PPSA today announced the filing of a lawsuit to compel the FBI to produce records about the possible use of FISA Section 702 authority – enacted by Congress to enable surveillance of foreign targets on foreign soil – for political surveillance of Americans at home.
Activists on the left and the right have long suspected the FBI uses surreptitious means to spy on lawful protests and speech. Those suspicions were confirmed when a FISA court decision released in 2022 revealed that government investigators had used Section 702 global database to surveil all 19,000 donors to a single Congressional campaign. Acting on this concern, PPSA submitted a FOIA request to the FBI in February seeking all records discussing the use of Section 702 or other FISA authorities to surveil, collect information related to, or otherwise investigate anyone who attended:
The FBI almost immediately responded to PPSA that our FOIA request “is not searchable” in the FBI’s “indices.” The response also informed us that the FBI “administratively closed” our request. The FBI did not dispute that PPSA’s FOIA request reasonably described the requested records. This should have, under the FOIA statute, triggered a search requirement, but the FBI ignored it. The self-serving excuse that limitations to the FBI’s Central Records System overlooks the plentiful databases and search methods at the fingertips of one of the world’s premier investigative organizations. After a fruitless appeal to the Department of Justice’s Office of Information Policy, exhausting any administrative remedy, PPSA is now suing in the U.S. District Court of the District of Columbia to compel the FBI to produce these documents. We’ll keep you informed of any major developments. PPSA has fired off a succession of Freedom of Information Act (FOIA) requests to leading federal law enforcement and intelligence agencies. These FOIAs seek critical details about the government’s purchasing of Americans’ most sensitive and personal data scraped from apps and sold by data brokers.
PPSA’s FOIA requests were sent to the Department of Justice and the FBI, the Department of Homeland Security, the CIA, the Defense Intelligence Agency, the National Security Agency, and the Office of the Director of National Intelligence, asking these agencies to reveal the broad outlines of how they collect highly private information of Americans. These digital traces purchased by the government reveal Americans’ familial, romantic, professional, religious, and political associations. This practice is often called the “data broker loophole” because it allows the government to bypass the usual judicial oversight and Fourth Amendment warrant requirement for obtaining personal information. “Every American should be deeply concerned about the extent to which U.S. law enforcement and intelligence agencies are collecting the details of Americans’ personal lives,” said Gene Schaerr, PPSA general counsel. “This collection happens without individuals’ knowledge, without probable cause, and without significant judicial oversight. The information collected is often detailed, extensive, and easily compiled, posing an immense threat to the personal privacy of every citizen.” To shed light on these practices, PPSA is requesting these agencies produce records concerning:
Shortly after the House passed the Fourth Amendment Is Not For Sale Act, which would require the government to obtain probable cause warrants before collecting Americans’ personal data, Avril Haines, Director of National Intelligence, ordered all 18 intelligence agencies to devise safeguards “tailored to the sensitivity of the information.” She also directed them to produce an annual report on how each agency uses such data. PPSA believes that revealing, in broad categories, the size, scope, sources, and types of data collected by agencies, would be a good first step in Director Haines’ effort to provide more transparency on data purchases. We’ve long recounted the bad news on law enforcement’s use of facial recognition software – how it misidentifies people and labels them as criminals, particularly people of color. But there is good news on this subject for once: the Detroit Police Department has reached a settlement with a man falsely arrested on the basis of a bad match from facial recognition technology (FRT) that includes what many civil libertarians are hailing as a new national standard for police.
The list of injustices from false positives from FRT has grown in recent years. We told the story of Randall Reid, a Black man in Georgia, arrested for the theft of luxury goods in Louisiana. Even though Reid had never been to Louisiana, he was held in jail for a week. We told the story of Porchia Woodruff, a Detroit woman eight months pregnant, who was arrested in her driveway while her children cried. Her purported crime was – get this – a recent carjacking. Woodruff had to be rushed to the hospital after suffering contractions in her holding cell. Detroit had a particularly bad run of such misuses of facial recognition in criminal investigations. One of them was the arrest of Robert Williams in 2020 for the 2018 theft of five watches from a boutique store in which the thief was caught on a surveillance camera. Williams spent 30 hours in jail. Backed by the American Civil Liberties Union, the ACLU of Michigan, and the University of Michigan Civil Rights Litigation Initiative, Williams sued the police for wrongful arrest. In an agreement blessed by a federal court in Michigan, Williams received a generous settlement from the Detroit police. What is most important about this settlement agreement are the new rules Detroit has embraced. From now on:
Another series of reforms impose discipline on the way in which lineups of suspects or their images unfold. When witnesses perform lineup identifications, they may not be told that FRT was used as an investigative lead. Witnesses must report how confident they are about any identification. Officers showing images to a witness must themselves not know who the real suspect is, so they don’t mislead the witness with subtle, non-verbal clues. And photos of suspects must be shown one at a time, instead of showing all the photos at once – potentially leading a witness to select the one image that merely has the closest resemblance to the suspect. Perhaps most importantly, Detroit police officers will be trained on the proper uses of facial recognition and eyewitness identification. “The pipeline of ‘get a picture, slap it in a lineup’ will end,” Phil Mayor, a lawyer for the ACLU of Michigan told The New York Times. “This settlement moves the Detroit Police Department from being the best-documented misuser of facial recognition technology into a national leader in having guardrails in its use.” PPSA applauds the Detroit Police Department and ACLU for crafting standards that deserve to be adopted by police departments across the United States. Last year, we reported on “mail covers” – the practice of the U.S. Postal Service producing for other government agencies images of the exterior portions of envelopes to track communications between Americans. Now an exclusive in The Washington Post puts some meat on those bones.
Since 2015, postal inspectors have approved over 60,000 requests from federal agents and police officers to monitor snail mail. The Post Office approves these surveillance requests, issued without a court order, 97 percent of the time. Most of the requests come from the FBI, the IRS, and the Department of Homeland Security. Things could be worse: at one time, the Church Committee investigations of the 1970s found that the CIA had photographed the exterior portions of 2 million letters, and opened hundreds of thousands of them. In the early days of the Republic, Thomas Jefferson had so little trust in the post office that he devised an encryption scheme, which was used to share early drafts of the Bill of Rights with James Madison. The government stoutly defends this program today as legal. An 1879 U.S. Supreme Court ruling held that a warrant is needed to open an envelope, leaving open the inference that what is written on the surface of an envelope itself is fair game. This ongoing practice underscores a critical gap in privacy protections, where even the exteriors of our letters and packages can reveal much about our personal lives. Eight senators wrote the inspector general of the postal service last year objecting to this practice. “While mail covers do not reveal the contents of correspondence, they can reveal deeply personal information about Americans’ political leanings, religious beliefs, or causes they support,” the senators wrote. Senators ranging from Ron Wyden (D-OR) to Rand Paul (R-KY) are pushing for judicial oversight for these operations, aligning mail surveillance with the safeguards already required for monitoring digital communications. PPSA will track and report on their progress. “Curtilage” is a legal word that means the enclosed area around a home in which the occupant has an expectation of privacy. Within the zone of curtilage, the Fourth Amendment implications usually force law enforcement officers to obtain a warrant before they can enter. Where curtilage begins and ends has long been a matter of fine, Jesuitic distinctions, hotly contested in courts across the country.
