​PPSA recently reported that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), in a response to our Freedom of Information Act (FOIA) request, downplayed its use of stingrays, as cell-site simulators are commonly called. Yet one agency document revealed that stingrays are “used on almost a daily basis in the field.”
 
This was a critical insight into real-world practice. These cell-site simulators impersonate cell towers to track mobile device users. Stingray technology allows government agencies to collect huge volumes of personal information from many cellphones within a geofenced area.
 
We now have more to report with newly-released documents that, as before, include material for internal training of ATF agents. One of the most interesting findings is not what we can see, but what we can’t see – the parts of documents ATF takes pains to hide. The black ink covers a slide about the parts of the U.S. radio spectrum. Since this is a response to a FOIA request about stingrays, it is likely that the spectrum discussed concerns the frequencies telecom providers use for their cell towers. What appears to be a quotidian training course for agents on electronic communications has the title of the course redacted.
 
If that is so, was there something revealing about the course title that we are not allowed to see? Could it be “Stingrays for Dummies?”
 
The redactions also completely cover eleven pages about pre-mission planning. Do these pages reveal how ATF manages its legal obligations before using stingrays?
​
This course presentation ends somewhat tastelessly, a slide with a picture of a compromised cell-tower disguised as a palm tree. 
 
In the release of another tranche of ATF documents, forty-five pages are blacked out. It appears from the preceding email chain that these pages included subpoenas for a warrant executed with the New York Police Department. The document assigns any one of a pool of agents to “swear out” a premade affidavit to support the subpoena.
 
The ATF reveals it uses stingrays on aircraft, which requires a high level of administrative approval. It seems, however, from an ATF PowerPoint presentation that this is a policy change, which suggests that prior approvals were lax. Was this a reaction to the 2015 Department of Justice’s policy on cell-site simulators? If aerial surveillance now requires a search warrant, what was previously required – and how was such surveillance used? Was it used against whole groups of protestors?
 
Finally, the documents reveal that the ATF has had cell-site simulators in use in field divisions in major cities, including Chicago, Denver, Detroit, Houston, Kansas City, Los Angeles, Phoenix, and Tampa, as well as other cities.
 
PPSA will report more on ATF’s ongoing document dumps as they come in.

​The training manual of the Bureau of Alcohol, Tobacco, Firearms and Explosives states that cell-site simulators “do not function as a GPS locator, as they do not obtain or download any location information from the device or its applications.” This claim is disingenuous. It is true that exact latitude and longitude data are not taken. But by tricking a target’s phone into connecting and sending strength of signal data to a cell tower, the cell-site simulator allows the ATF to locate the cellphone user to within a very small area. If a target uses multiple cell-site simulators, agents can deduce his or her movements throughout the day.
 
Below is an example from a Drug Enforcement Agency document that shows how this technology can be used to locate a target (seen within the black cone) in a small area.

​The media is aflame with stories about the mishandling of classified material by President Joe Biden and former President Donald Trump, with partisans arguing why one or the other is in greater breach of the law. Trevor Timm, executive director of the Freedom of the Press Foundation, looks beyond the partisan wrangling at the underlying problem: the Espionage Act of 1917. Like a deep trawl scraping the ocean floor, the Espionage Act is broad enough to catch almost everything, including the wrong fish.
 
The Espionage Act is the worst kind of law, one that is as vague as it is broad. It weaponizes the tendency of government to put a “classified” stamp on even anodyne material. “No one is ever punished for overclassifying information, yet plenty of people go to prison for disclosing information to journalists that never should have been classified to begin [with],” Trim wrote in The Guardian. “Even efforts to reform the secrecy system end up being classified themselves.”
 
PPSA filed Freedom of Information Act (FOIA) requests before a host of government agencies seeking documents that would gauge how well they are complying with an Executive Order 13526. This order, issued by President Obama, was meant to stem the tide of classification and prevent government agents from classifying documents “for self-serving reasons or simply to avoid embarrassment.”

In the wake of President Obama’s executive order to curb over-classification, the number of U.S. classified government documents rose from almost 55 million to 77.5 million documents in five years. Less than one percent of federal money spent on the classification system is spent on declassification.
 
“Tens or hundreds of millions of documents are classified per year,” Timm wrote. “A tiny fraction will ever see the light of day, despite the fact the vast majority never should have been given the ‘secret’ stamp in the first place.”
 
While most government agencies have ignored PPSA’s FOIA requests, the State Department did respond to PPSA with a pinhole look at some of the problems with its classification system. Documents were classified when they shouldn’t have been; documents were classified at the wrong level; some information was classified for a longer duration than necessary. The government is self-forgiving, allowing itself to be free to make mistakes, but an American accused under the Espionage Act is apt to get rough treatment and a good stretch in a federal prison.
 
