If you do not change direction, an ancient Chinese philosopher wrote, you might wind up where you were heading. Where we are heading is a U.S. House of Representatives that is charged by the Constitution with oversight of the executive branch intelligence community (IC), but in fact is a supervisor being overseen by the supervised. Since 2020, PPSA has used every legal avenue from Freedom of Information Act requests to lawsuits to press the IC – the Department of Justice, the FBI, the Office of the Director of National Intelligence, the National Security Agency, and the Department of State – to provide records concerning the possible surveillance of 48 Members of Congress on committees of jurisdiction that oversee the intelligence community. We’ve reported on court revelations of warrantless intrusion into the personal communications or data of Rep. Darin LaHood (R-Ill), an unnamed U.S. senator, a state senator, and a state judge. When faced with queries and exposure, the government resorts to obfuscation and delaying tactics. Even when it is Congress that is doing the overseeing, attempts to understand intelligence operations often amount to howling in the wind. Agencies sometimes don’t answer congressional queries with substantive responses, if they even bother to reply at all. The House of Representatives can address this upside-down oversight scheme with one simple stroke. The House Rules Committee will soon craft the new rules by which that body will deliberate during the 119th Congress. We call on the Rules Committee to adopt a new rule to allow every House Member to choose one staffer to be eligible for a Top Secret/Sensitive Compartmented Information (TS/SCI) security clearance. Oversight falters because only a few Members have staffers with such clearances. Members without cleared staff are unable to ignore their other duties to spend long hours in a secure compartment leafing through hundreds of pages of classified reports. Without making cleared congressional aides eligible for TS/SCI clearances, most Members – even those serving on oversight committees like the House Judiciary Committee – will continue to lack a basic understanding of current intelligence agency practices. Worse, among the staffers who are cleared, some are “detailees” from the very agencies they are helping their Members to oversee. Defenders of the status quo will argue that expanding clearances in the House is a prohibitively dangerous idea. That assertion is laughable. The intelligence community itself extends an estimated 1.2 million top-secret security clearances to federal government employees and consultants. A few hundred more clearances for aides vetted by the FBI and serving Members accountable to the public would be a tiny addition to the current army of Americans with TS/SCI clearance. The Senate shows the House it doesn’t have to accept being supervised by the IC. In 2021, Senate Majority Leader Chuck Schumer took the bold step of allowing one top secret/sensitive clearance to be available for one personal aide per senator. The House can do the same. All that is needed to enhance House oversight is to make wider access to clearances part of the House Rules package for the 119th Congress that begins in January. Go here to call or email and tell your U.S. House Representative – “Please support a new House rule that allows every House Member to have one staffer eligible for TS/SCI security clearance.” Why Signal Refuses to Give Government Backdoor Access to Americans’ Encrypted Communications11/4/2024
Signal is an instant messenger app operated by a non-profit to enable private conversations between users protected by end-to-end encryption. Governments hate that. From Australia, to Canada, to the EU, to the United States, democratic governments are exerting ever-greater pressure on companies like Telegram and Signal to give them backdoor entry into the private communications of their users. So far, these instant messaging companies don’t have access to users’ messages, chat lists, groups, contacts, stickers, profile names or avatars. If served with a probable cause warrant, these tech companies couldn’t respond if they wanted to. The Department of Justice under both Republican and Democratic administrations continue to press for backdoors to breach the privacy of these communications, citing the threat of terrorism and human trafficking as the reason. What could be wrong with that? In 2020, Martin Kaste of NPR told listeners that “as most computer scientists will tell you, when you build a secret way into an encrypted system for the good guys, it ends up getting hacked by the bad guys.” Kaste’s statement turned out to be prescient. AT&T, Verizon and other communications carriers complied with U.S. government requests and placed backdoors on their services. As a result, a Chinese hacking group with the moniker Salt Typhoon found a way to exploit these points of entry into America’s broadband networks. In September, U.S. intelligence revealed that China gained access through these backdoors to enact surveillance on American internet traffic and data of millions of Americans and U.S. businesses of all sizes. The consequences of this attack are still being evaluated, but they are already regarded as among of the most catastrophic breaches in U.S. history. There are more than just purely practical reasons for supporting encryption. Meredith Whittaker, president of Signal, delves into the deeper philosophical issues of what society would be like if there were no private communications at all in a talk with Robert Safian, former editor-in-chief of Fast Company. “For hundreds of thousands of years of human history, the norm for communicating with each other, with the people we loved, with the people we dealt with, with our world, was privacy,” Whittaker told Safian in a podcast. “We walk down the street, we’re having a conversation. We don’t assume that’s going into some database owned by a company in Mountain View.” Today, moreover, the company in Mountain View transfers the data to a data broker, who then sells it – including your search history, communications and other private information – to about a dozen federal agencies that can hold and access your information without a warrant. When it comes to our expectations of privacy, we are like the proverbial frogs being boiled by degrees. Whittaker says that this is a “trend that really has crept up in the last 20, 30 years without, I believe, clear social consent that a handful of private companies somehow have access to more intimate data and dossiers about all of us than has ever existed in human history.” Whittaker says that Signal is “rebuilding the stack to show” that the internet doesn’t have to operate this way. She concludes we don’t have to “demonize private activity while valorizing centralized surveillance in a way that’s often not critical.” We’re glad that a few stalwart tech companies, from Apple and its iPhone to Signal, refuse to cave on encryption. And we hope there are more, not fewer, such companies in the near future that refuse to expose their customers to hackers and government snooping. “We don’t want to be a single pine tree in the desert,” Whittaker says, adding she wants to “rewild that desert so a lot of pine trees can grow.” We’re all resigned to the need to go through security at high-profile sporting and cultural events, just as we do at the airport. The American Civil Liberties Union is raising the question – will that level of scrutiny be the new normal at the mall, at open-air tourist attractions, outdoor concerts, and just plain walking around town? The Department of Homeland Security (DHS) is investing in research and development to “assess soft targets and address security gaps” with new technology to track people in public places. It is funding SENTRY, the Soft Target Engineering to Neutralize the Threat Reality. SENTRY will combine artificial intelligence from the “integration of data from multiple sources,” which no doubt will include facial recognition scans of everyone in a given area to give them a “threat assessment.” We do not dismiss DHS’s concern. The world has no lack of violent people and our country is full of soft targets. Just hark back to the deranged shooter in 2017 who turned the Route 91 Harvest music festival in Las Vegas into a shooting gallery. He killed 60 people and wounded more than 400. A similar act by a terrorist backed by a malevolent state could inflict even greater casualties. But we agree with ACLU’s concern that such intense inspection of Americans going about their daily business could lead to the “airportization” of America, in which we are always in a high-security zone whenever we gather. ACLU writes that “security technology does not operate itself; people will be subject to the petty authority of some martinet guards who are constantly stopping them based on some AI-generated flag of suspicion.” We would add another concern. Could SENTRY be misused, just as FISA Section 702 and other surveillance authorities have been misused? What is to keep the government from accessing SENTRY data for warrantless political surveillance, whether