​Intelligence Community MYTH: Warrantless access to Americans’ data is vital to defending people and companies against cyberattacks and ransomware. Otherwise, we’d be wide-open to cyberattacks from Russia and China.
 
FACT: Most cybersecurity experts disagree with the government’s argument. The Washington Post conducted a survey of “a group of high-level digital security experts from across government, the private sector and security research community.”
​

• Only 20 percent agreed with the Administration that Section 702 should be reauthorized without any changes.

 

• Some 64 percent wanted to see changes, and “many respondents advocate adding a warrant requirement when querying Americans’ communications.”

There is no “defensive” exception to the Fourth Amendment. The fact that the government claims to be doing something for our own good does not make it constitutional, nor does it mitigate the privacy intrusion or risk of abuse.
 
If government agents want to access our private communications for our own good, they should simply ask our permission. Without that permission, they should get a probable cause warrant to spy on Americans’ communications.

​This week, Baimadajie Angwang, an officer of the New York Police Department, appears before an administrative judge to make a bid to remain on the force. The long journey of Angwang – from Tibetan refugee to U.S. Marine in Afghanistan, to police officer, to accused spy – shows how an American can have his reputation destroyed and his freedom threatened by secret charges.
 
As a teenager, Angwang visited the United States on a cultural exchange program only to be beaten by Chinese police on his return to his homeland. He fled the country and successfully sought asylum and citizenship in the United States, serving as a Marine. Angwang joined the NYPD in 2016, married, and became a father.
 
On the morning of Sept. 21, 2020, Officer Angwang was confronted in front of his home by four souped-up pickup trucks squealing to a halt, half-a-dozen officers in tactical gear piling out, and rifles pointed inches from his face. Angwang was charged with spying for China on his fellow Tibetans in New York and lying on a security form. Angwang was held in the Metropolitan Detention Center in Brooklyn for five months.
 
The conditions in that jail are wretched, far worse than those of most prisons. Angwang had to borrow underwear from another prisoner. The facility lost power, leaving desperate prisoners to suffer in the cold through a bitter January. When Angwang fell ill, guards ignored his pleas for help.
 
What was Angwang’s alleged crime? It grew out of his quest to secure a long-term visa from the Chinese consulate to visit his elderly parents in Tibet and allow them to meet their granddaughter. In extensive conversations with a consular official, Angwang had tried to get this visa by demonstrating that he was friendly and apolitical. Angwang’s lawyer, John F. Carman, wrote to a federal judge that his client tried to strike a “solicitous tone and accommodating posture.” Prosecutors said that Angwang invited Chinese consular officials to NYPD events and reported on the activities of other Tibetans in New York.
 
The prosecution’s case was based on calls and likely texts between Angwang and the consulate, all secretly recorded. To be fair, the government arguably has good reason to watch how Chinese diplomats try to convert American citizens into spies. Furthermore, the government did obtain a warrant to surveil Angwang. Carman said that evidence from these communications, however, was misinterpreted and taken out of context by prosecutors.
 
In court, Angwang faced a dilemma shared with many charged with evidence they are not allowed to see. In such cases, when classified evidence is introduced in a trial, the judge and prosecutors secretly determine in a sealed court what evidence can be seen by the defense attorney and what can be presented in court. In August 2022, Carman read a single-page summary of these charges in the prosecutor’s office.
 
“What I saw was so powerful, it caused me to write the judge and ask if that’s what they have, why hasn’t there been a motion to dismiss?” Carman told The New York Times. In January, prosecutors dropped the case, citing a “holistic” assessment of the evidence and “additional information bearing on the charges.”
 
Now Angwang is asking an administrative court to let him keep his job as a New York City police officer. If he loses his job, Angwang will have to seek another job with a resume and a reputation forever under the shadow of secret evidence. “It creates a cloud of mystery,” Carman said. “You only have to assume that this guy did stuff that was bad for the country. Which is an inference that’s easily drawn, but in this case should not have been drawn.”
 
And should a defendant like Angwang, who escapes the crosshairs of secret evidence, sue the government for compensation, the state secrets privilege will ensure that he cannot win. The evidence against the government, you see, must remain secret. The defamatory effect, however, lives on.
 
Is there really a good justification – the protection of sources and methods – for withholding so much of a secret case? Can the government at least issue a note of exoneration for Angwang and others when secret charges are dropped?

​What are the topline takeaways from the report from the Privacy and Civil Liberties Oversight Board (PCLOB) on Section 702 of the Foreign Intelligence Surveillance Act (FISA)?
 
A majority of board members of this government watchdog panel directly counter the claims of the Biden Administration and the intelligence community that a requirement for the government to seek judicial review of the private communications of Americans would be “operationally unworkable” and lead to extreme danger to national security. The report punctures the FBI’s frequent claims that having the ability to rifle through Americans’ communications without a warrant is essential to national security and protecting the United States from harm.
 
The PCLOB majority endorses “individualized and particularized judicial review” by the FISA Court before the government can review data of U.S. citizens and legal residents.
 
PCLOB is coming down firmly on the side of civil liberties organizations that have long argued against intelligence and law enforcement agencies being allowed to have ready access to Americans’ private data and communications, with little judicial oversight.
 
Internal FBI Procedures Insufficient

The PCLOB majority finds the internal changes by the FBI in its Section 702 procedures to be far less than what is needed to protect Americans from backdoor searches, the practice of using secretly derived information to develop a case. Moreover, these searches are generally useless, as are the FBI’s internal procedures. The report also rejects that broad categories of searches, such as so-called “defensive” searches for potential victims’ information, should be exempted from judicial review.

Amici, Abouts and Unmasking

The report endorses the proposal to require amici – or qualified civil liberties experts to advise the FISA Court whenever proposed investigations touch sensitive cases that implicate basic constitutional rights. The board would narrow the standards by which the government selects targets. And the board would formally restrict “abouts” collection – information in which a target is merely mentioned.
 
Even the two board members who voted against the report found that “The U.S. Intelligence Community should adopt new rules to protect against the unmasking of U.S. Persons for political purposes.”
 
The Chair’s Call for a Warrant Requirement

Chair Sharon Bradford Franklin (see p. 226) writes that a “search through Section 702 communications data seeking information about a particular American constitutes a search under the Fourth Amendment, and current query standards are insufficient to meet constitutional requirements.”
 
Chair Franklin notes that the FBI routinely runs searches of U.S. persons at a preliminary stages of an inquiry. The FBI “asserted that it could not meet a probable cause standard for such queries conducted at these early stages.” Nor could the FBI identify, outside the categories of “victim” or “defensive” queries, “a single criminal prosecution that relied on evidence identified through a U.S. person query.”
 