We should remember that the Espionage Act was the centerpiece of the police state erected by President Woodrow Wilson. Socialist Charles T. Schenck went to prison for violating that law. His crime? He passed out a leaflet opposing America’s military draft during World War One. These outrages against free speech paved the way for the even more draconian anti-speech amendment, the Sedition Act (which, thankfully, Congress repealed).
 
Justice Oliver Wendell Holmes Jr., writing for the majority, found an exception to the First Amendment. Speech that “creates a clear and present danger” may be prohibited and speakers prosecuted. Fortunately, Congress and prosecutorial practice have pulled back on those measures. But the blacking out of a wide swath of government activities from public view, and criminalizing discussion about those activities, remains a disturbing exception to the First Amendment.
 
Whatever one’s opinions concerning the current and former presidents, the breadth of this law in enforcing an over-classification system run amuck is a sure sign that reform is needed. Perhaps it will take two presidents of both parties getting snared in the Espionage Act’s net to spur Congress to pass limits on the classification system and the secret state.

In response to a Freedom of Information Act request filed by PPSA, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) responded with a batch of documents, including internal training material. In those documents, the ATF confirmed that it uses cell site simulators, commonly known as “stingrays,” to track Americans.
 
Stingrays impersonate cell towers to track mobile device users. These devices give the government the ability to conduct sweeping dragnets of the metadata, location, text messages, and other data stored by the cell phones of people within a geofenced area. Through stingrays, the government can obtain a disturbing amount of information.
 
The ATF has gone to great lengths to obfuscate their usage of stingrays, despite one official document claiming stingrays are “used on almost a daily basis in the field.”
 
The ATF stressed that stingrays are not precise location trackers like GPS, despite the plethora of information stingrays can still provide. Answers to questions from the Senate Appropriations Committee about the ATF’s usage of stingrays and license plate reader technology are entirely blacked out in the ATF documents we received. An ATF policy conceals the use of these devices from their targets, even when relevant to their legal defense. Example: When an ATF agent interviewed by a defense attorney revealed the use of the equipment, a large group email was sent out saying: "This was obviously a mistake and is being handled."
 
The information released by the ATF confirms the agency is indeed utilizing stingray technology. Although the agency attempted to minimize usage the usage of stingrays, it is clear they are being widely used against Americans.
 
PPSA will continue to track stingray usage and report forthcoming responses to pending Freedom of Information Act requests with federal agencies.

Secrecy makes us naturally distrustful of other people. When we sense that someone else is withholding information, we can’t help but feel suspicious of their motives. This may be why the State Department’s continued efforts to hide information from the American public, routinely through overclassification, leaves a sour taste in the mouth.
 
The State Department is no stranger to the misuse of classification procedures: in May, PPSA reported on the Department’s Self-Inspection Report, which we obtained through a Freedom of Information Act Request. The report detailed minimal instances where information was in some way misclassified. At the time, PPSA called the report into question, as it seemed statistically impossible that only a few dozen articles were misclassified out of over 70 million classifications. Furthermore, the State Department only polled a sample of their classifications, meaning there are undoubtedly more misclassifications than reported.
 
PPSA recently received an additional batch of documents from the State Department which only further cement our prior concern. According to internal documents spanning several years, the Department has failed to correct a “significant lack of portion marking,” when conducting classification. Portion marking refers to the process of marking specific portions of a record as classified, as opposed to the entire record. This means that entire documents have been classified where only smaller portions should have been.
 
PPSA will continue to report on overclassification in the State Department as more information becomes available.

​The Project for Privacy and Surveillance Accountability today released training documents for U.S. Attorneys obtained from a Freedom of Information Act (FOIA) request to the Department of Justice. The results show that U.S. Attorneys are encouraged to “always” seek non-disclosure orders when surveilling Americans – and to “ask for it all!”
 
Armed with such non-disclosure orders (NDOs), prosecutors block service providers from informing Americans that their personal information, often in the cloud, has been searched by the government. It was already known that this was a common practice, but the documents from the U.S. Executive Office for United States Attorneys show that it is virtually required.
​

• In the FOIA filing, presumably representative documents from a federal district in Texas show that new U.S. Attorneys are told to “always” send an “NDO order” application with a warrant or subpoena.

 

• When seeking “location” data, new U.S. Attorneys are also directed to seek data for email, social media, and webhosting providers. 

 

• Finally, this training material encourages U.S. Attorneys to obtain all possible information rather than placing reasonable limits suited to the case, saying “If your case is ongoing, why not ask for it all!”

With no legal guardrails and in the face of departmental encouragement, why not, indeed?
  
The NDO Fairness Act, sponsored by Judiciary Chairman Jerry Nadler (D-NY) and Rep. Scott Fitzgerald (R-WI) passed the House of Representatives in June in a bipartisan voice vote. This law would restrain the use of NDOs, allowing Americans to be informed by service providers that they’ve been surveilled, with reasonable exceptions.
 
