opened up a new front – not just in the war on privacy, but one that could seal the fate of children’s future lives.
It also could have an impact on adult society as well. An elementary school student might not understand what it means to be surveilled 24/7 and could become accustomed to it over time. This could lead to a generation of Americans who are inured to ever-present monitoring. If digital authoritarianism becomes the norm in school, it will soon become the norm in society.
PPSA looks forward to further developments in this story.
Congress will barely have time to recover from tryptophan-induced drowsiness when it returns next Monday for a critical week in surveillance reform.
The House Judiciary Committee will begin its long-anticipated markup of a surveillance reform bill. Expect a bipartisan group of reformers to incorporate ideas from the well-crafted and balanced solutions of the Government Surveillance Reform Act into their bill.
The champions of the surveillance status quo are not resting either. Undeterred by the recent revelation of a secret telephone surveillance program being run out of the White House, supporters of the status quo will attempt to make an end-run around reform by trying to win an extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA) by including it in the National Defense Authorization Act (NDAA).
PPSA joined with 32 other groups, ranging from the American Civil Liberties Union and the Brennan Center to Americans for Prosperity and FreedomWorks, to call on Members of Congress to resist any effort to try to extend Section 702 by attaching it to must-pass legislation. Our letter warns against extending Section 702:
“In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and – ultimately – far-reaching reforms. That process should begin with the judiciary committees, which have primary jurisdiction over legislation affecting Americans’ constitutional rights and civil liberties, including FISA. Bypassing this process by slipping an extension of the law into the defense authorization bill during conference would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.”
The letter notes that even a short-term reauthorization is unnecessary given that under current law the government will be able to conduct surveillance under Section 702 until April 2024.
The danger, our letter warns, is that the government might take advantage of any short-term reauthorization of the law to go back to the FISA Court and obtain another one-year authorization for the surveillance. “Given this likelihood, even a two-month extension of the law could result in a de facto extension of Section 702 surveillance into 2025. Congress cannot in good conscience greenlight such a measure after the egregious abuses that have taken place …
“We urge you not to betray the trust of the American people by following such a course of action.”
That’s tough language. It also reflects how much will be at stake when Congress comes back next week.
Contact your Members of Congress to let them know you expect them to stand firm on surveillance reform.
When Richard Nixon wanted his minions to run a super-secret surveillance operation that came to be known as the White House Plumbers, the president had it set up in Room 16 in the basement of the Executive Office Building. A recent White House memo obtained and reported by Wired shows that a massive dragnet surveillance program – warrantlessly scooping up phone records from Americans by the trillions – is now being run out of the White House today.
This program, currently called Data Analytical Services (DAS) allows federal, state, and local law enforcement to mine the details, though not the content, of Americans’ calls. As a study at Stanford University showed, metadata alone can reveal startling amounts of highly personal information. When the government adds “chain analysis” – moving outward from one target to the person he or she communicated with, and on to the next person – vast networks of associational groups, whether religious, political, or journalistic, can be X-rayed.
“In response to a 2019 Freedom of Information Act request the Project for Privacy and Surveillance Accountability filed jointly with Demand Progress, we received a document from the Drug Enforcement Administration with a redaction into which one could easily fit the word ‘Hemisphere’” said Gene Schaerr, PPSA general counsel. “Hemisphere was the name of this warrantless surveillance program until it was rebranded as Data Analytical Services. Clearly, the government was holding on to something it didn’t want us to see. We had no idea, however, they were hiding it in the White House. With the ‘two-hop’ rule, government at all levels can not only target an individual, but also her spouse, children, parents, and friends.
“This is nothing less than warrantless, dragnet surveillance at the national level,” Schaerr said.
There is as of yet no evidence that implicates this program in political surveillance. But as with the Nixon Administration, running a program out of the White House has unique advantages. In the current era, a White House operation is not subject to the requirement to review its privacy impacts. It also cannot be subject to FOIA requests. Wired reports that the memo shows that over the years the White House has provided more than $6 million to target the records of any calls that cross AT&T’s infrastructure. Wired also reports that White House funding had intermittent starts and cancellations under the current and last two presidents. Still, the program seems to have been in continuous operation for over a decade.
Internal records suggest that the government can access records held by AT&T for at least ten years. These records include the names of callers and recipients, the dates and times of their calls, and their location histories, although the 2018 Supreme Court opinion, Carpenter v. United States, established a warrant requirement for location data.
On Sunday, Sen. Ron Wyden (D-OR) fired off a letter to Attorney General Merrick Garland saying, “I have serious concerns about the legality of this surveillance program, and the materials provided by the DOJ contain troubling information that would justifiably outrage many Americans and other Members of Congress.”
This breaking news story is certain to provide more momentum for the Government Surveillance Reform Act (GSRA), and the inclusion of a broad warrant requirement and other reforms within a House Judiciary Committee reform bill now being drafted. As this story makes clear, we must have these reforms before any extension of Section 702 of the Foreign Intelligence Surveillance Act can be contemplated.
Revival of Notorious ‘Lone Wolf’ Spying on Americans’ Browsing, Biometrics?
The intelligence community and its champions on Capitol Hill are frantic, perhaps even panicked, as they see the approach of the end-of-the-year deadline for the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. The result is a furious throw-spaghetti-at-the-wall strategy in a vain effort to get something to stick – as long as it doesn’t look like reform.
At the heart of this controversy is whether this authority – enacted by Congress to enable the surveillance of foreigners on foreign soil – should require a probable cause warrant, as mandated by Fourth Amendment, when the government examines Americans’ personal communications collected under Section 702. The White House declared that a warrant for such U.S. person queries would constitute a “red line.” It is not clear, however, if President Biden would actually follow through on his threat to veto the reauthorization of Section 702.
FBI Director Christopher Wray in prepared remarks said that having a warrant requirement would entail “profound risks,” forcing the expenditure of “scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time – which, in the world of rapidly evolving threats, the government does not always have.” He is contradicted by David Aaron, former senior attorney for the Department of Justice National Security Division. Aaron wrote that a warrant requirement would be “a relatively light burden on the government.”
