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.”
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.
Intelligence Community Myth: “The government is neither intentionally nor inadvertently targeting Americans for surveillance through Section 702.”
Fact: This assertion is in a Wall Street Journal op-ed on Thursday by Richard E. DiZinno and Beth A. Williams – the two dissenters from the recent critical report on Section 702 from the Privacy and Civil Liberties Oversight Board (PCLOB). This statement by DiZinno and Williams is flatly contradicted by the PCLOB report.
In that report, the government owns up to intentional violations. The report states:
“According to the government, there have been several examples where oversight mechanisms have identified incidents involving improper intent in seeking to circumvent or violate the procedures, related rules, or statutory requirements.”
Two of these violations are from 2022. This is important because the FBI, in announcing its new “accountability” procedures, claimed that there had been no identified instances of intentional non-compliance since 2018.
We know about these four searches because they are egregious, personal misuses of Section 702 data that cannot possibly be explained away. Imagine what can happen when agents can spin serious-sounding but imagined national security justifications to look at Americans’ private data and communications.
PCLOB Chair Ups Ante by Calling for Probable Cause Warrant for U.S. Person Queries
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.
Today, the Privacy and Civil Liberties Oversight Board (PCLOB) issued its long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act. The report, endorsed by a majority of the Board’s members, sheds new light on abuses over the past few years, revealing that, “[i]n the reporting period covering November 2020 to December 2021, non-compliant queries related to civil unrest numbered in the tens of thousands.”
The report includes recommendations that Congress enact robust reforms as part of any reauthorization of Section 702. Among other reforms, it urges Congress to (1) require the government to obtain individualized judicial approval to access communications retrieved through U.S. person queries (commonly known as “backdoor searches”), with exceptions for consent and exigent circumstances; (2) codify President Biden’s executive order specifying the legitimate objectives of surveillance; (3) improve the workings of the FISA Court, including by strengthening the role of amici; (4) prohibit the government from re-starting “abouts” collection; and (5) impose a deadline for declassifying significant FISA Court opinions.
Privacy, civil rights, and civil liberties groups issued the following statement responding to the report:
“The message of the Board’s report is clear: individualized judicial review of U.S. person queries is critical to protect Americans’ rights and prevent further abuses. The report flatly rejects the government’s self-serving claim that individualized judicial review is unworkable. It also rejects the baseless notion that broad categories of these searches, such as searches for foreign intelligence or so-called ‘defensive’ searches for potential victims’ information, should be exempted from this requirement. And it rejects the fallacy that the FBI’s tweaks to its internal procedures are sufficient to address the acute risks posed by backdoor searches.
“Three members of the Board stated that they would support a probable cause standard for U.S. person queries in any criminal investigation, including those related to foreign intelligence. In her statement, the Chair of the Board compellingly explained why the full ‘probable cause’ standard is required by the Fourth Amendment and necessary to safeguard Americans’ privacy. We believe the same logic supports a requirement for a probable cause order for any U.S. person query.
“We note that the Board limited its inquiry and its recommendations to Section 702. It did not address many of the other issues that are very much part of the current debate, including the government’s use of data brokers to circumvent legal protections for Americans’ privacy and the use of overseas surveillance to collect Americans’ information without statutory authority or judicial oversight. Congress, however, must address these issues. If it limits itself to reforms of Section 702, the government will simply continue its warrantless surveillance of Americans using these other methods.”
More than thirty organizations from across the political spectrum have called for a range of reforms as a precondition for any reauthorization of Section 702. Those reforms include:
Statement above attributable to the following organizations:
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.
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.
"The government should do all it can to combat the illegal trafficking of dangerous drugs. But those efforts should not - and need not - come at the expense of Americans’ constitutional rights," writes Noah Chauvin in The Hill.
Noah is a counsel in the Liberty and National Security Program at the Brennan Center for Justice at NYU Law in The Hill.
Our bipartisan coalition is prompting former intelligence agency officials to carry the Biden administration's water by lobbying hard to kill Section 702 reform. Our Senior Policy Advisor and former U.S. Congressman, Bob Goodlatte, and Americans for Prosperity's deputy director of Federal Government Affairs, Matthew Silver, cut through the spin in RealClearPolitics.
1.3 Million IC Security Clearances – But House Only Trusted With a Few?
Mark Davis, PPSA’s Director of Policy, recently spoke to a group of Legislative Directors for Members of the U.S. House of Representatives about the intelligence community’s opposition to House oversight of its activities.