“In the 21st century federal prosecutors no longer need to show up to your office,” Chairman Nadler told his colleagues on the House Judiciary Committee in discussing the NDO Fairness Act. “They just need to raid your virtual office. They do not have to subpoena journalists directly. They just need to go to the cloud. And rather than providing Americans with meaningful notice that their electronic records are being accessed in a criminal investigation, the Department hides behind its ability to ask third-party providers directly. They deny American citizens, companies, and institutions their basic day in court and, instead, they gather their evidence entirely in secret.”
 
Nadler also noted that the executive branch had targeted journalists and their sources, as well as Members of Congress, their staffs, and their families.
 
Jim Jordan, the Ranking Member of the House Judiciary Committee, said “the laws and guidelines governing surveillance are opaque, antiquated, and easily skirted. Our system of warrants, subpoenas, national security letters, secret courts, and other tools at the government’s disposal must be brought in line with the constitutional considerations of basic due process.”

The NDO Fairness Act would insert necessary guardrails by amending 18 U.S.C. 2705 to:

• Require a written determination from the court finding a non-disclosure order necessary to prevent a substantially likely adverse result.
  
  
• Provide for strict scrutiny analysis to grant a gag order request under 18 U.S.C. 2705(b).
  
  
• Establish a 30-day limit for gag orders, with the opportunity for additional 30-day extensions.
  
  
• Require notice be given to the customer within 72 hours of the expiration of the delay, including what information was disclosed.
  ​
• Allow providers to contest gag orders in court.

 
“The direction to ‘always’ seek an NDO with a subpoena or warrant – and to ‘ask for it all’ – should spur the Senate to follow suit and pass the NDO Fairness Act,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and PPSA Senior Policy Advisor. “This strong stand by the House now puts the spotlight on senators to pass this reasonable restraint of the government’s ability to thumb through our personal information.”

​In a new low for the FBI’s processing of Freedom of Information Act (FOIA) requests, the Bureau now states it believes it does not need to keep searching for records after locating a single potentially responsive record. This is contrary to both the FOIA statute and common sense. If the FBI were correct, every FOIA requester would be entitled to just a single record, and countless government activities would remain hidden from the public. 
 
This is the latest disappointing response from the FBI. We recently reported that the FBI asserts – in response to our request for FBI records of opinions from the Foreign Intelligence Surveillance Court (FISC) and its court of review – that it cannot locate these court opinions on its revised computer system. As excuses go, this is a dog-ate-my-homework level of sophistication.
 
Now we’re forced to appeal the FBI’s non-response response to our FOIA request for information on all the Bureau’s records on FISC opinions.
 
The FBI’s hungry dog is still at work: they’ve responded to our request by also stating that it located a single record and then stopped searching. In the FBI’s mind, it “expeditiously” released “documents” that fulfilled PPSA’s request. But there were no “documents,” plural. The FBI produced only one document, with 40 pages of this one document redacted to the point of unintelligibility. And the FBI didn’t even try to find anything else. In our administrative appeal, PPSA told the FBI’s Director of Information Policy:
 
“Discontinuing a search after finding a single, previously-released record is evidence of a search that was not reasonably calculated to uncover all responsive documents. This is made clear by the FBI’s statement that PPSA could also request an ‘additional search for records.’ That is not PPSA’s job; PPSA already submitted a request for all responsive records.”
 
As for the redactions in this one document, PPSA has demanded that the FBI provide it additional information to justify the redactions. When an agency redacts an entire document, requesters like PPSA are at an obvious disadvantage in trying to challenge those withholdings. To recycle a famous legal quote, the government is “holding a grab bag and saying, ‘I’ll give you this if you can tell me what’s in it.’”
 
We fully expect the FBI to be disingenuous. But we are hopeful that the FBI’s Director of Information Policy will at least be embarrassed by the thinness of the FBI’s recent excuses.

Last week PPSA appealed a federal district court decision denying our motion under the Freedom of Information Act (FOIA) to force the FBI to produce records concerning the agency’s “unmasking” of various Members of Congress. Although the legal issue in this case may seem technical and abstruse, the legal question PPSA presents is important to Americans’ ability to hold our government accountable for surveillance directed at all of us. 
 
These are the kinds of overarching, important concerns behind our FOIA requests. But such larger issues are often subsumed along the way in legal wrangling. These cases often center around the government’s efforts to avoid responding to a FOIA at all.
 
At first blush, the FOIA process seems straightforward. You might imagine that: PPSA files a FOIA request seeking records concerning surveillance practices, training, or procedures to a given government agency; the request is transmitted to the relevant agency component; and then the agency produces responsive records a few weeks later and we publicize them. After all, that is what FOIA requires.
 
