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. "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. 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! PPSA’s Gene Schaerr Appeals to Congress to Assert Its Authority to Protect Americans’ Privacy and the Fourth AmendmentEnd the “Game of Surveillance Whack-a-Mole" Gene Schaerr, PPSA general counsel, in testimony before a House subcommittee on Friday, urged Congress to assert its prerogative to interpret Americans’ privacy and Fourth Amendment rights against the federal government’s lawless surveillance.
Schaerr said the reauthorization of a major surveillance law this year is a priceless opportunity for Congress to enact many long-needed surveillance reforms. There is, Schaerr told the Members of the House Judiciary Subcommittee on Crime and Government Surveillance, no reason for Congress to defer on such a vital, national concern to the judiciary. Congress also needs to assert its authority with executive branch agencies, he said. For decades, when Congress reforms a surveillance law, federal agencies simply move on to other legal authorities or theories to develop new ways to violate Americans’ privacy in “a game of surveillance whack-a-mole.” Schaerr said: “As the People’s agents, you can stop this game of surveillance whack-a-mole. You can do that by asserting your constitutional authority against an executive branch that, under both parties, is too often overbearing – and against a judicial branch that too often gives the executive an undeserved benefit of the doubt. Please don’t let this once-in-a-generation opportunity slip away.” Schaerr was joined by other civil liberties experts who described the breadth of surveillance abuse by the federal government. Liza Goitein of the Brennan Center for Justice at NYU Law School said that FISA’s Section 702 – crafted by Congress to enable foreign surveillance – has instead become a “rich source of warrantless access to Americans’ communications.” She described a strange loophole in the law that allows our most sensitive and personal information to be sold to the government. The law prevents social media companies from selling Americans’ personal data to the government, but it does not preclude those same companies from selling Americans’ data to third-party data brokers – who in turn sell this personal information to the government. Federal agencies assert that no warrant is required when they freely delve into such purchased digital communications, location histories, and browsing records. Goitein called this nothing less than the “laundering” of Americans’ personal information by federal agencies looking to get around the law. “We’re a nation of chumps,” said famed legal scholar and commentator Jonathan Turley of the George Washington University Law School, for accepting “massive violations” of our privacy rights. He dismissed the FBI’s recent boasts that it had reduced the number of improper queries into Americans’ private information, likening that boast to “a bank robber saying we’re hitting smaller banks.” Many members on both sides of the aisle echoed the concerns raised by Schaerr and other witnesses during the testimony. Commentary from the committee indicates that Congress is receptive to privacy-oriented reforms. Gene Schaerr cautioned that Congress should pursue such a strategy of inserting strong reforms and guardrails into Section 702, rather than simply allowing this authority to lapse when it expires in December. Drawing on his experience as a White House counsel, Schaerr said the “executive branch loves a vacuum.” Without the statutory limits and reporting requirements of Section 702, the FBI and other government agencies would turn to other programs, such as purchased data and an executive order known as 12333, that operate in the shadows. Despite this parade of horribles, the hearing had a cheerful moment when it was interrupted by the announcement of a major reform coalition victory. The Davidson-Jacobs Amendment passed the House by a voice vote during a recess in the hearing, an announcement that drew cheers from witnesses and House Members alike. This measure would require agencies within the Department of Defense to get a probable cause warrant, court order, or subpoena to purchase personal information that in other circumstances would require such a warrant. Schaerr was optimistic that further reforms will come. He said: “Revulsion at unwarranted government surveillance runs deep in our DNA as a nation; indeed, it was one of the main factors that led to our revolt against British rule and, later, to our Bill of Rights. And today, based on a host of discussions with many civil liberties and other advocacy groups, I’m confident you will find wide support across the ideological spectrum for a broad surveillance reform bill that goes well beyond Section 702.” Earlier today the House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee by a 30-0 unanimous vote, with one abstention. PPSA applauds Chairman Jordan, Ranking Member Nadler, and the Members of the Committee for taking this important step to protect Americans’ privacy.