Davis discussed the need to enhance Congressional oversight. The number of staffers with security clearance sufficient to help their Members review the operations of the intelligence community is sharply limited. Most House offices cannot have a staffer who obtains “top secret” and “sensitive compartmented information,” or TS/SCI clearance. Davis discussed proposals to allow every Member of the House to advance one staff member for such clearance, subject to passing a background check.
Davis told the Legislative Directors:
“The reform of Section 702 must ensure that Congress itself has the tools to conduct necessary oversight of surveillance agencies—including sufficiently cleared staff for each Member. There are about 1.3 million intelligence community employees and consultants with top-secret clearance. It is insulting to hold, as the intelligence community does, that it would be dangerous to add a few hundred more on Capitol Hill.”
The output of former NSA officials in pushing for a “clean,” or unamended, reauthorization of Section 702 of the Foreign Intelligence Surveillance Act has been prolific. Several such pieces have recently run in the op-ed pages of The Hill newspaper alone.
The latest op-ed, by former senior NSA and Department of Homeland Security officials Jon Darby and Thomas Warrick, is a masterpiece of misdirection.
It begins with the oft-told tale of Secretary of State Henry Stimson in 1929 closing down the “Black Chamber,” a New York City office in which government cryptographers broke the codes of Japanese and other foreign diplomats. “Gentlemen,” Stimson famously said, “do not read each other’s mail.” Stimson reversed his elevated sense of etiquette when he became Secretary of War during World War Two – and the ability to break Japanese codes became central to Allied victory.
The implication here is that civil libertarians today who complain about Section 702 are sniffy idealists who would expose us to great danger. To buttress this point, Darby and Warrick cite several intelligence successes, including the breaking of the plot to bomb New York City’s subway in 2009. With Russia and China turning increasingly hostile, Darby and Warrick say that we need robust means to intercept those who threaten the safety of the American homeland.
To which PPSA and many other civil libertarians say, “hurrah!”
We take issue, however, with the central metaphor of their piece – Henry Stimson’s ending of foreign surveillance. No foreigner enjoys the protections of the Fourth Amendment of the Constitution. When it comes to foreign terrorists and spies, we say surveil away. Our concern arises when the communications of millions of Americans are folded into Section 702 surveillance.
Whenever an American becomes a target of a government investigation, a probable cause warrant is required by the Fourth Amendment of the Constitution to examine their communications. Take the case cited by Darby and Warrick – the planned New York City bombing involving an Afghan-American who was in communication with Al-Qaeda in Pakistan and traveled to meet them. That alone should have been enough to obtain a probable cause warrant to inspect the target’s communications.
Darby and Warrick acknowledge that “for a time, the FBI routinely searched databases with information collected under Section 702’s authority even in non-national security investigations.” Victims of such improper government surveillance included a Member of the U.S. House, a U.S. senator, a state senator, a judge, a local political party, and 19,000 donors to a congressional campaign, among many others. Darby and Warrick assure us that these abuses were “corrected” when “additional safeguards” were put in place.
Despite large reductions in the numbers of Americans who have their data hoovered up, however, more than 200,000 warrantless searches are still taking place every year. As Sen. Mike Lee of Utah notes, the correct number for violations of the Constitution is zero. If Congress misses this rare opportunity to impose a warrant requirement, expect the FBI and other agencies to quickly revert to old ways.
A final point: There is an air of unreality surrounding the debate over the Section 702 database. It is, after all, likely small compared to the database of warrantlessly obtained and inspected personal information of Americans that is commercially acquired by our government.
About a dozen federal agencies, from NSA, to DoD, to IRS, to the FBI, to DHS, purchase our personal data scraped from apps and sold by third-party data brokers. Government lawyers blandly assert they are not violating the constitution’s prohibition against seizing our data. They are, after all, merely buying it.
That strikes most Members of Congress and their constituents as sophistry. Our digital actions – whom we communicate with, where we go, what we search online for – can be our most personal information, revealing our romantic lives, our health issues, our religious beliefs and worship, and our political activities. Yet the government – including the agencies that Darby and Warrick served – routinely ransack what essentially are our personal diaries without a warrant or oversight of any sort.
The coming debate over the reauthorization of Section 702 will be our best opportunity in a generation to curb the government’s appetite for all our information. We should not let this rare chance pass us by.
When spy novelist John le Carré left MI-6 to become a writer, he said that he had resolved to have “nothing to do with the intelligence world.” Would that the same could be said of former intelligence community lawyers. During the relative quiet of August, attorneys who once served the alphabet soup of agencies – NSA, NSC, CIA – have been busy posting pieces and writing op-eds why Congressional reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) should be passed with minimal changes. If Congress amends Section 702 with a warrant requirement to spy on the communications of American citizens, they tell us, the nation will be in peril.