But things are never so easy with FOIA. Government agencies routinely employ delaying tactics and denials to frustrate and exhaust even the most persistent requesters. In addition to simply ignoring requests, FBI and other agencies rely on a judicially invented doctrine called the Glomar response to claim that they are not even required to confirm or deny the existence of records about a given subject. Elsewhere, agencies claim that they don’t need to comply with FOIA because it would be too burdensome, as if digital search engines had yet to reach government record-keeping.
 
Such responses were meant by Congress to be rare exceptions to the rule. In practice, they’ve become the rule.
 
In the face of such obstructionism from officialdom, PPSA always takes the long view. A FOIA request is just the opening play in a long set. A denial, often on Glomar grounds, is the customary result. Once we receive an official denial to our request (usually long past the statutory deadline), PPSA then files an administrative appeal. Barring a satisfactory result (which is rare), we take the agency to court.
 
So we were not surprised when a judge on the U.S. District Court for the District of Columbia upheld the government’s argument that it cannot respond to a FOIA request we filed in 2020.
 
PPSA had asked for documents concerning government identification, or “unmasking,” of 48 sitting and former members of congressional intelligence committees in their communications from 2008 to 2020. Predictably, the government pled “Glomar,” and the judge agreed. So we are appealing.
 
In another case, PPSA was surprised when a request for FBI records of opinions from the Foreign Intelligence Surveillance Court (FISC) was denied because – the FBI asserted – it cannot locate these court opinions on its revised computer system. As excuses go, this is a dog-ate-my-homework level of sophistication. This is where flabber goes to meet with gasted. If the FBI truly cannot locate FISC opinions directed at the Bureau, we are truly in trouble.
 
In this instance, PPSA is pursuing an administrative appeal to DOJ’s Office of Information Policy. The appeal is couched in the customary legalese, but the gist of it is: “C’mon guys, this last one doesn’t pass the laugh test.”
 
Following FOIA requests on their long journeys is a tough, gritty business. But, as they say, it may be a dirty job, but someone has to do it.

In a twist on the classic song, “Yes, We Have No Bananas,” the FBI issued a non-response response to a PPSA Freedom of Information Act (FOIA) request for opinions concerning the bureau from the secret Foreign Intelligence Surveillance Court (FISC) since 1978.
 
The FBI’s response to the Project for Privacy and Surveillance Accountability is simple but direct: We have these opinions, but our computer systems cannot access them. The section chief of the FBI’s Information Management Division wrote:
 
“Your request for the above referenced subject is not searchable in our indices. The FBI Central Records System (CRS) is indexed according to investigatory interests, and it is not arranged in a manner that allows for the retrieval of information in the form you have requested.”
 
In a filing before Judge Rudy Contreras of the FISC Court earlier this year, the FBI said it has difficulty complying with FOIA requests as it transitions the workflow of the bureau’s components to a new system known as “the Bridge.” The FBI projects that this systemic transition will be complete in first quarter, 2023, at the earliest.
 
Gene Schaerr, general counsel of the Project for Privacy, responded:
 
“We are told that it is beyond the ability of one of the world’s most storied investigative and intelligence agencies to find secret court opinions that directly responded to it. If this is true, it is a wonder that FBI employees can do anything. Those of us in the civil liberties community, however, cannot summon such a level of naïveté. The FBI’s non-response response is risible and can only be taken as disdain for the Freedom of Information Act.
 
“Ultimately, it is up to federal judges, including those on the FISC, to compel the FBI to obey the law.”

​Judge Rudolph Contreras, of the U.S. District Court for the District of Columbia, gave PPSA a victory in our quest to compel the FBI to search and possibly produce correspondence between Members of Congress and agencies about their “unmasking.”
 
More than one year ago, PPSA filed suit to follow up on a Freedom of Information Act (FOIA) request asking the FBI to produce documents about the potential unmasking or identification of individual members of Congress whose messages are caught up in intercepts of foreign communications. We specifically asked for correspondence between House Members and Senators with federal agencies regarding unmasking. We also asserted that since the Gates Procedures – the method by which congressional identities are handled and can be deanonymized – are in the public domain, the FBI cannot issue a Glomar response, which neither confirms nor denies the existence of such records.
 
Judge Contreras denied this broader motion, saying it wasn’t relevant to the core request about acquiring correspondence. But he found merit with the other request about correspondence.
 
The judge wrote: “But there exists a separate category of documents: communications between the FBI and Congress that are a degree removed from FISA-derived documents and which discuss congressional unmasking as a matter of legislative interest, policy, or oversight … The FBI must conduct a search for any ‘policy documents’ in its possession.”
 
FBI attorneys had argued that the core of our request was for “operational documents” concerning congressional unmasking. Judge Contreras rejected that contention, noting there are not necessarily any law enforcement procedures, techniques, or guidelines “that would risk circumvention of the law … because acknowledging the existence of congressional inquiries would not necessarily reveal anything about the FBI’s operations.” Such policy documents are “well within the four corners of the FOIA request.”
 