Beyond rhetoric, the champions of the intelligence community in Congress last Sunday tried to attach a “clean” – that is, an unchanged extension of Section 702 without reforms – into the budgetary continuing resolution. This resulted in an immediate response from leading champions of civil liberties and a determined pushback from almost thirty civil liberties organizations from left, right, and center.
When that failed, the opponents of reform pivoted and proposed attaching their extension of Section 702 in the must-pass National Defense Authorization Act (NDAA). PPSA’s Senior Policy Advisors Bob Goodlatte, former Chairman of the House Judiciary Committee, and Mark Udall, who served on the Senate Select Committee on Intelligence, dispatched a letter to Members warning against this legislative legerdemain.
The threat of such an extension of Section 702 in the NDAA seems to have now receded.
Also last week, the House Permanent Select Committee on Intelligence released a bill disingenuously labeled a reform bill. It contains a warrant requirement limited to a narrow subset of “evidence of a crime” surveillance queries, while allowing the FBI to continue to define pretty much anything else as a matter of national security worthy of warrantless surveillance.
This leaves unclear how the FBI would meet the bill’s evidence-of-a-crime warrant standard but not a broader warrant requirement. This measure appears to be intentionally designed to be either taken out of the bill or simply ignored by the FBI in practice. As Sen. Mike Lee notes, the House Intelligence bill is “window dressing” to “expand government surveillance.” Under the House Intelligence Committee’s bill, the FBI might continue practices that led to batch queries of current and former federal government officials, journalists, political commentators, and 19,000 donors to a congressional campaign.
Another expansion in the bill is its restoration of “Lone Wolf Surveillance” authority, the suspicionless monitoring of online searches, social media usage, and increasingly unique biological traits such as facial recognition, DNA, and even analysis of body language to catch the solitary terrorist.
ACLU’s Matthew Harwood wrote in 2015 that this approach “would represent a fundamental assault on a free society. Such ‘countermeasures’ should send a shiver down your spine … The dangers to Americans in allowing government agencies to collect such intimate information in order to discover whether any of them are possible lone wolves should be obvious in terms of the destruction of privacy, among other things. The result would be both an Orwellian world and a hopeless one in safety terms.”
Drawing on data from multiple studies, Harwood wrote: “It’s already clear that none of these expensive and advanced technological ‘solutions’ will work. Totally innocent conduct (‘false positives’) will overwhelm the truly menacing.”
Expect champions of the intelligence community to continue to pull out all the stops, from backroom legislative maneuvers to more non-reform “reform” proposals. They will continue until more Americans contact their House and Senate Members and demand passage of a real reform measure, such as the Government Surveillance Reform Act – which upholds the Constitution’s requirement for a probable cause warrant for Americans’ communications, location and vehicle data, web browsing, and search records, while allowing reasonable exceptions for cybersecurity and emergency situations. Soon, the House Judiciary Committee will also be releasing a true reform bill, as well.
Let Congress know where you stand.
Politico reports that the House Permanent Select Committee on Intelligence has released detailed talking points outlining that panel’s draft of its bill for Section 702 reauthorization, a Foreign Intelligence Surveillance Act authority that expires at the end of this year.
“The bill described by the House Intelligence Committee, while offering a few useful reforms, is a pallid imitation of the kind of comprehensive reform that is needed,” said Gene Schaerr, PPSA general counsel. Sen. Mike Lee put it even more bluntly, noting that “these supposed ‘reforms’ are mere window dressing and would even expand government surveillance programs.”
“The House Intelligence bill only pays lip service to a warrant requirement,” Schaerr said, “applying it to the limited set of ‘evidence of a crime’ surveillance queries, while allowing the administration to continue large-scale surveillance of Americans under its utterly elastic standard of ‘foreign intelligence purposes.' Furthermore, the proposal does nothing to restrict the government’s purchasing of Americans’ most sensitive and personal data or to rein in the administration’s surveillance under executive orders.’”
Schaerr said the House Intelligence bill is a political marker from a committee known for its closeness to the intelligence community. It is not widely expected to become the tentpole for Section 702 reauthorization.
“Congress should look instead to a bill now being drafted by the House Judiciary Committee,” Schaerr said. “Chairman Jim Jordan and his colleagues are hard at work at crafting legislation that will offer deeper and more substantive reforms, while respecting the needs of national security.”
Rep. Andy Biggs (R-AZ), who has been participating in discussions between the two committees, told Politico, “The one thing that everybody agrees on is not only do you have to take care of 702, you have to take care of the broader stuff.”
“We look forward to a bill from the Judiciary Committee that does, indeed, take care of the broader stuff – including a stronger warrant requirement, closing the data broker loophole, and the Executive Order loophole,” Schaerr said.
Schaerr also pointed to the recently introduced Government Surveillance Reform Act (GSRA) as an example of what comprehensive reform of Section 702 could look like. Under the GSRA, warrants would be required to glean communications, geolocation histories, and browsing and search data – whether from Section 702 or from data purchased by federal agencies from data brokers. The GSRA effectively ends the FBI’s practice of using the “backdoor search loophole” that enables warrantless searches for specific American communications within the massive Section 702 database. And it places legal guardrails on the Administration’s use of Executive Order 12333 to surveil Americans.
“Unlike the House Judiciary Committee and the GSRA reform efforts, the House Intelligence Committee’s proposal is deeply inadequate and will surely not satisfy the vast majority of Members in the House and Senate who want comprehensive, substantive reforms to the entire surveillance state, not just to FISA and Section 702,” Schaerr said.
Every now and then, even with an outlook jaded by knowledge of the many ways we can be surveilled, we come across some new outrage and find ourselves shouting – “no, wait, they’re doing what?”
The final dismissal of a class-action lawsuit law by a federal judge in Seattle on Tuesday reveals a precise and disturbing way in which our cars are spying on us. Cars hold the contents of our texts messages and phone call records in a way that can be retrieved by the government but not by us.
