A growing number of House and Senate members are supporting the Fourth Amendment Is Not for Sale Act, which would require law enforcement and intelligence agencies to obtain a probable cause warrant before accessing Americans’ personal information purchased from a private-sector data broker.
 
But what about non-state actors buying our information?
 
A recent lawsuit brought against private-data broker Kochava by the Federal Trade Commission reveals the horrific exposure of Americans’ most personal data to unseen – and possibly unknown – private actors.
 
Kochava claims to have “rich geo data spanning billions of devices globally,” with location data feed that “delivers raw latitude/longitude data with volumes around 94B-plus billion geo transactions per month, 125 million monthly active users, and 35 million daily active users, on average observing more than 90 daily transactions per device.”
 
In its filing on Aug. 29, the FTC writes that a purchaser would only need to provide Kochava a personal email address and describe the intended use as “business” to gain access to your data from Kochava.
 
“The location data provided by Kochava is not anonymized,” the FTC filing asserts. “It is possible to use the geolocation data, combined with the mobile devices MAID (Mobile Advertising ID), to identify the mobile device’s user or owner.”
 
The FTC claims:
 
“Precise geolocation data associated with MAIDs, such as the data sold by Kochava, may be used to track consumers to sensitive locations, including places of religious worship, places that may be used to infer an LGBTQ+ identification, domestic abuse shelters, medical facilities, and welfare and homeless shelters.” It can identify women who visit reproductive clinics and people who attend services at Jewish, Christian, Islamic and other religious denominations’ places of worship.
 
Kochava, the FTC claims, does not employ a blacklist that removes or obfuscates data-set location signals from these sensitive locations.
 
The facts presented by the FTC, as alarming as they are, should not get mixed up in the separate debate on the Hill over restricting the government’s ability to purchase our private data. The many federal agencies that buy our data are not just violating our privacy. They are eviscerating the plain meaning of the Constitution’s Fourth Amendment, which requires government to get a warrant from a court to access our personal information.
 
The solution to private-sector access to personal information is a deep and complex debate taking place within multiple Congressional committees and stakeholders from business and consumer groups. Passing the Fourth Amendment Is Not for Sale Act in this Congress, which would close off the government’s warrantless access to Americans’ personal information, would be a strong predicate for that next step in the privacy debate.

​In a hearing over the summer, the House Judiciary Committee took a hard look at the way in which private data brokers freely sell Americans most personal information to a host of government law enforcement and intelligence agencies.
 
Chairman Jerry Nadler said that digital tracking is “so precise that officers can track individuals within specific homes and businesses … tracking your location over time, within inches, without any due process whatsoever.
 
“The end result is that, just by going about your daily life, your data may be swept up in and make you the subject of a criminal investigation … If law enforcement and intelligence agencies remain unrestrained in their ability to purchase this data, our right to privacy will be at best illusory.”
 
Ranking Member Jim Jordan said that the government continues to transform guardrails meant to protect privacy into loopholes to allow the government to do whatever it wants. Jordan said, “this is wrong and it’s un-American.”
 
Representatives of both parties expressed dismay about how freely federal agencies utilize and abuse surveillance powers in defiance of the Fourth Amendment. Rep. Zoe Lofgren detailed the many ways the U.S. Immigration and Customs Enforcement agency tracks Americans’ daily movements and extracts personal information from utility records. Rep. Andy Biggs spoke of the uses to which the government can employ geolocation tracking against Americans.
 
In short, the House Judiciary Committee did an excellent job of teeing up the issue. Now it is time to swing the club for a legislative solution.
 
On Wednesday, PPSA joined with Americans for Prosperity, Demand Progress, the Due Process Institute and Free Press Action to call on the committee to take bipartisan action and mark up the Fourth Amendment Is Not for Sale Act.

Local law enforcement agencies have been caught using a cheap new cell phone tracking tool called Fog Reveal. (A hat tip to The Associated Press for compiling this story). The tool gives police agencies “the power to follow people’s movements months back in time,” according to The Associated Press.
 
Fog Reveal has been used since at least 2018 in criminal investigations, can search billions of records from 250 million mobile devices, and is possibly a potent workaround of the 4th Amendment. It is no wonder why police rarely mention Fog Reveal “in court records, something that defense attorneys say makes it harder for them to properly defend their clients in cases in which the technology was used.”
 
Fog Reveal “relies on advertising identification numbers, which Fog officials say are culled from popular cell phone apps such as Waze, Starbucks, and hundreds of others” according to police emails obtained by The Associated Press. That information is then sold to companies including Fog, further demonstrating the role of data brokers in undermining the digital privacy of Americans.
 
“The capability that it had for bringing up just anybody in an area whether they were in public or at home seemed to me to be a very clear violation of the Fourth Amendment,” said Davin Hall, a former crime data analysis supervisor for the Greensboro, North Carolina, Police Department.
 
Congress must investigate the use of Fog Reveal by law enforcement agencies and bolster legal protections against such 4th Amendment violations. Congress could begin by passing The Fourth Amendment Is Not for Sale Act, which would block data brokers from selling our personal information to law enforcement and intelligence agencies without authorization by a court. Congress must work to ensure the privacy of all Americans is safe and secure.

​“To exist in 2022 is to be surveilled, tracked, tagged and monitored — most often for profit.” It might sound like an exaggeration, but it’s far from it. When nearly every American is carrying a tracking device, audio and video recorder, and all their personal data in their pocket, nobody is truly private.
 
The cracks in our digital privacy are getting wider, allowing an almost unfiltered ocean of our most sensitive data to flow into anyone’s hands. As Alex Kingsbury writes in The New York Times:
 
“Consider just last week: Apple released a surprise software update for its iPhones, iPads and Macs meant to remove vulnerabilities the company says may have been exploited by sophisticated hackers. The week before that, a former Google engineer discovered that Meta, the parent company of Facebook and Instagram, was using a piece of code to track users of the Facebook and Instagram apps across the internet without their knowledge. In Greece the prime minister and his government have been consumed by a widening scandal in which they are accused of spying on the smartphones of an opposition leader and a journalist.
 
