Just in time for the Section 702 debate, Emile Ayoub and Elizabeth Goitein of the Brennan Center for Justice have written a concise and easy to understand primer on what the data broker loophole is about, why it is so important, and what Congress can do about it.
These authors note that in this age of “surveillance capitalism” – with a $250 billion market for commercial online data – brokers are compiling “exhaustive dossiers” that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.”
Armed with all this information, data brokers can easily “reidentify” individuals from supposedly “anonymized” data. This information is then sold to the FBI, IRS, the Drug Enforcement Administration, the Department of Defense, the Department of Homeland Security, and state and local law enforcement.
Ayoub and Goitein examine how government lawyers employ legal sophistry to evade a U.S. Supreme Court ruling against the collection of location data, as well as the plain meaning of the U.S. Constitution, to access Americans’ most personal and sensitive information without a warrant. They describe the merits of the Fourth Amendment Is Not For Sale Act, and how it would shut down “illegitimately obtained information” from companies that scrape photos and data from social media platforms.
The latter point is most important. Reformers in the House are working hard to amend FISA Section 702 with provisions from the Fourth Amendment Is Not For Sale Act, to require the government to obtain warrants before inspecting our commercially acquired data. While the push is on to require warrants for Americans’ data picked up along with international surveillance, the job will be decidedly incomplete if the government can get around the warrant requirement by simply buying our data.
Ayoub and Goitein conclude that Congress must “prohibit government agencies from sidestepping the Fourth Amendment.” Read this paper and go here to call your House Member and let them know that you demand warrants before the government can access our sensitive, personal information.
From Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability:
“For months, the House Intelligence Committee warned that failure to reauthorize Section 702 would subject the American homeland to unprecedented danger.
“Now the Intelligence Committee has caused the bill to be pulled rather than allow the House to work its will and vote on a few reasonable and important reform amendments.
“They are now willing to endanger Section 702 in its entirety unless they get everything they want.
“Think about it – the intelligence community and deep state are so determined to maintain the ability to spy on Americans that they are willing to put at risk the very authority they claim they need to protect us against foreign threats.”
Long before the founding of the United States, religious refugees flooded into America to escape the Star Chamber, the Inquisition, the persecutions, and wars over religious doctrine that made worship in the Old World a dangerous activity. Millions wanted relief from the incessant surveillance – exemplified by William Laud, Charles I’s Archbishop of Canterbury – that often relied on spies dispatched to listen to sermons with sharp ears for anything out of line with official orthodoxy.
As the House of Representatives prepares to decide whether to include surveillance reforms in the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, there are serious implications for the free practice of religion in America.
House Speaker Mike Johnson made this clear in an interview late last year when he addressed the FBI’s surveillance of traditional Catholics as possible terrorists, and the targeting of pro-life activists like Mark Hauck, whose wife and seven children watched in terror as an FBI SWAT team broke down their front door and pointed five guns at his head over a supposed violation of the Freedom of Access to Clinic Entrances Act.
“I’ve made it very clear that, in my view, the evidence shows that, the FBI, for example, in the last couple of years has been weaponized,” Speaker Johnson told The Daily Signal. “We have the evidence to show it. They have, in some cases, targeted people of faith. They’ve targeted conservative Catholics and concerned parents at school board meetings … that’s what happened.”
Alex Marthews of Restore the Fourth documents abuses of religious rights from church- organized civil rights protests in the 1960s to the surveillance of patriotic, law-abiding Muslims today. We recently reported on the creepy surveillance of Calvary Chapel in San Jose, California. Such government snooping into religious expression is enabled by two massive databanks that the government freely dips into without a warrant.
One is Section 702, an authority that allows the surveillance of foreign targets located abroad, but incidentally collects the communications of millions of Americans. The FBI has dipped into this ocean of Americans’ communications millions of times in recent years without warrants.
The other database is the commercial purchase of our most sensitive and personal information scraped from apps and sold to the FBI, IRS, Department of Homeland Security, and many other agencies. This, too, is information the government holds and freely accesses, all without a warrant.