The judge in this case ruled that Honda, Toyota, Volkswagen, and General Motors did not meet the necessary threshold to be held in violation of a Washington State privacy law. The claim was that the onboard entertainment system in these vehicles record and intercept customers’ private text messages and mobile phone call logs. The class-action failed because the Washington Privacy Act’s standard requires a plaintiff to approve that “his or her business, his or her person, or his or her reputation” has been threatened.
What emerged from this loss in court is still alarming.
Software in cars made by Maryland-based Berla Corp. (slogan: “Staggering Amounts of Data. Endless Possibilities”) allows messages to be downloaded but makes it impossible for vehicle owners to access their communications and call logs. Law enforcement, however, can gain ready access to our data, while car manufacturers make extra money selling our data to advertisers.
This brings to mind legislation proposed in 2021 by Sens. Ron Wyden (D-OR) and Cynthia Lummis (R-WY) along with Reps. Peter Meijer (R-MI) and Ro Khanna (D-CA). Under their proposal, law enforcement would have to obtain a warrant based on probable cause before searching 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 at the time said: “Americans’ Fourth Amendment rights shouldn’t disappear just because they’ve stepped into a car.”
They shouldn’t. But as this federal judge made clear, they do.
Late last week, word began to circulate that the Senate majority is considering including Section 702 of the Foreign Intelligence Surveillance Act in a Continuing Resolution (CR). On Monday morning, a broad coalition of civil liberties groups – left, right and center – sent a letter to Majority Leader Chuck Schumer urging him and the Senate not to include Section 702 in the CR or any must-pass legislation.
Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, explained why PPSA joined in this effort in a media statement. Goodlatte said:
“We’ve seen how short-term extensions have a habit of becoming long-term. Extending Section 702 in the CR risks a clean reauthorization of Section 702 with no reforms.
“If that happens, expect the FBI to get back to business as usual. Expect warrantless FBI surveillance of Members of Congress and Americans exercising their First Amendment rights to continue. Including Section 702 in the CR would also cut reform off at the knees. It would short-circuit bipartisan reformers in the House and Senate, including critical legislative efforts by the House Judiciary Committee and by dozens of Senators and House Members who’ve worked in good faith to balance national security with our constitutional rights.
“Upending these reform efforts would not only lead to a new wave of abuses under Section 702 or other parts of FISA – it would also enable federal agencies to increasingly surveil Americans by accessing our most sensitive personal data, scraped from apps, and sold to the government by shadowy data brokers.
“For all these reasons, it would be a terrible mistake to include Section 702 in a CR or any other must-pass legislation.”
Four experts on civil liberties, including PPSA’s general counsel Gene Schaerr, explored the tension between liberty and safety at a Federalist Society discussion on Section 702 of the Foreign Intelligence Surveillance Act on Friday.
A newsworthy declaration was made by Beth Williams, board member of the government watchdog, the Privacy and Civil Liberties Oversight Board (PCLOB) about balancing Section 702 reform with national security. Williams called Section 702 a “highly valuable” program that “provides irreplaceable intelligence” that generates two-thirds of the president’s daily intelligence briefing.
Williams added that all five PCLOB members, while disagreeing on many points, agreed that:
“While Section 702 is not a bulk collections program, we agreed that reforms to the program are in order to fix some problems with its operation, particularly by the FBI and to prevent its possible misuse for political and other improper purposes. This can be done without degrading the value of the program.”
This was a notable declaration given that Williams and board member Richard DiZinno had dissented from PCLOB Chair Sharon Bradford Franklin and the board’s majority on the need for warrant requirements and other reforms. Williams’ remarks validated a statement by Chair Franklin that no PCLOB member “has called for the program to lapse and also no board member has called for clean reauthorization of the program."
A sharp divergence in world views emerged between the constitutional vision of Gene Schaerr and a dark, dystopian future suggested by former NSA lawyer Stewart Baker. Schaerr kicked off this part of the discussion by asking the Federalist Society audience to conduct a thought experiment by imagining what James Madison would say if we could bring him up back to life and up to speed about the many ways the FBI has to surveil Americans.
“He would be horrified,” Schaerr said by the denigration of the Fourth Amendment and the breakdown between congressional and executive powers. Schaerr imagined Madison reminding us that the founders “decided that way we set up this government would be to accept some inefficiencies as the price of freedom.”
Baker posited a world in which artificial intelligence enables anyone who wants to develop more lethal toxins and infectious diseases to do so, a world of weapons of mass destruction in the hands of “disgruntled teenagers.” Baker’s reply to Schaerr’s thought experiment: “I don’t think James Madison would come back and say, ‘well, you’re just going to have to live in my world and suffer 21st century consequences.’”
Gene Schaerr listed the “multipronged” ways the FBI can surveil Americans – from Section 702 information, to personal, sensitive data scraped by apps and purchased by the FBI and other government agencies from data brokers, to executive orders that allow the government to extract Americans’ texts, emails, and browsing histories from the cloud. Given the pervasive reach of such government surveillance, are the alarming fears of technology and hostile actors reason to give up on the Constitution and live in a surveillance state?
This discussion leaves us to decide: Do you agree with Stewart Baker, that we must embrace pervasive surveillance to survive? Or do you agree with Gene Schaerr, who concluded: “We can realign federal government surveillance powers with the founders’ vision of what our government can be.”
Well, that didn’t take long.
Before a bipartisan, bicameral team of senators and representatives could finish a press conference on Capitol Hill to introduce the Government Surveillance Reform Act (GSRA), the White House held a press call to declare President Biden’s intention to veto the bill.
The White House press call – a “pre-butt” (as in pre-rebuttal) – told reporters that the warrant requirement for querying U.S. persons was a “red line” that would result in a presidential veto. The White House said that it was taking this stand to make it clear that the bill would undermine U.S. security in unprecedented ways.