And this month Amazon announced that it was creating a show called “Ring Nation” — a sort of ‘America’s Funniest Home Videos’ made up of footage recorded by the company’s Ring doorbells.”
 
Just one of these examples should be cause for concern to any American, but the problem is simply too big for individuals to handle. As Kingsbury states, “there are simply too many tech companies, government entities, data brokers, internet service providers and others tracking everything we do.” Congress must take bold action to protect Americans from predatory data collectors and misusers.
 
Legislation like the Fourth Amendment is Not for Sale Act is a step in the right direction. It would prohibit law enforcement and other government agencies from purchasing bulk data from data brokers. In the wake of renewed state battles over the future of abortion rights, the My Body, My Data Act would tighten rules around personal health information. Absent these reforms, “we’re about to find out what happens when that privacy has all but vanished.” PPSA will continue to monitor these issues and fight for privacy in Congress and the courts.

Earlier this month, former Vice-President Mike Pence called out criticism of the FBI lodged by members of his own party. In his speech, Pence stated “I … want to remind my fellow Republicans we can hold the attorney general accountable for the decision that he made without attacking the rank-and-file law enforcement personnel at the FBI..” While the intent of Pence’s statement is certainly laudable, it comes at a time when the public is increasingly distrustful of the agency’s activities.
 
Pence’s comments have been received so poorly because they dismiss the credible concerns emanating from all sectors of the American public. The distrust towards the agency turned into full-blown outrage when the FBI raided former President Trump’s Mar-a-Lago estate earlier this month on August 8th. It has been weeks since the raid, and there has been little official explanation provided. What information we do have has been pieced together from an unsealed warrant and source leaks. From the warrant, the search was related to potential violations of three laws including the Espionage Act. Attorney General Merrick Garland said during remarks on August 11 that he would not explain why he personally signed off on seeking a search warrant. Even though documents were recovered, distrust of the agency has become so severe, that swaths of the American public may choose to believe that the evidence seized was forged and planted.
 
Also worried is Michael Horowitz, Inspector General of the U.S. Department of Justice. Across multiple reports, Horowitz details the abuses, noncompliance, and mishandling that is currently ongoing within the FBI. For a few examples, in September of 2021, the office of the Inspector General released a report stating that there “was widespread non-compliance with the Woods Procedures,” a set of procedures to ensure factual accuracy in FISA applications. In August of 2019, the office of the Inspector General released a report detailing the multiple rules violations by former FBI Director James Comey, indicating a culture of secrecy and noncompliance at the highest level in the chain of command. There are multiple reports detailing commercial sex, accepting illegal gifts from the media, the violation of ethics rules, and a “lack of candor.”
 
When American citizens display “a lack of candor,” they can be fired from their jobs. When senior officials at the FBI do it, prosecution is declined and the offending party is “reassigned to a nonsupervisory role.”
 
In 2019, the Foreign Intelligence Surveillance Court criticized the FBI for misleading it in applications to wiretap former Trump campaign aide, Carter Page. Inspector General Horowitz found that the FBI had omitted facts and provided false statements to the FISA court when the FBI filed for a warrant to conduct surveillance on Page. FISA court presiding Judge Rosemary Collier stated in her opinion that “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above…”
 
So, not only is the public concerned, but so is the office of the Inspector General and the FISA courts, two organizations which either oversee or directly liaise with the FBI.
 
Just this week, the escapades of the FBI were on full display during a trial to convict two men involved in the 2020 plan to kidnap Michigan Governor Gretchen Whitmer. The already high-profile nature of the case was catapulted into the stratosphere when the FBI revealed there were at least five informants or undercover agents embedded among the suspected planners. Defense attorneys have argued there were at least twelve. The involvement of FBI agents and informants was so significant, that a trial for a separate set of suspected planners failed to get a single conviction. One informant became second-in-command of a militia. Another undercover agent offered to provide explosives to the group. It calls into question whether the FBI was engaged in entrapment.
 
FBI agents assigned to the case became subjects of scrutiny themselves. As the New York Times reports, “one F.B.I. agent on the case was fired last year after being charged with domestic violence, and another agent, who supervised a key informant, tried to build a private security consulting firm based in part on some of his work for the F.B.I.…” That FBI agents so close to an ongoing plan to kidnap a governor were themselves so compromised is very chilling.
 
It seems obvious from the last several years that the FBI is in need of both oversight and reform. An agency with significant investigatory and enforcement powers, Congress can and should do more to monitor the activities of the agency.

​If you think HIPAA medical privacy laws mean your medical data is secure, think again. Digital health companies have been caught funneling sensitive data that patients have shared with them to Facebook/Meta to help target advertisements.
 
A recent study by the data privacy research group Light Collective surveyed the actions of five health companies and found that third-party ad trackers used by those companies followed patients online and marketed to them based on their activities. Three of the companies went against their own privacy policies in the process, raising concerns about HIPAA violations.
 
Four of the five digital health companies did not respond to requests by Forbes for comment. The authors of the study said that after they disclosed their findings to the five companies, only two responded: Ciitizen and Invitae. Both said they were investigating the matter.
 
Andrea Downing, cofounder of the Light Collective, said that poor health data privacy is “one of the biggest threats to online patient communities.” The study is indicative of larger data-sharing trends across digital health and social media. An investigation published earlier this summer by The Markup showed that hospital websites are currently using data trackers to gather and share sensitive patient information with Facebook for marketing. Facebook’s parent company, Meta, has said that sharing such information is a violation of the company’s rules.
 
This is a concerning development for digital health privacy. Digital health companies are allegedly violating their own privacy rules and possibly the law. It also demonstrates the failure of the government to ensure critical patient health data is safe and secure.

A lot has been written about a provision of the upcoming Inflation Reduction Act, which will provide an additional $80 billion in funding to the Internal Revenue Service. Most of this funding will go to bolstering enforcement work, meaning more audits.
 
While this is bad news for millions of taxpayers, and good news for the makers of Tums Antacid Products for Fast Heartburn Relief, the creation of a new army of auditors is bound to significantly warp the already warped privacy landscape in America.
 