Chair Franklin raises the ante on PCLOB’s recommendation that a FISA Court provide judicial review for U.S. person queries.
 
“But I believe that Congress should also require a probable cause standard for FBI’s U.S. person queries conducted at least in part to seek evidence of a crime in order to fully protect Americans’ privacy and civil liberties.”
 
Franklin writes that this is the only way to ensure such queries fully comply with the Fourth Amendment, while being consistent with criminal law in other contexts. She would explicitly adopt the standards of Carpenter v. United States (2018), in which the U.S. Supreme Court held that the police don’t need a warrant to seize a cellphone but do need a warrant to search the contents of that cellphone, which contain “the privacies of life.” She analogizes this case to the “seizure” of the incidental collection of Americans’ information under Section 702, and the need to have a warrant to search it.
 
Chair Franklin’s conclusions, and the PCLOB’s full list of 19 recommendations, are included in the executive summary of its report.

Intelligence Community MYTH: We need to reauthorize Section 702 of the Foreign Intelligence Surveillance Act – just as it is now – in order to counter the carnage caused by fentanyl trafficking.
 
FACT: The government hasn’t cited a single instance in which warrantless searches of Americans’ communications proved useful in combating the fentanyl trade.
 
None of the proposed surveillance reforms involving Americans’ privacy, such as a warrant requirement, would stop the intelligence community from using Section 702 to locate foreign fentanyl labs, whether in China or Mexico, and tracking the cartels that smuggle it.
 
And if an American does become a suspect in this trafficking, the government can and should seek a probable cause warrant, as is routinely done in other domestic law enforcement cases. We do not need to sacrifice our constitutional rights in order to fight fentanyl trafficking.

​Intelligence Community MYTH: To talk about anything other than Section 702 during the reauthorization debate is a distraction.
 
FACT: Section 702 is only one of many ways the government collects and searches through Americans’ private communications and data without a warrant. If we do not close all the loopholes that allow for illicit surveillance, then the government will seamlessly shift over to alternate ways of watching our every action, move, and utterance.
 
One of the most dangerous forms of lawless surveillance is the widespread practice of government agencies buying up Americans’ sensitive digital communications, geolocation histories, and other private information from third-party data brokers.
 
Federal agencies from the IRS, to DHS, FBI, DEA and DoD routinely purchase and access data of American consumers scraped from apps and social media to review our online search histories, location histories, and communications from texts to phone calls and emails. The government, for example, has purchased data from religious apps and dating apps. Government attorneys assert that this is lawful because the Fourth Amendment forbids “seizures” of our papers and effects, when in fact they are merely buying it.
 
This sophistry must be countered. We should extend a warrant requirement to data purchases under Section 702 to keep the intelligence community from shifting to a reliance on purchased data or some other authority largely unconstrained by judicial and Congressional oversight.
 
The government also surveils American citizens through Executive Order 12333 – not a law, just an assertion of authority by the executive branch – with very little (if any) oversight from Congress. Former Sen. Richard Burr (R-NC), a noted champion of the intelligence community, said on the Senate floor in 2020 that 12333 authority allows “the president to do all of this, without Congress’s permission, without guardrails.”
 
The Section 702 reauthorization is our best opportunity to rein in these and other forms of warrantless surveillance. It is imperative that Congress act on this opportunity. If legislative reforms are narrowly limited to Section 702, the Administration will simply rely more heavily on these loopholes to continue its lawless surveillance of Americans.

​Congress intended Section 702 of the Foreign Intelligence Surveillance Act (FISA) to give U.S. intelligence agencies the authority to collect intelligence from foreigners located abroad.
 
For fifteen years, however, federal agencies have exploited Section 702 and other surveillance programs to conduct warrantless surveillance on millions of Americans. The numbers are staggering: In 2021 the FBI conducted 3.4 million warrantless searches of Americans’ communications obtained under Section 702. Even after an effort to shape up for the reauthorization debate, in 2022 the FBI still conducted more than 200,000 such warrantless searches.
 
Now former intelligence community officials are waging a media campaign to scare Congress into submitting to a “clean” or mildly revised reauthorization of Section 702.
 
Predictably, they are resorting to scare tactics to get their clean reauthorization. Rep. Andy Biggs, Chairman of the House Judiciary Subcommittee on Crime and Federal Government Surveillance, earlier this year warned:
 
“The FBI and federal intelligence agencies use scare tactics to convince Congress that these unchecked powers are the only method available to protect our nation from harm. Well, every American should be scared to know federal agents are spying on them, even if they have nothing to hide.”
 
Below is the first of our “Myths vs. Facts” responses from PPSA to fables being foisted by advocates of the intelligence community.
 
Intelligence Community MYTH: A warrant requirement to search for Americans’ private data and communications in the Section 702 database would be “drastic and unwarranted,” putting the American homeland at risk. Congress must not let Section 702 expire.
 
FACT: We can protect national security and have a foreign surveillance authority that respects the constitutional rights of American citizens.
 
A warrant requirement is by definition not a proposal to let Section 702 expire at the end of this year. Indeed, Section 702 expiration can only happen if surveillance hawks fail to agree to significant reform. They cannot play a game of chicken and then act like Chicken Littles. If national security is being risked by the expiration of Section 702, then it will be the champions of the intelligence community who will cause it to happen.
 
The specific intelligence community argument against warrants when Americans are surveilled makes no sense. The stated purpose of Section 702 is to conduct surveillance of foreign targets outside the United States. The government’s own Section 702 success stories all involve obtaining critical intelligence about plots by hostile foreign actors.  It is wrong and patently absurd to sidestep Americans’ constitutional rights and warrantlessly surveil our own citizens in the name of foreign surveillance.
 
Reform proposals, such as a warrant requirement for the surveillance of Americans’ communications, are not radical proposals. It is the ongoing mass surveillance of Americans who’ve done nothing remotely suspicious by our own government that is radical.

The Fourth Amendment of the U.S. Constitution protects Americans against “unreasonable” searches and seizures. But what is unreasonable? Is a low-flying drone taking photos of you and your property behind a privacy fence reasonable?
 
In October, the Michigan Supreme Court will hear oral arguments in what could well become a landmark privacy case. The outcome may help determine the national limits of drone surveillance – and perhaps influence the limits of government surveillance – for all Americans.
 
The facts are pretty simple. Todd and Heather Maxon of Long Lake Township in Michigan live on a five-acre estate, where Todd likes to repair old cars.
 