There are deep implications for the character of our nation in the growth of warrantless surveillance. Religious scholar David Lyon writes of the modern replacement of the idea of a God, who watches his creation with deep and loving concern, with the state’s Algorithm, replacing eternal joy with a perpetual living death. Or to put it in secular terms, this is the vision of George Orwell of a boot stamping on a human face forever.
Any House Member who values the freedom to worship as one wishes, or not to worship at all, should take a stand for religious freedom by requiring warrants before the FBI or any other governmental agency can freely inspect our beliefs, values, and activities. This is not a new or radical notion. The founders wrote the warrant requirement into the Fourth Amendment to the Constitution to set us apart from Old World ways.
Let us not go back.
The word from Capitol Hill is that Speaker Mike Johnson is scheduling a likely House vote on the reauthorization of FISA’s Section 702 this week. We are told that proponents and opponents of surveillance reform will each have an opportunity to vote on amendments to this statute.
It is hard to overstate how important this upcoming vote is for our privacy and the protection of a free society under the law. The outcome may embed warrant requirements in this authority, or it may greatly expand the surveillance powers of the government over the American people.
Section 702 enables the U.S. intelligence community to continue to keep a watchful eye on spies, terrorists, and other foreign threats to the American homeland. Every reasonable person wants that, which is why Congress enacted this authority to allow the government to surveil foreign threats in foreign lands. Section 702 authority was never intended to become what it has become: a way to conduct massive domestic surveillance of the American people.
Government agencies – with the FBI in the lead – have used this powerful, invasive authority to exploit a backdoor search loophole for millions of warrantless searches of Americans’ data in recent years. In 2021, the secret Foreign Intelligence Surveillance Court revealed that such backdoor searches are used by the FBI to pursue purely domestic crimes. Since then, declassified court opinions and compliance reports reveal that the FBI used Section 702 to examine the data of a House Member, a U.S. Senator, a state judge, journalists, political commentators, 19,000 donors to a political campaign, and to conduct baseless searches of protesters on both the left and the right. NSA agents have used it to investigate prospective and possible romantic partners on dating apps.
Any reauthorization of Section 702 must include warrants – with reasonable exceptions for emergency circumstances – before the data of Americans collected under Section 702 or any other search can be queried, as required by the U.S. Constitution.
This warrant requirement must include the searching of commercially acquired information, as well as data from Americans’ communications incidentally caught up in the global communications net of Section 702.
The FBI, IRS, Department of Homeland Security, the Pentagon, and other agencies routinely buy Americans’ most personal, sensitive information, scraped from our apps and sold to the government by data brokers. This practice is not authorized by any statute, or subject to any judicial review. Including a warrant requirement for commercially acquired information as well as Section 702 data is critical, otherwise the closing of the backdoor search loophole will merely be replaced by the data broker loophole.
If the House declines to impose warrants for domestic surveillance, expect many politically targeted groups to have their privacy and constitutional rights compromised. We cannot miss the best chance we’ll have in a generation to protect the Constitution and what remains of Americans’ privacy.
Copy and paste the message below and click here to find your U.S. Representative and deliver it:
“Please stand up for my privacy and the Fourth Amendment to the U.S. Constitution: Vote to reform FISA’s Section 702 with warrant requirements, both for Section 702 data and for our sensitive, personal information sold to government agencies by data brokers.”
No sooner did the Protect Liberty and End Warrantless Surveillance Act pass the House Judiciary Committee with overwhelming bipartisan support than the intelligence community began to circulate what Winston Churchill in 1906 politely called “terminological inexactitudes.”
The Protect Liberty Act is a balanced bill that respects the needs of national security while adding a warrant requirement whenever a federal agency inspects the data or communications of an American, as required by the Fourth Amendment. This did not stop defenders of the intelligence community from claiming late last year that Section 702 reforms would harm the ability of the U.S. government to fight fentanyl.
This is remarkable, given that the government hasn’t cited a single instance in which warrantless searches of Americans’ communications proved useful in combating the fentanyl trade. Nothing in the bill would stop surveillance of factories in China or cartels in Mexico. If an American does become a suspect in this trafficking, the government can and should seek a probable cause warrant, as is routinely done in domestic law enforcement cases.
