By the end of 2023, Congress must decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Section 702 was intended to provide U.S. agencies with the statutory authority to collect intelligence only from foreigners abroad. Unfortunately, for over a decade, agencies have abused this authority, using loopholes in Section 702 to conduct warrantless surveillance on millions of Americans.
For example, a report published by ODNI in April 2022 disclosed that, in 2021 alone, the FBI conducted as many as 3.4 million searches of Section 702-acquired data for information about Americans and their communications. And in 2018, Foreign Intelligence Surveillance Court (FISC) Judge James Boasberg rebuked the FBI for improper use of 702 databases against Americans. The misuse of this surveillance is “widespread.” The FISC also revealed that the FBI has used warrantless NSA data in a range of cases involving purely domestic issues.
Such a system is worse than broken. It is assembling the elements for a pervasive, unaccountable surveillance state. Congress should not reauthorize Section 702 without making significant reforms to ensure these abuses do not continue under any authority.
Legislation that reauthorizes Section 702 must ensure compliance with key principles:
These principles are critical to Americans’ privacy and civil liberties. In 2023, Congress must end the pervasive abuse of Section 702 and other surveillance authorities.
Fourth Amendment, U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In “A Scanner Darkly,” a 2006 film based on a Philip K. Dick novel, Keanu Reeves plays a government undercover agent who must wear a “scramble suit” – a cloak that constantly alters his appearance and voice to avoid having his cover blown by ubiquitous facial recognition surveillance.
At the time, the phrase “ubiquitous facial recognition surveillance” was still science fiction.
Such surveillance now exists throughout much of the world, from Moscow, to London, to Beijing. Scramble suits do not yet exist, and sunglasses and masks won’t defeat facial recognition software (although “universal perturbation” masks sold on the internet purport to defeat facial tracking).
Now that companies like Clearview AI have reduced human faces to the equivalent of personal ID cards, the proliferation of cameras linked to robust facial recognition software has become a privacy nightmare. A year ago, PPSA reported on a technology industry presentation that showed how stationary cameras could follow a man, track his movements, locate people he knows, and compare all that to other data to map his social networks. Facial recognition doesn’t just show where you went and what you did: it can be a form of “social network analysis,” mapping networks of people associated by friendship, work, romance, politics, and ideology.
Nowhere is this capability more robust than in the People’s Republic of China, where the surveillance state has reached a level of sophistication worthy of the overused sobriquet “Orwellian.” A comprehensive net of data from a person’s devices, posts, searches, movements, and contacts tells the government of China all it needs to know about any one of 1.3 billion individuals.
That is why so many civil libertarians are alarmed by the responses to an ACLU Freedom of Information (FOIA) lawsuit. The Washington Post reports that government documents released in response to that FOIA lawsuit show that “FBI and Defense Department officials worked with academic researchers to refine artificial-intelligence techniques that could help in the identification or tracking of Americans without their awareness or consent.”
The Intelligence Advanced Research Projects agency, a research arm of the intelligence community, aimed in 2019 to increase the power of facial recognition, “scaling to support millions of subjects.” Included in this is the ability to identify faces from oblique angles, even from a half-mile away.
The Washington Post reports that dozens of volunteers were monitored within simulated real-world scenarios – a subway station, a hospital, a school, and an outdoor market. The faces and identities of the volunteers were captured in thousands of surveillance videos and images, some of them captured by drone. The result is an improved facial recognition search tool called Horus, which has since been offered to at least six federal agencies. An audit by the Government Accountability Office found in 2021 that 20 federal agencies, including the U.S. Post Office and the Fish and Wildlife Service, use some form of facial recognition technology.
In short, our government is aggressively researching facial recognition tools that are already used by the Russian and Chinese governments to conduct the mass surveillance of their peoples.
Nathan Wessler, deputy director of the ACLU, said that the regular use of this form of mass surveillance in ordinary scenarios would be a “nightmare scenario” that “could give the government the ability to pervasively track as many people as they want for as long as they want.”