Sometimes the boundaries are obvious. In a landmark case, the U.S. Supreme Court in 2021 held in Lange v. California that a police officer who followed a driver into his garage entered his curtilage. The officer had no right to do so without a warrant. PPSA was pleased to see the Court adopt logic similar to our amicus brief in Lange. So much for garages. Now what about doorknobs? Terrell McNeal Jr. of Mankato, Minnesota, was arrested after police obtained a probable cause warrant to enter his apartment and found controlled substances, cash, and guns. The evidence behind the warrant was derived from his doorknob. A police officer had earlier obtained a code from the apartment’s landlord to enter the structure’s interior communal space. He had proceeded to swab the doorknob of McNeal’s front door. It tested positive for two controlled substances. That was the basis of the warrant. The doorknob was tainted, to be sure. But that left a nagging legal question: Was the search warrant itself tainted by a violation of McNeal’s curtilage? A district court did not think so. It bought the prosecution’s argument that the door handle and lock were outside of McNeal’s home. A county prosecutor made this point on appeal: “If the court looks at the door itself, it prevents people from looking into the home. That doesn’t make the outside of the door curtilage.” Actually, it does, ruled the Minnesota Court of Appeals. On June 10, the appellate court found that officers have “no implied license to remove material from the door handle and lock for laboratory testing.” The court did distinguish this case from one in which a search warrant was obtained after a drug-sniffing dog found the aromatic traces of narcotics in the air in front of an apartment. But the officers in the McNeil case, the court ruled, “went a step further and collected a sample from a door handle and lock that were physically attached to and indivisible from appellant’s home.” The Minnesota Court of Appeals made the correct decision, voiding the conviction. As for McNeal, the authorities kept him in prison since his arrest more than two years ago, until the appellate court ruled in his favor. But at least the court recognized that swabbing any part of a home without a warrant is a violation of the Fourth Amendment. State financial officials in 23 states have fired off a letter to House Speaker Mike Johnson expressing strong opposition to a new Security and Exchange Commission program that grants 3,000 government employees real-time access to every equity, option trade, and quote from every account of every broker by every investor.
“Traditionally, Americans’ financial holdings are kept between them and their broker, not them, their broker, and a massive government database,” the state auditors and treasurers wrote. “The only exception has been legal investigations with a warrant." The state financial officers contend that the SEC's move undermines the principles of federalism by imposing a one-size-fits-all solution without considering the unique regulatory environments of individual states. They asked Speaker Johnson to support a bill sponsored by Rep. Barry Loudermilk (R-GA), the Protecting Investors' Personally Identifiable Information Act. This proposed legislation would restrict the SEC's ability to collect and centralize such vast amounts of personal financial data. As is so common with recent efforts at financial surveillance, the SEC justifies this data collection to combat insider trading, market manipulation, and to identify suspicious activities. Similar excuses are offered for the new “beneficial ownership” requirement that is forcing millions of Americans who own small businesses to send the ownership details of their businesses to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury. But such increased vigilance comes at the expense of the privacy of millions of Americans. The sheer volume of data accessible to government employees raises concerns about potential misuse and unauthorized access. “The Securities and Exchange Commission has been barreling forward with a new system – the Consolidated Audit Trail (CAT) – which tracks every trade an individual investor makes and links it to their identity through a centralized system,” Rep. Loudermilk said. “Not only is collecting all this information unnecessary, regulators already have similar systems that don’t easily match identities with transactions, but it also creates another security vulnerability and a target for hackers.” While the SEC assures lawmakers that strict safeguards are in place – given recent high-profile hacks and All the more reason for Speaker Johnson to give Rep. Loudermilk’s bill a big push on the House floor. Scholl and Bednarz v. Illinois State Police We recently reported on the proliferation of automated license plate readers (ALPRs) in Virginia. Now a lawsuit from two Cook County, Illinois, residents make a Fourth Amendment claim against the growing system of ALPRs. It directly sets out the dangers such systems pose to privacy and constitutional rights.
The suit by plaintiffs Stephanie Scholl and Frank Bednarz against the Illinois State Police highlights the proliferation of license plate readers to the point of near ubiquity – 300 ALPRs across every expressway in Cook County. Calling this “a system of dragnet surveillance,” the plaintiffs write that law enforcement is “tracking anyone who drives to work in Cook County – or to school, or a grocery store, or a doctor’s office, or a pharmacy, or a political rally, or a romantic encounter, or family gathering – every day, without any reason to suspect anyone of anything, and are holding onto those whereabouts just in case they decide in the future that some citizen might be an appropriate target of law enforcement.” As with so many surveillance systems, danger to privacy lies not just in the mere collection of data, but how long it is stored and when and how it is used. The plaintiffs write that when “law enforcement chooses to investigate a citizen’s past movements, the ALPRs feed databases creating a comprehensive map of their travels, recording every time they’ve driven past ISP’s cameras – and indeed every time they’ve driven past cameras in other jurisdictions using the same database.” The vendor for these devices, Vetted Security Solutions, which uses Motorola’s “Vigilant” system, feeds every detected license plate into Vigilant’s Law Enforcement Archival Reporting Network (LEARN) national database, which holds millions of license plate images that allow millions of Americans to be tracked. The good news is that the Illinois State Police only holds its license plate data for 90 days after it is collected. But this agency is not required by law or by Vigilant policy to do so. Every law enforcement customer is allowed to set their own retention limits – or none at all. The result is potentially years’ worth of data held by law enforcement agencies that track the movements of Americans around the country. Add to this all the data that our cars and GPS systems produce, in addition to all the commercial information that is purchased by federal and local agencies, and we begin to get a sense of the scale of warrantless surveillance of Americans. We should be grateful to Scholl and Bednarz for laying out in plain English the danger license plate readers can pose to Americans. This technology is one more tile being set into an enormous mosaic of capabilities, an emerging American panopticon. It is also one more reason to spark a national discussion on what data the government should collect, and the need for warrants to track Americans. Someone has to watch the watchers, and we can all do our part not to let the government gather such dangerous surveillance powers unnoticed and unchallenged. George Orwell wrote that in a time of deceit, telling the truth is a revolutionary act.