No sooner did we bat that one away than we heard about fresh terminological inexactitudes. Here are two of the latest bits of disinformation being circulated on Capitol Hill about the Protect Liberty Act.
Intelligence Community Myth: Members of Congress are being told that under the Protect Liberty Act, the FBI would be forced to seek warrants from district court judges, who might or might not have security clearances, in order to perform U.S. person queries.
Fact: The Protect Liberty Act allows the FBI to conduct U.S. person queries if it has either a warrant from a regular federal court or a probable cause order from the FISA Court, where judges have high-level security clearances. The FBI will determine which type of court order is appropriate in each case.
Intelligence Community Myth: Members are being told that under the Protect Liberty Act, terrorists can insulate themselves from surveillance by including a U.S. person in a conversation or email thread.
Fact: Under the Protect Liberty Act, the FBI can collect any and all communications of a foreign target, including their communications with U.S. persons. Nothing in the bill prevents an FBI agent from reviewing U.S. person information the agent encounters in the course of reviewing the foreign target’s communications.
In other words, if an FBI agent is reading a foreign target’s emails and comes across an email to or from a U.S. person, the FBI agent does not need a warrant to read that email. The bill’s warrant requirement applies in one circumstance only: when an FBI agent runs a query designed to retrieve a U.S. person’s communications or other Fourth Amendment-protected information. That is as it should be under the U.S. Constitution.
As we face the renewed debate over Section 702 – which must be reauthorized in the next few months – expect the parade of untruths to continue. As they do, PPSA will be here to call them out.
Statement by Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor to the Project for Privacy and Surveillance Accountability (PPSA).
“Once again, the House has passed the Protect Reporters from Exploitive State Spying (PRESS) Act with unanimous, bipartisan support. Forty-nine states have press shield laws protecting journalists and their sources from the prying eyes of prosecutors. The federal government does not. From Fox News to The New York Times, government has surveilled journalists in order to catch their sources. Journalists have been held in contempt and even jailed for bravely safeguarding the trust of their sources.
“The PRESS Act corrects this by granting a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such laws work well for the states and would safeguard Americans’ right to evaluate claims of secret wrongdoing for themselves.
“Great credit goes to Rep. Kevin Kiley and Rep. Jamie Raskin for lining up bipartisan support for this reaffirmation of the First Amendment. As in 2022, the last time the House passed this act, the duty now shifts to the U.S. Senate to respond to this display of unanimous, bipartisan support. I am optimistic. At a time of gridlock, enacting this bill into law would be a positive message that would reflect well on every Senator.”
Three of the largest pharmaceutical chains – CVS Health, Kroger, and Rite Aid – routinely hand over the prescription and medical records of Americans to police and government agencies upon request, no warrant required.
“Americans' prescription records are among the most private information the government can obtain about a person,” Sen. Ron Wyden (D-OR), and Reps. Pramila Jayapal (D-WA) and Sara Jacobs (D-CA) wrote in a letter to HHS Secretary Xavier Becerra revealing the results of a congressional investigation into this practice. “They can reveal extremely personal and sensitive details about a person’s life, including prescriptions for birth control, depression or anxiety medications, or other private medical conditions.”
The Washington Post reports that because the chains often share records across all locations, a pharmacy in one state can access a person’s medical history from states with more restrictive laws.
Five pharmacies – Amazon, Cigna, Optum Rx, Walmart, and Walgreens Boots Alliance – require demands for pharmacy records by law enforcement to be reviewed by legal professionals. One of them, Amazon, informs consumers of the request unless hit with a gag order. All the major pharmacies will release customer records, however, if they are merely given a subpoena issued by a government agency rather than a warrant issued by a judge. This could be changed by corporate policy. Sen. Wyden and Reps. Jayapal and Jacobs urge pharmacies to insist on a warrant rather than comply with a request or a subpoena.
Most Americans are familiar with the strict privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) from filling out forms in the doctor’s office. Most will surely be surprised how HIPAA, as strict as it is for physicians and hospitals, is wide open for warrantless inspection by the government.
This privacy vulnerability is just one more example of the generous access government agencies have to almost all of our information.