against protestors or disfavored groups targeted by biased FBI agents? If this technology is to be deployed, guardrails are needed. PPSA seconds ACLU’s comment to the watchdog agency, the Privacy and Civil Liberties Oversight Board (PCLOB), that asks it to investigate AI-based programs as they develop. Congress should watch the results of PCLOB’s efforts and follow up with legal guardrails to prevent the misuse of SENTRY and similar technologies. Supreme Court Justice Oliver Wendell Holmes observed that anyone “who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime.” A century after Justice Holmes delivered that warning, the U.S. Securities and Exchange Commission is doing just that. This agency is methodically sweeping all our traditions into the fire to direct fishing expeditions that treat every investor as a criminal suspect. The good news is that the constitutionality of the SEC’s program is on trial in a case now before a federal judge in Waco, Texas. Here’s the background: Historically, when the SEC has suspected someone of insider trading, it had to issue an investigative subpoena. Then in 2010, the market suffered the “flash crash” – a trillion-dollar decline caused by technical glitches that lasted for 36 minutes. The SEC responded to this technical glitch by proposing Rule 613, which established the Consolidated Audit Trail (CAT), a database that collects not just investors’ trades, but also their privately identifiable information. This “solution” had nothing to do with the crash, but it perfectly illustrates former Chicago Mayor Rahm Emmanuel’s dictum that “you never want a serious crisis to go to waste.” Rule 613 requires self-regulatory organizations, like private stock exchanges, to collect every detail about trades in securities on a U.S. exchange. It also includes confidential data on more than 100 million private investors, making it the largest database outside of the National Security Agency. This database includes investors’ names, dates of birth, taxpayer identification numbers, Social Security numbers, and more. Now two Texas investors, in affiliation with the National Center for Public Policy Research, are suing the SEC for this massive violation of privacy. Their lawsuit, represented by the New Civil Liberties Alliance, could be required reading for law students seeking to understand the application of our constitutional rights, beginning with the Fourth Amendment. This lawsuit makes the case:
The lawsuit makes a convincing case that the U.S. Supreme Court’s 2018 Carpenter decision – which held that the government violates the Fourth Amendment whenever it seeks a suspect’s cellphone location history without a warrant – should make this case against CAT a slam-dunk. After all, the plaintiffs assert that unlike the issue in Carpenter, “with Rule 613 SEC does not need an investigative predicate, much less a court order, to obtain and analyze private information, nor is the information limited to any particular person or time frame.” Even if a federal judge declares CAT to be unconstitutional, however, it will only strike down one of many intrusive violations of Americans’ financial privacy by federal agencies. These include a new requirement of all business owners to file “beneficial ownership” forms, for which any American business owner can face two years in prison for a clerical mistake, and the U.S. Treasury’s Financial Crimes Enforcement Networks snooping into Americans’ financial transactions with the coerced cooperation of 650 private financial institutions. Once the election is over, Congress should pass the “Protecting Investors' Personally Identifiable Information Act,” introduced by Sen. John Kennedy, (R-LA), and Rep. Barry Loudermilk, (R-Ga.), which would allow the SEC to obtain personally identifiable information only by requesting it on a case-by-case basis. As the risks of the SEC’s reckless program become clearer, more Members of Congress should embrace another Holmes dictum: “State interference is an evil, where it cannot be shown to be a good.” Government Promises to Protect Personal Data While Collecting and Using Americans’ Personal Data10/21/2024
Digital data, especially when parsed through the analytical lens of AI, can detail almost every element of our personal lives, from our relationships to our location histories, to data about our health, financial stability, religious practices, and political beliefs and activities.
A new blog post from the White House details a Request for Information (RFI) from OMB’s Office of Information and Regulatory Affairs (OIRA) seeking to get its arms around this practice. The RFI seeks public input on “Federal agency collection, processing, maintenance, use, sharing, dissemination, and disposition of commercially available information (CAI) containing personally identifiable information (PII).” In plain language, the government is seeking to understand how agencies – from the FBI to the IRS, the Department of Homeland Security, and the Pentagon – collect and use our personal information scraped from our apps and sold by data brokers to agencies. This request for public input follows last year’s Executive Order 14110, which represented that “the Federal Government will ensure that the collection, use, and retention of data is lawful, is secure, and mitigates privacy and confidentiality risks.” What to make of this? On the one hand, we commend the White House and intelligence agencies for being proactive for once on understanding the privacy risks of the mass purchase of Americans’ data. On the other hand, we can’t shake out of our heads Ronald Reagan’s joke about the most terrifying words in the English language: “I’m from the government and I’m here to help.” The blog, written by OIRA administrator Richard L. Revesz, points out that procuring “CAI containing PII from third parties, such as data brokers, for use with AI and for other purposes, raises privacy concerns stemming from a lack of transparency with respect to the collection and processing of high volumes of potentially sensitive information.” Revesz is correct that AI elevates the privacy risks of data purchases. The government might take “additional steps to apply the framework of privacy law and policy to mitigate the risks exacerbated by new technology.” Until we have clear rules that expressly lay out how CAI is acquired and managed within the executive branch, you’ll forgive us for withholding our applause. This year’s “Policy Framework for Commercially Available Information” released by Director of National Intelligence Avril Haines, ordered 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. It is hard to say if Haines’ directive represents a new awareness of the Orwellian potential of these technologies, or if they are political theater to head off legislative efforts at reform. Earlier this year, the U.S. House of Representatives passed 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. The Senate should do the same. The government’s recognition of the sensitivity of CAI and accompanying PII is certainly a step in the right direction. It is also clear that intelligence agencies have every intention of continuing to utilize this information for their own purposes, despite lofty proclamations and vague policy goals about Americans’ privacy. To quote Ronald Reagan again, when it comes to the promises of the intel community, we should “trust but verify.” The recent approval of the House Intelligence Committee’s annual intelligence policy bill sets up a critical moment for the ongoing debate over surveillance powers, particularly the controversial FISA Section 702. While the bill does not include a provision to narrow the definition of "electronic communication service providers" (ECSP), this issue will soon come to a head in the House-Senate conference. Rep. Jim Himes (D-CT) signaled his acceptance of Senate Intelligence Chair Mark Warner’s "technical fix," which would narrow the scope of the ECSP definition. Himes said the change “would be totally fine with me,” and that “I always believed that the language was overbroad in the initial amendment…” This change would prevent ordinary businesses—like coffee shops or small offices—from being forced to assist in government surveillance. While Himes expressed he would be "totally fine" with Warner’s proposal, the issue has yet to be fully debated or incorporated into House legislation. We’ve seen efforts at reform falter before, and the final outcome will be determined behind closed doors in the House-Senate conference, where transparency is sorely lacking. As we’ve previously noted, broadening the ECSP definition without clear limitations would create a “Make Everyone a Spy” law, enlisting small businesses into the surveillance apparatus. Moreover, the administration’s reassurance that the law will only be applied to specific providers, based on a classified FISA court decision, is insufficient. History shows that such promises often erode over time, allowing the intelligence community to expand its surveillance reach through legal loopholes. John Wiegmann, the new top lawyer for the Office of the Director of National Intelligence, also