Civil libertarians are responding with vigor.
Witness the incisive piece by Patrick Toomey, Sarah Taitz, and Kia Hamadanchy of the American Civil Liberties Union in the online journal justsecurity.org, a clear-eyed response to all the recent fearmongering by this intelligence community campaign. Toomey and his colleagues offer a wide-ranging survey of Section 702 and the dangers posed by how it is used in a way that is both deep and accessible.
The ACLU hits the main point early and with great clarity:
“If the purpose of Section 702 is to ‘target’ foreigners for intelligence gathering, then officials should have no qualms about imposing robust safeguards for Americans … but for too long, officials have tried to have it both ways – claiming that the law was not intended to spy on Americans, while using Section 702 to do just that.”
ACLU more than amply demonstrates that Section 702 has become a “domestic surveillance tool, with agents and analysts routinely searching through the enormous pool of collected data for the private communications of Americans.” ACLU adds: “With that fact finally in the open, the rules written into the law should reflect the bedrock protections the Constitution requires.”
This strong piece is a welcome rejoinder. As Congress prepares to return in September, defenders of the surveillance status quo have been busy warning that a warrant requirement of Section 702 would allow Chinese and Russian agents to run rampant, or that warrants would hobble law enforcement, drowning the nation in fentanyl.
The ACLU’s recent piece is a sign, however, that champions of reforms are not going to let up in our corrections and rebuttals. Our coalition of civil liberties groups will be briefing leading newspapers and their editorial boards. We are reaching out to reporters to correct misleading claims and steer journalists to the right information. And we will continue to update our resource on Section 702, fisareform.org.
Intelligence community disinformation is, as they say, a target-rich environment. We act in the confidence that the case for warrants and other reforms will be matters of common sense and bedrock American principles for Members of Congress and their constituents.
For years, the excuse the intelligence community has trotted out to derail surveillance reform was the need to prevent a re-building of “the wall” – shorthand for the refusal of the FBI and CIA to share information between each other, and within their own organizations – that could have stopped the 9/11 terrorist attacks.
This was more than a little disingenuous. There was no “wall.” There was no law or formal policy that kept these agencies from sharing appropriate alarm about flight students who wanted to learn to pilot large passenger jets, while skipping the part about landing. The 9/11 Commission appropriately put the blame on sluggish, bureaucratic behavior that allowed that awful day to happen.
The 9/11 excuse to avoid any and all reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA) doesn’t have the same punch it used to have. So the apologists for the intelligence community are changing tack. They now argue that Congress must pass Section 702 as it is or else the nation will drown in a sea of fentanyl. A recent article in The Charlotte News & Observer demonstrates how the apologists for the status quo are now using fentanyl to lobby North Carolina’s two senators, Thom Tillis and Ted Budd, to walk away from changes to Section 702. Both senators have bravely stood up for their constituents by speaking out for the need for surveillance reform.
This is part of a larger effort by the McClatchy media group to run stories, from The Miami Herald to The Kansas City Star. That nationwide series links senators skeptical about Section 702 to the assertion that a Section 702 probable cause warrant requirement would degrade law enforcement’s ability to stop fentanyl distribution.
No one disagrees that the smuggling of this deadly drug into the United States is a national crisis. It is estimated that 150 Americans die every day from synthetic opioid poisoning. Fentanyl, which can be 50 times more potent than heroin, is particularly dangerous. PPSA and other civil libertarian groups agree that fighting fentanyl smuggling and marketing is a major national struggle that law enforcement should be fully engaged in countering.
But these efforts by the intelligence community smack of fear-mongering. We are adamant in our conviction that we can fight fentanyl without throwing out the Fourth Amendment to the U.S. Constitution, which forbids unreasonable searches and seizures of our personal information. Section 702 enables surveillance of foreign nationals for national security purposes. Because all communications are global, and many Americans have conversations with foreigners, millions of Americans have their data caught up in 702’s dragnet.
And, as we have seen, the FBI and other agencies have warrantlessly accessed the personal information of Americans millions of times in recent years – including the personal data of political leaders, that of a U.S. senator, a House Member, a state senator, and a judge.
Here’s a tip for the FBI: no Member of Congress is engaged in the smuggling and distribution of fentanyl. What excuse, then, does the FBI have for intruding into the personal communications and data of leading politicians? Perhaps Sens. Tillis and Budd might want to ask the intelligence community questions about that.
The bottom line is that the FBI and other agencies should be able to prosecute fentanyl smugglers and sellers and respect the U.S. Constitution at the same time.