Intelligence and law enforcement agencies can know just about everything about us through purchases of our most sensitive and personal information reaped by our apps and sold to the government by data brokers. As privacy champions in Congress press HHS to revise its HIPAA regulations to protect Americans’ medical data from warrantless inspection, Congress should also close all the loopholes by passing the Protect Liberty and End Warrantless Surveillance Act.
Agencies Must Release Policy Documents About Purchase of the Personal Data of 145 Members of Congress
Late last week, Judge Rudolph Contreras ordered the NSA, the CIA, the FBI, and the Office of the Director of National Intelligence to respond to a PPSA Freedom of Information Act (FOIA) request. The government now has two weeks to schedule the production of “policy documents” regarding the intelligence community’s acquisition and use of commercially available information regarding 145 current and former Members of Congress.
This is the second time Judge Contreras has had to tell federal agencies to respond to a FOIA request PPSA submitted. In late 2022, Judge Contreras rejected in part the FBI’s insistence that the Glomar doctrine allowed it to ignore FOIA’s requirement to search for responsive records. Despite that clear holding, the FBI – joined this time by several other agencies – again refused to search for records in response to PPSA’s FOIA request. And Judge Contreras had to remind the agencies again that FOIA’s search obligations cannot be ducked so easily.
Instead, Judge Contreras found that PPSA “logically and plausibly” requested the policy documents about the acquisition of commercially available information. And Judge Contreras concluded that a blanket Glomar response, in which the government neither confirms nor denies the existence of the requested documents, is appropriate only when a Glomar response is justified for all categories of responsive records.
The judge then described a hypothetical letter from a Member of Congress to the NSA that clarifies the distinction between operational and policy documents. He considered that such a letter might ask if the NSA “had purchased commercially available information on any of the listed Senators or Congresspeople” without revealing whether the NSA (or any other of the defendant agencies) “had a particular interest in surveilling the individual.” Judge Contreras decided that “it is difficult to see how a document such as this would reveal sensitive information about Defendants’ intelligence activities, sources, or methods.”
It is on this reasoning that the judge ordered these agencies to produce these policies documents. We eagerly awaits the delivery of these documents in both cases. Stay tuned.
Man proposes, God disposes, but Congress often just kicks the can down the road.
Throughout 2023, PPSA and our civil liberties allies made the case that Section 702 of the Foreign Intelligence Surveillance Act – enacted by Congress to give federal intelligence agencies the authority to surveil foreign threats abroad – has become a convenient excuse for warrantless domestic surveillance of millions of Americans in recent years.
With Section 702 set to expire, the debate over reauthorizing this authority necessarily involves reforms and fixes to a law that functions in a radically different way than its Congressional authors imagined.
In December, a strong bipartisan majority in the House Judiciary Committee passed a well-crafted bill to reauthorize FISA Section 702 – the Protect Liberty and End Warrantless Surveillance Act. This bill mandates a robust warrant requirement for U.S. person searches. It curtails the common government surveillance technique of “reverse targeting,” which uses Section 702 to work backwards to target Americans without a warrant. It also closes the loophole that allows government agencies to buy access to Americans’ most sensitive and personal information scraped from our apps and sold by data brokers.
And the Protect Liberty Act requires the inclusion of lawyers with high-level clearances who are experts in civil liberties to ensure the secret FISA Court hears from them as well as from government attorneys.
The FISA Reform and Reauthorization Act from the House Permanent Select Committee on Intelligence would not stop the widespread practice of backdoor searches of Americans’ information. And it does not address the outrageous practice of federal agencies buying up Americans’ most sensitive and private information from data brokers.
In the crush of business, the deadline for reauthorizing Section 702 was delayed until early spring. Now the contest between the two approaches to Section 702 reauthorization begins in earnest.
With a recent FreedomWorks/Demand Progress poll showing that 78 percent of Americans support strengthening privacy protections along the lines of those in the Protect Liberty Act, reformers go into the year with a strong tailwind. While we should never underestimate the guile of the intelligence community, reformers look to the debate ahead with hopefulness and eagerness to win this debate to protect the privacy of all Americans.