Yet John Sakellariadis of Politico reported that the unnamed White House official also conceded on the call he and his White House colleagues “hadn’t even read the bill yet.”
Sakellariadis seemed surprised by the Biden Administration’s brushoff of a very detailed and thoughtful bill. He had reported that the GSRA “actually includes carve-outs for emergencies, ‘defensive’ cybersecurity queries, emergencies, and consent.” There didn’t seem to be any recognition by the White House that Sens. Ron Wyden and Mike Lee, and Reps. Warren Davidson and Zoe Lofgren, had worked hard to try to address the administration’s legitimate national security concerns.
“Joe Biden wants to veto our bipartisan government surveillance reform bill, because apparently illegal spying on American citizens is very important to his administration,” Sen. Lee shot back. “And he hasn’t even read the bill yet!”
The White House, acting on bad advice from the intelligence community, has consistently taken a ham-handed approach, brushed aside any talk of compromise, and insisted on a clean reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. That authority, enacted by Congress for foreign surveillance but often used by federal agencies to surveil Americans, expires at the end of this year.
That dynamic alone gives reformers the strategic upper hand to demand changes.
Worse for the Administration, Members of Congress from both sides of the aisle say they are hearing a lot from constituents who are hopping mad about warrantless surveillance, as well as having their sensitive, personal data purchased by the government from shady commercial data brokers. It should occur to the Biden Administration that against this backdrop of discontent – and with the pending expiration of Section 702 – that the White House is doubling down on a weak hand.
This seems like bad politics. It is certainly bad policy.
The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability.
Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership.
At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence.
Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process.
Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.”
The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief:
“The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.”
Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.”
We stand with X and EFF in urging the Supreme Court to promptly address this alarming development.
Sens. Wyden and Lee, Reps. Davidson and Lofgren, Introduce Wide-Ranging Reform of Government Surveillance
The Government Surveillance Reform Act (GSRA)
Four bipartisan champions of civil liberties – Sen. Ron Wyden (D-OR), Sen. Mike Lee (R-UT), Rep. Warren Davidson (R-OH) and Rep. Zoe Lofgren (D-CA) – today introduced the Government Surveillance Reform Act (GSRA), legislation that restores force to overused Capitol Hill adjectives like “landmark,” “sweeping,” and “comprehensive.”
“The Government Surveillance Reform Act is ambitious in scope, thoughtful in its details, and wide-ranging in its application,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and PPSA’s Senior Policy Advisor. “The GSRA is a once-in-a-generation opportunity for wide-ranging reform.”
The GSRA curbs the warrantless surveillance of Americans by federal agencies, while restoring the principles of the Fourth Amendment and the policies that underlie it. The authors of this bill set out to achieve this goal by reforming how the government uses three mechanisms to surveil the American people.
The GSRA will rein in this ballooning surveillance system in many ways.
“The GSRA enjoys widespread bipartisan support because it represents the most balanced and comprehensive surveillance reform bill in 45 years,” Goodlatte said. “PPSA joins with a wide-ranging coalition of civil liberties organizations to urge Congress to make the most of this rare opportunity to put guardrails on federal surveillance of Americans.
“We commend Senators Wyden and Lee, and Representatives Davidson and Lofgren, for writing such a thorough and precise bill in the protection of the constitutional rights of every American.”
Apple Sends Notice of Hack
Pegasus – the Israeli-made spyware – continues to proliferate and enable bad actors to persecute journalists, dissidents, opposition politicians, and crime victims around the world.
This spyware transforms a smartphone into the surveillance equivalent of a Swiss Army knife. Pegasus has a “zero-day” capability, able to infiltrate any Apple or Android phone remotely, without requiring the users to fall for a phishing scam or click on some other trick. Once uploaded, Pegasus turns the victim’s camera and microphone into a 24/7 surveillance device, while also hoovering up every bit of data that passes through the device – from location histories to text, email, and phone messages.
We’ve written about how Mexican cartels have used Pegasus to track down and murder journalists. We’ve covered the role of Pegasus in the murder of Saudi dissident Adnan Khashoggi, and how an African government used it to spy on an American woman while she was receiving a briefing inside a State Department facility on her father’s abduction.
Now fresh evidence from Apple alerts shows how Pegasus continues to be used by governments to spy on political opponents. Journalists have learned that the Israeli-based NSO Group has sold its spyware to at least 10 governments. Two years ago, it was revealed that a government had used Pegasus to surveil Spanish politicians, including the prime minister, as well as regional politicians. Now it is happening in India. On Oct. 31, just in time for Halloween, Apple sent notices to more than 20 prominent journalists, think tank officials, and politicians in opposition to Prime Minster Narenda Modi that hacking attempts had been made on their smartphones.
In 2021, The Washington Post and other media organizations investigated a list obtained by Forbidden Stories, a Paris-based non-profit media outlet, tracking down more than 1,000 phone numbers of hundreds of prominent Indians who were set to be surveilled by Pegasus. This plan now seems to have been executed, at least in part.
“Spyware technology has been used to clamp down on human rights and stifle freedom of assembly and expression,” said Likhita Banerj of Amnesty International. “In this atmosphere, the reports of prominent journalists and opposition leaders receiving the Apple notifications are particularly concerning in the months leading up to state and national elections.”
Yesterday Spain, today India, tomorrow the United States? It is public knowledge that the FBI owns a copy of Pegasus and that a recent high-level government attorney from the intelligence community has signed on to represent the NSO Group. This is all the more reason for Congress to pass serious reforms to Section 702 of the Foreign Intelligence Surveillance Act, to curtail all forms of illicit government surveillance of Americans.
PPSA will continue to monitor this story.
“Health of Democracy at Stake""
The president and the general counsel of PPSA late last night asked the U.S. Court of Appeals for the District of Columbia to reverse a lower court ruling that prohibited Carter Page from suing eight federal officers who played a direct role in his illegal surveillance during the now-infamous “Crossfire Hurricane” investigation.