supported Warner’s. But as with everything, we want to see the changes in writing in the bill. The closed-room conference between the House and Senate is where these decisions will play out, but the lack of public scrutiny makes it a fraught process. Given past betrayals on surveillance reform, we have ample reason for anxiety. Privacy advocates must remain vigilant and press for real reforms that ensure no further expansion of surveillance powers. The House and Senate need to guarantee that any changes made truly limit the scope of ECSPs and protect Americans from warrantless data collection. PPSA will be monitoring this situation closely as it unfolds. The Project for Privacy and Surveillance Accountability recently submitted a series of FOIA requests to law enforcement and intelligence agencies seeking critical information on how the agencies handle data obtained through the use of cell-site simulators, also known as Stingrays or Dirtboxes, which impersonate cell towers and collect sensitive data from wireless devices. Specifically, PPSA submitted requests to DOJ, CIA, DHS, NSA, and ODNI. These requests focus on what happens after the government collects this data. As PPSA’s requests state, PPSA “seeks information on how, once the agency obtains information or data from a cell-site simulator, the information obtained is used.” We are particularly interested in learning about the agencies’ policies for data retention, usage, and deletion, especially for data collected from individuals who are not the target of surveillance. PPSA has long been concerned with the invasive nature of these surveillance tools, which capture not only targeted individuals' data but also data from anyone nearby. As we previously stated in a 2021 FOIA request, “this technology gives the government the ability to conduct sweeping dragnets of metadata, location, and even text messages from anyone within a geofenced area.” These FOIA requests specifically demand transparency about what happens after the government collects such data. We seek records regarding policies on data retention, use, and destruction, particularly for information unrelated to surveillance targets. As our requests state, “PPSA wishes to know what policies govern such use and what policies, if any, are in place to protect the civil liberties and privacy of those whose data might happen to get swept up in a cell-site simulator’s data collection activities.” As we previously highlighted, Stingrays represent a significant intrusion into personal privacy, and we are committed to holding the government accountable for its use of such tools. By pursuing these requests, we aim to inform the public about the scope and potential risks of the agencies’ surveillance activities, and to push for greater safeguards over Americans’ private information. PPSA will continue to push towards transparency, and we will keep the public informed of our efforts. The Cato Institute is challenging the FBI and Department of Justice in court to demand transparency regarding the government’s warrantless surveillance practices under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The lawsuit, brought under the Freedom of Information Act (FOIA), seeks the release of records on how well the FBI is complying with restrictions placed on the use of this controversial program. Section 702 allows U.S. agencies to monitor communications between foreigners abroad, but it has also been used to capture the communications of Americans, leading to allegations of overreach and privacy violations. Despite bipartisan efforts in Congress to reform or even dismantle Section 702, the public has been kept in the dark about whether any meaningful changes have occurred. Cato has been stonewalled in its efforts to obtain information that could reveal the extent of this surveillance. As Cato Senior Fellow Patrick Eddington pointed out: “When the FBI stonewalls public records requests about a massive surveillance program that gobbles up billions of communications yearly — including yours and mine — it’s violating the law… A law its agents and managers are sworn to uphold.” This case is about more than just documents; it’s about shedding light on potential abuses of power and ensuring that the law protects ordinary citizens from unwarranted government surveillance. The lawsuit raises an essential question about the balance between national security and civil liberties. Without transparency, it's impossible to know whether surveillance programs are being misused or if they adequately protect Americans’ privacy. Cato’s case is a crucial step toward uncovering whether the FBI is following the legal limits placed on Section 702 or if it continues to overreach under the cover of secrecy. If successful, this case could force the government to reveal whether it is truly adhering to the law in its use of FISA's broad surveillance powers. At stake is the privacy of millions of Americans whose communications could be intercepted without their knowledge or consent. This case deserves attention from everyone who values privacy and accountability. PPSA is proud to support Cato’s efforts to push for a future where government overreach is kept in check and individual liberties are safeguarded. We look forward to further developments in this case. License plate readers (LPRs), originally intended for traffic enforcement, are evolving into a powerful surveillance tool capturing far more than just vehicle data. As a WIRED exposé details, these AI-powered cameras are now recording political signs, personal bumper stickers, and even individuals outside their homes, all while logging precise locations. This data is stored in massive databases managed by private companies like DRN Data and shared with law enforcement and private entities, posing a significant privacy threat to citizens across the United States.
What was once a tool for tracking vehicles is now quietly tracking people, their views, and personal lives in disturbing detail. The expansion of LPR technology is a troubling example of how mass surveillance is becoming normalized, not just by governments but by private companies. DRN Data and its parent company, Motorola Solutions, have amassed over 15 billion vehicle sightings, recording as many as 250 million per month. These figures are staggering, yet they are framed as necessary for public safety—tracking stolen cars, for example, or assisting in Amber Alerts. However, what we are seeing is far from mere traffic monitoring. Lawn signs, bumper stickers, and even images of people wearing political messages are being captured, often without their knowledge or consent, and stored in vast databases. The real danger comes from the unchecked power that these private companies wield. LPR companies claim to comply with all applicable laws, but the scale and granularity of the data they collect far exceed what most people expect when they step outside their homes. This surveillance, driven by corporate profit motives, is largely happening without public oversight. Private companies are not held to the same standards as government agencies in terms of transparency and accountability, making it difficult to understand how, when, or by whom this data is being used. This raises the prospect of personal data being sold, commercialized, or misused by third parties. The public, meanwhile, has little to no recourse to challenge this form of surveillance or to opt out. The potential for abuse is vast. As the article notes, LPR data has already been misused by law enforcement and federal agencies like ICE, with some officers stalking or harassing individuals. The system is ripe for further exploitation, especially in today's politically charged environment. Imagine a database that allows anyone with access—whether police, private investigators, or corporations—to search for images of homes or vehicles displaying political messages, such as support for Planned Parenthood or Trump. This information could easily be weaponized to harass, intimidate, or target people for their political views. The idea that one's political affiliations could be logged and searched without consent is a violation of basic democratic principles. This situation blurs the line between public and private surveillance, creating a system where private companies can collect data traditionally reserved for law enforcement. It’s not just the government watching—private entities now have their own surveillance networks. People might accept the presence of CCTV cameras as a deterrent to crime, but few expect that their personal political signs, bumper stickers, or even their faces will be cataloged and available for search in national databases. Civil liberties groups like the ACLU have long warned that these technologies are far too invasive for the tasks they claim to perform, and their expansion into everyday life should concern us all. As we’ve previously stated, mass surveillance systems are creeping further into the private lives of citizens, often disguised as safety measures. LPR technology represents a major leap forward in this regard, allowing for an unprecedented level of data collection and