In July, we wrote about revelations that the U.S. Department of Justice subpoenaed Google for the private data of House Intel staffers looking into the origins of the FBI’s Russiagate investigation. Then, in October, we wrote about a FOIA request from Empower Oversight seeking documents shedding light on the extent to which the executive branch is spying on Members of Congress. Now, following the launch of an official inquiry, Rep. Jim Jordan has issued a subpoena to Attorney General Merrick Garland for further information on the DOJ’s efforts to surveil Congress and congressional staff.
On Halloween, Jordan launched his inquiry into the DOJ’s apparent attempts to spy on Congress, sending letters to the CEOs of Alphabet, Apple, AT&T, T-Mobile, and Verizon requesting, for example, “[a]ll documents and communications between or among Apple employees and Justice Department employees referring or relating to subpoenas or requests issued by the Department of Justice to Apple for personal or official records or communications of Members of Congress or congressional staff….”
Jordan also sent a letter to Garland, asserting that “[t]he Justice Department’s efforts to obtain the private communications of congressional staffers, including staffers conducting oversight of the Department, is wholly unacceptable and offends fundamental separation of powers principles as well as Congress’s constitutional authority to conduct oversight of the Justice Department.”
Nearly two months later, according to Jordan, the DOJ’s response has been insufficient. In a letter to Garland dated December 19, 2023, Jordan says that the “Committee must resort to compulsory process” due to “the Department’s inadequate response to date.”
That response, to be fair, did include a letter to Jordan dated December 4 conveying that the legal process used related to an investigation “into the unauthorized disclosure of classified information in a national media publication. Jordan, citing news reports, contends that the investigation actually “centered on FISA warrants obtained by the Justice Department on former Trump campaign associate Carter Page” (which the Justice Department Inspector General faulted for “significant inaccuracies and omissions”).
Whatever the underlying motivation, Jordan is right to find DOJ’s explanation to date unsatisfying. Spying on Congress not only brings with it tremendous separation of powers concerns but raises a broader question about FISA and other processes that would reveal Americans’ personal information without sufficient predication.
We need answers. Who authorized these DOJ subpoenas? And how can we make sure this kind of thing doesn’t happen again? PPSA looks forward to further developments in this story.
With Congress extending the reauthorization of FISA Section 702 until April, the debate over surveillance can be expected to fire up again when Members return in January. As Members relax and reorient over the holidays, we urge them to take a moment to listen to what the American people are saying.
The conservative FreedomWorks and the progressive Demand Progress, both highly respected advocacy organizations with deep grassroots, came together to conduct a national poll on the public’s approval of specific measures. Some of these measures are in the FISA Reform and Reauthorization Act passed by the House Intelligence Committee, and some in the Protect Liberty and End Warrantless Surveillance Act, passed 35-2 by the House Judiciary Committee.
Across the board, Americans overwhelmingly support the provisions in the Protect Liberty Act.
House Judiciary Chairman Jim Jordan, writing in The Wall Street Journal, declared that, “in the wake of serious FISA abuses, our fidelity must be to the Constitution, not the surveillance state.” The FreedomWorks/Demand Progress poll shows that the American people agree.
Just before Congress punted – delaying debate over reform proposals to Section 702 of the Foreign Intelligence Act – Sen. Mike Lee (R-UT) took to the Senate floor to describe how much is at stake for Americans.
Sen. Lee did not mince his words, saying Section 702 “is widely, infamously, severely abused” as “hundreds of thousands of American citizens have become victims of …warrantless backdoor searches.” The senator’s frustration boiled over when he spoke of questioning FBI directors in hearings, being told by them “don’t worry” because the FBI has strong procedures in place to prevent abuses. “We’re professionals,” they said.
These promises from FBI directors, Sen. Lee said, are “like a curse,” an indication that the violation of Americans’ civil rights “gets worse every single time they say it.”
The good news is that, although champions of reform fell short in Thursday’s vote, 35 senators in both parties were so bothered by the extension of Section 702 in its current form that they voted against its inclusion in the National Defense Authorization Act. What appears to be a temporary extension of Section 702 leaves the door open, we hope, for a fuller debate and vote on reform provisions early next year.
When that happens, Sen. Lee will surely be in the lead. Here is the bipartisan honor roll of senators who voted in favor of surveillance reform.