The appeal filed by Erik Jaffe and Gene Schaerr of the Schaerr-Jaffe law firm seeks a private right of action against former FBI Director James Comey, former deputy director Andrew McCabe, and former FBI agent Peter Strzok, former FBI lawyers Lisa Page and Kevin Clinesmith, as well as three others in the FBI and Department of Justice.
As described by the Justice Department’s Inspector General’s investigation into the Crossfire Hurricane case, these officials relied on the false Steele report, concocted by an opposition researcher with ties to the political party opposing Trump, in order to portray Page as a Russian agent. The defendants hid from the court the FBI’s internal misgivings about the Steele report, and CIA warnings about its reliability. These untruths were used to support four separate surveillance requests, deceiving the secret Foreign Intelligence Surveillance Act (FISA) court. Clinesmith later pled guilty to a felony false statement charge for doctoring a document from the CIA attesting that Carter Page was an operational contact and asset of the agency to state that Page was “not a source.”
The appeal on behalf of Page asks the court to consider errors in the lower district court’s ruling, which dismissed Page’s claims without any discovery. The appeal notes that the plain language of FISA allows an aggrieved person to sue if that victim has suffered from the unlawful abuse of that authority. FISA makes it illegal to use or disclose information obtained by such illicit surveillance. The appeal also rests on the PATRIOT Act, which makes it unlawful for federal officers or employees to use or disclose such information except for lawful purposes.
The appeal reads:
“This case is about holding government actors accountable for their plainly illegal conduct of using fraud and deceit to obtain secret search warrants against an innocent citizen. Worse still, such tactics were used against an innocent foreign policy advisor to a disliked presidential campaign in a transparently political effort to derail that campaign.”
As a result of official leaks, Carter Page for months was derided in the mass media as a “traitor.” And that, according to attorney Gene Schaerr, was a grave injustice perpetrated by senior FBI officials:
“You don’t have to be a fan of Donald Trump to understand that an FBI that uses concocted criminal accusations to try to skew a presidential election is a menace to democracy. Reversal of the lower court’s decision is necessary to restore accountability for the kinds of unlawful surveillance and explicit election interference engaged in by the FBI officials here. These powers should never be used against any candidate – whether establishment or populist, left or right.
“Reversal of the lower court is also necessary to restore the nation’s trust in intelligence gathering. It is astounding that the same intelligence community that tells Congress to reauthorize FISA’s Section 702 without reforms also waves away the Carter Page scandal, telling us, ‘nothing to see here, folks.’ If Congress reauthorizes Section 702, it should also reform that surveillance program as well as those that were abused to harm Dr. Page. The health of our democracy is at stake.”
When FBI Director Christopher Wray came under heated questioning during his testimony Tuesday before the Senate Homeland Security and Governmental Affairs Committee, he let slip a remark likely to haunt him for the rest of the debate over proposed reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Director Wray said, “With everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack here on our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down.”
By “watered down” Wray meant reformers’ proposal requiring the FBI to meet the Fourth Amendment’s requirement to obtain a probable cause warrant before accessing the private communications of Americans taken from Section 702. This authority was enacted by Congress to enable surveillance of foreign terrorists and spies located on foreign soil. There is no reason why Section 702 cannot be used to surveil “a foreign terrorist overseas.” The problem is that this authority has become a prime resource for the FBI and other agencies to warrantlessly review the information of Americans. Sen. Rand Paul (R-KY), Ranking Member on the committee, responded: “You would think we’d be going after foreigners, but we are using the Foreign Intelligence Surveillance Act to go after Americans.”
In addition to skepticism from Sen. Paul and others on the committee, Director Wray’s assertions are contradicted by others with experience in FISA.
In a recent editorial, Sharon Bradford Franklin, chair of the independent government watchdog group, the Privacy and Civil Liberties Oversight Board (PCLOB), with two other board members in a recent Washington Times editorial, supported requiring a court order or warrant before the government can review Americans’ Section 702 data.
The PCLOB members noted that “the FBI has repeatedly violated querying rules to run searches on Americans. This includes impermissible searches for members of Congress, those who protested the murder of George Floyd, preachers, participants in an FBI community relations program, victims who reported crimes …The FBI has failed to get this right for more than a decade. The bureau’s persistent noncompliance over the years dramatically illustrates the need for independent, impartial, and external review. These compliance errors may also undermine the public’s trust in the FBI, raising real questions about its ability to police itself.”
In his written testimony, Director Wray also informed the committee that a warrant requirement would amount to a “de facto ban” on U.S. person queries because warrants are so difficult to obtain from a court. Would a warrant requirement necessarily be a “ban” that would “water down” the FBI’s ability to protect Americans?
David Aaron, who held several senior legal positions at the Department of Justice’s National Security Division, wrote in Just Security that “requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.”
A majority in Congress clearly agree. None other than Senate Judiciary Chairman Dick Durbin (D-IL) has said he will only support Section 702 reauthorization if there are “significant reforms,” including “first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”
Or, as Chair Franklin and her colleagues wrote: “We do not permit the police to break into a home without such court approval, and we should not permit government personnel to access our communications through U.S. person queries without court review. This is Civics 101.”
Sen. Paul told Wray: ”I fear that our federal government is still undertaking many of the same tactics that the Church Committee found to be unworthy of democracy.”
Perhaps it is the Fourth Amendment that has been watered down.
IRS Agent Makes Unnecessary Home Visit to Journalist Who Revealed Intelligence Agency Involvement in Social Media
Did IRS Inspect Personal Data of Matt Taibbi and Other Journalists?
Matt Taibbi is not everyone’s cup of tea – or shot of tequila. He is a former Rolling Stones reporter, an investigative journalist with gonzo-flavored prose. Taibbi was most recently in the headlines for reporting on government interference, including FBI agents, in secretly advising social media content curation. This was just one of the revelations of the Twitter Files.