Revolutionary acts of truth-telling are becoming progressively more dangerous around the world. This is especially true as autocratic countries and weak democracies purchase AI software from China to weave together surveillance technology to comprehensively track individuals, following them as they meet acquaintances and share information. A piece by Abi Olvera posted by the Bulletin of Atomic Scientists describes this growing use of AI to surveil populations. Olvera reports that by 2019, 56 out of 176 countries were already using artificial intelligence to weave together surveillance data streams. These systems are increasingly being used to analyze the actions of crowds, track individuals across camera views, and pierce the use of masks or scramblers intended to disguise faces. The only impediment to effective use of this technology is the frequent Brazil-like incompetence of domestic intelligence agencies. Olvera writes: “Among other things, frail non-democratic governments can use AI-enabled monitoring to detect and track individuals and deter civil disobedience before it begins, thereby bolstering their authority. These systems offer cash-strapped autocracies and weak democracies the deterrent power of a police or military patrol without needing to pay for, or manage, a patrol force …” Olvera quotes AI surveillance expert Martin Beraja that AI can enable autocracies to “end up looking less violent because they have better technology for chilling unrest before it happens.” Olivia Solon of Bloomberg reports on the uses of biometric identifiers in Africa, which are regarded by the United Nations and World Bank as a quick and easy way to establish identities where licenses, passports, and other ID cards are hard to come by. But in Uganda, Solon reports, President Yoweri Museveni – in power for 40 years – is using this system to track his critics and political opponents of his rule. Used to catch criminals, biometrics is also being used to criminalize Ugandan dissidents and rival politicians for “misuse of social media” and sharing “malicious information.” The United States needs to lead by example. As our facial recognition and other systems grow in ubiquity, Congress and the states need to demonstrate our ability to impose limits on public surveillance, and legal guardrails for the uses of the sensitive information they generate. State of Alaska v. McKelveyWe recently reported that the Michigan Supreme Court punted on the Fourth Amendment implications in a case involving local government’s warrantless surveillance of a couple’s property with drone cameras. This was a disappointing outcome, one in which we had filed an amicus brief on behalf of the couple.
But other states are taking a harder look at privacy and aerial surveillance. In another recent case, the Alaska Supreme Court in State v. McKelvey upheld an appeals court ruling that the police needed to obtain a warrant before using an aircraft with officers armed with telephoto lenses to see if a man was cultivating marijuana in his backyard at his home near Fairbanks. In a well-reasoned opinion, Alaska’s top court found that this practice was “corrosive to Alaskans’ sense of security.” The state government had argued that the observations did not violate any reasonable expectation of privacy because they were made with commercially available, commonly used equipment. “This point is not persuasive,” the Alaska justices responded. “The commercial availability of a piece of technology is not an appropriate measure of whether the technology’s use by the government to surveil violates a reasonable expectation of privacy.” The court’s reasoning is profound and of national significance: “If it is not a search when the police make observations using technology that is commercially available, then the constitutional protection against unreasonable searches will shrink as technology advances … As the Seventh Circuit recently observed, that approach creates a ‘precarious circularity.’ Adoption of new technologies means ‘society’s expectations of privacy will change as citizens increasingly rely on and expect these new technologies.’” That is as succinct a description of the current state of privacy as any we’ve heard. The court found that “few of us anticipated, when we began shopping for things online, that we would receive advertisements for car seats and burp cloths before telling anyone there was a baby on the way.” We would add that virtually no one in the early era of social media anticipated that federal agencies would use it to purchase our most intimate and sensitive information from data brokers without warrants. The Alaska Supreme Court sees the danger of technology expansion with drones, which it held is corrosive to Alaskans’ sense of privacy. As we warned, drones are becoming ever cheaper, sold with combined sensor packages that can be not only deeply intrusive across a property, but actually able to penetrate into the interior of a home. The Alaska opinion is an eloquent warning that when it comes to the loss of privacy, we’ve become the proverbial frog, allowing ourselves to become comfortable with being boiled by degrees. This opinion deserves to be nationally recognized as a bold declaration against the trend of ever-more expanding technology and ever-more shrinking zones of privacy. Katie King in the Virginian-Pilot reports an in-depth account about the growing dependency of local law enforcement agencies on Flock Safety cameras, mounted on roads and intersections to catch drivers suspected of crimes. With more than 5,000 police agencies across the nation using these devices, the privacy implications are enormous.
Surveillance cameras have been in the news at lot lately, often in a positive light. Local news is consumed by murder suspects and porch pirates alike captured on video. The recently released video of a physical attack by rapper Sean “Diddy” Combs on a girlfriend several years ago has saturated media, reminding us that surveillance can protect the vulnerable. The crime-solving potential of license plate readers is huge. Flock’s software runs license plate numbers through law enforcement databases, allowing police to quickly track a stolen car, locate suspects fleeing a crime, or find a missing person. With such technologies, Silver and Amber alerts might one day become obsolete. As with facial recognition technology, however, license plate readers can produce false positives, ensnaring innocent people in the criminal justice system. King recounts the ordeal of an Ohio man who was arrested by police with drawn guns and a snarling dog. Flock’s license plate reader had falsely flagged his vehicle as having stolen tags. The good news is that Flock insists it is not even considering combining its network with facial recognition technology – reducing the possibility of both technologies flagging someone as dangerous. As with so many surveillance technologies, the greater issue in license-plate readers is not the technology itself, but how it might be used in a network. “There’s a simple principle that we’ve always had in this country, which is that the government doesn’t get to watch everybody all the time just in case somebody commits a crime – the United States is not China,” Jay Stanley, a senior analyst with the American Civil Liberties Union, told King. “But these cameras are being deployed with such density that it’s like GPS-tracking everyone.” License plate readers could, conceivably, be networked to track everywhere that everyone goes – from trips to mental health clinics, to gun stores, to houses of worship, and protests. With so many federal agencies already purchasing Americans’ sensitive data from data brokers, creating a national network of drivers’ whereabouts is just one more addition to what is already becoming a national surveillance system. With apologies to Jay Stanley, we are in serious danger of becoming China. As massive databases compile facial recognition, location data, and now driving routes, we need more than ever to head off the combination of all these measures. A good place to start would be for the U.S. Senate follow the example of the House by passing the Fourth Amendment Is Not For Sale Act. The City of Denver is reversing its previous stance against the use of police drones. The city is now buying drones to explore the effectiveness of replacing many police calls with remote aerial responses. A Denver police spokesman said that on many calls the police department will send drones first, officers second. When operators of drones see that a call was a false alarm, or that a traffic issue has been resolved, the police department will be free to devote scarce resources to more urgent priorities.