In 2008, the Township government charged the Maxons with operating an illegal junkyard. The couple and the Township reached a settlement. In 2018, the Township received tips that the Maxons had violated their settlement by bringing more cars onto their property, even though such vehicles were not visible from the street. So the Township hired a private drone operator to fly a high-resolution camera over the Maxon property to take images.
 
The Maxons sued, claiming that their Fourth Amendment rights were violated. A lower court agreed with the government but was overturned in 2021 by the Michigan Court of Appeals. That court ordered that the drone photos be suppressed.
 
At the heart of this case is the “reasonable expectation of privacy” articulated by Supreme Court Justice John Marshall Harlan II in Katz v. United States (1967). But technology keeps testing what is a reasonable expectation of privacy. The Supreme Court has zigged and zagged along the way, once upholding a wiretap to be permissible because it occurred at the telephone pole and did not require a physical intrusion into the home.
​
Katz overturned that standard, invalidating an FBI wiretap of a public payphone, where the caller (a sports bookie) had a reasonable expectation that he would not be overheard. “The Fourth Amendment protects people, not places,” Justice Potter Steward declared in the Court’s majority opinion. But the Court returned somewhat to the physical intrusion standard – invalidating thermal imaging by police from the street that penetrated inside a target’s home in Kyllo v. United States (2001).
 
The Cato Institute and Rutherford Institute, in an amicus brief, noted the problem with the physical intrusion standard: “At present, police are free to go through people’s garbage, look into their barn with a flashlight, and read through their bank records without going through the hassle of first securing a warrant.” We now live in an age of ubiquitous digital intrusion with government purchases of our private data, as well as optical intrusion from drones and other aerial surveillance.
 
In other words, the current privacy standard is a jumbled mess. That is why the Maxon case is potentially so important. At its simplest, it will determine if drones – an increasingly ubiquitous reality in American life – will be freely used to spy on Americans in their backyards (as the New York City Police recently did over backyard barbecues during Labor Day).
 
But we think the Maxon case may prove to be pivotal in defining – perhaps, eventually, by the U.S. Supreme Court – what privacy and reasonableness mean in an era of drones, facial recognition software, and artificial intelligence.

​For years PPSA has documented the increasing disposition of federal intelligence and law enforcement agencies to use the ever-expanding Glomar response – a “cannot confirm or deny” answer once reserved for the nation’s most closely guarded secrets – as a blanket response to any meddlesome Freedom of Information Act (FOIA) requests.
 
We should not overlook, however, another handy tool for FOIA avoidance, and that is to release the requested document but redact many or all of its meaningful parts. Now the Department of Justice Office of the General Counsel has perfected this technique, taking it to its logical end.
 
It began in 2020 when PPSA joined with Demand Progress to file a FOIA request. Our request concerned surveillance that may be taking place under no statute, but instead under a self-professed authority of the executive branch known as Executive Order 12333. The reply from the FBI is, in its own way, telling.
 
In the DOJ response, a certain Mr. or Ms. BLANK who holds the title of BLANK in the Office of the General Counsel returned with 40 pages of responsive documents. Thirty-nine pages are redacted in their entirety, as is the 40th page, with the redacted name of the signator and his/her redacted title, but with one, unredacted statement:
 
Hope that’s helpful.
 
There’s honestly no other way to take this than the Department of Justice shooting a middle finger at the very idea of a FOIA request, an exercise of the Freedom of Information Act, passed by Congress and signed into law by President Lyndon Johnson. This is a shame because the subject of this request is an important one.
 
Demand Progress and PPSA based our FOIA request on a July 2020 letter from now-retired Sen. Patrick Leahy (D-VT) and current Sen. Mike Lee (R-UT) to then-Attorney General William Barr and then-Director of National Intelligence John Ratcliffe. The two senators noted the expiration of Section 215 of the Foreign Intelligence Surveillance Act (FISA), commonly known as the “business records” provision of FISA. The intelligence community had vociferously lobbied for the renewal of Section 215 with predictions that allowing its expiration would lead to something akin to the city-destroying scenes in the 1996 movie Independence Day.
 
Then the Trump Administration called their bluff and allowed this authority to expire. The response from the intelligence community? Crickets.
 
The sudden complacency of the intelligence community struck many as suspicious. Were federal intelligence and law enforcement agencies shifting their surveillance to another authority? Sens. Leahy and Lee seemed to think so. They wrote:
 
“At times the executive branch has tenuously relied on Executive Order 12333, issued in 1981, to conduct surveillance operations wholly independent of any statutory authorization … This would constitute a system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations at tremendous scale … We strongly believe that such reliance on Executive Order 12333 would be plainly illegal.”
 
This July 2020 letter, with a detailed series of penetrating questions about the practice and scope of 12333 surveillance, was issued by two powerful and respected members of the United States Senate … And it hit the walls of the Department of Justice and the Office of the Director of National Intelligence with all the full force of wet spaghetti. As with so many other congressional requests, this letter was not answered in any substantive way.
 
So Demand Progress joined with PPSA in October 2020, in an effort to use the law to compel an answer, this time as a formal FOIA request. We leveraged that law to request responsive documents that would reveal how the agencies might be repurposing EO 12333 to pick up the slack from the expired 215 authority, in order to spy on persons inside the United States.
 
And this is the answer we get. It can only be taken, in a general way, as confirmation that Executive Order 12333 is, in fact, being relied upon for the surveillance of people in the United States. This is one more reason why Congress should use the reauthorization of Section 702 to seek broad surveillance reform, including significant guardrails on Executive Order 12333. With mounting evidence of abuses of Americans’ civil rights, a powerful coalition of leading conservatives and liberals in Congress is building steam to do just that.
 
Hope that’s helpful.

​While many of us were grilling hot dogs and hamburgers, the line between sci-fi dystopia and reality got a little blurrier. The New York City Police Department announced it was using aerial drones to “check in” on parties held across the city over the Labor Day weekend.
 
The NYPD is making the move, it says, in response to complaints about large and noisy parties during the holiday weekend. At a press conference, Assistant NYPD Commissioner Kaz Daughtry said: “If a caller states there’s a large crowd, a large party in a backyard, we’re going to be utilizing our assets to go up and go check on the party.” The practice of aerial surveillance is escalating. New York police used drones just four times in 2022 but have so far used them 124 times in 2023. Mayor Eric Adams has said he wants to see police further embrace the “endless” potential of drones.
 
The decision is almost certainly illegal. Daniel Schwarz, a privacy and technology strategist at the New York Civil Liberties Union, says mass drone surveillance may violate the city’s Public Oversight of Surveillance Technology (POST) Act. This is an ordinance passed in 2020 that requires the NYPD to disclose its surveillance tactics.
 