If the FBI follows it traditional path and issues a Glomar response anyway, PPSA will be there to press further litigation. And we will report any findings with alacrity.

The first responsive information from the Office of the Director of National Intelligence to a Freedom of Information Act (FOIA) lawsuit for records concerning U.S. intelligence purchases of the private data of American citizens is trickling in. As often happens, cursory information allows us to catch a glimpse of secret practices, if only through a glass darkly.
 
The ears of civil libertarians perked up when Director of National Intelligence Avril Haines (1:17:05 mark) in her Senate confirmation hearings in early 2021 was asked about purchases of Americans’ data by Sen. Ron Wyden, (D-OR). She responded:
 
“I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.”
 
Haines further promised to provide transparency “so people have an understanding of the guidelines under which the intelligence community operates.”
 
On May 17, 2021, PPSA requested records related to statements by Director Haines concerning the promise to publicize the circumstances under which the U.S. intelligence community purchases Americans’ private data, and its legal basis for doing so. After one year of awaiting a response – long past the statutory deadline – PPSA filed a lawsuit in July 2022 to press ODNI to respond to the request.
 
PPSA announces today that it received a reply that ODNI conducted a search and found approximately 1,000 emails potentially responsive to our request.
 
ODNI, however, explains that it does not have “de-duplication” software that would winnow the body of records to single copies. This is remarkable, since almost every other executive agency has such software, including many under ODNI’s purview. Searches of the documents will have to be done by hand and eye. With personnel changes, ODNI explains, it can only begin releasing records in late November – eighteen months after the submission of the FOIA request and in the middle of the holiday and travel season.
 
PPSA filed a motion asking a federal court to require ODNI to process at least 500 pages of records a month.
 
“What is most interesting about ODNI’s response,” said Gene Schaerr, general counsel of PPSA, “is that it has perhaps a thousand emails about living up to Director Haines’ promise of a degree of transparency without referring to a single document that would actually indicate that the office is transparent.”
 
PPSA will release more information from this legal action as ODNI produces results.

​Since the mid-1960s, the Freedom of Information Act (FOIA) has allowed American citizens and civil liberties organizations to obtain unclassified documents from federal agencies, shedding light on official actions and policies. In recent years, however, the government has devised many creative ways to stall, obfuscate, and outright withhold answers to FOIA requests, while seeming to be as responsive as possible. Cato Institute scholar Patrick Eddington calls these tactics “constructive denial.”
 
For over two years, Cato filed FOIA requests to obtain FBI records on militia groups of the left and the right, including the white supremacist Patriot Front. “Groups like the Patriot Front,” Eddington writes in The Hill, “are, in the view of most Americans, a moral and political blight that the country would be far better off without. At the same time, the protection of offensive ideas and speech are at the heart of the purpose of the First Amendment.” Thus, Cato sought records to better understand the threat posed by these groups and the nature of the government’s response.
 
In defiance of FOIA’s requirement that the FBI send the requested documents to the requester himself, the FBI replied to Cato that it would eventually file the documents on an FBI website. “You will be notified when releases are available.”
 
In other words, buzz off.
 
Constructive denial can be seen in another form after PPSA filed suit against the National Security Agency, the CIA, the Department of Justice and FBI, and the Office of the Director of National Intelligence in June to compel the release of records pertaining to the possible purchase of the personal information of more than 100 current and former Members of the House and Senate Judiciary Committees from private data brokers.
 
This is understandably a sensitive question, given that current and former judiciary committee lawmakers include Chairman Jerrold Nadler, Ranking Member Jim Jordan, Chairman Dick Durbin, Ranking Member Chuck Grassley, as well as Vice President Kamala Harris and Florida Gov. Ron DeSantis. Still, it would be a matter of public interest – not to mention to these legislators themselves – if the government were buying up their personal information. Such an act could yield leverage for executive branch agencies to bully leading Members of Congress, subtly undermining democracy.
 
The agencies’ response to PPSA’s FOIA request over summer 2021 was to issue Glomar responses, a judicially invented doctrine that neither confirms nor denies that such records exist.
 
Now that PPSA has sued to enforce its request, these agencies have come back with an answer that doubles down on a government theory that it would be too dangerous to national security for these agencies to even search for such documents. At the same time, government responses strike a tone of wanting to be as cooperative as possible.
 
One choice example: PPSA asserted a “right of prompt access to requested records under the law.” The National Security Agency responded: “To the extent that a response is required, Defendant NSA denies the allegation, including the fact that NSA has wrongfully withheld records.” This is a construction worthy of Joseph Heller’s Catch-22.
 
Gene Schaerr, PPSA general counsel, responds: “The government’s answers disingenuously conflate an internal search for documents with an external response to a question. The government feels free to treat FOIA as polite supplication instead of a law that must be obeyed. PPSA will continue to press on for a serious answer in federal court.”
 