As we’ve said before, one does not have to infer a malevolent intention by the government to worry about its actions. Many agency officials are desperate to catch bad guys and keep us safe. But they are nevertheless assembling, piece-by-piece, the elements of a comprehensive surveillance state.
Rep. Darin LaHood Reveals that At Least One Member of Congress Was Improperly Surveilled by the FBI – Himself
FBI Director Christopher Wray rankles many Members of Congress and civil libertarians by presenting a smooth, bland, and impenetrable affect when faced with tough questions. He did himself no favors when, responding to criticism about the 17 errors of commission and omission on the Carter Page scandal highlighted by the Department of Justice Inspector General, he said: “Thanks for the constructive criticism.”
Today he brought that poker face to Thursday’s House Permanent Select Committee on Intelligence. When asked about FBI’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) by Rep. Darin LaHood (R-IL), Wray said the FBI had made mistakes in the Page affair under Title I of FISA, another authority under a previous director. By implication, this means that 702 must be hunky-dory.
But this overlooks the acknowledgment by a senior FBI official to New York Times journalist Charlie Savage that the FBI had used Section 702 some 204,090 times in warrantless surveillance of Americans in just one year alone.
Rep. LaHood also dug into Wray on the revelation that at least one Member of Congress had his name used as a query term in one 702 search.
“I want to make clear the FBI's inappropriate querying of a duly elected member of Congress is egregious and a violation [that] not only that degrades the trust in FISA but is viewed as a threat to the separation of powers," LaHood said during the hearing.
Then came a development as close to a Perry Mason moment as a Congressional hearing room has experienced since the early Cold War.
“I have had the opportunity to review the classified summary of this violation, and it is my opinion that the member of Congress that was wrongfully queried multiple times solely by his name was in fact me,” Rep. LaHood said.
Toward the end of his questioning, Rep. LaHood underscored that he is heading the Section 702 reauthorization working group for Congress. Expect LaHood to ask if other Members of Congress were treated the same way by the FBI, with constructive criticism – and new limits on the FBI’s authority – to follow.
In today’s public hearing before the U.S Senate Select Committee on Intelligence, Sen. Mike Rounds (R-SD) asked FBI Director Christopher Wray about the need to reauthorize Section 702 authority of the Foreign Intelligence Surveillance Act.
This question was asked in the shadow of a Wall Street Journal story last year reporting that the FBI had conducted up to 3.4 million U.S. person queries in 2021, or warrantless searches of Americans’ personal data from the 702 database.
At the time, the FBI cautioned on background that the number was inflated by the inclusion of Americans’ data in an effort to protect these potential victims from cyberattacks from China, Russia, and other hostile countries. In today’s session, Director Wray said the FBI is “surgical and judicious” in its searches, making big strides in its database systems and training to minimize such intrusions.
Director Wray further asserted that in 2022, the Bureau had achieved a 93 percent reduction in such U.S. person queries. This apparently includes the elimination of those cases that fall in the cyber category. Shortly after, Charlie Savage of The New York Times reported that a senior FBI official clarified that the actual number was shy of 204,090.
In other words, the FBI director today admitted that the Bureau had compromised the Fourth Amendment rights of Americans about 204,000 times in just one year, or about 559 times per day. To put this in comparative terms, Sen. Rounds might want to consider that this number equals the total population of South Dakota’s largest city – Sioux Falls – plus the small city of Aberdeen.
PCLOB Board Member: Section 702 Domestic Searches of Americans of “Minimal to Negligible” Value
Travis LeBlanc, board member of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB), takes his position as a privacy watchdog seriously. Until the appointment of Sharon Bradford Franklin as PCLOB Chair, LeBlanc was the lone voice of public criticism and questioning of the largely secret activities of the intelligence community.
Expectations for PCLOB have long been low. A report on a surveillance authority, Executive Order 12333, was six years in the making. The public-facing version turned out to be a high school-level paper that seemed written out of Wikipedia. In June 2021, LeBlanc went public with his dissatisfaction with PCLOB’s timidity to explore contentious issues, such as 12333 and a program called XKEYSCORE that allows the NSA to sweep the global internet.