“Stopping the government from spying on Americans by buying their sensitive personal information from data brokers is a critical part of the government surveillance reforms Congress is working towards this year,” said Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee. “As Congress considers the reauthorization of Section 702 of FISA, it should hold strong to the principle that no surveillance authorities should be reauthorized without closing the data broker loophole. The Committee’s overwhelming, bipartisan, unanimous approval of the Fourth Amendment is Not For Sale Act sends a strong signal in that regard.” Our digital devices can tell everything about us – who we visit, what we like and believe, who we befriend, where we go, our medical concerns, and other personal information. The government is required by the Fourth Amendment of the U.S. Constitution to obtain a warrant before it can seize our personal information. But the government has found a workaround to the Constitution – law enforcement, intelligence, and other federal agencies spy on us by simply buying our personal information from shady data brokers. The Fourth Amendment Is Not for Sale Act will close this loophole and prevent the government from sidestepping our constitutional rights. House Judiciary Committee Passes Protect Reporters from Exploitative State Spying (PRESS) Act7/19/2023
PPSA is pleased that the House Judiciary Committee reported H.R. 4250, the Protect Reporters from Exploitative State Spying (PRESS) Act, to the full House by a unanimous 23-0 vote.
Many reporters have had their records seized by federal prosecutors, sometimes by secret orders to cloud computing companies. This bill, long supported by PPSA and civil liberties sister organizations, would protect journalists and their sources by granting a privilege to shield confidential news sources in federal legal proceedings. It contains reasonable exceptions in cases where application of the privilege could result in serious harm. Former Rep. Bob Goodlatte, who served as Chairman of the House Judiciary Committee and now as PPSA Senior Policy Advisor, said: “Journalism and the right to report on government actions must be better protected. We’ve all seen law enforcement officials under multiple recent administrations issue secret orders to surveil the private communications of journalists. Their freedom to report on government misdeeds is critical to maintaining a free society, and I encourage the broader House of Representatives to swiftly approve this legislation, as they have in the past.” PPSA would like to extend its gratitude to Reps. Kiley and Raskin for their leadership in introducing the bill, as well as to Chairman Jordan and Ranking Member Nadler for their support in moving it through committee. The PRESS Act’s passage is the result of overwhelming bipartisan support for freedom of the press guaranteed by the First Amendment of the Constitution, as well as support for our Fourth Amendment right to privacy. We hope the full House will take up and pass this important legislation soon. PPSA previously sent an appeal to every Member of the U.S. House urging them to vote for the Davidson-Jacobs Amendment to the National Defense Authorization Act (NDAA). It would place significant restrictions on the government’s purchase of Americans’ Fourth Amendment-protected sensitive, personal information without a warrant.
We attached to our letter the endorsement of this measure from more than 40 civil liberties allies—ranging from the ACLU to FreedomWorks, from the Brennan Center and Demand Progress to Americans for Prosperity and the Due Process Institute. The strong bipartisan support in the House led to the passage of this important measure by voice vote. “This vote is vital because our digital histories reveal our personal lives—where we’ve been, who we’ve met or communicated with, what we’ve searched for online, even our medical issues,” we wrote. “A digital portrait can be more personal and intimate than a diary. “Yet, under current practice, federal agencies purchase our most sensitive and personal information scraped from apps and sold by third-party data brokers. The general counsels of intelligence and law enforcement agencies assert a right to see our most personal information without the need to get a warrant, in flagrant disregard of the Fourth Amendment to the Constitution.” “This is the kind of practice one expects of a surveillance state, not America.” The House now officially agrees. This measure would require agencies within the Department of Defense to get a probable cause warrant, court order or subpoena to purchase personal information that in other circumstances would require such a warrant. “This amendment strikes a reasonable balance between respecting the privacy of Americans while leaving the government with the power to search for potential threats to the homeland,” says Bob Goodlatte, PPSA Senior Policy Advisor. “The Senate should respect the groundswell of bipartisan support shown in the House today for this amendment in the NDAA.” Sens. Ron Wyden and Rand Paul are renewing their push for the Protecting Data at the Border Act, a bill to ensure that government agents, including agents of Customs and Border Protection, obtain a warrant to search the personal data of Americans returning from abroad. The measure would send a resolute message: Americans' digital privacy is guaranteed, even at the border.