That data dump, released by X CEO Elon Musk, show considerable interaction between the federal government and social media companies’ curation of ideological content. Whether this was “jawboning” or “coercion” on the part of the government will be at the heart of an upcoming U.S. Supreme Court case, Murthy v. Missouri. This is an intensely political case, one that pits the Biden Administration, which insists it has every right to alert social media companies about misinformation, against Republicans, who see it as secret censorship.
A new report from the House Judiciary Committee raises the question why the IRS sent an agent to make an unannounced field visit to the home of journalist Matt Taibbi. That visit just happened to occur on the same day Taibbi was testifying before Congress about purported secret government abuse to dial back or exclude content from social media.
The Weaponization of the Federal Government subcommittee found that the IRS had taken the unusual step of opening a case against Taibbi on Christmas Eve, a Saturday, just weeks after Matt Taibbi began reporting on the Twitter Files. In the four-and-one-half years between when the IRS alleges it last tried to contact Taibbi about his taxes and the day it conducted an unannounced field visit, neither he nor his accountant received notice from the IRS about an issue with his tax returns.
As it turned out, the journalist owed no money to the IRS, but the IRS did owe him a refund. As a result of this and similar incidents, IRS chief Danny Werfel repealed the agency’s policy of allowing agents to make unannounced field visits to taxpayers’ home.
In today’s social media-saturated world, the appearance of an IRS agent acting as a government “heavy” to pressure a journalist – if that is what indeed happened – is a tactic guaranteed to backfire. The greater danger is how the IRS could misuse its immense surveillance power for its own ends or those of one political master or another.
The IRS, like many other federal agencies, purchases Americans’ personal data scraped from our apps and sold to it by third-party data brokers – a major focus in reforms that civil libertarians want to add to FISA’s Section 702. The IRS could have easily accessed Taibbi’s personal location history, as well as his communications from emails to texts, all without a warrant. A good follow up question for Congress might be to ask the IRS if it used purchased data to snoop on Taibbi or other journalists.
The IRS does not need probable cause to investigate us. It doesn’t need a warrant to send someone to our home, to order us to conduct an expensive and time-consuming audit, or to look into our most personal and sensitive information taken right out of our smartphones.
Congress should demand to know if the IRS or any other government agency has been accessing the personal data of journalists investigating the administration.
Is the Executive Branch Targeting Oversight Committees?
PPSA continues to press a Freedom of Information Act (FOIA) request seeking documents that would shed light on the extent to which the executive branch is spying on Members of Congress. We are asking the government for production of documents on “unmasking” and other forms of government surveillance of 48 current and former House and Senate Members on committees that oversee the intelligence community.
Now the court and Congress have fresh reason to give the issue of executive branch spying on Congress and its oversight committees renewed attention.
Jason Foster, the former chief investigative counsel for Sen. Chuck Grassley – the Ranking Member of the Senate Judiciary Committee – recently learned that he is among numerous staffers, Democrats as well as Republicans, who had their personal phone and email records searched by the Department of Justice in 2017.
A FOIA request filed by the nonprofit Empower Oversight, founded by Foster, seeks documents concerning the government’s reasons for compelling Google to reveal the names, addresses, local and long-distance telephone records, text message logs and other information about the accounts of congressional attorneys who worked for committees that oversee DOJ. The government’s subpoena also compelled the release of records indicating with whom each user was communicating.
The Empower Oversight FOIA notes:
“This raises serious public interest questions about the basis of such intrusion into the personal communications of attorneys advising congressional committees conducting oversight of the Department. Constitutional separation of powers and privilege issues raised by the Speech or Debate Clause of (U.S. Const. art I. § 6) and attorney-client communications of those targeted with these subpoenas should have triggered requirements for enhanced procedural protections and approvals.”
As The Wall Street Journal noted in an editorial, these subpoenas coincided with leaks of classified information concerning a wiretapped phone call between incoming Trump national security adviser Michael Flynn and the Russian ambassador. This leak was investigated by the Senate Judiciary Committee. Many now wonder if DOJ’s dragnet of personal information of congressional staffers was an attempt at misdirection, perhaps a fishing expedition to find someone else to blame.
Empower Oversight’s FOIA states:
“If the only reason the Justice Department targeted the communications of these congressional attorneys was their access to classified information that was later published by the media, it raises the question of whether the Department also subpoenaed the personal phone and email records of every Executive Branch official who had access to the same information.”
The Empower Oversight FOIA concludes about this surveillance of Congressional staff:
“It begs the question whether DOJ was equally zealous in seeking the communications records of its own employees with access to any leaked document.”
Sen. Grassley, who aggressively pursues government surveillance overreach, will likely want to follow up on these questions. In the meantime, PPSA petitions the D.C. Circuit Court for an en banc hearing on the possible unmasking and other surveillance of some of the elected bosses of these congressional attorneys.
Maxon v. Long Lake Township
If someone sets a tall ladder against your fence, and leans out into your yard to take photographs, would that be a trespass? A court would surely affirm common sense and say that’s a trespass – even if the offender is merely leaning into the space over your property, touching nothing.
What if a nosy neighbor hoisted a Go-Pro on a long camera stick over your fence? Again, that would be a trespass.
But what if you drew a line from the core of the Earth, through your backyard, to a point in outer space 280 miles above the planet? Is all that aerial space above your backyard protected? This is important because the “trespass test” is essential to how courts determine if government surveillance should or should not require a probable cause warrant to inspect a citizen’s property.
Such questions emerge from the comments of an Associate Justice of the Michigan Supreme Court during oral argument last week in Long Lake Township v. Maxon.
This case centers around whether local government should have obtained a probable cause warrant to send a drone to surveil a five-acre estate for the civil offense of collecting prohibited scrap. Is a drone more like the nosy neighbor or more like the camera on an airplane, or – given advances in technology – the sensors of a Google Earth satellite?
The counsel for the township told the court: “Google has a tool where you can even draw, if you want to know whether it’s 50 feet from this house to this barn, or 100 feet from this house to this barn. You do that right on the Google satellite imagery. And so given the reality of the world we live in, how can there be a reasonable expectation of privacy in aerial observations of property?”