Big numbers for new IRS hires have been estimated. A Treasury Department report from May 2021 estimated that the agency would be able to hire roughly 87,000 employees by 2031 with the additional funding, more than doubling the agency’s staff dedicated to enforcing tax laws. But even media defenses of the plan, which have tried to downplay the number, still estimate anywhere between twenty to thirty thousand new employees.
 
At either number, the IRS expansion will undoubtedly expand the capability of the agency to investigate American citizens. Jonah Goldberg put it best recently when he wrote:
 
“Unlike normal law enforcement, the IRS doesn’t require probable cause to investigate you. It can choose people at random or investigate people based on a theory or a hunch—often sanitized by saying it was the algorithm that made the call. Even if you did nothing wrong, the process itself is punishing and often expensive. One of the bedrocks of our constitutional order, most obviously enshrined in the Fourth Amendment, is the idea that citizens should not be subjected to unreasonable searches without probable cause. Stop and frisk was canceled because it was seen as an outrageous and demeaning affront to civil liberties. I’m conflicted on that. But I certainly get the objections, and I would never say, ‘If you did nothing wrong, you have no reason to complain about being frisked.’ Well, an audit is a forensic frisking of virtually everything you did for a year. What did you spend money on? Where did you spend it? How did you get the money? Show us your receipts. Prove you’re not guilty.”
 
Also concerning are the new methods and technologies the IRS could deploy against the whole country. In February, we reported on the bipartisan resistance to the IRS’s plan to implement facial recognition technology. Under this plan, the IRS would require taxpayers to submit to digital facial recognition scans to obtain tax transcripts and other records. The plan was halted amid significant pushback noting the privacy and technological flaws of facial recognition, but not before 7 million Americans surrendered their biometric data to the IRS and a third-party verification company, ID.me.
 
In May, we reported on the Transparency and Accountability in Service Providers Act, a draft bill circulating that would have deputized millions of “financial gatekeepers” into spying on their clients for the federal government. Virtually the entire financial services industry would be required to report any “suspicious” activity to the government. If the Act were to pass, and the 7.6 million employees of the financial services sector were “deputized,” there would be one informer for every 43 Americans.
 
Where there is a will, there is a way. The IRS is already trying to spy on you. With this new funding, the IRS now has a way.

​On Tuesday, House Judiciary Committee Chairman Jerrold Nadler and House Homeland Security Committee Chairman Bennie Thompson sent a letter to the heads of key agencies demanding answers to questions about their use of data brokers.
 
It is no secret that agencies ranging from the FBI to the DEA have been circumventing the Fourth Amendment by purchasing the data of millions of Americans from private data brokers. This letter is the latest sign Congress is waking up to the privacy and surveillance threat posed by data brokers contracting with the federal government.
 
Reps. Nadler and Thompson wrote Attorney General Merrick Garland, FBI Director Christopher Wray, Homeland Security Secretary Alejandro Mayorkas, as well as the heads of Customs and Border Protection, the Bureau of Alcohol, Tobacco, Firearms and Explosives, Immigration and Customs Enforcement and the Drug Enforcement Administration.
 
The two chairmen noted:
 
“In a recent hearing before the House Judiciary Committee, a witness stated that materials provided by data brokers ‘turn policing from a suspect-focused search into a constant, intrusive surveillance system that surveils all of us. Rather than focusing on particular suspects, data policing tools are dragnets, sifting through all of our data.’”
 
The letter demanded each agency provide four sets of documents:

1. Documents and communications related to contracts with companies that aggregate and provide personal data on Americans, including internal documents and communications.
   
   
2. Documents and communications related to any legal analysis of the acquisition and/or use of brokered data in investigations, prosecutions, and other agency/department work.
   
   
3. Documents and communications related to the consideration of contracts for access to brokered data, including but not limited to funding, requests for proposals, or assessment of data provided.
   ​
4. Documents and communications related to stipulating the parameters of and limitations to use of brokered data materials and databases by agency/department personnel.

 
This is a step in the right direction, and PPSA looks forward to further work by Congress on the subject. What we learn from these requests should prompt Congress to pass the Fourth Amendment Is Not For Sale Act.

Courts throw out cases in which the government violated the Fourth Amendment to gain evidence obtained illegally. Prosecutors, dreading such a rebuke, have sometimes resorted to “parallel construction” – using illicitly gained knowledge to turn up evidence from a source acceptable in court.
 
Suppose, for example, that an illegal wiretap by federal investigators reveals that a target will deliver drugs to a certain street corner. They could then alert local police to decide that specific corner is a good place for a spot-check with drug-sniffing dogs.
 
In this way, evidence obtained by illicit surveillance can be laundered. This seems to be especially prone to happen when law enforcement relies on “stingrays” – the common name for cell-site simulators, equipment that mimics a cellphone tower to ping the location of a cellphone.
 
The FBI, in 2014, after providing the Oklahoma City police with stingray technology, sent that department a memo telling the police that the stingray is for “lead purposes” only and “may not be used as primary evidence in any affidavits, hearings or trials.” Instead, the FBI required the police to use “additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial” to corroborate information obtained using the stingray. The Cato Institute’s Adam Bates analyzed such agreements and concluded that “law enforcement uses some surreptitious and, perhaps, constitutionally dubious tactics to generate a piece of evidence. In order to obscure the source of that evidence, police will use the new information as a lead to gather information from which they construct a case that appears to have been cracked using routine police work.” 
 
Perhaps because of reporting like Cato’s analysis, formal FBI agreements to sell stingrays to local law enforcement – at least those released to the public – appear to be missing this language.
 
But what about informal agreements?
 
In two responses to PPSA’s Freedom of Information Act requests, the FBI has used similar language in 2015 and 2020 deals to allow police to use stingrays. To be fair, these may be one-off situations. Both cases seem to have been loaner deals, in which stingrays were deployed in “exigent” or emergency circumstances.
 