The proliferation of drones over our backyards, however, may not be unconstitutional. U.S. Supreme Court precedent on the Fourth Amendment has dealt with aerial surveillance before. In the 1988 case Florida v. Riley, the Court held that Florida did not violate a man’s right against unreasonable searches when police, on a tip, flew a helicopter over his property and observed a greenhouse in which the man was growing marijuana. The greenhouse was not visible from the ground and could only be detected aerially.
 
But nearly 40 years have passed since Florida v. Riley, and in that time police departments across the country have been able to amass and deploy an entire fleet of small, flexible aerial drones. Whereas police might have been constrained by the cost to own and operate a helicopter in the past, today’s police departments can operate a sizable drone fleet at a fraction of the price, enabling a near permanent aerial surveillance force.
 
Further compounding the problem is the high degree of reciprocity between local law enforcement and the national security center. A Department of Justice response to a PPSA Freedom of Information Act request shows that local governments have received fleets of drones and other surveillance technology from the federal government.
 
As Washington floods local police forces with hovering spies, it is time for cities and states to update our laws and jurisprudence on aerial surveillance.

​Rep. Matt Gaetz (R-FL) recently introduced the USPIS Surveillance Protection Act, legislation that would defund the Internet Covert Operations Program (iCOP), an initiative of the United States Postal Inspection Service (USPS) that, among other things, gathers intelligence from U.S. citizens' social media posts. Under this program, yet another federal agency is assuming the disturbing power to surveil broad swaths of Americans’ digital communications.
 
Documents reveal that the USPS used the iCOP program to monitor social media content that revealed the when and where of planned protests and other posts it found “inflammatory.” The program was also used to monitor conservative-leaning social media sites for potential violent activity by groups like the Proud Boys. You don’t have to defend the extreme views of some of these groups to feel the tug of the slippery slope.
 
Rep. Gaetz called the program a “clandestine domestic surveillance program,” saying, “The USP Inspection Service is operating outside of its USPS jurisdiction when it monitors internet users’ sharing of information.”
 
The government is no stranger to using the mail service to spy on American citizens. In May, PPSA wrote that agencies often obtain so-called “mail covers,” photo images of mail envelopes. Such analog-style “metadata” can give any interested party information about whom you are writing to and who is writing back. Between 2010 to 2014, postal inspectors and law enforcement agencies requested more than 135,000 mail covers. Among the top agencies requesting mail covers were the IRS, the FBI, and the Department of Homeland Security.
 
PPSA is pleased to see Rep. Gaetz’ bill begin to address the widespread practice of federal monitoring of Americans’ internet posts. In the era of digital communications, it is worrying to see the USPS transition from a postal to a surveillance agency. Congress must take steps to reign in this covert and lesser-known form of government spying now.

​Sen. Rick Scott (R-FL) recently fired off a letter to FBI Director Christopher Wray holding the Bureau to account for its abuses of Section 702 of the Foreign Intelligence Surveillance Act to spy on American citizens through improper, warrantless searches. The senator points to the “growing list of abuses that have come to light committed by the employees of your agency and the apparent lack of public accountability.”

Sen. Scott’s letter comes on the heels of a tidal wave of reports detailing rampant misbehavior in the FBI. To cite a recent example, PPSA reported on a Foreign Intelligence Surveillance Court opinion that revealed the FBI has spied on high-level U.S. officials, including a U.S. senator, a state senator, and a judge. (The FBI had previously been caught examining the communications of Rep. Darin LaHood, Republican from Illinois). Sen. Scott wrote: “The most recent revelations of frequent and repeated abuses … by the FBI raise concerns for the American public that there are no limits—legal or otherwise—on your investigative powers even when it comes to spying on American citizens.”
 
Sen. Scott’s letter was as substantive as it was critical, requesting the FBI to “explain the accountability for those rogue agents who conducted those illegal queries,” as well as a copy of the range of “‘possible’ disciplinary actions that could be implemented through ‘a new policy of escalating consequences.’”
 
Sen. Scott put it best when he concludes, “the American people and their elected representatives in Congress want to believe in their government and deserve nothing short of full transparency and accountability from the FBI.”
 
PPSA hopes the FBI will respond to this letter with more humility than the mixture of hubris and defensiveness that characterize the communications of Director Wray.

​State legislatures are passing age-verification laws that require users to upload driver’s licenses or passports to view pornographic material. This is well-meaning – and arguably necessary – legislation to protect children from viewing hardcore pornography online. Such a solution, however, has a drawback that needs to be addressed in legislative language. It leaves the door open for potentially catastrophic data privacy breaches – not to mention granting the FBI and other government agencies immense power, in the words of a declassified government report, to “facilitate blackmail, stalking, harassment, and public shaming.” 
 
In 2022, Louisiana passed HB 142, holding porn sites liable for failing to “perform reasonable age verification methods.” The bill sailed through the legislature with bipartisan support. Since then, six states have passed similar laws. Sixteen others have introduced them. Pornhub responded with suits against Louisiana and Utah, and has ceased doing business altogether in Arkansas, Mississippi, Utah, and Virginia. Today, if you visit Pornhub from an IP address in one of those states, the only thing you’ll see is a video message from porn star Cherie DeVille explaining why you can’t see her with her clothes off.
 
DeVille’s message is a simplified version of arguments made by the Free Speech Coalition, a porn industry advocacy and trade group. One of the solutions offered by that group is to verify age by device. It would be child’s play, however, for hackers and government(s) to deanonymize IP addresses. 
 
Whether we adopt either age-verification solution – those of the legislators or those of the porn industry – a risk is created that hackers and the FBI can exploit adult’s private browsing histories.
 
It’s not like there’s no appetite for government to use personal information. Documents obtained through a Freedom of Information Act request show that the Defense Intelligence Agency uses commercially available data for “cover operations.” The FBI has a team dedicated to parsing cell tower data. A multitude of federal, state, and local law enforcement – as well as intelligence agencies – regularly purchase vast troves of personal information from data brokers, and then warrantlessly search that data in flagrant violation of the Fourth Amendment. You’ll forgive us for not expecting government restraint when it is presented with an Aladdin’s Cave of mortifying search histories.
 
Imagine, for example, a bystander in a white-collar crime investigation who gets a visit from an FBI agent seeking his cooperation as a wire-wearing, confidential informant. “By the way,” the agent says in passing, “this is neither here nor there, but I happened to notice that you frequent a website that makes creative uses of My Little Pony. Wouldn’t want that to get out, now would we?”
 