The government’s argument seems to be that technology is so advanced that privacy is dead. And if privacy is dead, then should we scrap the Fourth Amendment as a quaint relic of the Eighteenth Century?
Maxon’s counsel held fast to the idea that Google Earth cannot yet perform the kind of invasive, sensory-rich surveillance that a drone can do. He also noted that drones, limited by the FAA to fly under 400 feet, are necessarily low altitude.
One Justice reacted to the assertion that if Google Earth could map a backyard as closely and intimately as a drone, that would be a search. “Technology is rapidly changing,” the Justice responded. “I don’t think it is hard to predict that eventually Google Earth will have that capacity.”
U.S. Supreme Court case law has held that ordinary photographs from fixed wing aircraft flying into publicly navigable airspace, or from helicopters, do not violate the Fourth Amendment and thus do not require a warrant. Not so, however, for more advanced technology. For example, the Baltimore Police Department flew a plane with military technology developed for occupied Baghdad to take pervasive snapshots of Baltimoreans and their movements across 30-square miles. This technology is extraordinarily robust, able to record and track the movement of thousands of individuals and cars across a whole day.
A federal court recognized that such super-sharp, comprehensive imagery necessarily invokes constitutional issues. An ACLU lawsuit against this war-zone surveillance of Americans resulted in the Fourth Circuit Court of Appeals finding the practice to be unconstitutional.
Last week’s Michigan oral argument will likely be seen as another great step forward in the debate over aerial surveillance. At first, the discussion centered around altitude – as if the 400-foot limit of a drone made its closeness (like the nosy neighbor) the decisive factor. But the exchange points to the conclusion that the truly decisive factor is not altitude, but the level of intrusiveness of a given technology.
How much information can a drone equipped with facial recognition, heat sensing, and other superhuman sensory capabilities glean from an overflight? Enough, we say, to qualify as a trespass requiring a probable cause warrant. In fact, such drones could gather even more information than an individual physically inspecting a property.
Given that the U.S. military and the CIA already use satellite imagery to identify and follow individuals, it is not a stretch to say that Google Earth or something like it will soon have an ability to pierce the privacy of any domicile or anyone who walks outside. But that does not make such an invasion reasonable or destroy legitimate expectations of privacy.
And if such a degree of intrusion into someone’s privacy – whether from a plane equipped with war-zone surveillance technology, or a Google Earth camera with slightly futuristic capabilities – then that, too, would constitute a trespass by Google requiring a probable cause warrant.
The law already distinguishes between the incidental path of a passenger airplane and a deep search, like that of the Baltimore police aircraft. The same principle should apply to intrusive private conduct. A watcher who is at a sufficient altitude above an actual physical presence could still be considered a trespasser of sorts when peering into someone’s backyard at a level of detail impossible for a passenger on an ordinary overflight. That evolving technology allows intrusive invasions over greater distances does not negate any “reasonable expectations of privacy” by citizens – it just illustrates growing violations of those expectations.
The Michigan court seemed to be alert to these dangers. Chief Justice Elizabeth T. Clement referred to the reasoning in PPSA’s amicus brief asking if the Supreme Court reversed itself to ultimately uphold the “exclusionary rule” discounting evidence that violates the Fourth Amendment.
However Maxon is decided, this case will likely be remembered for logically leading to the idea that in aerial surveillance the Fourth Amendment is invoked by the degree of intrusion, not mere altitude.
California Passes Landmark “Delete Act,” Establishing Consumer-Friendly “Off-Switch” for Data Collection
California Gov. Gavin Newsom signed into law SB 362 – also known as the Delete Act – establishing even more robust online privacy protections in a state already at the vanguard of digital rights.
The Delete Act’s most noteworthy provision establishes a “one-stop-shop” for data removal – essentially an “off-switch” for consumers to request the scrubbing of all their collected online data.
The Delete Act requires the creation of this single-point, no-cost deletion mechanism by Jan. 1, 2026. All registered data brokers, in turn, will have to access that website every 45 days to address consumer requests and remove collected data when asked to do so. Under prior law, consumers found it difficult to communicate with around 500 data brokers doing business in California.
The Delete Act will require data brokers to register with the California Privacy Protection Agency (CPPA). It creates a “do not track” list similar to the National Do Not Call Registry. And it enshrines new transparency requirements for brokers, who must now disclose the collection of sensitive information such as precise geolocation data, reproductive health care data, and personal data collected from minors.
This landmark legislation follows on the heels of the California Consumer Privacy Act and the California Privacy Rights Act, which together form the backbone of one of the most protective digital rights regimes in the world. Yet data collection in California has continued unabated in recent years despite these protections, due in large part to the difficulties in opting out.
Consumers find there are simply too many players scraping public records, social media profiles and online transactions. These players create digital profiles from our most sensitive personal information and sell it to corporations, advertisers, governments, and law enforcement agencies for the purposes of analyzing, predicting and even shaping our behavior.
In this regard, the Delete Act’s one-stop mechanism empowers consumers to take control of their data and free themselves from online manipulation (not to mention government’s warrantless snooping, a flagrant Fourth Amendment violation). We applaud the California Legislature, sponsor Sen. Josh Becker and Gov. Newsom for taking a bold step in the direction of consumer privacy.
We have to note, however, that California is often criticized for its sweeping, at times inartful approach to business regulation. The Delete Act faces similar concerns. Some critics call it a “sledgehammer approach” with unpredictable ramifications for businesses and consumers.
According to one poll, more than 80 percent of California’s residents support the Delete Act. If all those millions opt-out, it’s a game-changer for the way online business is conducted in the epicenter of tech culture and innovation. Small businesses may find it particularly difficult to acquire new customers, while non-profits could have a tougher time finding donors.
The new law authorizes CPPA to fine-tune the rules to make it practical. In the meantime, California deserves applause for enhancing digital privacy. It’s a watershed moment, and rest assured other states – and nations – will be watching closely as this new paradigm takes shape in the coming years.