For example, one 2015 email chain shows that an agency agreed to the FBI’s request that “it is required to use additional and independent investigative means and methods, such as [redacted] that would be admissible at trial to corroborate information concerning the location of the target obtained through the use of this equipment.”
 
Comparing this redacted language to the unredacted provisions imposed on the Oklahoma City police, it appears that the FBI continues to push local law enforcement to hide their stingray use from the courts. On the other hand, this language is missing from other NDA forms PPSA has obtained. Has the FBI abandoned this practice? Or is it continuing “off the books” in some fashion to encourage local law enforcement to launder evidence?

Amazon continues its relentless growth as a private data behemoth. On August 5, Amazon announced it will buy iRobot Corp., the maker of the famous Roomba vacuum. While Amazon has an interest in promoting and selling the autonomous vacuum cleaner, it might be far more interested in what the vacuum can collect – and no, it’s not the dirt on your floors.
 
Great value rests in the Roomba’s ability to map your house, enabled by a technology called Smart Maps. According to iRobot Corp., Smart Maps allow your robot to remember the layout of the inside of your home so you can tailor your house cleaning. Over time as your Roomba develops a detailed map of the layout of your house, the kinds of objects it interacts with can provide critical data about you, your life, and anyone else in your home.
 
For example, Bloomberg reports that “the size of your house,” which Roomba can detect, “is a pretty good proxy for your wealth. A floor covered in toys means you likely have kids. A household without much furniture is a household to which you can try to sell more furniture. This is all useful intel for a company such as Amazon which, you may have noticed, is in the business of selling stuff.”
 
As Amazon continues to develop its smart home line of products, the data Roomba can acquire is the linchpin for further product integration. By themselves, current smart home products can’t really discern all that much about your house. As Bloomberg states, a smart home, “only knows that your Philips Hue lightbulbs and connected television are in your sitting room because you’ve told it as much. It certainly doesn’t know where exactly the devices are within that room. The more it knows about a given space, the more tightly it can choreograph the way they interact with you.”
 
Nothing creepy about that.
 
With the 2018 acquisition of Ring home security cameras, Amazon now has an unparalleled ability to monitor your home. At best, it means Amazon will be able to finely tailor advertisements to each individual consumer. At its worst, this kind of data could provide interested parties – perhaps through third-party brokers – with invasive information about you.
 
We have already seen how Amazon has made agreements with thousands of police departments across the country to share video data from Ring cameras and to enable monitoring of entire neighborhoods. Who knows what can be done with the information Roomba can provide about the interior of your home?

A federal jury this week in San Francisco convicted Ahmad Abouammo, 44, who managed partnerships in the Middle East and Africa for Twitter, of six charges related to accusations that he spied on the company’s users for Saudi Arabia. During the two years that Abouammo worked for Twitter, he developed close relationships with advisors close to Saudi Arabia’s crown prince, Mohammed bin Salman. The deal? The jury found that Abouammo sold private information and data about dissident accounts to the Saudi government in exchange for bribes that included luxury watches and $300,000 in cash.
 
This case highlights just one way in which the political, financial, health, and personal information of Americans is at enormous risk of falling into the hands of foreign governments, as well as our own government.
 
Abouammo, who worked at Twitter from 2013 to 2015, wasn’t arrested until 2019. Another former Twitter employee who was also charged in the scheme fled the country before he could be arrested. This human intelligence approach to spying, however, may be dwarfed by the scale of corporate infiltration and commercial surveillance by governments.
 
China leads the pack in deploying the most sophisticated methods to infiltrate U.S. companies, capabilities recently described by FBI Director Christopher Wray:
 
"China often disguises its hand in order to obtain influence and access where companies don’t suspect it. Outside of China, their government uses elaborate shell games to disguise its efforts from foreign companies and from government investment-screening programs like CFIUS, America’s Committee on Foreign Investment in the U.S.”
 
Foreign infiltration operations are not the only way in which Americans’ personal data is hemorrhaging. Even if the U.S. government and companies could effectively catch spies and corporate infiltrators, countries around the globe might legally circumvent the FBI by simply buying our data from data brokers. “The present risks of our citizens’ data being sold to foreign governments are grossly underappreciated,” wrote Klon Kitchen and Bill Drexel at the American Enterprise Institute.
 
As PPSA has previously reported, data brokers gather a trove of highly personal data about you and sell it to interested parties. Even if the U.S. can enact effective reforms to stop foreign infiltration, governments, including our own, can simply purchase our data.
 
It is more important than ever that Congress and American businesses tackle the many threats to data privacy. As Congress debates a privacy bill, the scope of foreign government purchases of our information – perhaps through shell companies – should be the subject of deep inquiry. Addressing this vulnerability will require a lot of study by the relevant Congressional committees and social media companies to ensure that any proposed solution works without unintended consequences.
 
In the meantime, there is one gap that can be closed immediately – the warrantless access of Americans’ personal information by U.S. law enforcement and intelligence agencies, in defiance of the Constitution’s Fourth Amendment.  

The House Intelligence Committee recently held an open hearing on commercial cyber surveillance, also known as “mercenary spyware.”
 
The hearing focused on new threats posed specifically by privately made, foreign-developed spyware that are bringing capabilities long associated with top-tier nation states to smaller countries and the private sector. PPSA has previously reported on one such foreign spyware, in particular the spreading “zero-click” Israeli-developed Pegasus.
 
Pegasus can transmit itself seamlessly into a smartphone without a single click or action from the victim. From there, it can watch you through your camera, listen to you through your microphone, copy your messages, record your calls, extract all your images, and follow your movements. In just a few years, Pegasus has been acquired by dozens of countries and entities, from Saudi Arabia to Mexican cartels, and has already been used to deadly effect against dissidents and journalists. It represents the most sophisticated and widely available form of spyware yet developed.
 
Among the hearing’s testimonials was John Scott-Railton, a senior researcher at The Citizen Lab of the University of Toronto's Munk School of Global Affairs & Public Policy. His testimony provided a stark picture to Congress:

• Mercenary spyware is a growing sector doing a robust global business.
  