Nearby Arapahoe County already has a fleet of 20 such drones operated by 14 pilots. Arapahoe has successfully used drones to follow suspects fleeing a crime, provide live-streamed video and mapping of a tense situation before law enforcement arrives, and to look for missing people. In Loveland, Colorado, a drone was used to deliver a defibrillator to a patient before paramedics were able to get to the scene. The use of drones by local law enforcement as supplements to patrol officers is likely to grow. And why not? It makes sense for a drone to scout out a traffic accident or a crime scene for police. But as law enforcement builds more robust fleets of drones, they could be used not just to assess the seriousness of a 911 call, but to provide the basis for around-the-clock surveillance. Modern drones can deliver intimate surveillance that is more invasive than traditional searches. They can be packed with cell-simulator devices to extract location and other data from cellphones in a given area. They can loiter over a home or peek in someone’s window. They can see in the dark. They can track people and their activities through walls by their heat signatures. Two or more cameras combined can work in stereo to create 3D maps inside homes. Sensor fusion between high definition, fully maneuverable cameras can put all these together to essentially give police an inside look at a target’s life. Drones with such high-tech surveillance packages can be had on the market for around $6,000. As with so many other forms of surveillance, the modest use of this technology sounds sensible, until one considers how many other ways they can be used. Local leaders at the very least need to enact policies that put guardrails on these practices before we learn, the hard way, how drones and the data they generate can be misused. A report by The New York Time’s Vivian Wang in Beijing and one by Tech Policy’s Marwa Sayed in New York describes the twin strategies for surveilling a nation’s population, in the United States as well as in China.
Wang chronicles the move by China’s dictator, Xi Jinping, to round out the pervasive social media and facial recognition surveillance capability of the state by bringing back Mao-era human snitching. Wang writes that Xi wants local surveillance that is “more visible, more invasive, always on the lookout for real or perceived threats. Officers patrol apartment buildings listening for feuding neighbors. Officials recruit retirees playing chess outdoors as extra eyes and ears. In the workplace, employers are required to appoint ‘safety consultants’ who report regularly to the police.” Xi, Wang reports, explicitly links this new emphasis on human domestic surveillance to the era when “the party encouraged residents to ‘re-educate’ purported political enemies, through so-called struggle sessions where people were publicly insulted and humiliated …” Creating a society of snitches supports the vast network of social media surveillance, in which every “improper” message or text can be reviewed and flagged by AI. Chinese citizens are already followed everywhere by location beacons and a national network of surveillance cameras and facial recognition technology. Marwa Sayed writes about the strategy of technology surveillance contained in several bills in New York State. One bill in the state legislature would force the owners of driver-for-hire vehicles to install rear-facing cameras in their cars, presumably capturing private conversations by passengers. Another state bill would mandate surveillance cameras at racetracks to monitor human and equine traffic, watching over people in their leisure time. “Legislators seem to have decided that the cure to what ails us is a veritable panopticon of cameras that spares no one and reaches further and further into our private lives,” Sayed writes. She notes another measure before the New York City Council that would require the Department of Sanitation to install surveillance cameras to counter the insidious threat of people putting household trash into public litter baskets. Sayed writes: “As the ubiquity of cameras grows, so do the harms. Research shows that surveillance and the feeling it creates of constantly being watched leads to anxiety and paranoia. People may start to feel there is no point to personal privacy because you’ll be watched wherever you go. It makes us wary about taking risks and dampens our ability to interact with one another as social creatures.” Without quite meaning to, federal, state, and local authorities are merging the elements of a national surveillance system. This system draws on agencies’ purchases of our sensitive, personal information from data brokers, as well as increasingly integrated camera, facial recognition, and other surveillance networks. And don’t think that organized human snitching can’t come to these shores either. During World War One, the federal government authorized approved citizens to join neighborhood watch groups with badges inscribed with the words, “American Protection League – Secret Service.” At a time when Americans were sent to prison for opposing the war, the American Protection League kept tabs on neighbors, always on the watch out for anyone who seemed insufficiently enthusiastic about the war. Americans could be reported to the Department of Justice for listening to Beethoven on their phonographs or checking out books about German culture from the library. Today, large numbers of FBI and other government employees secretly “suggest” that social media companies remove posts that contain “disinformation.” They monitor social media to track posts of people, whether targeted by the FBI as traditional Catholics or observant Muslims, for signs of extremism. As world tension grows between the United States and China, Russia, Iran and North Korea, something like the American Protection League might be resurrected soon in response to a foreign policy crisis. Its digital ghost is already watching us. The House of Representatives on Thursday passed the CBDC Anti-Surveillance State Act, 216-192, a measure sponsored by House Majority Whip Tom Emmer (R-MN) that would prohibit the Federal Reserve from issuing a central bank digital currency (CBDC) that would give the federal government the ability to monitor and control individual Americans’ spending habits.
“A digital dollar could give the FBI and other federal agencies instant, warrantless access to every transaction of any size made between Americans,” said Bob Goodlatte, former congressman and PPSA Senior Policy Advisor. “This would be an alarming and unacceptable invasion of our Fourth Amendment right to privacy. The CBDC Anti-Surveillance State Act takes a critical step to prevent this from happening. We applaud Rep. Emmer for his leadership in protecting Americans against pervasive government surveillance of our financial data.” Perhaps next the House will consider measures to rein in financial surveillance by the U.S. Treasury and the Financial Crimes Enforcement Network (FinCEN). Passage by the House of the CBDC Anti-Surveillance State Act is an encouraging sign that more Members and their constituents are learning about the government’s financial surveillance and are ready to push back. Now that the House has passed the Fourth Amendment Is Not for Sale Act, senators would do well to review new concessions from the intelligence community on how it treats Americans’ purchased data. This is progress, but it points to how much more needs to be done to protect privacy.