surveillance that threatens not only privacy but also free expression. What started as a tool for monitoring traffic has become a tool for monitoring people, and unless there is more oversight, this technology will continue to erode the boundaries between public safety and personal freedom. A new study from Washington Post reveals that police routinely use facial recognition software to identify and arrest suspects, yet fail to disclose it to the defendants themselves. This, despite the fact that that the still-new technology has led to numerous documented false arrests. Washington Post spoke with 100 police departments across 15 states, although only 30 of them provided records from cases in which facial recognition was used. In fact, the investigation found that the police often overtly masked their use of the software, recording in reports, for example, that suspects were identified “through investigative means.” There’s reason for that; facial recognition software is notoriously fallible. The article references at least seven cases of wrongful arrests stemming from the use of the technology. Six of those seven were Black Americans. Washington Post reports, “[f]ederal testing of top facial recognition software has found the programs are more likely to misidentify people of color, women and the elderly because their faces tend to appear less frequently in data used to train the algorithm….” Last year, we wrote about the case of Randall Reid, a Black man from Georgia arrested for allegedly stealing handbags in Louisiana. The only problem: Reid had never even been to Louisiana. He was a victim of misidentification. And that was all the police needed to hold him for close to a week in jail. Generally speaking in the criminal context, facial recognition software works by comparing surveillance footage with publicly available photos online. Companies like Clearview AI contract with law enforcement agencies, providing access to billions of photos scraped from Facebook, X, Instagram and other social media platforms. And despite access to so much online material, the results are often faulty. Which is all the more reason that such evidence needs to be disclosed in an investigative context. Per the Post, “Clearview search results produced as evidence in one Cuyahoga County, Ohio, assault case included a photo of basketball legend Michael Jordan and a cartoon of a Black man.” Spoilers: neither image depicted the culprit. The real culprit in this case is a legal system that is decidedly behind the times on reacting and responding to technological shifts. Some are catching up; in 2022, the ACLU won a legal victory against Clearview mandating the company to adhere the Illinois Biometric Information Privacy Act (BIPA). The law requires companies that collect, capture, or obtain a biometric identifier of an Illinois resident to first notify that person and obtain his or her written consent. But we have a long way to go in establishing vigorous protections against the misuse and masking of “iffy” new technologies like facial recognition. Due process requires we do better. The intelligence agencies are, on paper, subject to congressional oversight. From the Senate’s Church Committee that revealed CIA misdeeds in the 1970s, to the current revelations of the House Judiciary Committee about domestic political surveillance by the federal government, the nation has benefited from the watchdog role of Congress.
But such moments are rare. Many congressional attempts to peer into the actual intelligence operations of federal agencies amount to howling in the wind. Often, the agencies don’t bother to even answer congressional queries with substantive responses, if they reply at all. This includes efforts to learn if the agencies are spying on those tasked with overseeing them. The arrogance of the agencies arises from the fact that Congress doesn’t know what it is overseeing. Often accused of fishing expeditions by the intelligence community, Congress is reduced to fishing for the lack of a diving mask to see clearly. When few congressional staff members are given the top secret/sensitive clearances, they cannot inform their bosses what is actually going on within the intelligence agencies. Historically, only a few staffers for a few select committees, such as the House and Senate intelligence committees, were given clearances. The actual Members of these committees, tasked with many other responsibilities, simply don’t have the time to go into a secure compartment to do a deep dive into the hundreds of pages of classified documents that reveal how federal agencies might be conducting warrantless surveillance on Americans. In 2021, Majority Leader Chuck Schumer changed that for the Senate. He took the bold step to improve oversight by the Senate by allowing top secret/sensitive clearance to be available for one personal aide per senator. The intelligence community and its champions on the Hill now resolutely oppose, behind the scenes of course, extending a similar rule to one personal aide for each House Member. Members should take this as the calculated insult that it is. Every aide granted clearance, like those in the Senate, would have to clear an FBI background check. The idea that a few hundred clearances cannot be extended to trusted advisors of House Members accountable to their constituents is laughable given that the federal government itself issues an estimated 1.3 million top-secret security clearances to people working in the intelligence community and consultants. Yet only a small number of staffers in the U.S. House of Representatives are allowed to review top secret information for their Members. The good news is that it doesn’t have to be this way. We don’t need a new law. All that is needed is for the next Republican or Democratic House majority to ensure that wider access to clearances is part of the House Rules package for the 119th Congress that begins in January. Even without enhanced Congressional oversight, what we have learned about federal government surveillance abuse has kept PPSA busy since we began five years ago. What we don’t know is undoubtedly more significant. House Members of all political leanings have a stake in extending Congressional oversight in a healthy way. What better way to kick off the next Congress? Sen. Mike Lee (R-UT) is advancing his new Saving Privacy Act to protect Americans’ personal financial information from warrantless snooping by federal agencies.“The current system erodes the privacy rights of citizens, while doing little to effectively catch true financial criminals,” Sen. Lee said. The bill’s co-sponsor, Sen. Rick Scott (R-FL), added: “Big government has no place in law-abiding Americans’ personal finances. It is a massive overreach of the government and a gross violation of their privacy.”
Are these two senators paranoid? Or are they reacting to genuine “massive overreach” from a government that already illicitly spies on Americans’ personal finances? Consider what PPSA has reported in the last three years:
“Traditionally, Americans’ financial holdings are kept between them and their broker, not them, their broker, and a massive government database,” state auditors and treasurers wrote in a recent letter to House Speaker Mike Johnson. “The only exception has been legal investigations with a warrant.”
TRAC sucks in wire transfers within the United States between American citizens, as well as with those sending or receiving money from abroad. Sen. Wyden told The Wall Street Journal that TRAC lets the government “serve itself an all-you-can-eat buffet of Americans’ personal financial data while bypassing the normal protections for Americans’ privacy.”
Could that actually happen? It did across the border, when the Canadian government used emergency powers to debank truckers engaged in a political protest. At home, the tracking of Americans’ spending is a Fourth Amendment violation that inevitably leads to the degradation of the First Amendment.
Sen. Lee’s bill counters this financial surveillance state by repealing many of the reporting requirements of the Bank Secrecy Act. It also repeals the Corporate Transparency Act (which forces small businesses to reveal their ownership), closes the SEC’s database on Americans’ trades, prohibits the creation of a Central Bank Digital Currency, and requires congressional approval before any agency can create a database that collects personally identifiable information of U.S. citizens. Finally, Sen. Lee’s Saving Privacy Act would institute punishments for federal employees who release Americans’ protected financial information, while establishing a private right of action for Americans and financial institutions harmed when their privacy is compromised by the government. The Saving Privacy Act is a landmark bill that deserves to become the basis of debate and action in the next Congress. A whitepaper from social media company Meta presents a startling new reality in bland language. It claims that magnetoencephalography (MEG) neural imaging technology “can be used to decipher, with millisecond precision, the rise of complex representations generated in the brain.”