Until 2014, the federal government claimed it did not need a warrant to search a device if a person had been arrested. In Riley v. California, a landmark Supreme Court case, the Justices unanimously held that the warrantless, deep search of the digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment. If this principle pertains to an arrestee, how much more should it pertain to an American citizen who is merely traveling? Yet border zones, whether points of entry to Canada or Mexico, or airports, have become legal twilight zones where the Fourth Amendment is treated as a suggestion. With ever-increasing international traffic, the potential for government misconduct grows as well. PPSA has called attention to constitutional loopholes at the border before. In 2021, we reported that two troubling trends at the border threatened the rights of Americans. One is the rollout of facial recognition technology and other biometric surveillance by Customs and Border Patrol, which is used on citizens and non-citizens who arrive at a U.S. airport. The other – and by far the most intrusive – is the existing practice of accessing the contents of returning citizens’ cellphones, laptops, and other electronic devices. In 2017, a NASA employee was stopped by Customs and Border Patrol agents and told he could not leave until he gave CBP agents his password to his phone, which belonged to NASA and contained sensitive and confidential information. In an ACLU petition filed to the Supreme Court in 2021 (Merchant v. Mayorkas), eleven U.S. citizens sued over having their electronic devices examined at the border without a warrant or reasonable suspicion. Unfortunately, the Court declined to hear the case. PPSA endorses the Protecting Data at the Border Act. This bill will go a long way towards codifying and ensuring that the Fourth Amendment protects American citizens at the border. The bill will also prohibit officials from delaying or denying entry to the U.S. if a person declines to hand over devices and requires law enforcement to have probable cause to seize a device. Bob Goodlatte, PPSA senior policy advisor and former Chairman of the House Judiciary Committee, said: “There is no excuse for the government to suspend the Fourth Amendment at the border. While it is reasonable for border agents to protect the nation with inspections for pests, contraband, and illegal narcotics, it is an outrageous violation of the Constitution for agents to scan the contents of our digital devices, delving into the sensitive and personal aspects of our domestic lives. “Sens. Ron Wyden and Rand Paul are stepping up to remind the government that we don’t shed our constitutional rights just because we travel.” For all the focus on digital privacy, traditional Fourth Amendment violations by the government are as common as ever. One area of habitual constitutional overreach is child welfare, as illustrated by a recent, disturbing event in Waltham, Massachusetts.
In the early morning hours of July 16, 2022, officials from the Massachusetts Department of Children and Families, flanked by several armed police officers, knocked on the door of Waltham residents Sarah Perkins and Joshua Sabey and demanded the surrender of their children. The officials had no warrant. There were no exigent circumstances. They had no reason to believe the children were in imminent threat of bodily harm. Yet, despite the parents’ reasonable protestations, the officers issued an ultimatum: Give us your children or we’ll break down the door and take them. Ultimately, Sarah and Josh gave in to the inevitable, ushering their sobbing children into the waiting cars of strangers, who whisked them away in the night. Nationally, more than three million children come under the care of state child protective services each year. In cases involving home searches, according to a recent study by ProPublica, authorities rarely – if ever – obtain a warrant. In New York, for example, research shows that the Administration for Children’s Services obtained a warrant or entry order in less than 0.2% of instances. The Fourth Amendment plainly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” (The founders never thought it was necessary to also add, “and their children!”) That amendment requires a probable cause warrant to examine a home. Constitutional protections extend to the states through the Due Process Clause of the Fourteenth Amendment, yet child welfare agencies largely operate as though exempt from such constitutional strictures, regularly entering homes based on vague determinations of imminent threat to a child. Let us be clear: such concerns are often well founded, and we support the right of the state to intervene to protect abused or neglected children. But there needs to be a lawful process. The case of Sarah Perkins and Joshua Sabey is an instructive example of what can happen when there are no guardrails on the discretionary exercise of police power. These parents fell under the suspicion of child welfare authorities after taking their three-month-old to the hospital for high fever. When staff members conducted an X-ray, they discovered a healing rib fracture. Concerned about abuse, they called in a social worker who questioned Sarah about the injury. For her part, Sarah had no clue how the injury occurred, though it was later determined that the child’s grandmother may have inadvertently caused it while removing the child from a car seat. For three days, the parents were subjected to a thorough investigation, which included home visits and persistent interference by state authorities, who found neither evidence of abuse nor danger in the home. Everything seemed fine until three days later, when a DCF supervisor made the seemingly arbitrary decision that the children should be taken into custody in the middle of the night. Sarah and Joshua were eventually cleared of any misconduct and re-acquired full custody following several months of legal wrangling. But what about families that lack the resources to engage in such a prolonged fight? The application of the Fourth Amendment to child protective services is an area that requires sharper legal definition. A circuit split exists on the issue and the Supreme Court has not specifically weighed in. Sarah and Josh, meanwhile, have rightly filed suit against individuals at DCF and the Waltham Police Department alleging unreasonable search and seizure and due process violations under the Fourth and Fourteenth Amendment, respectively. They’re also working with members of the Massachusetts legislature on a new law that would require approval by an on-call judge before any after-hours removal. It’s a reasonable constraint on the currently unchecked power of a vast, often adversarial government bureaucracy. There is no question that real and heartbreaking instances of child abuse occur. Child protective services must have the power to remove children from these circumstances. But such power must not be limitless. Of all our constitutional and natural rights, parental rights are the most precious. Admits Potential for Abuse of Government Spying into Americans’ Politics, Religion, and Sex Lives For years, PPSA has warned about the vast amounts of sensitive personal information about our private lives that are scraped from our apps and sold by third-party data brokers to government intelligence and law enforcement agencies. Now we have telling details from the inside.