  
• As a result, the number of states capable of sophisticated cyber warfare has expanded into the dozens.
  ​
• The United States is not immune from this threat. Dozens of U.S. officials have been compromised. Mercenary spyware has also been found in critical offices of major allies, including the office of the UK Prime Minister.

 
Railton testified (see the 18:50 mark), “Your phone can be on your bedside table at two in the morning. One minute, your phone is clean. The next minute, the data is silently streaming to an adversary a continent away. You see nothing.” He added it was “capabilities available only to a handful of nation-states … It is too late,” he said, “to put the tech back into the bottle, and so we must take strong action now…”
 
Another witness was Carine Kanimba, an American citizen born in Rwanda. Her testimony (29:05) details the story of her stepfather, Paul Rusesabagina, portrayed by Don Cheadle in Hotel Rwanda. Rusesabagina was the manager of the Hôtel des Mille Collines in Kigali during the Rwandan genocide. He used the hotel to save more than a thousand refugees. Later, he and his family fled to the United States. Rusesabagina became a public speaker and was critical of the human rights violations of the Rwandan government and of the Rwandan President Paul Kagame. In August 2020, Kanimba’s stepfather was surveilled in the United States by the Rwandan government and lured from the family home in Texas. Rusesabagina was kidnapped in Dubai, transferred to Kigali, tortured, tried, and sentenced to 25 years in prison. Kanimba became a vocal and effective activist about the abduction of her stepfather.
 
In February 2021, Carine Kanimba was notified (33:11) by forensics experts that her smartphone had been infected by Pegasus.
 
“I was mortified, and I am terrified,” she said. The forensics report showed “the spyware was triggered as I walked in with my mom into a meeting with the Belgian Minister of Foreign Affairs. It was active during the calls with the U.S. Presidential Envoy for Hostage Affairs team and the U.S. State department, as well as U.S. human rights groups.”
 
Not only was Kanimba’s phone infected, but so was the phone of her cousin with whom she lives.
 
“I am frightened by what the Rwandan government will do to me and my family next,” she said. “It keeps me awake that they knew everything I was doing. Where I was, who I was speaking with, my private thoughts and actions, at any moment they wanted. Unless there are consequences for countries and their enablers which abuse this technology, none of us are safe.”
 
The threat by mercenary spyware companies and malware is too serious to ignore.
 
“It has taken us too long to have this conversation,” concluded Railton. His testimony included several suggestions for Congress (22:15):

• Add all unaccountable players within the spyware industry to a U.S. Department of Commerce blacklist.

 

• Expand the ability to hold problem companies accountable and direct the intelligence community to counter and disrupt them if necessary.

 

• Finally, the US should apply diplomatic pressure to countries that foster these companies and enable spyware operations.

Video starts at Sen. Mike Lee's questioning of FBI Director Wray (1:02:00 mark).

​At a Senate Judiciary Committee hearing yesterday, Sen. Mike Lee (R-UT) neatly summarized the FBI’s spotty observance of Section 702 of the Foreign Intelligence Surveillance Act (FISA), up for reauthorization next year, in his questioning of FBI Director Christopher Wray. Sen. Lee’s questions follow up on the revelation that the FBI used U.S. person information in FISA queries some 3.4 million times in a recent one-year period.
 
Sen. Lee said:
 
“As you know, Director Wray, Section 702 authorizes the collection of electronic communications. Not just the metadata but the content of the communications themselves, including communications of non-U.S. persons outside the United States. But, as you know, this inevitably leads to the incidental collection of communications that involve or include U.S. persons, including U.S. citizens.”
 
The Utah senator reminded Director Wray that the 2018 reauthorization of Section 702 required the FBI to obtain an order from the Foreign Intelligence Surveillance Court to authorize querying the database for communications involving U.S. persons and citizens in criminal investigations not involving national security. Why then, Sen. Lee asked, did a recently released transparency report estimate that the FBI did not obtain a single order under section 702 from the Foreign Intelligence Surveillance Court in 2021?
 
The FBI itself, after all, identified at least four instances in which the electronic communications of U.S. persons “were unlawfully searched without the required order from the Court?” Sen. Lee asked: “Can you tell me how you found those four instances and how you can be certain that there are not more than four instances in which someone did a backdoor search of U.S. persons’ communications?”
 
The FBI Director said he could not recall the “various oversight mechanisms we have.” He noted that the FBI set up a new office of internal audit focused on FISA compliance.
 
Sen. Mike Lee replied that he understood these authorities are needed to protect the American people.
 
“But when it comes to American citizens, they have a reasonable expectation of privacy. When you have that much ability to collect that much information, record that many conversations of unsuspecting, law-abiding American citizens, there really do have to be procedures in place to make sure that there is probable cause and a probable cause-based warrant in order to search those, because that really is just a backdoor search and a potential end run around the Fourth Amendment.”
 
Senator Lee expressed skepticism that the four known surveillances of Americans did not require a FISC order. And said he would hold Director Wray to his promise to provide more information.

If you are ever a witness before a Congressional committee, the trick to surviving a contentious hearing is to run out the clock with smooth talking. Each committee member only has five minutes to ask questions. An expert witness will often respond to a precise and penetrating question by taking up minutes with a Wikipedia-level recitation of a law or process, wrapped within pleasing-sounding banalities and blandishments.
 
Even within time constrictions in facing a polished witness, Rep. Zoe Lofgren (D-CA), long-time watcher of the watchers, managed to challenge the Department of Justice on Section 702 of the Foreign Intelligence Surveillance Act (FISA) in the recent House Judiciary Committee hearing. Rep. Lofgren refused to be brushed off (29 minutes mark) by the Department of Justice’s top national security official, Assistant Attorney General Matthew G. Olsen, concerning the FBI’s use of Section 702 information – collected to catch foreign terrorists and spies – against Americans.
 
Rep. Lofgren began by noting that FISA Court Judge James E. Boasberg had found that the FBI improperly searched Americans’ personal information collected without a warrant. Some of these were run-of-the-mill criminal investigations involving healthcare fraud, bribery, and other purported crimes unrelated to national security.
 