In layman’s terms, AI can crunch a person’s brainwaves and apply an image generator to create an astonishingly accurate representation of what a person has seen. Paul Simon was right, these really are the days of miracles and wonders – and also of new threats to personal privacy. (If you want to see this science-fictional sounding technology in action, check out these images from science.org to see how close AI is to representing images extrapolated from brain waves.) Until now, even in a total surveillance state such as North Korea or China, netizens could have their faces, movements, emails, online searches and other external attributes recorded throughout the day. But at least they could take comfort that any unapproved thoughts about the Dear Leader and his regime were theirs and theirs alone. That is still true. But the robustness of this new technology indicates that the ability of brain data to fully read minds is not far off. Researchers in China in 2022 announced technology to measure a person’s loyalty to the Chinese Communist Party. A number of non-invasive brain-wave reading helmets are on the U.S. market for wellness, education, and entertainment. The Members of the California State Assembly and Senate were sufficiently alarmed by these developments to follow the example of Colorado and regulate this technology. This new law amends the California Consumer Privacy Act to include “neural data” under the protected category of “personal sensitive information.” On Saturday, Gov. Gavin Newsom signed that bill into law. Under this new law, California citizens can now request, delete, correct, and limit what neural data is being collected by big tech companies. We know what you’re thinking, would I be sufficiently concerned about my privacy that I would register with a state-mandated database to make changes to my privacy profile? Actually, that was just our best guess about what you’re thinking. But give it a few years. The Customs and Border Patrol (CBP) has little respect for the Fourth Amendment. From international airports to border stations, Americans returning from abroad often fall prey to the routine CBP practice of scanning their laptops, mobile phones, and other digital devices without a warrant.
As if that were not enough, CBP also scans people’s faith, violating their First Amendment rights as well. Consider the case of Hassan Shibly, a U.S. citizen and student at the University of Buffalo Law School. When he returned to the United States in 2010 with his wife, a lawful permanent resident, and their seven-month-old son, from a religious pilgrimage and family visit in the Middle East, Shibly was taken aside by CBP agents. A CBP officer asked him: “Do you visit any Islamist extremist websites?” And: “Are you part of any Islamic tribes?” And then the kicker: “How many gods or prophets do you believe in?” Other returning Muslim-Americans are interrogated about the mosques they attend, their religious beliefs, and their opinions about the U.S. invasion of Iraq and support for Israel. One New Jerseyan, Lawrence Ho, attended a conference in Canada and returned to the United States by car. He was asked: “When did you convert?” Ho does not know how the agent knew he had converted to Islam. A group of Muslim-Americans, fed up by this treatment, are now being represented by the American Civil Liberties Union in a suit before the Ninth Circuit Court of Appeals against CBP for civil rights violations. The plaintiffs are correct that subjecting Americans to deep questions about their faith – as a condition to reentry to their home – violates their First Amendment rights, as well as the Religious Freedom Restoration Act (RFRA). Ashley Gorski, senior staff attorney with ACLU’s National Security Project, said that “this religious questioning is demeaning, intrusive, and unconstitutional. We’re fighting for our clients’ rights to be treated equally and to practice their faith without undue government scrutiny.” To be fair, CBP has its work cut out for it when it comes to screening the border for potential terrorists. And we should not avert our eyes to the fact that there are sick and dangerous ideologies at work around the world. But we are also fairly confident that actual terrorists would not be stumped by the kind of naïve and unlawful interrogations CBP has imposed on these returning Americans. Heavy-handed questions about adherence to one of the great world religions doesn’t seem to be a useful security strategy or a demonstration that our government is familiar with its own Constitution. A Federal Trade Commission staff report released last week got huge play in the media. We were bombarded by stories about the FTC’s report that Meta, YouTube, and other major social media and video streaming companies are lax in controlling and protecting the data privacy of users, especially children and teens.
There is much in this report to consider, especially where children are concerned. But there was also a lot that was off-target and missing. The FTC’s report blithely recommended that social media and video streaming companies abandon their practice of tracking users’ data. This would be no small thing. Without the tracking that allows Facebook to know that you’re an aficionado of, say, old movie posters, you would not receive ads in your feed trying to sell you just that – old movie posters. Forbid the trade-off in which we give away a bit of our privacy for a free service, and overnight large social media companies would collapse. Countless small businesses would lose the ability to go toe-to-toe with big brands. Trillions of dollars in equity would evaporate, degrading the portfolio of retirees and putting millions of Americans out of work. In a crisply written concurring and dissenting statement, FTC Commissioner Andrew Ferguson notes that the FTC report “reveals this mass data collection has been very difficult to avoid. Many of these products are necessities of modern life. They are critical access points to markets, social engagement, and civil society.” Ferguson looks beyond what the advertising logarithms of Meta or Google do with our data. He looks to how our data is combined with information from a host of sources, including our location histories from our smartphones, to enable surveillance. It is this combination of data, increasingly woven by AI, that creates such comprehensive portraits of our activities, beliefs and interests. These digital dossiers can then be put up for sale by a third-party data broker to any willing buyer. Ferguson writes: “Sometimes this information remains internal to the company that collected it. But often, they share the information with affiliates or other third parties, including entities in foreign countries like China, over which the collecting company exercises no control. This information is often retained indefinitely, and American users generally have no legal right to demand that their personal information be deleted. Companies often aggregate and anonymize collected data, but the information can often be reassembled to identify the user with trivial effort. “This massive collection, repackaging, sharing, and retention of our private and intimate details puts Americans at great risk. Bad actors can buy or steal the data and use them to target Americans for all sorts of crimes and scams. Others, including foreign governments who routinely purchase Americans’ information, can use it to damage the reputations of Americans by releasing, or threatening to release, their most private details, like their browsing histories, sexual interests, private political views, and so forth.” We would add that the FBI, IRS, and a host of other federal law enforcement and intelligence agencies also purchase our “dossiers” and access them without warrants. As dangerous as China is, it cannot send a SWAT team to break down our doors at dawn. Only our government can do that. The FTC report ignores this concern, focusing on the commercial abuses of digital surveillance while ignoring its usefulness to an American surveillance state. It is no small irony that a federal government report on digital surveillance doesn’t concern itself with how that surveillance is routinely abused by government. This insight gives us all the more reason to urge the U.S. Senate to follow the example of the House and pass the Fourth Amendment Is Not For Sale Act. This legislation requires the FBI and other federal agencies to obtain a warrant before they can purchase Americans’ personal data, including internet records and location histories. It is also time for Congress to shine a bright light on data brokers to identify all the customers – commercial, foreign, and federal – who are watching our digital lives. The FBI, which surveilled academics at the University of California, Berkeley, in the 1950s and 1960s, is now reaching out to a think tank on that campus for help in devising ways to break encryption and other privacy measures used by consumers and private social media companies.