PCLOB of late has been showing its colors as an independent agency. It has long examined Section 702 of the Foreign Intelligence Surveillance Act, which allows intelligence agencies to carry out warrantless data collection. In recent years, there has been mounting evidence that the FBI has used Section 702 data as a “backdoor search” tool to warrantlessly locate information about Americans. The Office of the Director of National Intelligence has reported that the FBI has conducted up to 3.4 million searches for U.S. persons in the body of 702 data.
On Monday, LeBlanc appeared at the State of the Net Conference in Washington, reported by cyberscoop.com.
“We have a large number of compliance issues that we’ve seen over the years and the compliance issues particularly around U.S. person queries are quite significant,” LeBlanc said, expressing concern about Congress renewing this authority without serious reforms. He suggested Congress should consider adding a warrant process for searches of Americans.
Most interesting of all, LeBlanc said there are “minimal to negligible examples of the value” of these domestic searches. His statement rebuts the claim in January by Gen. Paul Nakasone, who heads the U.S. Cybercommand, who appeared before PCLOB in a public event to discuss many foreign threats that he said had been detected and neutralized because of Section 702. LeBlanc’s statement adds some missing context to the general’s characterization on the domestic uses of this program. It seems on the domestic side to be all violation and no value, at least from a national security standpoint.
At that same January event, Cindy Cohn of the Electronic Frontier Foundation: “I think we have to be honest at this point that the U.S. has de facto created a national security exception to the U.S. Constitution.” LeBlanc’s statement on Monday seems to add – “and for what?”
Politico: DHS Employees So Worried About Domestic Surveillance They Asked About Legal Liability Insurance
“Run Like a Corrupt Government"
Politico on Monday released the results of an investigation into activities of “virtually unknown” domestic intelligence activities within the Department of Homeland Security.
In documents obtained by Politico, one DHS employee said that the DHS Office of Intelligence and Analysis is “shady” and is “run like a corrupt government.” Some employees were so worried about the thin legal justification for their domestic spying activities that they wanted their employer to cover them with legal liability insurance.
A survey by I&A Field Operations Division, now called the Office of Regional Intelligence, found that one-half of respondents said they had alerted managers that they were concerned their activity was inappropriate or illegal. Many felt senior leadership had an “inability to resist political pressure.”
“In recent years, the office’s political leadership – Democrat and Republican – has pushed I&A to take a more and more expansive view of its mandate, putting officers in the position of surveilling Americans’ views and associations protected by the U.S. Constitution,” said Spencer Reynolds, counsel at the Brennan Center for Justice at New York University Law School, himself a former DHS intelligence and counterintelligence attorney. “There’s a tendency to use the office’s power to paint political opponents – be they left-wing demonstrators or QAnon truthers – as extremists and dangerous. This has had a disastrous impact on morale – most people don’t join the Intelligence Community to monitor their fellow Americans’ political, religious, and social beliefs.”
He added that I&A’s leadership has “sidelined” oversight offices, leaving employees little recourse but to comply.
I&A intelligence agents can also seek voluntary interviews with incarcerated people, including people awaiting trial. They must state that the interview is voluntary and that they have no sway over judges either in criminal or immigration cases. But they also can seek these interviews with inmates and those awaiting trial without alerting their attorneys. In many cases, the interviewees’ lawyers aren’t aware that the conversations are happening.
“While this questioning is purportedly voluntary, DHS’s policy ignores the coercive environment these individuals are held in,” said Patrick Toomey of the American Civil Liberties Union National Security Project. “It fails to ensure that individuals have a lawyer present, and it does nothing to prevent the government from using a person’s word against them in court.”
The civil liberties community owes a big debt of gratitude to Politico for this in-depth piece. Domestic intelligence gathering is pervasive and often without guardrails. Congress has much to investigate.