Tammy Baldwin (D-WI), Marsha Blackburn (R-TN), Cory Booker (D-NJ), Mike Braun (R-IN), Sherrod Brown (D-OH), Maria Cantwell (D-WA), Kevin Cramer (R-ND), Steve Daines (R-MT), Dick Durbin (D-IL), Chuck Grassley (R-IA), Bill Hagerty (R-TN), Josh Hawley (R-MO), Martin Heinrich (D-NM), Mazie Hirono (D-HI), John Hoeven (R-ND), Ron Johnson (R-WI), Mike Lee (R-UT), Ben Ray Lujan (D-NM), Cynthia Lummis (R-WY), Ed Markey (D-MA), Roger Marshall (R-KS), Robert Menendez (D-NJ), Jeff Merkley (D-OR), Rand Paul (R-KY), Bernie Sanders (I-VT), Eric Schmitt (R-MO), Rick Scott (R-FL), John Tester (D-MT),Tommy Tuberville (R-AL), Chris Van Hollen (D-MD), J.D. Vance (R-OH), Raphael Warnock (D-GA), Elizabeth Warren (D-MA), Peter Welch (D-VT), and Ron Wyden (D-OR).
The Senate will vote today on a procedural motion to waive a point of order on the National Defense Authorization Act (NDAA), allowing a non-germane extension of a controversial surveillance program. A vote in favor of this procedural motion is a vote to accept an unreformed, “clean” extension of surveillance of Americans under FISA’s Section 702 for the next 16 months, giving Senators no chance to debate or amend that troubled surveillance authority.
Why is this so? What is being billed as a four-month extension of Section 702 in the NDAA actually allows the government to ask the FISA Court early next year for another year-long certification.
This maneuver would extend the warrantless surveillance of Americans past any debate in this Congress and past the next presidential election. Unless you vote against the motion, allowing this extension to be part of the NDAA will effectively allow federal agencies to warrantlessly surveil Americans through April 2025.
There is no reason to listen to the purveyors of panic. There is widespread, bicameral, and bipartisan agreement on extending or reauthorizing Section 702 authority to enable foreign intelligence to safeguard our national security. There is no good reason to sneak a clean FISA 702 extension into the NDAA at the last minute.
Such a move would deny the champions of Section 702 reform even a chance to make their case in the relevant committees and on the floor – a tragedy for regular order and for democracy.
For that reason, PPSA will be scoring votes for our followers. We will negatively score votes in favor of any motion that allows a Section 702 extension as part of the NDAA. We will give positive scores to those who vote against any such motion.
Gene Schaerr, PPSA's General Counsel, explains how the House Permanent Select Committee on Intelligence's bill on FISA's Section 702 would actually expand warrantees surveillance.
"But the House Intelligence bill’s expansion to include “equipment” would cover, for example, any small or medium-sized business that simply provides Wi-Fi or stores data. This means that your business landlord, Airbnb host, hotel manager, or coffee shop barista will have a legal obligation to give the government any of your emails, texts, or phone metadata that ran through their equipment. Larger entities, such as data centers, would also be enlisted in spying on Americans."
PPSA Will Score Key Votes on Two Competing Bills to Reauthorize Section 702 of the Foreign Intelligence Surveillance Act
The Project for Privacy and Surveillance Accountability (PPSA) will be scoring this week’s votes on each of the two competing bills to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.
For our followers, PPSA will positively score Members who vote in favor of the Protect Liberty and End Warrantless Surveillance Act, which passed the House Judiciary Committee this week in an overwhelming bipartisan 35-2 vote.
We will negatively score Members who vote in favor of the FISA Reform and Reauthorization Act from the House Permanent Select Committee on Intelligence.
PPSA supports the Protect Liberty bill because it places critical guardrails and limits on warrantless FBI and other government surveillance of Americans, while reauthorizing Section 702 to protect national security.
PPSA opposes the HPSCI bill because it rubberstamps the FBI’s and other agencies’ warrantless surveillance of Americans for years to come, while actually expanding the ability of the government to spy on Americans.
The table below highlights the key differences between the two bills.
Judiciary’s Protect Liberty and End Warrantless Surveillance Act