It is likely that more legislators in more states will act out of the belief that hardcore porn seen by children is a crisis that needs to be addressed. Lawmakers should keep in mind, however, the need to include privacy measures in such legislation. One place to start would be a blanket restriction of any sale of browsing data, or warrantless access to it by government agencies. Or perhaps the sites could delete the data once approval is granted. We’re not sure what the best solution would look like, but we’ll know it when we see it.

​PPSA has long followed the dysfunctionality of facial recognition technology and police overreliance on it to identify suspects. As we reported in January, three common facial recognition tools failed every time they were confronted with images of 16 pairs of people who resembled one another.
 
This technology is most apt to make mistakes with people of color and with women. Stories had piled up about Americans – overwhelmingly Black men – who have been mistakenly arrested, including one Georgia man arrested and held for a week for stealing handbags in Louisiana. That innocent man had never set foot in Louisiana.
 
Now we have the first woman falsely arrested for the crime of resembling a scofflaw. Porcha Woodruff, a 32-year-old Black woman and nursing student in Detroit, was arrested at her doorstep while her children cried. Woodruff, eight months pregnant, was told by police that she was being arrested for a recent carjacking and robbery.
 
“I was having contractions in the holding cell,” Woodruff told The New York Times’ Kashmir Hill. “My back was sending me sharp pains. I was having spasms.” After being released on bond, Woodruff had to go straight to the hospital.
 
The obvious danger of this technology is that it tends to misidentify people, a problem exacerbated by distinctly lazy investigations by police. We see a larger danger: as public and private cameras are increasingly networked, and law enforcement agencies can fully track our movements, this technology will mistakenly put some Americans at the scene of a crime.
 
And if the technology improves and someday works flawlessly? We can be assured of being followed throughout our day – who we meet with, where we worship or engage in political activity or protest – with perfect accuracy.

​The Heritage Foundation recently published a sweeping take on FBI reform by Distinguished Fellow Steven Bradbury that amounts to ripping up the current structure of the Bureau and starting over. There is much to appreciate in this iconoclastic report, with far-reaching changes that warrant careful review on Capitol Hill.
 
Here are some of Bradbury’s more intriguing proposals to “reimagine the FBI from the ground up”:

• Both a “complete makeover” of the existing agency or the establishment of an entirely new agency that would absorb the FBI’s intelligence functions are presented. With the latter, reformers could separate the FBI’s intelligence function from law enforcement, creating a new agency, perhaps akin to Britain’s MI6. This makes sense given that in FISA’s Section 702, for example, we see foreign intelligence and national security used as justifications for domestic snooping. Separation would focus the FBI on its principal purview of domestic crimes, although care would have to be taken not to erect silos that could lead to another 9/11.

 

• The report calls on Congress to limit the tools of investigation used by the Bureau and prohibit efforts to suppress free speech, religious liberty, and other constitutional rights. Under the plan, Congress could restrict the FBI’s authority to conduct assessments of Americans without any evident connection to a possible crime. Congress could restrict the FBI’s ability to stimulate or induce Americans into engaging in criminal activity, a sensible reform given the FBI’s history of entrapment and sometimes becoming itself entrapped.

 

• Bradbury suggests Congress should rebalance the FBI’s operational staff away from its D.C. headquarters and towards the field offices. Such moves would both structure the FBI so as to force the agency to focus on domestic law enforcement, as well as help remove it from the Beltway’s political ecosystem. The latter reform may go some way towards depoliticizing the agency and help restore Americans’ trust that the agency stands apart from “the swamp.”

 

• One suggestion should make privacy advocates everywhere cheer – it calls on the Attorney General to isolate and purge all information improperly collected on Americans by the FBI or other components of the Department of Justice. While this reform would go a long way towards preventing further violations of Americans’ privacy rights, it would first rely on another of the Heritage report’s more questionable suggestions – that the FBI should be placed within the DOJ’s chain of command for more effective management and control. On one hand, the FBI is in sore need of oversight and accountability. On the other hand, bringing the FBI into the DOJ’s chain of command could risk further politicization.

 
In addition to these structural changes, the report proposes a minimum set of actions required to end the FBI’s abuses of its authority. Worthy and sensible recommendations include reforms to insulate the FBI from the Section 702 program, to require the FISA Court to appoint an amicus in all politically sensitive cases involving U.S. persons, and to improve oversight of politically sensitive FBI investigations.
 
PPSA commends Heritage for thinking outside of the Beltway box; however, countering FBI abuses is just one Washington element in need of reform. We are hopeful Congress will also focus on reforming Section 702, end warrantless data purchases, and address other abuses of Americans’ civil liberties.

​PPSA previously commented on a New York Times scoop in April that revealed a contractor for the U.S. government had purchased and used a spy tool from NSO, the Israeli firm that developed and released Pegasus software into the wild – which can turn smartphones into pervasive surveillance tools.
 
The White House was surprised that its own government did business with NSO a few days after the administration had put that firm on the no-business “Entity List.” NSO was placed on this blacklist because its products, the U.S. Commerce Department declared, “developed and supplied spyware to foreign governments that used these tools to maliciously target government officials, journalists, businesspeople, activists, academics, and embassy workers.”
 
Understandably upset, the White House tasked the FBI to sleuth out who in the government might have violated the blacklist and used the software. Mark Mazzetti, Ronen Bergman, and Adam Goldman of The Times report that months later the FBI has come back with a definitive identification of this administration’s scofflaw.
 
The FBI followed the breadcrumbs and discovered, you guessed it, that it was the FBI.
 
Fortunately, the FBI did not purchase the “zero-day” spyware Pegasus, but another spy tool called Landmark, which pings the cellphones of suspects to track their movements. The FBI says it used the tool to hunt fugitives in Mexico. It also claims that the middleman, Riva Networks of New Jersey, had misled the FBI about the origins of Landmark. Director Christopher Wray discontinued this contract when it came to light.
 
Meanwhile, The Times reports that two sources revealed that contrary to the FBI’s assertions, cellphone numbers were targeted in Mexico in 2021, 2022, and into 2023, far longer than the FBI says Landmark was used.
 
We should not overlook the benefits of such FBI investigations. In fact, PPSA has a tip to offer. We suggest that the FBI track down the government bureau that has been routinely violating the U.S. Constitution by conducting backdoor searches with FISA Section 702 material, as well as warrantlessly surveilling Americans purchased data.
 
More to follow.

With perfect timing, Judge Christopher Cooper of the U.S. District Court in DC provided the U.S. Senate today with ample to reason to follow the example of the House and pass the PRESS Act. The judge seeks to compel CBS News senior correspondent Catherine Herridge to reveal her confidential source or sources for a news series she published when she was a journalist at Fox News.
 