Avril Haines, Director of National Intelligence (DNI), released a “Policy Framework for Commercially Available Information,” or CAI. In plain English, CAI is all the digital data scraped from our apps and sold to federal agencies, ranging from the FBI to the IRS, Department of Homeland Security, and Department of Defense. From purchased digital data, federal agents can instantly access almost every detail of our personal lives, from our relationships to our location histories, to data about our health, financial stability, religious practices, and politics. Federal purchases of Americans’ data don’t merely violate Americans’ privacy, they kick down any semblance of it. There are signs that the intelligence community itself is coming to realize just how extreme its practices are. Last summer, Director Haines released an unusually frank report from an internal panel about the dangers of CAI. We wrote at the time: “Unlike most government documents, this report is remarkably self-aware and willing to explore the dangers” of data purchases. The panel admitted that this data can be used to “facilitate blackmail, stalking, harassment, and public shaming.” Director Haines’ new policy orders all 18 intelligence agencies to devise safeguards “tailored to the sensitivity of the information” and produce an annual report on how each agency uses such data. The policy also requires agencies:
Details for how each of the intelligence agencies will fulfill these aspirations – and actually handle “sensitive CAI” – is left up to them. Sen. Ron Wyden (D-OR) acknowledged that this new policy marks “an important step forward in starting to bring the intelligence community under a set of principles and polices, and in documenting all the various programs so that they can be overseen.” Journalist and author Byron Tau told Reason that the new policy is a notable change in the government’s stance. Earlier, “government lawyers were saying basically it’s anonymized, so no privacy problem here.” Critics were quick to point out that any of this data could be deanonymized with a few keystrokes. Now, Tau says, the new policy is “sort of a recognition that this data is actually sensitive, which is a bit of change.” Tau has it right – this is a bit of a change, but one with potentially big consequences. One of those consequences is that the public and Congress will have metrics that are at least suggestive of what data the intelligence community is purchasing and how it uses it. In the meantime, Sen. Wyden says, the framework of the new policy has an “absence of clear rules about what commercially available information can and cannot be purchased by the intelligence community.” Sen. Wyden adds that this absence “reinforces the need for Congress to pass legislation protecting the rights of Americans.” In other words, the Senate must pass the Fourth Amendment Is Not For Sale Act, which would subject purchased data to the same standard as any other personal information – a probable cause warrant. That alone would clarify all the rules of the intelligence community. The long back-and-forth between Michigan’s Long Lake Township and Todd and Heather Maxon ended with the Michigan Supreme Court punting on the Fourth Amendment implications of drone surveillance over private property.
An appellate court had held that the township’s warrantless use of a drone three times in 2017 to photograph the Todd’s property was an unreasonable, warrantless search, constituting a Fourth Amendment violation. PPSA filed a brief supporting the Maxons before the Michigan Supreme Court, alerting the court to the danger of intimate searches of home and residents by relatively inexpensive drones now on the market. To demonstrate the privacy threat of drones, PPSA informed the court that commercially available drones have thermal cameras that can penetrate beyond what is visible to the naked eye. They can be equipped with animal herd tracking algorithms that can enhance the surveillance of people. Drones can swarm and loiter, providing round-the-clock surveillance. They can carry lightweight cell-site simulators that prompt the mobile phones of people inside the targeted home to give up data that reveals deeply personal information. Furthermore, PPSA’s brief states that drones “can see around walls, see in the dark, track people by heat signatures, and recognize and track specific people by their face.” PPSA agreed that even ordinary photography from a camera hovering over the Maxon’s property violated, in the words of an appellate court, the Maxon’s reasonable expectation of privacy. But in a unanimous decision, Michigan’s top court was having none of this. It concluded that the exclusionary rule – a judicial doctrine in which evidence is excluded or suppressed – is generally applied when law enforcement violates a defendant’s constitutional rights in a criminal case. The justices remanded the case based upon a procedural issue unrelated to the Fourth Amendment question. The Michigan Supreme Court, therefore, declined to address “whether the use of an aerial drone under the circumstances presented here is an unreasonable search in violation of the United States or Michigan Constitutions.” A crestfallen Todd Maxon responded, “Like every American, I have a right to be secure on my property without being watched by a government drone.” The issue between the township and the Maxons was the contention that, behind the shelter of trees, the couple was growing a salvage operation. This violated an earlier settlement agreement the Maxons had made pledging not to keep a junkyard on their five-acre property. Given the potential for drones to use imaging and sensor technology to violate the intimate lives of families, it is all but inevitable that a better – and uglier – test case will come along. If anything, this ruling makes it a virtual certainty. The Federal Government’s “Beneficial Ownership” Snoop Millions of small business owners are about to be hit with a nasty surprise. The Corporate Transparency Act, which passed Congress as part of the must-pass National Defense Authorization Act of 2021, goes into effect this year. Advertised as a way to combat money laundering, this new law now requires small businesses to report their “beneficial owners” to the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN).
This reporting requirement falls on any small business with fewer than 20 employees to reveal its “beneficial owner.” In plain English, this means a small business must give the government the name of anyone who controls or has a 25 percent or greater interest in that business. By Jan. 1, 2025, small businesses must submit the full legal name, date of birth, current residential or business address, and a unique identifier from a government ID of all its beneficial owners. There are significant privacy risks at stake in this seemingly innocuous law, beginning with the widespread access multiple federal agencies will have to this new database. This law, which covers 32 million existing companies and will suck in an additional 5 million new companies every year, threatens anyone who makes a mistake or files an incomplete submission with up to $10,000 in fines and up to two years in prison. “The CTA will potentially make a felon out of any unsuspecting person who is simply trying to make a living in his or her own lawful business or who is trying to start one and makes a simple mistake for violations,” says the National Small Business Association (NSBA). The “beneficial ownership” provision is one more way for the federal government to break down the walls of financial privacy in its quest to comprehensively track Americans’ finances. Consider another big bill, the recent Infrastructure Investment and Jobs Act of 2021, which requires $10,000 or more in cryptocurrency transactions to be reported to the government within 15 days. Incorrect or missing information may result in a $25,000 fine or five years in prison. In addition, the CATO Institute reports that new regulations under consideration would hold financial advisors accountable to “elements of the Bank Secrecy Act, which currently compels banks to turn over certain financial data to the feds.” It is likely that your financial advisor will soon be required to snitch on you. This undermines the whole concept of a fiduciary, someone who is by law supposed to be loyal to your interests. All of these measures are justified by the quest to track the money networks of criminals, terrorists, and drug dealers. But the data these authorities generate will be available, without a warrant, to the IRS, the FBI, the ATF, the Department of Homeland Security, and just about any agency that wants to investigate you for your personal activities or statements that some official deems suspicious. The CTA’s “beneficial ownership” provision represents a new assertion by the federal government over small business. Since before the Constitution, the regulation of small business has been under the purview of the states. Now Washington is assembling a database with which it can heap new regulations on small business regardless of state policies. The NSBA, which is challenging this law in court, estimates that complexities in business ownership will require companies to spend an average of $8,000 a year to comply with this law. NSBA’s lawsuit is moving forward with a named plaintiff, Huntsville business owner Isaac Winkles, in a federal lawsuit. NSBA and Winkles won summary judgment from Judge Liles Burke of the U.S. District Court of the Northern District of Alabama, who held the beneficial owner requirement to be unconstitutional because it exceeds the enumerated powers of Congress. While the government appeals its case to the Eleventh Circuit, FinCEN maintains that it will only exclude small businesses from this requirement if they were members of NSBA on or before March 1. These encroachments are steady and their champions on the Hill are growing bolder in financial surveillance. The good news is that privacy activists have just acquired 32 million new allies. Well, that didn’t take long.