In the meantime, expect the government to come up with many new forms of constructive denial.

Courts throw out cases in which the government violated the Fourth Amendment to gain evidence obtained illegally. Prosecutors, dreading such a rebuke, have sometimes resorted to “parallel construction” – using illicitly gained knowledge to turn up evidence from a source acceptable in court.
 
Suppose, for example, that an illegal wiretap by federal investigators reveals that a target will deliver drugs to a certain street corner. They could then alert local police to decide that specific corner is a good place for a spot-check with drug-sniffing dogs.
 
In this way, evidence obtained by illicit surveillance can be laundered. This seems to be especially prone to happen when law enforcement relies on “stingrays” – the common name for cell-site simulators, equipment that mimics a cellphone tower to ping the location of a cellphone.
 
The FBI, in 2014, after providing the Oklahoma City police with stingray technology, sent that department a memo telling the police that the stingray is for “lead purposes” only and “may not be used as primary evidence in any affidavits, hearings or trials.” Instead, the FBI required the police to use “additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial” to corroborate information obtained using the stingray. The Cato Institute’s Adam Bates analyzed such agreements and concluded that “law enforcement uses some surreptitious and, perhaps, constitutionally dubious tactics to generate a piece of evidence. In order to obscure the source of that evidence, police will use the new information as a lead to gather information from which they construct a case that appears to have been cracked using routine police work.” 
 
Perhaps because of reporting like Cato’s analysis, formal FBI agreements to sell stingrays to local law enforcement – at least those released to the public – appear to be missing this language.
 
But what about informal agreements?
 
In two responses to PPSA’s Freedom of Information Act requests, the FBI has used similar language in 2015 and 2020 deals to allow police to use stingrays. To be fair, these may be one-off situations. Both cases seem to have been loaner deals, in which stingrays were deployed in “exigent” or emergency circumstances.
 
For example, one 2015 email chain shows that an agency agreed to the FBI’s request that “it is required to use additional and independent investigative means and methods, such as [redacted] that would be admissible at trial to corroborate information concerning the location of the target obtained through the use of this equipment.”
 
Comparing this redacted language to the unredacted provisions imposed on the Oklahoma City police, it appears that the FBI continues to push local law enforcement to hide their stingray use from the courts. On the other hand, this language is missing from other NDA forms PPSA has obtained. Has the FBI abandoned this practice? Or is it continuing “off the books” in some fashion to encourage local law enforcement to launder evidence?

​In response to a Freedom of Information Act request from PPSA about classification procedures, the State Department reported that based on a representative sampling, only a tiny number of documents were improperly or overly classified. This seemed to us a mind-boggling response given the mountains of documents stamped classified every day at Foggy Bottom. Now, PPSA has obtained data from across the government to show the State Department’s response was misleading.
 
At a 2015 open house presentation by the National Archives and Records Administration, a graphic produced by the Information Security Oversight Office showed that nearly 100 million items are classified each year by the federal government. An Obama-era law and executive order provide the means for people within the agencies to challenge a classification decision without fear of retribution.
 
So how is that working out?
 
Of these 100 million decisions, only a minuscule fraction is challenged — in one year, much less than 1% of 1%. The graph demonstrates the extent to which the government continues to hide much of its operations from the American people.

​The Project for Privacy and Surveillance Accountability today filed a Freedom of Information Act (FOIA) lawsuit against the Office of the Director of National Intelligence (ODNI) over the refusal of the government to turn over records concerning U.S. intelligence community purchases of the private digital data of American citizens.
 
The government’s stonewalling continues well past its failure to meet any of the deadlines required by the FOIA statute. It also flies in the face of a pledge made by Director of National Intelligence Avril Haines (1:17:05 mark) in her Senate confirmation hearings on Jan. 19, 2021. When Sen. Ron Wyden, (D-OR) asked about informing the American people about purchases of their data, Haines responded:
 
“I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.”
 
Haines further promised to provide transparency “so people have an understanding of the guidelines under which the intelligence community operates.”
 
In response, PPSA requested “all agency records created, altered, sent, or received in preparation for any public disclosure, as contemplated by Director Haines,” including:

• The intelligence community’s purchases of Americans’ private data

 

• The legal basis for doing so

 

• The guidelines under which the intelligence community operates in making those purchases.

 
The government acknowledged receiving PPSA’s initial FOIA request on June 2, 2021. PPSA inquired about the lack of a substantive response more than one year later. On June 23, 2022, ODNI responded: “we cannot speculat[e] on a specific response date.”

More than thirty business days later, after the ODNI failed to indicate whether it will fully comply with the FOIA request, PPSA decided to file suit.
 