“The reform debate is about this program’s broad intrusion on Americans’ privacy,” ACLU’s Patrick Toomey told The News & Observer. “If the purpose of Section 702 is to target foreigners for intelligence purposes, as officials often say, then they should stop stonewalling robust protections for Americans.”
A 2006 German film, The Lives of Others, created a vivid portrait of what it is like to live in a surveillance state – in this case, in old East Berlin under the watchful eye of the Stasi secret police. PPSA has catalogued all of the ways in which technology and thoughtless (and sometimes malign) government intentions bring us closer to living, if not exactly under the Stasi, to something closer to the panopticon in China.
A broad array of robust surveillance technologies is in use around the country – from drones, to ubiquitous private and public cameras, to purchased data owned and reviewed without warrants by government for insights into American’s relationships, location histories and communications, to the warrantless treasure trove of American data in FISA’s Section 702. All that’s lacking is the will and means to knit them all together, with AI technology to perform the menial task of constant surveillance for its human minders. With the emergence of local “fusion centers” around the country to integrate data, the United States is already well down this path.
But another key element of a surveillance state, also amply demonstrated by old East Germany, was the willingness – sometimes the eagerness – of people to inform on others. Sometimes the informer was a former lover, a disgruntled neighbor, or a coworker with a grudge to settle. The Stasi was always willing to overlook the motivations of an informer if they had something good and juicy.
This is not to say that the decision by financial institutions to volunteer – without any legal process – the confidential banking information of their clients to the FBI makes them Stasi informers or puts us all in Stasi land. Like almost all Americans, banking executives were appropriately horrified by the savage attack on the U.S. Capitol by a violent mob on January 6, 2021. Herein lies the danger – many loopholes in the law begin with a real, legitimate public outrage and the need to rectify it. But when major public and private institutions violate their customers’ reasonable expectations of privacy, in a way utterly outside the law, we normalize illicit behavior that can be used again in the future – and stretched beyond reason – for any purpose.
Thanks to the investigations of the Judiciary Committee and its Weaponization subcommittee, we now know that major financial institutions voluntarily conducted a dragnet of vast numbers of customers and gave it apparently unprompted to the FBI and the Financial Crimes Enforcement Network (FinCEN). According to retired FBI Supervisory Intelligence Analyst George Hill, banks “with no directive from the FBI data-mined … customer base” and compiled massive information on customer transactions. Any customer who used a credit or debit card between Jan. 5 and Jan. 7, 2021, in the greater Washington, D.C. area, had their personal information swept up and sent to the FBI.
Financial institutions also took an extra step to put anyone who had ever purchased a firearm on the top of that list. Documents obtained by Congressional investigators suggest that the executive branch was brainstorming informal methods – again, outside of any legal process – to obtain even more private customer information from financial institutions.
No matter how heinous the acts of those who stormed the U.S. Capitol, this privately conducted dragnet relied on no law to report to the FBI the personal information of large numbers of innocent Americans with no connection whatsoever to that crime.
Now Rep. Jim Jordan (R-OH), Chairman of the House Judiciary Committee, has subpoenaed Citibank for documents and communications related to violations of customer privacy. PPSA commends Chairman Jordan. Big corporations must not arrogate to themselves the ability to violate the privacy of their customers without disclosure or paying a price in the civil courts, as well as in the court of public opinion.
Chairman Jordan and his committee are performing a necessary duty to nip this practice in the bud before businesses of all sorts begin to volunteer to a sometimes over-reaching government the private information we entrust to them.
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.
Gene Schaerr, PPSA general counsel, today announced the filing of an administrative appeal with the Department of Justice after a “ludicrous scavenger hunt response” from the FBI to a Freedom of Information Act (FOIA) request.
PPSA had submitted this FOIA request in mid-June asking for documents from DOJ law enforcement agencies. PPSA sought records about the use of administrative subpoenas, which are often used to collect bulk data rather than aim at an identifiable target for a specific reason, as required by the Fourth Amendment of the U.S. Constitution. These subpoenas are often used without any showing of probable case.
To learn more about this practice, PPSA requested documents concerning when DOJ uses administrative subpoenas, “whether and when it has used them without probable cause, when it has used them as alternatives to a court-ordered subpoena, and when DOJ shares data obtained through administrative subpoenas with other federal or state agencies.”
But the FBI couldn’t trouble itself to search for any records. Instead, the FBI blithely directed PPSA to rummage through the voluminous documents on its online “Search Vault,” suggesting that there could be responsive records somewhere in that database. The FBI never suggested that all responsive records would be found in the Vault.
“The FBI’s scavenger hunt response is ludicrous,” Schaerr said. “PPSA sought records reflecting the FBI’s use of administrative subpoenas with and without probable cause. In both instances, the request did not require the FBI to do anything other than search for records concerning the use of administrative subpoenas, and how those subpoenas addressed the presence or absence of probable cause.”