Confidentiality is the lifeblood of a free press. From Watergate to Harvey Weinstein, confidential sources have helped journalists bring to light malfeasance and hidden crimes that otherwise would have continued. And a strong reporting culture is a counter to the growing surveillance state enabled by technology. That is why in September 2022, the House unanimously passed the bipartisan Protect Reporters from Exploitive State Spying, or PRESS Act – and why the House Judiciary Committee unanimously approved it again on July 19 of this year.
 
This measure would bring the federal government up to speed with 49 states by shielding reporters from choosing between jail or ratting out whistleblowers and sources as ordered by a federal judge or prosecutor. The PRESS Act is reasonable legislation, allowing for exceptions in extreme cases.
 
PPSA has long admired Catherine Herridge’s impartial and fearless reporting. We support her and all journalists who face these dilemmas. This is all the more reason why the House should again pass this bill and the U.S. Senate should take up the PRESS Act when Congress returns after August recess.

July was a banner month for surveillance reform. For years, civil libertarians have warned about the widespread practice of third-party data brokers selling Americans’ most sensitive and private information, scraped from our apps, to more than a dozen federal intelligence and law enforcement agencies, including the FBI, Drug Enforcement Administration, and the many agencies of the Department of Homeland Security.
 
The public is alarmed. Lawmakers in both parties are beginning to take effective action.
 
In July, the House Judiciary Committee unanimously passed The Fourth Amendment Is Not for Sale Act, which would restrict the ability of government agencies to warrantless extract Americans’ personal information from data purchases. Sen. Ron Wyden (D-OR) is reintroducing this measure in the Senate.
 
If the will of the Congress wasn’t clear enough, also in July the House passed an amendment sponsored by Rep. Warren Davidson (R-OH) and Sara Jacobs (D-CA) to the National Defense Authorization Act that expressly prohibits half of the intelligence community, including the NSA and the Defense Intelligence Agency, from purchasing our data at all, absent a warrant, court order, or subpoena.
 
Supporters of similar reforms range from the conservative Chairman of the House Judiciary Committee, Jim Jordan, to the liberal Ranking Member and former Chairman, Jerry Nadler. A passion for surveillance reform brings together respected members from Rep. Thomas Massie (R-KY) to Rep. Zoe Lofgren (D-CA), from Sen. Wyden to Sen. Mike Lee (R-UT).
 
It might seem, then, that surveillance reform is now a slam-dunk certainty. It isn’t.
 
Consider the fate of Lee-Leahy, a bill that would have imposed the rather modest goal of requiring the judges of the Foreign Intelligence Surveillance Act (FISA) court to seek the advice of civil liberties experts in cases that involve significant civil rights concerns when political, religious, or journalistic groups are surveilled and investigated. That measure passed the Senate in 2020 by an overwhelming 77 votes. Then, through a process of legislative confusion and the Trump Administration’s policy contortions, this modest and popular bill sailed into the round file like a paper airplane.
 
The Davidson-Jacobs Amendment and The Fourth Amendment Is Not For Sale Act risk dying in a far less dramatic way than Lee-Leahy did. All the elected champions of the surveillance state have to do is let these measures die in the darkness of a committee room or the Senate calendar. More good legislation has been killed by benign neglect than by explicit filibusters.
 
Any American who cares about privacy and civil liberties must draw two conclusions from this realization.
 
First, now more than ever, civil libertarians need to ramp up the activity. Members of Congress must know that this year we won’t settle for feel-good, symbolic votes. The Fourth Amendment Is Not For Sale Act must get a floor vote in the Senate.
 
Second, civil libertarians must continue to insist that FISA’s Section 702, an authority under which the government surveils foreigners, must be reformed so that it cannot continue to be used by the FBI and other agencies as a domestic surveillance tool. This reform must necessarily include closing the legal loophole that allows the government to buy our personal information and thumb through it, all without a warrant.
 
As Kenny Loggins sang so long ago, “this is it!” Our back is to the corner. Join the efforts of the civil liberties community by clicking here to stand up and fight!

​The unanimous passage of the Fourth Amendment Is Not for Sale Act by the House Judiciary Committee, as well as the expiration of Section 702 of the Foreign Intelligence Surveillance Act, is spurring the National Security Agency into a furious lobbying campaign of the public and Congress to stop surveillance reform.
 
NSA lobbyists argue that it would be hobbled by the House measure, which would require agencies to obtain a probable cause warrant before purchasing Americans’ private data. Former intelligence community leaders are also making public statements, arguing that passage of Section 702 of the Foreign Intelligence Surveillance Act (FISA) with any meaningful changes or reforms would simply be too dangerous.
 
George Croner, former NSA lawyer, is one of the most active advocates of the government’s “nothing to see here, folks” position.
 
In March, Croner portrayed proposals for a full warrant requirement as a new and radical idea. He quoted two writers that concern over warrantless, backdoor searches is a concern of “panicky civil libertarians” and right-wing conspiracy theorists. In a piece this week, Croner co-authored a broadside against the ACLU’s analysis of the NSA’s and FBI’s mass surveillance.
 
For example, Croner asserts that civil liberties critics are severely undercounting great progress the FBI has made in in reducing U.S. person queries, a process in which agents use the names, addresses, or telephone numbers of Americans to extract their private communications. Croner celebrates a 96 percent reduction in such queries in 2022 as a result of process improvements within the FBI. 
 
But, to paraphrase the late, great Henny Youngman, 96 percent of what? Ninety-six percent of a trillion data points? A quadrillion? The government’s numbers are murky and ever-changing, but the remaining amount appears, at the very least if you take these numbers at face value, to constitute well over 200,000 warrantless searches of Americans.
 
Elizabeth Goitein of the Brennan Center for Justice, who has placed her third installment in a series on Section 702 in the online outlet Just Security – a masterclass on that program and why it must be reformed – has her own responses to Croner. While Croner portrays a warrant requirement for reviewing Americans’ data as a dangerous proposal, Goitein sees such a requirement as way to curb “backdoor searches,” and return to the guarantees of the Fourth Amendment.
 
Goitein writes:
 
“For nearly a decade, advocates, experts, and lawmakers have coalesced around a backdoor search solution that would require a warrant for all U.S. person queries conducted by any U.S. agency. Indeed, some broadly supported proposals have gone even further and restricted the type of information the government could obtain even with a warrant.”
 
She describes a Review Group on Intelligence and Communications Technologies that included many, like former CIA acting director Michael J. Morrell, who are anything but panicky civil libertarians. This group nevertheless found it responsible to recommend warrants “based on probable cause” before surveilling a United States person. Other supporters of probable cause warrants range from Rep. Thomas Massie (R-KY) and Zoe Lofgren (D-CA), to Sens. Dianne Feinstein (D-CA), Mike Lee (R-UT), and former Sen. Kamala Harris (D-CA).
  