A little more than three weeks ago Congress reauthorized FISA Section 702, a surveillance program enacted to authorize foreign surveillance but which is often used by the FBI to snoop on Americans’ communications caught up in the NSA’s global data trawl. Central to that debate was whether 702 should be made to conform to the Fourth Amendment’s bar against unreasonable searches. The House and Senate fiercely debated late into the night over whether to reauthorize this flawed program. Supporters said it is vital to national security. Critics said that is no excuse for the FBI using Section 702 to surveil large numbers of Americans in recent years, including sitting Members of the House and Senate, journalists, politicians, a state judge, and 19,000 donors to a Congressional campaign. In the House that debate culminated in a 212 to 212 tie vote. That’s how close advocates of privacy and freedom for law-abiding citizens from warrantless government surveillance came to victory. The intelligence establishment and its champions on Capitol Hill won many votes with promises. They included in their bill a codification of a list of new internal FBI procedures that they promised would curb any abuses of Americans’ privacy. FBI Director Christopher Wray promised that agents would be “good stewards” who would protect the homeland “while safeguarding civil rights and liberties.” On April 19, the Senate finalized the reauthorization of Section 702 and sent it to President Biden to be signed into law. On April 20, FBI deputy director Paul Abbate emailed Bureau employees, stating: “To continue to demonstrate why tools like this [Section 702] are essential, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements.” He added, “I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission …” Wired, which obtained a copy of the memo, quoted Rep. Zoe Lofgren (D-CA), who said that Deputy Director Abbate’s email directly contradicted earlier assertions from the FBI made during the debate over Section 702’s reauthorization. “The deputy director’s email seems to show that the FBI is actively pushing for more surveillance of Americans, not out of necessity but as a default,” Rep. Lofgren said. The FBI reports it has drawn down the number of such U.S. person queries from about 3 million in 2021 to 57,094 in 2023. As Wired notes, however, the FBI methodology counts multiple accessing of Americans’ personal identifier, such as phone numbers, as just a single search. As Wired reports, the FBI’s proud assertion that its compliance rate of 98 percent with its more stringent rules would still leave it with more than 1,000 violations of its own policies. With the deputy director arrogantly pushing the Bureau to make greater use of Section 702 for the warrantless surveillance of Americans, we can only wonder what the numbers of U.S. person searches will be in the next few years. Whatever happens, the more than 150 civil liberties organizations, including PPSA, will be back when Section 702 is next up for reauthorization in less than two years. The Constitution’s protections of the people cannot be ignored. Today, Laredo – Tomorrow, Los Angeles and Little Rock? When the U.S. military dispatches a drone to strike a target, it often uses a wireless device detection system that can correlate signals from terrorists’ cellphones and other devices emanating from within a target vehicle. Under such circumstances, calls and other signals from terrorists’ devices lead missiles straight into a target’s car.
As law and order along the U.S. border breaks down, it is not surprising that two Texas jurisdictions – Webb and Val Verde counties – purchased such military-grade wireless detection systems. NOTUS.org reports that law enforcement along the border can detect in-vehicle wireless signals and merge them with systems that track vehicles’ license plates to isolate a given car. This is yet another sign that the U.S. Supreme Court urgently needs to revisit the limits that federal and local law enforcement agencies are placing on the Court’s 2018 Carpenter opinion, which requires a probable cause warrant before officers can use cell tower GPS data to access a suspect’s location history. Agencies have not internalized the basic principles of that ruling. Instead, they’ve rationalized that if they are not specifically accessing historical cell tower data, they are complying with the law. To be fair, parts of the border are beginning to resemble a war zone, with out-of-control illegal immigration organized by criminal cartels. Given the current lawless state of the U.S.-Mexican border, local governments are using Department of Justice grants to purchase systems similar to those used by the U.S. military and CIA. Captain Federico Calderon of the Sheriff’s office of Webb County, which includes the large border city of Laredo, told NOTUS that the county purchased a “very restricted” version. Capt. Calderon said that Webb County is using this technology as a pilot program to scan for signals coming from the empty quarters of ranches where no one should be. Val Verde County did not respond to NOTUS’s questions. The potential for widespread abuse of this technology rivals that of cell-site simulators and data purchases. NOTUS reports “as people walk around with headphones, fitness wearables and other devices, emitting a cloud of radio frequency signals unique to them, their data can be linked to a car, even after they have ditched the car.” Local law enforcement officials want such technology to identify human traffickers and cartel smugglers. It is doubtful, however, that this technology will remain restricted to such narrow purposes. And as with purchased data and cellsite simulators, the introduction of this new militarized technology compromises the privacy of many more people – friends, family, and bystanders. “We are well beyond the idea that people have no privacy in public,” Jennifer Grannick of the American Civil Liberties Union told NOTUS. “Here, they’re installing this mass surveillance system.” With the spread of often violent political protests across the nation, a high level of terror alert from the FBI, and college campuses convulsed by tent cities, there will be no lack of reasons for law enforcement to add one more capability to what is evolving into a national surveillance state. It is reasonable to use technology to control the border. But it is up to Congress and the courts to keep a close eye on the widespread introduction of military wireless device detection systems to track Americans. The risks and benefits of reverse searches are revealed in the capital murder case of Aaron Rayshan Wells. Although a security camera recorded a number of armed men entering a home in Texas where a murder took place, the lower portions of the men’s faces were covered. Wells was identified in this murder investigation by a reverse search enabled by geofencing.