In this task, the FBI is seeking advice from the Center for Security in Politics, founded by former Arizona governor and Homeland Security Secretary Janet Napolitano, to devise ways to access the contents of communications from apps and platforms. “We need to work with our private-sector partners to have a lawful-access solution for our garden-variety cases,” one FBI official at the event told ABC News. The FBI’s actions are in keeping with a growing global crackdown on encryption, highlighted by the recent arrest of Telegram founder Pavel Durov in France. We could take days trying to unravel this Gordian knot of ironies. Better to just quote Judge James C. Ho of the Fifth Circuit Court of Appeals, who wrote in a recent landmark opinion on geofence warrants that: “Hamstringing the government is the whole point of our Constitution.” In finding geofencing the data of large numbers of innocent people unconstitutional, Judge Ho noted that “our decision today is not costless. But our rights are priceless.” The FBI has a lot of tools to catch the drug dealer, the pornographer and the sex trafficker. After all, the Bureau has been doing that for decades. The best mission for the partnership between the FBI and the Center for Security in Politics would be to focus on the “lawful-access” part of their quest. With so many smart people in the room, surely they can invent new and effective ways to solve many crimes while honoring the Fourth Amendment. This year, the coalition of surveillance reformers in Washington, D.C., mounted the most spirited, bipartisan campaign in legislative history.
The reform coalition fought to require warrants for FISA Section 702, which authorizes the government to surveil foreign threats on foreign soil but is often used to spy on Americans. The House also passed the Fourth Amendment Is Not For Sale Act, which would forbid the warrantless collection of Americans’ personal, digital information. How did we do? The Section 702 fix was lost to a single, tie-breaking vote in the House. The Fourth Amendment Is Not For Sale Act remains stuck behind last-minute business in the Senate. It is easy for surveillance reformers to feel like Sisyphus, rolling legislative stones up Capitol Hill only have them come tumbling back down. But national reformers should take heart from the example set by Utah, which proves that surveillance reform is popular and that reasonable compromises can be set into law. Start with geofence warrants, which use a reverse search technique to pluck the identities of criminal suspects out of pools of data extracted from a given area. The federal Fifth and Fourth Circuit Courts of Appeal have taken starkly opposite views over whether geofence warrants can be allowed. The Fifth Circuit finds them to be inherently unconstitutional. The Fourth Circuit finds them to raise no Fourth Amendment issues at all. Meanwhile, the intrusion of government snooping grows. Google reports that requests for geofence warrants grew by 9,000 in 2019 to 11,500 in 2020. That number is surely much higher today. When the U.S. Supreme Court inevitably wades into this issue to resolve the circuit split, the Justices would well to consider the example set by Utah. Last year, Utah passed HB57, which balances law enforcement’s protection of public safety with the privacy rights of Utahans in law enforcement’s use of geofencing. Leslie Corbly of the Libertas Institute in Utah reports that as a result of this new law, police must now submit requests for geofence data to a judge for a warrant application. This new law also mandates that warrant applications must “include a notification to judges regarding the nature of a geofence search by way of a map or written description showing the size of the virtual geofence.” Results from the search must be specified and reported to the court, including not just the identification of criminal perpetrators, but also people not involved in a crime. Armed with enough information to evaluate the merits of a warrant request, judges remain involved with geofence warrants throughout the process. Finally, state law enforcement agencies must report the number of geofence warrants requested, the number approved by a judge, the number of investigations that used information obtained through a geofence warrant, and the number of electronic devices used for this collection. Mike Maharrey of the Tenth Amendment Center reports that Utah has “chipped away at the surveillance state,” passing laws limiting surveillance of all kinds. These include:
Utah demonstrates to Congress and the Supreme Court that we can place limits on surveillance while accepting reasonable access to information agencies need to protect the public. Gary Herbert, a former governor of Utah who signed many of these measures into law, said “Utah is no longer a flyover state.” When it comes to surveillance reform, Utah is a state that should lead the nation. And Utah should be an inspiration to reformers in Congress to keep pushing those boulders all the way to the top of the Hill. In the 2002 Steven Spielberg movie Minority Report, Tom Cruise plays John Anderton, a fugitive in a dystopian, film-noir future. As Anderton walks through a mall, he is haunted by targeted ads in full-motion video on digital billboards. The boards read Anderton’s retinas and scan his face, identify him, and call out “Hey, John Anderton!” – look at this Lexus, this new Bulgari fragrance, this special offer from Guinness!
Anderton appears brutalized as he and other passersby walk briskly and look straight ahead to avoid the digital catcalls around them. What was sci-fi in 2002 is reality in 2024. You’ve probably seen a digital billboard with vibrant animation and high production values. What’s not immediately apparent is that they can also be interactive, based on face-scanning and the integration of mobile data exploited by the “out-of-home” advertising business. “Going about the world with the feeling that cameras are not just recording video but analyzing you as a person to shape your reality is an uncomfortable concept,” writes Big Brother Watch, a UK-based civil liberties and privacy organization in a white paper, The Streets Are Watching You. Some examples from Big Brother:
This tracking is enabled by cameras and facial recognition and enhanced by the synthesis of consumers’ movement data, spatial data, and audience data, collected by our apps and reported to advertisers by our smartphones. Audience data is collected by mobile advertising ID (MAIDS), which cross-references behavior on one app to others and matches those insights with tracking software to create a personal profile. While supposedly anonymized, MAIDS can be reverse engineered to work out someone’s actual identity. We have an additional concern about hyper-targeted advertising and advertising surveillance. This sector is raising billions of dollars in capital to build out an infrastructure of surveillance in the UK. If this practice also spreads across the United States, the data generated could easily be accessed by the U.S. federal government to warrantlessly surveil Americans. After all, about a dozen U.S. agencies – ranging from the FBI to the IRS – already purchase Americans’ digital data from third-party data brokers and access it without warrants. Congress can prevent this technology from being unfurled in the United States. The U.S. Senate can also take the next step by passing the Fourth Amendment Is Not For Sale Act, passed by the House, which forbids the warrantless collection of Americans’ most personal and sensitive data. In the meantime, go to p. 35 of Big Brother’s “The Streets Are Watching You” report to see how Apple iPhone and Android users can protect themselves from phone trackers and location harvesting. We wouldn’t want to do what John Anderton did – have a technician pluck out our eyes and replace them with someone else’s. Replacing one’s face would presumably take a lot more work. Does Congress have oversight of the federal intelligence community, or do the spies and intelligence officials have oversight of Congress?