Rep. Lofgren added that in Dec. 2020 to Nov. 2021, the FBI searched the personal identifiers of known Americans in 702 data some 3.4 million times. This was triple the number from the previous year. As PPSA has reported, that amounts to more than 9,300 searches by the personal identifiers of Americans every day.
 
Rep. Lofgren noted that when Olsen went before the Senate Intelligence Committee for his confirmation, he pledged that “restoring and maintaining trust in the FISA process was a critical priority.” She asked him what he has done since to prevent warrantless, improper, backdoor searches of Americans’ data conducted under Section 702?
 
After taking time to give a topline description of the law, Olsen admitted that the “issues you cite are ones of concern” and promised to improve FBI compliance with training and by upgrading FBI computer systems. “We are looking forward to improving the compliance record of the Department of Justice and the FBI in regard to Section 702,” Olsen said, “and I can assure you it is a priority.”
 
Rep. Lofgren had a sharp reply.
 
“We have had reassurances over the years and yet the performance continues to be poor, and it has been poor under both Republican and Democratic Administrations,” she said. “We have considered imposing a warrant requirement for queries of known Americans … probably a necessity unless we can get some further, definitive control of the warrantless search of Americans in the 702 database.”
 
Rep. Lofgren added that using Section 702 to conduct warrantless searches on Americans is “improper and yet it continues.” Olsen replied that Section 702 permits the creation of a database of non-U.S. persons overseas, and that when the FBI searches, it does so to simply find “connections,” not to target Americans.
 
Rep. Lofgren’s retort was sharp: “That is contrary to the report that we got from ODNI and from the FISA Court.”
 
As Section 702 faces reauthorization next year, civil libertarians should continue to press Rep. Lofgren’s questions and urge Congress to consider an explicit warrant requirement when queries target Americans.

​In response to a Freedom of Information Act request from PPSA about classification procedures, the State Department reported that based on a representative sampling, only a tiny number of documents were improperly or overly classified. This seemed to us a mind-boggling response given the mountains of documents stamped classified every day at Foggy Bottom. Now, PPSA has obtained data from across the government to show the State Department’s response was misleading.
 
At a 2015 open house presentation by the National Archives and Records Administration, a graphic produced by the Information Security Oversight Office showed that nearly 100 million items are classified each year by the federal government. An Obama-era law and executive order provide the means for people within the agencies to challenge a classification decision without fear of retribution.
 
So how is that working out?
 
Of these 100 million decisions, only a minuscule fraction is challenged — in one year, much less than 1% of 1%. The graph demonstrates the extent to which the government continues to hide much of its operations from the American people.

Being called out by the People’s Republic of China for illicit surveillance is a bit like being accused of swindling by Charles Ponzi.
 
Chinese state media seized on a recent report based on a two-year exhaustive study by the Center on Privacy and Technology at Georgetown Law that revealed the U.S. Immigration and Customs Enforcement (ICE) is the latest federal agency to buy vast quantities of Americans’ personal data from utilities and state motor vehicle departments.
 
As PPSA has previously reported, the Center on Privacy and Technology found that ICE has used facial recognition technology to search the driver’s license photographs of 1 in 3 adults in the United States. ICE has access to the driver’s license data of 3 in 4 American adults and tracks the movements of cars in cities that are home to nearly 3 in 4 adults. And when adults in our country connect to gas, electricity, phone or internet service, ICE will automatically pick up the new addresses of 3 out of 4 Americans.
 
“The U.S. is the No. 1 empire in hacking, eavesdropping and stealing secrets,” said Zhao Lijian, spokesman for China’s Ministry of Foreign Affairs, on Monday. “This is an irrefutable fact and a brilliant satire of the U.S. boasting about human rights, the rule of law and rules.”
 
That is rich. China has installed a pervasive national system that uses artificial intelligence to weave together cameras in public and private spaces, facial recognition, sound recorders with voice recognition, and Orwellian “social credit scores” to create what scholars call the Chinese Panopticon.
 
It is galling to be attacked for abuses by a regime that keeps its citizens under such pervasive surveillance. But the hypocrisy of China’s bee sting does not quite pull out the stinger.
 
In the United States, at least 16 U.S. federal agencies and 75 local and state agencies employ “stingray” devices that mimic cell towers to compromise the information in cellphones within wide areas. As many as 3,000 local and state agencies rely on facial recognition technology. Federal agencies routinely sidestep the Fourth Amendment requirement to obtain a probable cause warrant to scan our personal information by purchasing it from shadowy, private data brokers.
 
And when all else fails, U.S. intelligence agencies claim to be able to perform any surveillance they deem necessary for national security not under any law, but under a presidential directive, Executive Order 12333.
 
Much of this information is used by the government to catch illegal aliens, predatory criminals, terrorists, and spies (most of them, by the way, from China). None of it will be used to put ethnic minorities in concentration camps, imprison men and women of conscience for challenging the regime’s lack of democracy, or grade us on our willingness to scroll through the Dear Leader’s turgid thoughts.
 
But we should take stock – the state of surveillance in the United States is a lot more like China’s than we’d like to admit. Absent reasonable legal reforms and guidelines, we could well be on our way to a Chinese Panopticon-light.

​Vice Motherboard, through a Freedom of Information Act request, obtained a spreadsheet from the FBI that shows that the agency over a recent six-month period lost more than 200 desktop computers.
 
How does one lose a desktop?
 
The reasons listed in the spreadsheet for the FBI’s losses of computers and other items include “inadequate security,” “inattention to details,” “gross negligence” and “willful intent.”
 
Vice notes that “a law enforcement computer going missing can present a cybersecurity risk in that it may contain sensitive information such as documents or files, or it may include passwords or other authentication mechanisms for accessing law enforcement systems.”
 
The FBI responds that in the chaotic post-COVID-19 inventory management, it marked items sent to storage or for disposal as “lost.” Let us hope that is true for all the missing computers. Remember, the federal government has been buying up Americans’ personal digital information from private data brokers. A security breach for the FBI is a matter of national security and your personal security.