On Friday, the Office of the Director of National Intelligence released a declassified report from a senior advisory group that sheds new light on the dangers posed by Commercially Available Information (CAI). Unlike most government documents, this report is remarkably self-aware and willing to explore the dangers of this policy in plain language. This panel details all the many sorts of data that the government collects about us from commercial sources.
One data broker with the exceptionally creepy name of PeekYou brags that it “collects and combines scattered content from social sites, news sources, homepages, and blog platforms to present comprehensive online identities.” The panel is forthright about how this data can be used to “facilitate blackmail, stalking, harassment, and public shaming.” It is not difficult, the report notes, for deanonymized information (which exposes a person’s identity) sold by data brokers to be combined or used with other data “to reverse engineer identities or deanonymize various forms of information.” The authors of this report recognize how dangerous it is for the intelligence community to have this much commercially available information on its citizenry at its fingertips. “The government would never have been permitted to compel billions of people to carry location tracking devices on their persons at all times, to log and track most of their social interactions, or to keep flawless records of all their reading habits. Yet smartphones, connected cars, web tracking technologies, the Internet of Things, and other innovations have had their effect without government participation. While the IC cannot willingly blind itself to this information, it must appreciate how unfettered access to CAI increases its power in ways that may exceed our constitutional traditions or other societal expectations.” The authors note that “CAI could be used, for example, to identify every person who attended a protest or rally based on their smartphone location or ad-tracking records.” And the danger to the American people is not just from our government: this report warns of “intelligence benefits to our adversaries,” allowing foreign agencies to use open-source intelligence and AI to disinform and influence the public. It cites a chilling factoid from a Duke University report that of the 10 major data brokers, three advertise an ability to provide data to identify U.S. military personnel. The ODNI report quotes the Duke study that foreign actors could use CAI “to bolster their influence campaigns to interfere in U.S. electoral processes. Criminal organizations could use this data to build profiles on and subsequently target prosecutors and judges. Foreign intelligence organizations could acquire this data through a variety of means – including through front companies that could legally purchase the data from U.S. brokers and through simply hacking a data broker and stealing it all – to build profiles on politicians, media figures, diplomats, civil servants, and even suspected or secretly identified intelligence operatives.” The authors recognize a danger for U.S. agencies, that “mission creep” can “subject CAI collected for one purpose to other purposes that might raise risks beyond those originally calculated.” It raises the question of the government’s obligation to respect the Fourth Amendment in accessing technologies that track our movements. It highlights the principles set out in a Supreme Court opinion that requires a warrant for certain kinds of cellsite location data. Yet the report notes that the Defense Intelligence Agency nevertheless provides funding to “another agency” for it to purchase commercially available geolocation data aggregated from smartphones. The author admits it is unclear whether this data is for U.S. locations or foreign ones. The report says that agencies rely on a facial recognition company, Clear, not only to “resolve identities,” but also to locate people. The authors challenge the bland assertions of federal agencies that Commercially Acquired Information, CAI, is the same as Publicly Available Information, PAI. “In our view, profound changes in the scope and sensitivity of CAI have overtaken traditional understandings, at least as a matter of policy. Today’s publicly available CAI is very different in degree and in kind from traditional PAI.” The authors refer to Riley v. California, a Supreme Court case that required a warrant before police could access information in a suspect’s cellphone. The report quotes the Court that asserting that modern CAI is materially indistinguishable from traditional PAI “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Having defined the problems, the authors of this report advance possible solutions. They propose internal processes that could minimize the dangers of mass collection of our private information, changes in how information is cataloged, developing standards and procedures, heightening approvals for information in “sensitive” categories, the creation of additional mitigation measures, and developing more “precise sensitivity and privacy-protecting guidance for PAI.” The authors of this report should be commended for their frankness. Their solution, however, would merely replicate the failed approach of the FBI in its repeated attempts to reform the processes used to extract Americans’ personal information from Section 702 of the Foreign Intelligence Surveillance Act. In both instances, the answer to these dilemmas is the Fourth Amendment’s probable cause warrant, an 18th century solution for these 21st century dilemmas. Sen. Ossoff Pins Down FBI: Why Not Warrants? When the Senate Judiciary Committee announced it was holding a hearing this morning on Section 702 of the Foreign Intelligence Surveillance Act with five men representing the Office of the Director of National Intelligence, the NSA, CIA, FBI, and the Department of Justice, many assumed it would amount to a bit of surveillance state agitprop.