A lower court upheld the geofence in this case as sufficiently narrow. It was near the location of a homicide and was within a precise timeframe on the day of the crime, 2:45-3:10 a.m. But ACLU in a recent amicus brief identifies dangers with this reverse search, even within such strict limits. What are the principles at stake in this practice? Let’s start with the Fourth Amendment, which places hurdles government agents must clear before obtaining a warrant for a search – “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.” The founders’ tight language was formed by experience. In colonial times, the King’s agents could act on a suspicion of smuggling by ransacking the homes of all the shippers in Boston. Forcing the government to name a place, and a person or thing to be seized and searched, was the founders’ neat solution to outlawing such general warrants altogether. It was an ingenious system, and it worked well until Michael Dimino came along. In 1995, this inventor received a patent for using GPS to locate cellphones. Within a few years, geofencing technology could instantly locate all the people with cellphones within a designated boundary at a specified time. This was a jackpot for law enforcement. If a bank robber was believed to have blended into a crowd, detectives could geofence that area and collect the phone numbers of everyone in that vicinity. Make a request to a telecom service provider, run computer checks on criminals with priors, and voilà, you have your suspect. Thus the technology-enabled practice of conducting a “reverse search” kicked into high gear. Multiple technologies assist in geofenced investigations. One is a “tower dump,” giving law enforcement access to records of all the devices connected to a specified cell tower during a period of time. Wi-Fi is also useful for geofencing. When people connect their smartphones to Wi-Fi networks, they leave an exact log of their physical movements. Our Wi-Fi data also record our online searches, which can detail our health, mental health, and financial issues, as well intimate relationships, and political and religious activities and beliefs. A new avenue for geofencing was created on Monday by President Biden when he signed into a law a new measure that will give the government the ability to tap into data centers. The government can now enlist the secret cooperation of the provider of “any” service with access to communications equipment. This gives the FBI, U.S. intelligence agencies, and potentially local law enforcement a wide, new field with which to conduct reverse searches based on location data. In these ways, modern technology imparts an instant, all-around understanding of hundreds of people in a targeted area, at a level of intimacy that Colonel John André could not have imagined. The only mystery is why criminals persist in carrying their phones with them when they commit crimes. Google was law enforcement’s ultimate go-to in geofencing. Warrants from magistrates authorizing geofence searches allowed the police to obtain personal location data from Google about large numbers of mobile-device users in a given area. Without any further judicial oversight, the breadth of the original warrant was routinely expanded or narrowed in private negotiations between the police and Google. In 2023, Google ended its storage of data that made geofencing possible. Google did this by shifting the storage of location data from its servers to users’ phones. For good measure, Google encrypted this data. But many avenues remain for a reverse search. On one hand, it is amazing that technology can so rapidly identify suspects and potentially solve a crime. On the other, technology also enables dragnet searches that pull in scores of innocent people, and potentially makes their personal lives an open book to investigators. ACLU writes: “As a category, reverse searches are ripe for abuse both because our movements, curiosity, reading, and viewing are central to our autonomy and because the process through which these searches are generally done is flawed … Merely being proximate to criminal activity could make a person the target of a law enforcement investigation – including an intrusive search of their private data – and bring a police officer knocking on their door.” Virginia judge Mary Hannah Lauck in 2022 recognized this danger when she ruled that a geofence in Richmond violated the Fourth Amendment rights of hundreds of people in their apartments, in a senior center, people driving by, and in nearby stores and restaurants. Judge Lauck wrote “it is difficult to overstate the breadth of this warrant” and that an “innocent individual would seemingly have no realistic method to assert his or her privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a ‘right without a remedy.’” ACLU is correct that reverse searches are obvious violations of the plain meaning of the Fourth Amendment. If courts continue to uphold this practice, however, strict limits need to be placed on the kinds of information collected, especially from the many innocent bystanders routinely caught up in geofencing and reverse searches. And any change in the breadth of a warrant should be determined by a judge, not in a secret deal with a tech company. A recent House hearing on the protection of journalistic sources veered into startling territory.
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.” Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.” Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists. Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press. “Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.” Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion. “Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said. If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime? Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice. “I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose. “The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.” Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.” This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes. Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists’ sources against being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House last week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities. Like a gourmand gorging at a banquet table, the government’s growing appetite for expanding surveillance is beginning to get a little hard watch. Consider some recent developments.
First, the Senate is voting this week on a bill to reauthorize FISA Section 702 with an amendment that includes what Sen. Ron Wyden calls “one of the most dramatic and terrifying expansions of government surveillance authority in history.” This bill would compel millions of small businesses that merely have “access” to “communications equipment” (like Wi-Fi) to hand over customers’ messages to the government. Little wonder this has been branded the “Everyone’s a Spy” provision. Second, the House will also vote on the Fourth Amendment Is Not For Sale Act, which would curb the practice of the FBI and other federal agencies of purchasing Americans’ most sensitive digital information from data brokers. Third, a House Judiciary Committee investigation also recently found that the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) has been working with banks to conduct warrantless dragnets of large numbers of Americans’ confidential financial information, often using politically charged search terms. In all, 650 companies were connected to the FBI’s web port, covering two-thirds of U.S. GDP and 35 million people. See a pattern here? The government’s hunger to expand surveillance into every realm of American life cannot be filled. Many of these programs – like data purchases and FinCEN surveillance – are based on no law and fall under no Congressional or judicial oversight. Now, thanks to former Attorney General William Barr, we know that the Securities and Exchange Commission (SEC) is also getting in on the act. With no statutory approval, the SEC is taking it upon itself to start a huge database called the Consolidated Audit Trail that will allow 3,000 government employees to track, in real time, the identity of tens of millions of Americans who buy and sell stocks and other securities. “This invites abusive investigatory fishing expeditions, targeting of individuals, and intrusive data mining,” Barr writes in The Wall Street Journal. “Concentrating this sensitive data in a single repository guarantees it inevitably will be hacked, stolen, or misused by bad actors.” Barr mostly dwells on the inappropriateness of government surveillance of millions of people who’ve done nothing suspicious. He adds that “the whole point of the Fourth Amendment is to make the government less efficient by making it jump through hoops when it seeks to delve into private affairs. For an agency to argue that it should be able to avoid these hoops to make investigations easier is to assert that it should be exempt from the Fourth Amendment.” Well stated. This is the same William Barr, however, who also recently took the pages of National Review to persuade his fellow conservatives to support the House Intelligence Committee’s version of FISA reauthorization – which also authorizes many forms of dragnet surveillance. Perhaps it will soon dawn on the supporters of the status quo that the “whole point of the Fourth Amendment” should reach beyond stock trades to include “Everyone’s a Spy,” data purchases and all the other egregious privacy violations of our growing surveillance state. Is it fair to call one amendment to the Reforming Intelligence and Securing America Act (RISAA) the “Everyone’s a Spy” provision? This amendment to RISAA now before the Senate would compel a provider of any service, who has “access” to communications equipment, to quietly cooperate with the NSA in collecting messages.
Because the people who work at most ordinary businesses – from fitness centers to commercial office buildings – have no expertise in parsing data, they would likely just hand over all the messages of their customers to the NSA, including countless messages between Americans. Here’s how Sen. Ron Wyden characterized this measure on the Senate floor: “After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain, and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will and force them to become an agent for Big Brother. “For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night. “This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.” Sen. Wyden is not writing science-fiction. We’ve seen again and again when the FBI and other federal agencies can find a way to expand a loophole – as with backdoor searches of Section 702 data or the data broker loophole – they will do so. Five Maine lobstermen are suing Maine’s Department of Marine Resources after the agency issued regulations requiring electronic tracking of vessels fishing in federal waters. The plaintiffs allege such tracking violates privacy rights, due process, and equal protection under the Constitution. It’s a red-hot, lobster pot controversy with significant implications on the ever-evolving body of law surrounding geolocation tracking and surveillance.