Under our Constitution, the answer should be obvious – the legislative branch oversees executive agencies. Besides, no American should want spies and intelligence officials looking over the shoulders of our elected representatives. That is why the founders established Congress in Article One of the Constitution. And yet, at times, it seems as if the intelligence community regards oversight of Congress as its legitimate business. We learned last year that Jason Foster, the former chief investigative counsel for Sen. Chuck Grassley – Ranking Member of the Senate Judiciary Committee – is among numerous staffers and Congressional lawyers, Democrats and Republicans, who had their personal phone and email records searched by the Department of Justice in 2017. Foster later founded Empower Oversight Whistleblowers & Research, which went to court to press for disclosure of the misuse of Justice’s subpoena power that risked identifying confidential whistleblowers who provided information to Congress about governmental misconduct. Now federal Judge James E. Boasberg has ordered the partial unsealing of a Non-Disclosure Order (NDO) application filed by the Department of Justice to prevent Google from notifying users like Foster that their phone records, email, and other communications were ransacked by the Justice Department. This is a significant victory for transparency. We eagerly await the results of the unsealed NDO for clues about the Justice Department’s intentions in spying on Congressional attorneys with oversight responsibility. In the meantime, PPSA continues to use every legal means to press a Freedom of Information Act request seeking documents on “unmasking” and other forms of surveillance of 48 current and former House and Senate Members on committees that oversee the intelligence agencies. We will alert you about any further revelations from the court. In the meantime, the Senate can do its part by following up on the unanimous passage of the Non-Disclosure Order Fairness Act by the House. This bill restricts the government’s currently unlimited ability to impose gag orders on telecom and digital companies. These gag orders keep these companies’ customers from learning that their sensitive, personal information has been surveilled by the government. As Congress learns about the degree to which its Members are being watched by the executive branch, the NDO Fairness Act should be more popular than ever. The U.S. Department of Justice is pioneering ever-more dismissive gestures in its quest to fob off lawful Freedom of Information Act (FOIA) requests seeking to shed light on government surveillance. One PPSA FOIA request, aimed at uncovering details about the DOJ's purchase of Americans’ commercially available data from third-party data brokers, sets a new record for unprofessionalism.
Until now, we had become used to the Catch-22 denials in which the government refuses to even conduct a search for responsive records with a Glomar response. This judge-made doctrine allows the withholding of requested information if it is deemed so sensitive that the government can neither confirm nor deny its existence. But when the government issues a Glomar response without first conducting a search, we can only ask: How could they know that if they haven’t even searched for the records? DOJ’s latest response that arrived this week, however, is a personal best. The DOJ’s response shows that it didn’t bother to even read our FOIA request. Our request sought records detailing the DOJ's acquisition of data on U.S. persons and businesses, including the amounts spent, the sources of the data, and the categories of information obtained. This request was clearly articulated and included a list of DOJ components likely to have the relevant records. Despite this clarity, DOJ responded by stating that the request did not sufficiently identify the records. DOJ's refusal to conduct a proper search appears to be based on a misinterpretation, either genuine or strategic, of our request. DOJ claimed an inability to identify the component responsible for handling a case based solely on the “name” of the case or organization. However, PPSA's request did not rely on any such identifiers. Instead, DOJ's response indicates that it may have resorted to a generic form letter to reject our request without actually reviewing its contents. Precedents like Miller v. Casey and Nation Magazine v. U.S. Customs Service establish that an agency must read requests “as drafted” and interpret them in a way that maximizes the likelihood of uncovering relevant documents. DOJ’s blanket dismissal is not just a bureaucratic oversight. It is an affront to the principles of openness and accountability that FOIA is designed to uphold. If the DOJ, the agency responsible for upholding the law, continues to disregard its legal obligations, it sets a dangerous precedent for all government agencies. The good news is that DOJ’s Office of Information Policy has now ordered staff to conduct a proper search in response to PPSA’s appeal, a directive that should have been unnecessary. It remains to be seen whether the DOJ will comply meaningfully or continue to obstruct … perhaps with another cookie-cutter Glomar response. How far might DOJ go to withhold basic information about its purchasing of Americans’ sensitive and personal information? In a Glomar response to one of our FOIA requests in 2023, DOJ came back with 40 redacted pages from a certain Mr. or Mrs. Blank. They gave us nothing but a sea of black on each page. The only unredacted line in the entire set of documents was: “Hope that’s helpful.” This latest response is just another sign that those on the other end of our FOIA requests are treating their responsibilities with flippancy. This is unfortunate because the American public deserves to know the extent to which our government is purchasing and warrantlessly accessing our most private information. Filing these requests and responding to non-responsive responses administratively and in court is laborious and at times frustrating work. But somebody has to do it – and PPSA will continue to hold the government accountable. The Texas Observer reports that the Texas Department of Public Safety (DPS) signed a 5-year, nearly $5.3 million contract for the Tangles surveillance tool, originally designed by former Israeli military officers to catch terrorists in the Middle East.
In its acquisition plan, DPS references the 2019 murder of 23 people at an El Paso Walmart, as well as shooting sprees in the Texas cities of Midland and Odessa. If Tangles surveillance stops the next mass shooter, that will be reason for all to celebrate. But Tangles can do much more than spot shooters on the verge of an attack (assuming it can actually do that). It uses artificial intelligence to scrape data from the open, deep, and dark web, combining a privacy-piercing profile of anyone it targets. Its WebLoc feature can track mobile devices – and therefore people – across a wide geofenced area. Unclear is how DPS will proceed now that the Fifth Circuit Court of Appeals in United States v. Jamarr Smith ruled that geofence warrants cannot be reconciled with the Fourth Amendment. If DPS does move forward, there will be nothing to keep the state’s warrantless access to personal data from migrating from searches for terrorists and mass shooters, to providing backdoor evidence in ordinary criminal cases, to buttressing cases with political, religious, and speech implications. As the great Texas writer Molly Ivins wrote: “Many a time freedom has been rolled back – and always for the same sorry reason: fear.” The Wall Street Journal editorial page beat us to the punch to be the first to call the Securities and Exchange Commission the “Surveillance and Exchange Commission.”
It is an apt description, increasingly not a stretch or even a bit of sarcasm. In April we reported that the SEC had taken it upon itself, authorized by no law and under no Congressional or judicial oversight, to create a huge database called the Consolidated Audit Trail. This database allows 3,000 government employees to track, in real time, the identities of tens of millions of Americans who buy and sell stocks and other securities. In June we reported on the protest of state auditors and treasurers in 23 states over this program, which allows government agents to conduct fishing expeditions with the data of millions of Americans who’ve done nothing wrong or suspicious. The state financial officers wrote: “Traditionally, Americans’ financial holdings are kept between them and their broker, not them, their broker, and a massive government database. The only exception has been legal investigations with a warrant.” Now it has come to light, thanks to The Journal, that the SEC fined 26 financial firms almost $400 million for failing to track the private communications of their employees on their personal phones. Most financial firms already enforce policies that prohibit their employees from using their personal devices and messaging apps like WhatsApp for business. But until now, it was not the business of an employer to force employees to hand over their personal phones for inspection. Under this mandate from the SEC, firms must search the personal phones of their employees for evidence of business-related communications. Unlike the Consolidated Audit Trail database, which is government operated, the SEC is outsourcing the task of monitoring of the communications of hundreds of thousands of Americans to their employers. This is a sneaky move. Making employers into the government’s spies obviates the pesky need to worry about niceties like the Fourth Amendment and probable cause warrants. Never mind that the SEC fails to report any crimes or rule-bending from all this surveillance. Readers will recall that a wave of protest prevented the reporting of all financial transactions to the government in excess of $600. But the broad movement to collect, record, and analyze the financial lives of all Americans is ongoing. And the Surveillance and Exchange Commission is its leader. Imagine this scenario: It’s early evening, and you and your special someone are on the couch preparing to binge-watch your favorite streaming show.