Instead, senators from across the aisle grilled these intelligence community deputy directors and general counsel like so many hot dogs. The intelligence community representatives came lined up with talking points about a new “culture of compliance” in the intelligence community, only to be upended. Compliance with what? The law? The Constitution? No, the answer consistently was compliance with updated, byzantine internal regulations that this time – they swear! – will finally protect the constitutional rights of the American people. Sen. Mike Lee (R-UT) burst out like a rodeo bull to lecture the panelists that the government has shown “shocking disregard for Americans’ constitutional rights and civil liberties,” from illegal surveillance of political donors, protestors, and even a sitting Member of Congress. He expressed frustration from years of hearing from FBI directors and attorneys general under three presidents say, “just trust us, don’t worry, we’ve got good people … and lots and lots of procedural safeguards in place.” Sen. Lee ridiculed the FBI’s boast that it has vastly reduced the hundreds of thousands of spying incidents without a probable cause warrant. (Go to 1:37:51 mark) Sen. Lee said: “The number should not just be going down. That number should be zero. Every ‘non-complaint’ search violates an American’s constitutional rights.” Sen. Jon Ossoff (D-GA), who sits on both the Judiciary and Intelligence committees, was cool and unflappable as he brushed aside Assistant Attorney General Matt Olsen’s attempts to bat away his questions (go to 1:58:35). Sen. Ossoff drilled down on the need for a probable cause warrant in using “U.S. person communications” – when the FBI is looking at domestic crimes in the Section 702 database. “Section 702 is a foreign intelligence tool, it is not a law enforcement tool,” Olsen said. “So why is it used for domestic law enforcement purposes?” Sen. Ossoff asked. Olsen replied that such “crime only” searches are “exceedingly” rare. “If it is as rare as you state,” Sen. Ossoff said, “why not go get a warrant?” Olsen then told a story of an agent looking into Section 702 information on national security grounds only to find evidence of domestic child abuse. Sen. Ossoff recognized this as an attempt at obfuscation. “We’re talking about seeking evidence of a crime only, we’re not talking about encountering evidence of other crimes in the course of querying foreign intelligence information,” Sen. Ossoff said. “We’re talking about U.S. person queries whose sole purpose is investigating domestic crime. Why should that not require a warrant?” Olsen’s reply was a legal tautology. Section 702 data, he said, is “lawfully collected information that is in the FBI’s holdings.” “I don’t think you’ve made the case,” Sen. Ossoff said, again noting the FBI uses Section 702 for many purely domestic crimes. In his calm but persistent questioning, Sen. Ossoff revealed the deeper issue of how the FBI gets around the law by using a foreign surveillance authority to set up backdoor searches to target Americans in domestic cases. Sen. Dick Durbin (R-Il), committee chairman, had set the tone by asking why improper searches of Americans’ communications were conducted some 278,000 times in a recent one-year period. Chairman Durbin noted that 19,000 searches of a federal candidate’s donors were queried when, in fact, only 8 targeted donors showed a connection to foreign intelligence. Sen. Lindsey Graham asked how we can be sure FBI agents using Section 702 are “not being lazy, not getting around the law?” Olsen replied that one person in the Department of Justice was fired for misusing Section 702 and that the FBI now has a “three-strikes” policy regarding 702 violation. That seemed to win little gratitude from senators. Overall, the tone of this hearing was frank, harsh, and unrelenting. These five men may have started their day believing that their assurances, and 11th hour proposals to further reform the government’s internal processes, would ensure smooth sailing. Afterwards, these intelligence community representatives should return to the leaders of their respective agencies and tell them: “We’ve either got to accept serious reform of Section 702 or wave it goodbye.” COURT BOMBSHELL: FBI Improperly Used Section 702 Against Left, Right and 19,000 Political Donors5/19/2023
Total of 278,000 Searches of Americans The FBI just completed one of the worst weeks in its history.