Maine adopted the tracking regulation in December to comply with a requirement issued by the Atlantic States Marine Fisheries Commission, whose overarching policy objective here is to help protect the North Atlantic right whale. This is certainly a noble objective, but it brings with it troubling implications. Maine Department of Marine Resources Commissioner Patrick Keliher makes the argument that because lobstermen work in a “closely regulated industry,” they have “a greatly reduced expectation of privacy.” It’s a common refrain for those seeking to impose new surveillance measures. But as attorney John Vecchione of the New Civil Liberties Alliance once said, “the expansion of closely regulated-industry theory is a huge, huge danger to liberties for everybody.” Indeed, as society, the economy, and ensuing regulations grow, simply having to get a license could subject any business to warrantless inspections. Such an argument could be used to attach trackers to realtors as they move around from house to house, salespersons, contractors, or any other group of mobile professionals. The U.S. District Court for the District of Maine, where the case was filed, might take a page from the Fifth Circuit, which in 2023 struck down a U.S. Department of Commerce requirement that would have forced charter boat owners to install, at their own expense, a “vessel monitoring system” that would continuously transmit their boats’ location, regardless of whether it was being used for commercial or personal purposes. In that case, the court found that it “borders on incredible” that the government claimed it failed to notice personal privacy concerns in public comments to its rule. The court, further, found that discovery of prime fishing spots in the Gulf would constitute a hardship for many charter operators. Similarly, attorneys for the suing lobstermen argue that they “jealously guard the whereabouts and the techniques they use to place their traps. This is directly correlated to their ability to make a living.” It’s not just fishing locations that are at risk, however. The U.S. Supreme Court has repeatedly held that warrantless GPS tracking constitutes an unlawful search. Tracking someone’s movements, it needn’t be emphasized, can reveal quite a lot about their personal and private lives. As the Maine federal court considers these issues, we side unequivocally with the lobstermen. Simply put, there must be a way to balance the privacy interests of fishermen and the policy objective of protecting marine life. Top-down surveillance mandates seem a poor fit. Surveillance is key to fighting crime and catching criminals, but the same system that protects us also endangers the privacy and security of ordinary citizens. It would be naïve to imagine that mass and indiscriminate surveillance will only be used against the “bad guys” – or that we can even all agree on who the “bad guys” are over time.
Such concerns come to top of mind with stories, like that of California Gov. Gavin Newsom, who recently announced a plan to combat crime in Oakland by installing 480 high-tech cameras on the city’s busiest roads and freeways to catch criminals. As commendable as that sounds, we have to ask what else it will catch – and what will local and state law enforcement do with all that information? These cameras will capture the make and model of vehicles, as well as read license plates, alerting police if a suspect’s vehicle is spotted. Installed with support from four large corporations with a presence in the Bay Area, it’s a fair bet that these cameras are likely very popular with residents. Oakland has seen skyrocketing rates of crime, with car jackings, thefts, and armed robberies becoming commonplace. The city recently made national news when the iconic In-N-Out burger chain shuttered its first restaurant in Oakland out of concern for its employees. The planned installation of mass surveillance on Oakland’s streets is just the latest story in a national trend. The left-leaning Atlanta Community Press Collective reports that local law enforcement in Atlanta is promoting an electronic surveillance system of people who wear court-ordered electronic monitoring while on parole or awaiting trial. Talitrix, a surveillance company, “uses geofencing and proprietary algorithms to produce a ‘Talitrix score’ that agencies can use to determine whether someone’s behavior on pretrial release or probation should subject them to re-arrest and incarceration.” Talitrix proposes to integrate its technology with that of another surveillance firm, Fusus, which supports Atlanta’s expansive camera network. That network links public video feeds with those from stores, shopping malls, apartment buildings, and homes to combine public and private cameras to give the police constant citywide surveillance. The Atlanta Community Press Collective reports that integration “would combine GPS-enabled digital shackles featuring biometric monitoring capabilities with the growing canopy of Fusus-linked video cameras” across Atlanta. This system would put up to 900 people under constant video, audio, biometric, and GPS surveillance during their pre-trial release, placing them in what Cooper Quinton of the Electronic Frontier Foundation calls “an open-air prison.” Quinton added, “Even if you have not yet been convicted of a crime under this system, you and your family could be subject to constant, targeted video surveillance.” Video surveillance and automated license plate readers combine with local use of cell-site simulators (which follow a cellphone user’s location), facial recognition, aerial video surveillance, “predictive policing,” location tracking, and social media monitoring to create a system of continuous surveillance. Add AI into the mix, and you have all the elements to create a Chinese-style surveillance state. The expansion of surveillance is being done, as we have seen in Oakland, with the admirable intention of curbing runaway crime. Without proper safeguards and limits on how collected data can be used, however, the knitting together of all these data streams makes the potential for Orwellian surveillance all but certain. Our choices come down to tradeoffs between security and freedom. We can limit access to surveillance without a warrant and apply limits on data collection. Otherwise, China shows us the consequences of a complete sacrifice of liberty for security – you get neither as the government becomes the greatest threat to both. To learn what your local government can do with technology check out the Electronic Frontier Foundation’s updated Street Level Surveillance hub. In the meanwhile, we all need to understand that there are tradeoffs between increased safety and reduced privacy. There is a tipping point, which we are approaching, in which the networks that protect us can become the new threat. Forbes reports that federal authorities were granted a court order to require Google to hand over the names, addresses, phone numbers, and user activities of internet surfers who were among the more than 30,000 viewers of a post. The government also obtained access to the IP addresses of people who weren’t logged onto the targeted account but did view its video.
The post in question is suspected of being used to promote the sale of bitcoin for cash, which would be a violation of money-laundering rules. The government likely had good reason to investigate that post. But did it have to track everyone who came into contact with it? This is a prime example of the government’s street-sweeper shotgun approach to surveillance. We saw this when law enforcement in Virginia tracked the location histories of everyone in the vicinity of a robbery. A state judge later found that search meant that everyone in the area, from restaurant patrons to residents of a retirement home, had “effectively been tailed.” We saw the government shotgun approach when the FBI secured the records of everyone in the Washington, D.C., area who used their debit or credit cards to make Bank of America ATM withdrawals between Jan. 5 and Jan. 7, 2021. We also saw it when the FBI, searching for possible foreign influence in a congressional campaign, used FISA Section 702 data – meant to surveil foreign threats on foreign soil – to pull the data of 19,000 political donors. Surfing the web is not inherently suspicious. What we watch online is highly personal, potentially revealing all manner of social, romantic, political, and religious beliefs and activities. The Founders had such dragnet-style searches precisely in mind when they crafted the Fourth Amendment. Simply watching a publicly posted video is not by itself probable cause for search. It should not compromise one’s Fourth Amendment rights. |
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