Ding-dong. You answer the door and, as you hoped, it is the dinner delivery person. He hands you your prepaid, pre-tipped meal and you start to shut the door when the delivery worker puts his foot down, blocking you. He snaps a picture over your shoulder and asks: “Why is the wall over your couch bare? It should have a picture of the Dear Leader. I now have no choice but to report you.” This fantastical scenario of a police state enlisting food delivery workers as auxiliary police is taking place, for real, in the People’s Republic of China, according to disturbing reports from Radio Free Asia. Beijing recently posted a directive: “We will hire a group of online delivery personnel with a strong sense of responsibility to serve as part-time social supervisors and encourage them to take part in grassroots governance through snapshots and snap reports …” Radio Free Asia reports that this program is being expanded in China’s annexed territory of Tibet, where food delivery workers are being recruited to perform “voluntary patrol and prevention work.” In addition, Chinese police are requiring Tibetans to revise their personal passwords on their social media accounts, link them to their personal cellphones and identity cards, and make it all accessible to the government. Police are also stopping Tibetans in Lhasa to check their cellphones for virtual private networks, or VPNs, that allow users to get around the “Great Firewall of China,” the government’s restrictive controls on the internet. We can shake our heads and laugh. But the fundamental principle of coopting private-sector industries for internal surveillance is one that is gaining purchase in our own country. The federal government isn’t so crude as to turn the Domino’s pizza delivery guy into a spy. But federal agencies can extract Americans’ personal data from FISA Section 702, even though this program was enacted by Congress not to spy on Americans, but to surveil foreign threats on foreign soil. Prosecutors in the United States can extract information about witnesses and criminal defendants from telecoms and service providers of emails, cloud computing, and online searches, then gag those same companies with a non-disclosure order, which keeps them from ever informing their customers they were surveilled. The good news is that more and more Members of Congress are awakening to the threat of a home-grown American surveillance state. The recent reauthorization of Section 702 sets up a debate over the reach of this program in early 2026. The House passed a measure called the NDO Fairness Act, which would limit non-disclosure orders, putting the onus on the Senate to follow suit. The field of surveillance is one area in which public-private partnerships can go very wrong. Unlike China, however, America is still a democracy with a Congress that can counter expansive government threats to our privacy. The U.S. Supreme Court will almost certainly take up and resolve two furthest – some would say extreme – rulings by the Fourth and Fifth Circuit Courts of Appeals on the Fourth Amendment implications of geofence searches.
The Fourth Circuit ruled that geofence warrants – which search the mobile devices of many people in designated areas – contain no Fourth Amendment implications. The Fifth Circuit ruled that geofence warrants are inherently unconstitutional. This is the Grand Canyon of circuit splits. At stake are not just geofence warrants, but conceivably almost every kind of automated digital search conducted by the government. At stake, too, is the very meaning and viability of the Fourth Amendment in the 21st century. We had previously reported on the gobsmacking ruling of the Fourth Circuit in July that held that a geofence warrant to identify a bank robber within a 17.5-acre area – including thousands of innocent people living in apartments, at a nursing home, eating in restaurants, and passing by – did not implicate the privacy rights of all who were searched. In United States v. Chatrie, the court held in a split opinion that this mass geofence warrant had no Fourth Amendment implications whatsoever. In doing so, the Fourth reversed a well-reasoned opinion by federal Judge Mary Hannah Lauck, who wrote that citizens are almost all unaware that Google logs their location 240 times a day. Judge Lauck wrote: “It is difficult to overstate the breadth of this warrant.” The same overbreadth can be seen, in a very different context, in the Fourth Circuit’s jettisoning of the Fourth Amendment in its reversal. Now the Fifth Circuit Court of Appeals has weighed in on a similar case, United States v. Jamarr Smith. The Fifth came to the opposite conclusion – that geofence warrants cannot be reconciled to the Fourth Amendment. Orin Kerr of the UC Berkeley School of Law argues that the Fifth’s ruling conflicts with Supreme Court precedent, including Carpenter v. United States, in which the Court held that the government needs a warrant to extract cellphone location data. Kerr also asserts that the lack of particularity in which a suspect’s identity is not known at the beginning of a search (indeed, that’s the reason for these kind of searches) is a well-established practice recognized by the Supreme Court. Jennifer Granick and Brett Max Kaufman of the American Civil Liberties Union push back at Kerr, finding the digital inspection of the data of large numbers of people to identify a needle-in-a-haystack suspect is, indeed, a “general warrant” forbidden by the Constitution. They write: “Considering the analog equivalents of this kind of dragnet helps explain why: For example, police might know that some bank customers store stolen jewelry in safe deposit boxes. If they have probable cause, police can get a warrant to look in a particular suspect’s box. But they cannot get a warrant to look in all the boxes – that would be a grossly overbroad search, implicating the privacy rights of many people as to whom there is no probable cause.” The implications of this circuit split are staggering. If the Fourth Circuit ruling prevails, it will be anything goes in digital search. If the Fifth Circuit’s ruling prevails, almost any kind of digital search will require a probable cause warrant that has the particularity the Constitution clearly requires. There will be no way for the U.S. Supreme Court to reconcile these opposite takes on digital warrants. It will be up for the Court to set a governing doctrine, one that examines at its root what constitutes a “search” in the context of 21st century digital technology. Let us hope that when it does so, the Supreme Court will lean toward privacy and the Fourth Amendment. Judges and District Attorneys Must Hide the Use of Stingrays, or Face the Wrath of the FBI8/20/2024
Cell-site simulators, often known by the trade name “stingrays,” are used by law enforcement to mimic cell towers, spoofing mobile devices into giving up their owners’ location and other personal data. Thousands of stingrays have been deployed around the country, fueled by federal grants to state and local police.
PPSA has long reported that the FBI severely restricts what local police and prosecutors can reveal about the use of stingrays in trials. Now we can report that these practices are continuing and interfere with prosecutors’ duty to participate in discovery and turn over potentially exculpatory evidence. The government’s response to a PPSA FOIA request reveals a standard non-disclosure agreement between the federal government and state and local police departments. This template includes a directive that the locals “shall not, in any civil or criminal proceeding, use or provide any information concerning the [redacted] wireless collection equipment/technology.” This includes any documents and “evidentiary results obtained through the use of the equipment.” The agreement also states that if the agency “learns that a District Attorney, prosecutor, or a court” is considering releasing such information, the customer agency must “immediately notify the FBI in order to allow sufficient time for the FBI to intervene …” Most likely the squeeze will come with a threat to end the provision of stingrays to the state or local police, but other forms of intimidation cannot be ruled out. Got that, judges and district attorneys? Any attempt to fully disclose how evidence was obtained, even if it would serve to clear a defendant, must be withheld from the public and defense attorneys or the FBI will want a word with you. |
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