“This is a golden opportunity for Director Haines to demonstrate that the intelligence community will live up to her promise to provide at least some transparency,” said Gene Schaerr, PPSA general counsel. “As Avril Haines herself stated, the American people deserve to know the circumstances in which the intelligence community purchases our personal data and the legal basis for doing so.
 
“Director Haines promises to ‘publicize’ that legal basis. I hope she does, instead of allowing her office to continue to stonewall.”

​The American Civil Liberties Union performed an invaluable service for the American people today by releasing records from Department of Homeland Security agencies that demonstrate the sweep of the government’s routine violation of the Fourth Amendment  by purchasing Americans’ personal data from data brokers.
 
The ACLU’s Freedom of Information Act lawsuit against DHS agencies includes Customs and Border Protection, Immigration and Customs Enforcement, the U.S. Secret Service, and the U.S. Coast Guard. This lawsuit is ongoing, but these first disclosures are eyepopping.
 
The ACLU lawsuit reveals:

• Your own tax dollars are being used to expose your privacy. DHS spends millions of taxpayer dollars to buy access to cellphone location information being aggregated and sold by two “shadowy data brokers,” Venntel and Babel Street.

 

• There is some internal angst in the agencies over the legitimacy of what they are doing. One DHS employee wrote that “[l]egal, policy, and privacy reviews have not always kept pace with the new and evolving technologies.”

 

• The government entertains specious legal theories justifying this raid on cellphone location data. It maintains that everyone with a cellphone relinquishes privacy voluntarily. ACLU’s response is “that consent is fiction: Many cellphone users don’t realize that many apps on their phones are collecting GPS information, and certainly don’t expect that data to be sold to the government in bulk.”

 

• The government is after our “patterns of life.” Documents characterize cellphone location information as “digital exhaust” with no personally identifying information. Yet these documents also say that through purchased data, law enforcement can “identify repeat visitors, frequented locations, pinpoint known associates, and discover pattern of life.”

 

• The project to pinpoint Americans’ location is on an astronomical scale. One data broker, Venntel, sent marketing materials to DHS claiming to collect 15 billion location points from over 250 million cellphones and other mobile devices every day.

 
“ACLU’s findings should concern every American with a cellphone,” said Bob Goodlatte, former Chair of the House Judiciary Committee and now Senior Policy Advisor to PPSA. “ACLU’s determined effort to expose the scale of government intrusion into our privacy is a monumental public service. With the House and Senate now holding hearings into these practices, Congress has every reason to require warrants to intrude into our digital lives by passing the Fourth Amendment Is Not for Sale Act.”
 
Bob Goodlatte will testify on the government’s practice of buying Americans’ personal data tomorrow before the House Judiciary Committee.

The Project for Privacy and Surveillance Accountability today announced the filing of a lawsuit in federal court against the National Security Agency, the Central Intelligence Agency, the U.S. Department of Justice, and the Office of the Director of National Intelligence, to compel the release of documents pertaining to the possible purchasing of the personal information of more than 100 current and former Members of the House and Senate Judiciary Committees from private data brokers.
 
The lawsuit, filed in the United States District Court for the District of Columbia, seeks records relating to data purchases of these current and former lawmakers that include Jerrold Nadler, Chairman of the House Judiciary Committee, Ranking Member Jim Jordan, Sen. Dick Durbin, Chairman of the Senate Judiciary Committee and Ranking Member Sen. Chuck Grassley. The list includes many leading lights of both parties, from current Vice President Kamala Harris to Florida Gov. Ron DeSantis, both former Members of Congress.
 
These government agencies responded over the summer 2021 to PPSA’s FOIA request with Glomar responses, a judicially invented doctrine that neither confirms nor denies that such records exist.
 
At the time, Gene Schaerr, PPSA general counsel, responded: “The government doesn’t want to even entertain our question. What do they have to hide?”
 
He added: “This troubling refusal gives all the more reason for Congress to pass the Fourth Amendment Is Not for Sale Act, which would ban such surveillance from purchased data. If Vice President Harris and Gov. DeSantis are potentially having their rights violated, imagine how little protection you and I have.”

​The Project for Privacy and Surveillance Accountability today announced the filing of a Freedom of Information Act (FOIA) request seeking documents from U.S. government agencies regarding secret subpoenas issued on the phone records of Stephanie Kirchgaessner, U.S.-based investigative reporter for The Guardian, as well as warrants and subpoenas issued to Microsoft and the email accounts it provides to the activist journalists of Project Veritas.
 
The Washington, D.C., based Kirchgaessner has long irritated officialdom with her disclosures on stories ranging from the sinister misuses of Pegasus surveillance technology to stories involving surveillance overreach in the United States. James O’Keefe of Project Veritas suffered a pre-dawn raid on his home and confiscation of his cellphone when Department of Justice officials were seeking to track down the chain of custody in the missing diary of Ashley Biden, the president’s daughter. Late last year, federal Judge Analisa Torres was forced to order the Department of Justice to stop the extraction and review of the contents of O’Keefe’s phone, much of which involved stories having nothing to do with the Biden diary.
 