On Monday, Special Counsel John Durham came out with a detailed and scathing report that showed unmistakable bias by the FBI in using discredited allegations, paid for by a political campaign, to hoodwink the secret Foreign Intelligence Surveillance Court into allowing the agency to investigate presidential candidate Donald Trump. While the Durham report has been generally dismissed by major media and most on the left (with some notable exceptions), Republicans are hopping mad. Now an unsealed court document shows that the FBI illicitly used Section 702 of FISA more than 278,000 times to delve into data meant to authorize the surveillance of foreigners on foreign soil – and Americans who “incidentally” get caught up in communications with those targeted foreigners. Who were the FBI’s targets? They included activists arrested protesting the police killing of George Floyd. The FBI freely dipped into Section 702 to search the communications and digital trails of 133 people – presumably all Americans – for George Floyd-related demonstrations. Redactions make it unclear what, if any, nexus to foreign influence the FBI was looking for. But wait, as they say in the ShamWow commercial, there’s more! This same authority was used to run queries on 23,132 Americans to see if their presence at the Jan. 6, 2021, U.S. Capitol riot had any connection to foreign influence. The release from FISA Court Judge Rudolph Contreras stated that there was no reason to believe foreign powers were involved. Still more! The FBI conducted 656 queries of FISA information to do background checks on informants. Between 2016 and 2020, the FBI also used this foreign intelligence authority to conduct background searches on “police homicide reports, including victims, next-of-kin, witnesses, and suspects.” Remember, this is an authority designed by Congress to catch foreign terrorists and spies. Finally, the FBI conducted a batch query of 19,000 donors to a congressional campaign believed to be a target of foreign influence. Only eight identifiers had sufficient ties to “foreign influence activities” to meet FISA standards. While expressing relief at recent procedural changes at the FBI, Judge Contreras wrote: “Nonetheless, compliance problems with querying of Section 702 information have proven to be persistent and widespread. If they are not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel with access to unminimized Section 702 information.” Or Congress could just reform Section 702 to require warrants whenever the communications of Americans are searched. Alienated conservatives, progressives and civil libertarians, and their champions on the Hill now have more than enough reason to make it happen. Jim Jordan (R-OH), Chairman of the House Judiciary Committee, tweeted in response to this Friday afternoon revelation: “Chris Wray told us we can sleep well at night because of the FBI’s so-called FISA reforms. But it just keeps getting worse.” Ranking Member Rep. Jerry Nadler (D-NY) put out a statement: “The FBI says that they have instituted new procedures to make this kind of abuse impossible. They have made that promise before. Without significant changes to the law to prevent this abuse, I will oppose the reauthorization of this authority.” It looks like the stars are aligning for Section 702 reform this year. The House Judiciary Committee today passed the NDO Fairness Act by unanimous voice vote, clearing this bill for a vote on the House floor next week.
The Non-Disclosure Order (NDO) Fairness Act would place restrictions on the government’s current unlimited ability to impose gag orders on telecom and digital companies, keeping them from informing their customers that their sensitive, personal information has been surveilled. As a result, thousands of Americans – who are not suspected of any wrongdoing – never learn that communications about their health, financial transactions and personal relations have been reviewed by the government. “We are grateful to Rep. Scott Fitzgerald and Ranking Member Jerry Nadler for working to close a privacy loophole that has evolved into a serious encroachment of Americans’ constitutional rights,” said Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee. “All the Members of the Judiciary Committee deserve our gratitude for propelling the NDO Fairness Act along to floor of the House.” Goodlatte noted that the NDO Fairness Act passed the House by voice vote in June 2022, only to languish in the Senate. The bill passed by the House Judiciary Committee today directs courts to more heavily scrutinize gag order requests. It sets a time limit on these gag orders, requires notice to be given to customers soon after the expiration of the order, and gives Americans standing to contest a gag order in court. “This bill is well thought out, balancing the Fourth Amendment and privacy needs of Americans against the need to protect the judicial process and public safety,” Goodlatte said. “That is why this is such a popular bill enjoying such broad, bipartisan support. We hope the full House will swiftly pass this bill and give it new momentum in the Senate.” |
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