They all saw what Goitein describes:
 
“Without such a measure, Section 702 will continue to serve as an end-run around the protections of the Fourth Amendment and FISA, and the worst abuses of the power to conduct U.S. queries will continue.”
 
We eagerly await ACLU’s response to Croner’s critique. Such debates, online and perhaps in person, are the only way to winnow out who is being candid and who is being too clever by half. It is a healthy development for intelligence and civil libertarian communities to debate their clashing views before the American people and the Congress rather than leave the whole discussion to secret briefings on Capitol Hill.

​Does the Fifth Amendment privilege against self-incrimination prevent the government from forcing a defendant to unlock their cellphone? That’s the question at issue in People v. Sneed, a recent case brought before the Illinois Supreme Court, which found in favor of the state. 
 
This ruling is a blow to Fifth Amendment protections in the digital age and an interpretation that cannot be sustained if we are to properly extend constitutional protections to ever-evolving technology.
 
In an amicus brief before the court, the American Civil Liberties Union aptly laid out the arguments against compelling passwords from the accused. Fifth Amendment protections against self-incrimination, they point out, derive from the founders’ fears of an American “Star Chamber,” the English judicial body that became synonymous with oppressive interrogation tactics and a lack of due process. 
 
Drawing on this foundation, the American legal system has largely supported the notion that “the State cannot compel a suspect to assist in his own prosecution through recall and use of information that exists only in his mind.” To do so would impose a “cruel trilemma” on a defendant who would face an impossible choice: perjury, self-incrimination, or contempt of court. 
 
As the ACLU points out, numerous high courts (including Indiana and Pennsylvania) have found that password disclosure constitutes testimony because it draws from “the contents of one’s mind.” Yet courts in New Jersey and Massachusetts have sided with Illinois, presenting a significant conflict of law in the ongoing effort to adapt constitutional precepts to our changing society.  
 
In finding for the state and forcing the defendant, Sneed, to unlock his cellphone, the Illinois Supreme Court drew on a somewhat obscure legal exception to the Fifth Amendment right against self-incriminating testimony known as the “foregone conclusion” doctrine. That exception, which the Supreme Court of the United States has applied only once before, holds that producing a password is not testimonial when the government can show, with reasonable particularity, that it already has knowledge of the evidence it seeks, that the evidence was under control of the defendant, and that the evidence is authentic. The idea is that the act of producing a password has little testimonial value in and of itself.  
 
The court misapplied that doctrine here, placing the focus on the password rather than the contents of Sneed’s cellphone. 
 
The court drew on precedents that probable cause justifies the intrusion: “Any information that may be found on the phone after it is unlocked is irrelevant, and we conclude that the proper focus is on the passcode.”
​
But probable cause does not constitute evidentiary certainty. And, in applying its analysis to passcodes rather than the contents of a safe or lockbox or cellphone, the court ignores that the Supreme Court of the United States’ use of this exception in Fisher v. United States (1976) depended on a specific, narrow set of facts. There, the analysis focused on the production of business documents already proven to exist – not on a passcode. 
 
Allowing the “foregone conclusion” exception to apply to testimonial production of cellphone passwords opens the door to forcible government snooping across the vast scope of our digital lives. Gaining access to someone’s cellphone can reveal anything and everything about that person – including the most intimate details of a life. 
 
As the ACLU put it: 
 
“Locked phones and laptops may impose obstacles to law enforcement in particular cases. So do window shades. It is sometimes true that constitutional protections interfere with law enforcement investigations.” 
 
Until the Supreme Court of the United States resolves this issue, our Fifth Amendment rights in the digital age remain in doubt. 

​On Friday, the Office of the Director of National Intelligence released a Foreign Intelligence Surveillance Court opinion that details blatant violations of Americans’ privacy. Most distressingly, high-profile American political leaders were among the targets surveilled by the FBI. The heavily redacted opinion released on Friday reveals that the FBI attempted improper searches of the communications of a United States Senator, a state senator, and a judge who complained about civil rights violations by local police. 

If that sounds beyond the pale, the National Security Division (NSD) of the United States Department of Justice thought so, too. 

In the former case, the NSD determined that the “querying standard” used by the FBI to obtain foreign intelligence information was not met. In the latter case, it’s a little more opaque. Last October, the FBI used the anonymous Judge’s social security number to search the Section 702 database. The Judge "had complained to FBI about alleged civil rights violations perpetrated by a municipal chief of police.” The National Security Division’s review stated that this search was also illicit. 

While the U.S. Senator has been notified about the improper search, the state Senator and the state Judge have not. It is clear is that a continued pattern of government abuse persists when it comes to Section 702 of the Foreign Intelligence Surveillance Act. 

Although the FISC states that, “there is reason to believe that the FBI has been doing a better job in applying the querying standard,” the anonymous judge also admits that “[t]he prevalence of non-compliant queries conducted by the FBI, and particularly of broad queries that were not reasonably likely to return foreign intelligence information or evidence of crime, has been a major focus of concern….”

Indeed it has been. In fact, the same court found in 2018 that there was a “deficiency in the FBI’s querying and minimization procedures” based on “large-scale, suspicionless queries….”

The Court found that the FBI’s implementation of remedial measures has improved the Bureau’s compliance with Section 702’s specificity requirements. But they make sure to soften that finding with a disclaimer: “NSD devotes substantial resources to its oversight efforts, but still can examine only a fraction of total FBI queries. It is therefore possible that serious violations of the querying standard have so far gone undetected.” 

The FBI has a long track record of repeatedly misusing the Section 702 database, but to poll information on high-profile elected officials is a new level of abuse. These revelations come amid a push by the Biden administration to reauthorize Section 702 mere months before it expires at the end of this year. When federal authorities inappropriately attempt to spy on legislators – and even judges – we truly find ourselves with one foot off the merry-go-round. Congress must take this into account in the coming months. 

​In late 2022, pursuant to its internal policy, Google informed two customers about law enforcement action taken against them by the Department of Justice five years prior. The customers in question: Republican staffers working for then-House Intelligence Committee Chairman Devin Nunes. According to contemporaneous reports, authorities subpoenaed addresses, screen names, telephone and payment records, and “all customer and subscriber account information” related to the two staffers. What’s more, as the Wall Street Journal editorial board recently pointed out, this was apparently done without informing Congress, as is typical practice. 