Schaerr cited a precedent, Miller v. Casey (1984), that the FBI is bound to read a FOIA request as drafted, not as agency officials might wish it was drafted.
“The FBI’s willful refusal to search is a legal error,” Schaerr said. “The FBI might want to avoid the work FOIA requires of it, but we are hopeful the Director of Information Policy at DOJ, and beyond that if necessary, the courts, will recognize that the law does not recognize exceptions for inconvenience.”
PPSA awaits responses from other DOJ components, ranging from the Executive Office for United States Attorneys, DOJ’s Criminal Division, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
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”:
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.
THE WALL STREET JOURNAL: Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee Provides Letter-To-The-Editor
On Aug. 5, The Wall Street Journal gave readers an uncharacteristically off take about Section 702 of the Foreign Intelligence Surveillance Act. The Journal posed a false dichotomy – we must either reauthorize Section 702 as it is, or let it lapse and expose Americans to the next terrorist attack.
Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, offered this response in a letter-to-the-editor.
PPSA Asks Court to Compel Agencies to Search for Documents About Private Data Purchases from Accounts of 110 Members of Congress
PPSA is asking a DC federal court to compel the top federal intelligence and law enforcement agencies to search for records related to how they acquire and use the private, personal information of 110 Members of Congress purchased from third-party data brokers.
In a Freedom of Information Act (FOIA) request filed in July, 2021, PPSA had asked the Office of the Director of National Intelligence, the National Security Agency, the Department of Justice and the FBI, and the CIA for records related to the possible purchase and use of commercially available information on current and former members of the House and Senate Judiciary Committees.
The request covered such leading Members of Congress as House Judiciary Chairman Jim Jordan, Ranking Member Jerry Nadler, Senate Judiciary Committee Chairman Dick Durbin, Ranking Member Chuck Grassley, and former Members that included Vice President Kamala Harris and Florida Governor Ron DeSantis.
PPSA’s motion for summary judgment filed before the U.S. District Court for the District of Columbia confronts the assertion by these multiple agencies that to even search for responsive documents would harm national security.
PPSA’s motion notes that under FOIA, “agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information.” The agencies instead stonewalled this FOIA request by invoking the judge-created Glomar response, meant to be a rare exception to the general rule of disclosure, which allows the government to neither confirm nor deny the existence of such records.
“Requiring Defendants here to perform FOIA searches within the secrecy of their own silos does not, by itself, compel the automatic disclosure of any information whatsoever," PPSA declares in its motion. “[B]ecause the initial step of conducting an inter-agency search makes no such disclosure, their arguments are neither logical nor plausible justifications for shirking their duty to perform an internal search.”
The issue of government spying into the private, personal information of Members of Congress, tasked with oversight of these agencies, involve the serious potential for executive intimidation of the legislative branch. The ODNI recently declassified an internal document noting that commercially available information can be used to “facilitate blackmail, stalking, harassment, and public shaming.”
“The government doesn’t even want to entertain our question,” said Gene Schaerr, PPSA general counsel. “What do they have to hide?”
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.
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.
“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.
On Friday, the ACLU fired a full salvo at the FBI after the Office of the Director of National Intelligence released two court opinions that detail blatant violations of Americans’ privacy, including a sitting state court judge. The opinions come from the Foreign Intelligence Surveillance Court and describe how the entire national intelligence community, not just the FBI, performed numerous violations of legal requirements and court-ordered rules intended to protect Americans’ privacy.
The FISC writes that the FBI repeatedly engaged in prohibited searches of Section 702 databases for information pertaining to unsuspected targets. The opinions also demonstrate the evolving uses of Section 702: the NSA is reportedly using its Section 702 powers “to conduct routine, suspicionless searches of people overseas who are applying for immigration benefits or seeking to travel to the United States.” The FISC notes the unprecedented nature of this kind of use for Section 702. The data of millions of Americans who are in contact with people seeking to come to the United States will surely be swept up by this new trend.
Patrick Toomey, former U.S. Senator and Deputy Director of the American Civil Liberties Union’s National Security Project, said that “These disturbing new revelations show how Section 702 surveillance, a spy program the government claims is focused on foreign adversaries, is routinely used against Americans, immigrants, and people who are not accused of any wrongdoing.”
PPSA is astonished by the revelations disclosed by these two FISC opinions. The latitude for abuse of surveillance powers has only grown. Meanwhile, more and more Americans are being caught in the crossfire. Congress must act now to secure the privacy rights of Americans everywhere.
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.