The debate over reform and reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a contentious one between champions of civil liberties and those of the intelligence community. Op-eds, podcasts, and blogs are being volleyed by both sides like projectiles in a furious medieval battle.
Defenders of the status quo insist that a “clean” reauthorization of Section 702 is vital to protect the homeland from foreign threats, especially after the horror that befell Israel. Civil liberties groups complain that this authority, designed by Congress to enable the surveillance of foreigners on foreign soil, is routinely used by the FBI to access Americans’ personal data without a warrant – often for purely domestic criminal investigations.
Though each side of this debate has deep bipartisan roots, the debate itself is as polarized as Washington politics.
It is refreshing, then, to read a piece by David Aaron in Just Security, who had day-to-day experience in FISA operations in several senior legal positions at the Department of Justice’s National Security Division. Aaron doesn’t dig in for one side or another but makes a good faith effort to try to find common ground between the need to protect national security and the need to live by the U.S. Constitution.
First, Aaron asserts, it is “imperative to reauthorize Section 702” because it is a “fast and efficient way to obtain important national security information in a manner that complies with the Constitution.” We disagree with that last clause when it comes to warrantless examination of Americans’ data. But civil libertarians should recognize that expiration of Section 702 entails the risk that the FBI and intelligence community could resume warrantless surveillance outside of any legal authority, which they have done in the past.
To his credit, Aaron recognizes the growing practice of “reverse targeting” or routine checks of U.S. person information of American data incidentally swept up by Section 702. He writes: “This all happened as storage capacity and search capability continued their exponential expansion.”
Aaron then agrees that the time has come for a warrant requirement when the government seeks to examine Americans’ data derived from Section 702. He writes:
“It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies’ commitment to protecting Americans’ rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.” [i]
Aaron notes that warrants take time and that FISA search warrants can be onerous to draft. He writes that every FISA application must be approved by a senior official in the Justice Department, up to the Attorney General, and must be certified by the director of the FBI or the head of an intelligence agency. Keeping a senior official in the loop is good for quality control for warrants because “no one wants to bring a substandard or under-investigated application to a high-level official.”
Such criminal warrants would be much more likely to be unsealed, allowing criminal defendants and their attorneys to scrutinize the government’s affidavits and warrants in court.
On the Hill, reformers are also hearing constructive ideas from some in the government on how federal agencies might continue to conduct “defensive” searches to protect possible victims of criminal or state-sponsored cyberattacks without violating the Fourth Amendment. Proposals range from notice to the targeted company or individual, to a whitelist of those who agree in advance to such surveillance.
In the months ahead, there will be give and take in the reform of Section 702. It is heartening to see some with intelligence community backgrounds back away from their opening stance of all or nothing and recognize a need to address the deep skepticism of the American people about government surveillance.
[i] Italics added
PPSA Alerts Michigan Supreme Court to “Superhuman” Sensory Abilities of Drones to Pierce Home Privacy
Long Lake Township v. Maxon
In a brief before the Michigan Supreme Court, PPSA alerted the court to the danger of intimate searches of home and residents by relatively inexpensive drones now on the market.
Commercially available drones have thermal cameras that can penetrate beyond what is visible to the naked eye. They can be equipped with animal herd tracking algorithms that can enhance the surveillance of people. Drones can swarm and loiter, providing round-the-clock surveillance. They can carry lightweight, cell-site simulators that prompt the mobile phones of people inside the targeted home to give up data that reveals deeply personal information.
Furthermore, PPSA’s brief states that drones “can see around walls, see in the dark, track people by heat signatures, and recognize and track specific people by their face.”
These are some of the ramifications of a case now before the Michigan Supreme Court. This case began when Long Lake Township in Michigan, suspecting that Todd and Heather Maxon had violated an agreement not to add to a scrap pile of old cars on their five-acre estate, hired a private drone photography business to investigate. No warrant was issued for this surveillance.
Michigan’s top court is now reviewing the ruling by a lower court that found that while warrantless drone surveillance of a residence violated the Fourth Amendment, the evidence should not be excluded from this civil case. PPSA argues that this lack of exclusion of tainted evidence threatens to open a Pandora’s box of pervasive surveillance that could pierce the privacy of virtually anyone inside any structure.
PPSA cites ample precedent for the exclusion of the Maxon evidence. In Carpenter v. United States (2018), the U.S. Supreme Court made it clear that the Fourth Amendment applies to digital technologies. In that case, the Court excluded location information derived without a warrant from mobile phones.
In Kyllo v. United States (2001), the Court found that the use of thermal images – which reveals the heat signature emanating from inside a home – requires a warrant.
Compare Kyllo’s comparatively mild surveillance to the “stereo-camera” configuration of many commercially available drones that enable reconstruction of 3D images from 2D cameras. Such surveillance goes well beyond Kyllo, in which police simply used heat radiating from the external surface of the house to detect marijuana cultivation. “Ready-made drone packages, specifically designed for thermal surveillance flights, with the ability to create 3-dimensional maps from their footage, can be had for around $6,000,” PPSA informed the court.
“For less than $10,000, police can obtain a specialized drone with superhuman sensory abilities and better maneuverability than a multi-million-dollar helicopter or plane,” PPSA told the court. Drone’s warrantless extraction of personal information far exceeds the Carpenter warrant requirement.
PPSA’s filing addresses an error by the lower court. The Michigan Court of Appeals recognized that the Township had violated the Fourth Amendment in its use of drones. That court nonetheless found that the exclusionary rule did not apply in Maxon.
PPSA declared: “The Exclusionary Rule is a judicially crafted remedy that gives teeth to the Fourth Amendment by excluding illegally obtained evidence when the privacy value of enforcing Constitutional rights outweighs social harm from excluding evidence.”
PPSA concluded: “If the Fourth Amendment is to have any real meaning in this context, evidence obtained by illegal drone surveillance must be subject to exclusion.”
The Michigan Supreme Court is hearing oral argument on this case this week. PPSA will follow the outcome of this important, precedent-setting case.