One of the targeted staffers was Kash Patel, who at the time served as senior counsel to the House Intel Committee. Given the Committee’s focus at the time – looking into the origins of the FBI’s investigation of alleged collusion between the Trump campaign and Russia – some dot-connecting might well be warranted. 

What truly shocks the conscience, however, is that Justice would clandestinely spy on Congress in the first place. As the Wall Street Journal wrote, “If DOJ used its law enforcement tools to snoop on Mr. Nunes, that would be an abuse of power.” 

Now, House Judiciary Chairman Jim Jordan has issued a letter to FBI Director Christopher Wray demanding answers. All who care about data privacy – and the integrity of congressional authority – deserve them.

​From Left to Right and across the nation, trust in American governing institutions is at rock bottom. Just this week, the Wall Street Journal ran an opinion piece with some eye-catching stats. A recent poll conducted by NBC found that only 37% of the public holds a positive view of the FBI, down from 52% in 2018. Among Republicans, that number is 17%. 
 
Though liberals may still hold a somewhat more positive view of one of the country’s most powerful agencies, the same cannot be said for the police. Increased scrutiny and distrust towards the police in the wake of George Floyd’s killing in 2020 have gutted the force’s ranks. Since 2020, over 1,000 cops have prematurely retired from the Los Angeles Police Department alone. In just New York, about 1,400 NYPD cops are expected to resign this year before reaching retirement age. Overall, there were 50% more resignations nationally last year than in 2019.
 
Across the board, Americans are repulsed by the routine abuse of power. Is it any surprise, though, given the widespread feeling (backed by the FBI’s own data) that the FBI is all too happy to invade Americans’ security by spying on them, directly or indirectly? As the Office of the Director of National Intelligence revealed, the FBI conducted as many as 3.4 million searches of U.S. data in 2021. The Office of the Inspector General also released a report detailing “widespread non-compliance” with procedures and ethics rules.
 
The WSJ article argues that social breakdown—violence, lawlessness, drug addiction, but also distrust in the “institutions that provide the bedrock of domestic tranquility”—begets only further repressive tactics such as a willingness to engage in and tolerate greater surveillance in the name of safety and security. Just look at El Salvador, where a sudden rise in the country’s homicide rate, making the country the murder capital of the world, was met with fierce state reprisals. El Salvador crushed its violent crime, but at what cost to constitutional and civil liberties? Only time will tell.
 
The U.S. should avoid such a route for the reason that Americans’ distrust of governing institutions is due to the fact that they are being too heavy-handed, not that they are doing too little. Further invasions into privacy, crackdowns, and reprisals will only inflame the situation. Nor does adherence to constitutional procedures give way to higher crime and further social breakdown. The Fourth Amendment’s warrant requirement does not force us to sacrifice security where the need is genuine. It acts as a check against lazy assumptions and active abuse while also shining a harsh light on the exercise of the necessary but dangerous powers we hand to the government. 
 
Recognizing the need for effective policing is not incompatible with recognizing the need for checks on abuse or overzealousness. In fact, the two are inextricably interrelated. A country cannot have good policing where abuse is rampant.

​Gene Schaerr, PPSA general counsel, in testimony before a House subcommittee on Friday, urged Congress to assert its prerogative to interpret Americans’ privacy and Fourth Amendment rights against the federal government’s lawless surveillance.
 
Schaerr said the reauthorization of a major surveillance law this year is a priceless opportunity for Congress to enact many long-needed surveillance reforms. There is, Schaerr told the Members of the House Judiciary Subcommittee on Crime and Government Surveillance, no reason for Congress to defer on such a vital, national concern to the judiciary.
 
Congress also needs to assert its authority with executive branch agencies, he said. For decades, when Congress reforms a surveillance law, federal agencies simply move on to other legal authorities or theories to develop new ways to violate Americans’ privacy in “a game of surveillance whack-a-mole.”
 
Schaerr said:
 
“As the People’s agents, you can stop this game of surveillance whack-a-mole. You can do that by asserting your constitutional authority against an executive branch that, under both parties, is too often overbearing – and against a judicial branch that too often gives the executive an undeserved benefit of the doubt. Please don’t let this once-in-a-generation opportunity slip away.”   
 
Schaerr was joined by other civil liberties experts who described the breadth of surveillance abuse by the federal government.
 
Liza Goitein of the Brennan Center for Justice at NYU Law School said that FISA’s Section 702 – crafted by Congress to enable foreign surveillance – has instead become a “rich source of warrantless access to Americans’ communications.”
 
She described a strange loophole in the law that allows our most sensitive and personal information to be sold to the government. The law prevents social media companies from selling Americans’ personal data to the government, but it does not preclude those same companies from selling Americans’ data to third-party data brokers – who in turn sell this personal information to the government.
 
Federal agencies assert that no warrant is required when they freely delve into such purchased digital communications, location histories, and browsing records. Goitein called this nothing less than the “laundering” of Americans’ personal information by federal agencies looking to get around the law. 
 
“We’re a nation of chumps,” said famed legal scholar and commentator Jonathan Turley of the George Washington University Law School, for accepting “massive violations” of our privacy rights. He dismissed the FBI’s recent boasts that it had reduced the number of improper queries into Americans’ private information, likening that boast to “a bank robber saying we’re hitting smaller banks.” 
 
Many members on both sides of the aisle echoed the concerns raised by Schaerr and other witnesses during the testimony. Commentary from the committee indicates that Congress is receptive to privacy-oriented reforms.
 
Gene Schaerr cautioned that Congress should pursue such a strategy of inserting strong reforms and guardrails into Section 702, rather than simply allowing this authority to lapse when it expires in December. Drawing on his experience as a White House counsel, Schaerr said the “executive branch loves a vacuum.” Without the statutory limits and reporting requirements of Section 702, the FBI and other government agencies would turn to other programs, such as purchased data and an executive order known as 12333, that operate in the shadows.
 
Despite this parade of horribles, the hearing had a cheerful moment when it was interrupted by the announcement of a major reform coalition victory. The Davidson-Jacobs Amendment passed the House by a voice vote during a recess in the hearing, an announcement that drew cheers from witnesses and House Members alike. This measure would require agencies within the Department of Defense to get a probable cause warrant, court order, or subpoena to purchase personal information that in other circumstances would require such a warrant.
 
Schaerr was optimistic that further reforms will come. He said:
 
“Revulsion at unwarranted government surveillance runs deep in our DNA as a nation; indeed, it was one of the main factors that led to our revolt against British rule and, later, to our Bill of Rights. And today, based on a host of discussions with many civil liberties and other advocacy groups, I’m confident you will find wide support across the ideological spectrum for a broad surveillance reform bill that goes well beyond Section 702.”