The Fourth Amendment grants us protection against intrusive surveillance. Conversely, the First Amendment grants us the right to observe public actions by public authorities. The emergence of the cellphone demonstrates the integral nature of these two sets of rights. Courts are increasingly interpreting First and Fourth Amendments regarding cellphones to the advantage of citizens over government, a victory for civil liberties in law if not always in practice.
 
The U.S. Supreme Court in Riley v. California (2014) held that the police violate the Fourth Amendment when they try to gain warrantless access to the voluminous personal information inside our cellphones. On the other hand, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeal have upheld the right to record police officers going about their public duty, a right recognized as critical to the protections of the First Amendment.
 
Last summer, PPSA reported on the continued holdout stance by the U.S. Tenth Circuit Court of Appeals against the right to film police officers. Despite the weight of six other Courts of Appeal, the Tenth Circuit continued to insist ​​that there was no “clearly established” right. In a recent ruling, however, the Tenth Circuit came close to fully joining its judicial peers by dropping its Draconian opposition to the right to record in the case of a self-identified journalist and blogger. On July 11th, the court ruled in Irizarry v. Yehia in favor of a right to record.
 
The incident in question occurred early in the morning of May 26, 2019, when blogger Abade Irizarry began filming a DUI traffic stop in Colorado. According to the ruling of the court, “Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry's camera and then drove his police cruiser at the two journalists.”
 
PPSA welcomes the court’s adjustment on the right to record police activity, fundamental to the First Amendment and to Americans’ ability to protect themselves in court against potential police misconduct. The Tenth Circuit specifically cited the rulings of other Courts of Appeal, indicating that the right to record may be gaining traction, especially amid the public backlash against police misconduct in the wake of the killing of George Floyd.
 
PPSA urges courts to interpret the First and Fourth Amendments in ways that reinforce these rights. They are not in competition. There is – and should be –
a lopsidedness in the law. Citizens are free to film the police on official duty. But the police must obtain a warrant to search our cellphones.
 
In a free society that holds authority accountable, that is as it should be.

​Last week, the media was astir that videos from Amazon’s Ring doorbell cameras were shared with police without their owners’ permission. The company insists that it did so in eleven extreme cases this year in response to situations in which life and limb endangered.
 
This may fly in the face of company policy stating that police can’t view recordings unless the footage is posted publicly or intentionally shared. But the low number of such incidents, revealed in a letter by an Amazon VP of public policy to Sen. Edward Markey (D-MA), suggests the company is being upfront. To be fair, the media would be ablaze if Amazon had stood by and allowed someone to be beaten to death.
 
The biggest issue with Amazon Ring is not that it ignores the need to seek the permission of its customers to share videos with police. The bigger problem is that this network of more than three million online cameras across the United States encourages its customers to voluntarily provide for the surveillance of entire neighborhoods. One message from the company to its customers reads: “If you would like to take direct action to make your neighborhood safer, this is a great opportunity.”
 
The company has agreements with 2,161 law enforcement agencies to access an app called Neighbors, a social media platform in which owners can post Ring camera footage and leave comments. The transformation of home security into a venue for social media encourages users to post videos online – all of it available to law enforcement “partners.”
 
Even more worrying, Amazon’s agreements with law enforcement allow officers to solicit Ring doorbell footage from customers for entire neighborhoods. Such video and audio surveillance may be fine for the customer, but what about passersby? And while the number of incidents in which footage was shared without permission currently remains low, what about the capacity for future abuse by Amazon and law enforcement?
 
It is concerning that all it would take for Ring cameras to become a form of constant mass surveillance would be a change of one company’s policy.

Bob Goodlatte, PPSA Senior Policy Advisor, returns to the House Judiciary Committee, which he once chaired, to explain how the government sidesteps the constitutional requirement for a probable cause warrant by simply buying our personal digital information from private data brokers. He also discusses the need to pass The Fourth Amendment Is Not for Sale Act. You can read his testimony or listen to him testify, beginning at the 14:26 mark.

Watch here:

​The American Civil Liberties Union performed an invaluable service for the American people today by releasing records from Department of Homeland Security agencies that demonstrate the sweep of the government’s routine violation of the Fourth Amendment  by purchasing Americans’ personal data from data brokers.
 
The ACLU’s Freedom of Information Act lawsuit against DHS agencies includes Customs and Border Protection, Immigration and Customs Enforcement, the U.S. Secret Service, and the U.S. Coast Guard. This lawsuit is ongoing, but these first disclosures are eyepopping.
 
The ACLU lawsuit reveals:

• Your own tax dollars are being used to expose your privacy. DHS spends millions of taxpayer dollars to buy access to cellphone location information being aggregated and sold by two “shadowy data brokers,” Venntel and Babel Street.

 

• There is some internal angst in the agencies over the legitimacy of what they are doing. One DHS employee wrote that “[l]egal, policy, and privacy reviews have not always kept pace with the new and evolving technologies.”

 

• The government entertains specious legal theories justifying this raid on cellphone location data. It maintains that everyone with a cellphone relinquishes privacy voluntarily. ACLU’s response is “that consent is fiction: Many cellphone users don’t realize that many apps on their phones are collecting GPS information, and certainly don’t expect that data to be sold to the government in bulk.”

 

• The government is after our “patterns of life.” Documents characterize cellphone location information as “digital exhaust” with no personally identifying information. Yet these documents also say that through purchased data, law enforcement can “identify repeat visitors, frequented locations, pinpoint known associates, and discover pattern of life.”

 

• The project to pinpoint Americans’ location is on an astronomical scale. One data broker, Venntel, sent marketing materials to DHS claiming to collect 15 billion location points from over 250 million cellphones and other mobile devices every day.

 
“ACLU’s findings should concern every American with a cellphone,” said Bob Goodlatte, former Chair of the House Judiciary Committee and now Senior Policy Advisor to PPSA. “ACLU’s determined effort to expose the scale of government intrusion into our privacy is a monumental public service. With the House and Senate now holding hearings into these practices, Congress has every reason to require warrants to intrude into our digital lives by passing the Fourth Amendment Is Not for Sale Act.”
 