“There have been many recent reports that agencies under administrations of both parties are using secret subpoenas and warrants to surveil the phone and email records of journalists,” said Gene Schaerr, PPSA general counsel. “Investigators are getting far too comfortable in fishing through the records of journalists. This practice chills free expression and threatens to criminalize customary journalistic practice.”

​The Project for Privacy and Surveillance Accountability today announced the filing of a Freedom of Information Act (FOIA) request seeking records with information about any decisions, orders, or opinions issued by Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR), the court that reviews FISC opinions. PPSA’s FOIA also includes a request for agency records describing which government officials have access to such opinions.
 
PPSA directed its request to the Drug Enforcement Administration, the Federal Bureau of Investigation, and several offices within the Department of Justice – the National Security Division, the Office of Legal Policy, and the Office of Privacy and Civil Liberties.
 
Thanks to the Snowden revelations, we know the FISC court since 9/11 has issued secret legal opinions that have resulted in allowing the National Security Agency to engage in bulk surveillance of Americans. Many in Congress were outraged by the revelations of this domestic surveillance, which flew directly in the face of assurances made by the then-Director of National Intelligence, James Clapper, and other intelligence officials.
 
In response, when Congress passed the USA FREEDOM Act in 2015, it required the government to review FISC opinions for declassification. The government interpreted this as a mandate to only disclose opinions after June 2015. The government then vets any disclosures by officials in the executive branch, without judicial oversight.
 
“The very idea of secret law – which can affect the free expression and privacy of millions of Americans – is not compatible with the basics of American democracy,” said Gene Schaerr, PPSA general counsel. “These secret precedents and opinions are corrosive to the operations of a free society. It’s time for the government to come clean.”

Oral arguments in a federal lawsuit against six government agencies over their stonewalling about “unmasking” and surveillance of the 2016 presidential campaign and transition has been set for September 15.
 
The general counsel of the Project for Privacy and Surveillance Accountability had filed the appeal in January before the U.S. Court of Appeals for the D.C. Circuit. The lawsuit is challenging the refusal of the agencies to respond to its Freedom of Information Act (FOIA) requests seeking information on the surveillance of campaign and transition officials in the 2016 election.

The FOIA requests filed with the Department of Justice, the FBI, CIA, National Security Agency, Department of State and the Office of the Director of National Intelligence sought records regarding the unmasking and “upstreaming,” or the interception of internet communications, of people, including Members of Congress, who were affiliated with the Trump campaign and transition.
 
The agencies responded by issuing “Glomar” responses that refuse to confirm or deny the existence of such records.

Gene Schaerr, PPSA general counsel, who filed the appeal, said: “We ask the court to understand that judicial doctrine is being distorted into a cover-up of alarming misbehavior by the U.S. intelligence community. Americans deserve to know if our government has used its sweeping surveillance authority under the Foreign Intelligence Surveillance Act as a political weapon wielded against the campaign and presidential transition team of an opposing party.

“However you feel about the candidate in question, Donald Trump, what was done to him in 2016 can be done by an administration of either party in a future election,” Schaerr said.

A record produced by the Office of the Director of National Intelligence (ODNI) in response to a 2020 Freedom of Information Act (FOIA) request by PPSA indicates that the White House in 2018 had directed the ODNI to classify an action to prevent embarrassment or stop disclosure of something official that had been done for political purposes.
 
This is the tantalizing glimpse into one of two heavily redacted ODNI records produced by that agency in response to a FOIA request filed by PPSA seeking documents from a wide range of agencies that contain references to Executive Order 13526. That order, issued by President Obama, was meant to streamline government classification of documents.
 
The action at the heart of this memo is redacted. But the fact that ODNI disclosed this record in response to a FOIA request about challenges to classification decisions strongly suggests that the action did involve classification. Under EO 13526, officials are forbidden from classifying documents to prevent embarrassment or to hide an error. The redacted, partially declassified Top Secret document sent by an investigative analyst to the Assistant Inspector General for Investigations at ODNI confirms that a confidential complaint had centered around an act intended to “prevent embarrassment and for political purposes.”
 
The Inspector General of the Intelligence Community decided not to conduct its own investigation, purportedly because this matter fell outside of its purview to investigate “waste, fraud and abuse.” It did refer the complaint to two ODNI offices, the Office of Civil Liberties, Privacy, and Transparency, and the Office of Analytic Integrity and Standards Group.
 
Civil libertarians and journalists should dig into the remaining questions: Who in the White House issued this request? What was the act itself and what was the classification meant to hide? And finally, what was the ultimate disposition of this investigation?
 
PPSA will report any new revelations in our inquiry.