Bob Goodlatte will testify on the government’s practice of buying Americans’ personal data tomorrow before the House Judiciary Committee.

​The U.S. House of Representatives passed a major transparency measure by voice vote tonight. This amendment to the National Defense Authorization Act, offered by Rep. Sara Jacobs (D-CA) and Rep. Warren Davidson (R-OH), will require the Department of Defense to report the number of times it purchases the internet browsing and phone location data of Americans from private data brokers. The report will also include a general accounting of how the government uses this information.

• “This is a major victory for surveillance reform,” said Gene Schaerr, general counsel of PPSA. “We’ve long known that many agencies have been sidestepping the Fourth Amendment’s requirement for probable cause warrants by buying our data. Today’s amendment will alert Congress and the American people to the scope of this practice in the largest department of the government. This amendment will set the stage for a needed debate over the propriety of our own government spying on us all without a warrant.”

• Bob Goodlatte, former Chairman of the House Judiciary Committee, and a Senior Policy Advisor to PPSA, said: “As Americans learn about the depth and breadth of the government’s tracking of our digital lives – what we search for, where we go – they are taking this as a strong step in the right direction into this debate and over other government surveillance reforms.”

PPSA commends Reps. Jacobs and Davidson on their steady leadership and articulate advocacy. Tonight’s success should provide momentum for the passage of the Fourth Amendment Is Not for Sale Act.

​Last February, PPSA reported that NSO Group, the Israeli cybersecurity company that produced the malware Pegasus, had been placed on a U.S. Commerce Department blacklist. Pegasus is to malicious spyware what a supercomputer is to a calculator. It penetrates smartphones remotely, without requiring any security mistakes or phishing attempts. Once inside a smartphone, Pegasus extracts all its information. Then it reconfigures the smartphone into a tracking and recording device.
 
The U.S. blacklist heavily restricts the ability of American companies to do business with NSO Group. Despite the ban, the FBI purchased Pegasus in 2019 and stores it under lock and key. It has long been an open question whether a U.S. administration would succumb to the temptation to use Pegasus for domestic surveillance purposes.
 
Now, we have some idea of the degree of U.S. government interest in Pegasus.
 
It has been revealed that L3Harris, an American military contractor, had been in recent talks to purchase NSO Group. It is hard to imagine that occurring without the secret blessing of at least some U.S. intelligence officials. People familiar with the negotiations said the technology has been of interest to the FBI and the CIA for several years. The negotiations continued well after the Commerce Department’s blacklist was issued and were only discovered in June when the proposal was leaked to the press. Since then, the Biden White House has signaled outrage over the potential sale and vowed to challenge any deal. Although L3Harris has since withdrawn from negotiations, the role of U.S. intelligence officials raises several questions.

• The role of U.S. intelligence officials in the planned NSO Group acquisition is troubling. Does this attempt to buy NSO Group mean that the U.S. national security apparatus has changed its mind about using Pegasus?

 

• If so, how seriously were some in the government contemplating deploying Pegasus for U.S. domestic surveillance?

 

• Given the fierce response from the White House against L3Harris, was this a case of poor internal communication, or was the U.S. intelligence community and L3Harris intending to do a runaround of the blacklist?

 

• On the other hand, given Pegasus’ abilities, could the case be made that the purchase of NSO Group by a U.S. firm might be the most reasonable option? Is it wise to leave such a powerful piece of malware in the hands of those who have sold it around the world, with the risk Pegasus will become the security equivalent of the Covid-19 pandemic?

 
Unless or until there is another leak or an enterprising journalist digs deeper, we can only ask these questions.

A must read opinion piece in Real Clear World by our President, Erik Jaffe. 

You might think that, given the severe restrictions on sharing Americans’ private health information under HIPAA, it would be illegal to sell data concerning your personal health information. You might also think, that given the need for a warrant imposed on cellphone location data by the U.S. Supreme Court in the Carpenter decision, it is also illegal to sell your location history tracked by your cellphone.
 
And, of course, you’d be wrong.
 
The $200 billion private data industry routinely sells not only your location information, but also your health data collected by apps and social media platforms. Not only can a large ecosystem of corporations buy your data, so can – and does – the government.  From the FBI to the IRS, Department of Homeland Security and other law enforcement and intelligence agencies, the government routinely buys this data.
 
Now Democratic senators are rushing to make this practice illegal under the Health and Location Data Protection Act, sponsored by Sen. Elizabeth Warren (D-MA), and co-sponsored by Sen. Ron Wyden (D-OR), Sen. Patty Murray (D-WA), Sen. Sheldon Whitehouse (D-RI), and Sen. Bernie Sanders (D-VT).
 
This bill would ban data brokers from selling or transferring location data and health data under rules to be promulgated by the Federal Trade Commission. It would empower the FTC, state attorneys general and individuals to bring suits to enforce the provisions of the law. And it would add $1 billion in funding to the Federal Trade Commission budget.
 
So will this bill pass in this Congress? Not a chance. Since the Dobbs opinion from the U.S. Supreme Court that overturned Roe v. Wade, the Health and Location Data Protection Act has been spun by Democrats as a means of protecting women seeking abortions. It would protect, in Sen. Murray’s words, women from “extremist Republican lawmakers [who] work around the clock to criminalize essential health services.” From the pro-choice point of view, it is natural to include women’s reproductive freedom in the bill. From the pro-life point of view, supporting a bill that is being touted by others as a protection for reproductive freedom could be seen as supporting abortion.
 
Before Dobbs, such a bill would have had an excellent chance of securing bipartisan support and passage. Now that it is caught up in abortion politics, it has become a partisan talking point. It seems unlikely that either party will relent, and that the larger issue of our lack of privacy in health and location will remain caught up in the tug of war between pro-choice and pro-life forces.
 
The constructive course of action, one that can be taken by members of both parties, is to pass the Fourth Amendment Is Not for Sale Act, which has strong bipartisan support in both the House and Senate. This bill would at least require the government to obtain a probable cause warrant before examining our private information purchased from data brokers.