Expansive Spy Law Even Targets Churches  Breitbart News broke a story over the weekend that a few recalcitrant House Members are holding up a promised fix to what many referred to as the “Make Everyone a Spy” law. The fix regards an amendment to the reauthorization of FISA Section 702, passed in April, in which pro-surveillance advocates added a requirement that U.S. business owners who offer customers the use of their Wi-Fi and routing equipment be covered as “electronic communication service providers” under the law. This means that any business – your neighborhood fitness center, an office complex that houses journalists, political campaigns, or even a church or other house of worship, as well as a host of other establishments – would face the same requirement as large telecoms to turn over the communications of their customers, no warrant required. This was not meant to happen. As the Senate voted in April to reauthorize FISA Section 702, bipartisan furor erupted over this provision, including leading conservatives in both chambers. Sen. Mark Warner (D-VA), Chairman of the Senate Intelligence Committee, promised his colleagues that the amendment that included this expansive authority would be narrowed to include only one category of business. That category is classified but is widely believed to be data centers that provide cloud computing and storage. With this promise in hand, the Senate voted down an amendment to remove the flawed provision, and immediately passed the reauthorization of Section 702 – all in the belief that the expansive new spy power would soon be curbed. Sen. Warner was true to his word, inserting language into the Senate intelligence bill that narrows the scope of the new measure. Now, in a baffling turn of events, it is the House that is refusing to include the fix in its version of the intelligence bill. Why are some House Members insisting on keeping an authority that allows spying on churchgoers, shoppers, and office workers? Bob Goodlatte, the former chairman of the House Judiciary Committee and PPSA senior policy advisor, told Breitbart News: “This measure passed because of assurances that this insanely broad authority would be narrowed. The promise of a fix was made and accepted in good faith, but that promise is being trashed by advocates for greater surveillance of our citizens. Unless Congress reverses course, Americans’ data that runs through the Wi-Fi and servers of millions of small businesses, ranging from fitness centers to department stores, small office complexes, as well as churches and other houses of worship, will be fair game for warrantless review. This would truly transform our country into a thorough surveillance state. I can’t imagine the next Congress and new Administration would welcome that.” Surely, giving the deep state free rein to spy on Americans is not in keeping with the philosophy of the incoming Trump administration, the new Republican majority in Congress, or most Democrats. Contact your House Member and say: “Please don’t let this legislative year end without narrowing the Electronic Communication Service Provider standard. Congress must keep its promise to fix the Make Everyone a Spy Law.”  Investigative journalist Ronan Farrow delves into the Pandora’s box that is Israel’s NSO Group, a company (now on a U.S. Commerce Department blacklist) that unleashes technologies that allow regimes and cartels to transform any smartphone into a comprehensive spying device. One NSO brainchild is Pegasus, the software that reports every email, text, and search performed on smartphones, while turning their cameras and microphones into 24-hour surveillance devices. It’s enough to give Orwell’s Big Brother feelings of inadequacy. Farrow covers well-tread stories he has long followed in The New Yorker, also reported by many U.S. and British journalists, and well explored in this blog. Farrow recounts the litany of crimes in which Pegasus and NSO are implicated. These include Saudi Arabia’s murder of Jamal Khashoggi, the murder of Mexican journalists by the cartels, and the surveillance of pro-independence politicians in Catalonia and their extended families by Spanish intelligence. In the latter case, Farrow turns to Toronto-based Citizen Lab to confirm that one Catalonian politician’s sister and parents were comprehensively surveilled. The parents were physicians, so Spanish intelligence also swept up the confidential information of their patients as well. While the reality portrayed by Surveilled is a familiar one to readers of this blog, it drives home the horror of NSO technology as only a documentary with high production values can do. Still, this documentary could have been better. The show is marred by too many reaction shots of Farrow, who frequently mugs for the camera. It also left unasked follow-up questions of Rep. Jim Himes (D-CT), Ranking Member of the House Intelligence Committee. In his sit-down with Farrow, Himes made the case that U.S. agencies need to have copies of Pegasus and similar technologies, if only to understand the capabilities of bad actors like Russia and North Korea. Fair point. But Rep. Himes seems oblivious to the dangers of such a comprehensive spyware in domestic surveillance. Rep. Himes says he is not aware of Pegasus being used domestically. It was deployed by Rwandan spies to surveil the phone of U.S. resident Carine Kanimba in her meetings with the U.S. State Department. Kanimba was looking for ways to liberate her father, settled in San Antonio, who was lured onto a plane while abroad and kidnapped by Rwandan authorities. Rep. Himes says he would want the FBI to have Pegasus at its fingertips in case one of his own daughters were kidnapped. Even civil libertarians agree there should be exceptions for such “exigent” and emergency circumstances in which even a warrant requirement should not slow down investigators. The FBI can already track cellphones and the movements of their owners. If the FBI were to deploy Pegasus, however, it would give the bureau redundant and immense power to video record Americans in their private moments, as well as to record audio of their conversations. Rep. Himes is unfazed. When Farrow asks how Pegasus should be used domestically, Rep. Himes replies that we should “do the hard work of assessing that law enforcement uses it consistent with our civil liberties.” He also spoke of “guardrails” that might be needed for such technology. Such a guardrail, however, already exists. It is called the Fourth Amendment of the Constitution, which mandates the use of probable cause warrants before the government can surveil the American people. But even with probable cause, Pegasus is too robust a spy tool to trust the FBI to use domestically. The whole NSO-Pegasus saga is just one part of much bigger story in which privacy has been eroded. Federal agencies, ranging from the FBI to IRS and Homeland Security, purchase the most intimate and personal digital data of Americans from third-party data brokers, and review it without warrants. Congress is even poised to renege on a deal to narrow the definition of an “electronic communications service provider,” making any office complex, fitness facility, or house of worship that offers Wi-Fi connections to be obligated to secretly turn over Americans’ communications without a warrant. The sad reality is that Surveilled only touches on one of many crises in the destruction of Americans’ privacy. Perhaps HBO should consider making this a series. They would never run out of material.  A public report from the secret Foreign Intelligence Surveillance Court (FISC) gives the intelligence community a mixed review, noting progress in meeting its own internal quality standards while revealing violations and abuses as well. The court reviewed compliance by the FBI, NSA, and CIA with “minimization” and “querying” procedures under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes spying on foreign targets located on foreign soil. In plain English, minimization means restricting access to the private data or communications of Americans that are caught up in the NSA’s global trawl, which frequently collects non-pertinent conversations that lack intelligence or evidentiary value. Querying standards direct agents to use precise search terms in an effort to avoid capturing Americans’ communications. Throughout, the government purports to earnestly verify the “foreign-ness” of a target.
Given that the court previously revealed that past queries violated the privacy of a U.S. Senator, a U.S. House Member, 19,000 donors to a federal candidate, a state senator, and a state judge, even small numbers could be hiding a lot. However tight the querying standard, warrantless searches can also still be used by the FBI to develop evidence for purely domestic cases, a source that might not be disclosed in open court.
As one moves through this report into NSA and CIA activities, the redactions often fill half a page.
In sum, the FISC report signed by federal judge Anthony J. Trenga gives us a glimpse of a federal intelligence bureaucracy struggling to comply with the law and its own standards, while still suffering from lapses too serious to paper over.  An extreme measure that would give future U.S. Treasury Secretaries unprecedented authority to shut down non-profit, advocacy organizations remains a live option in Congress. The “Stop Terror-Financing and Tax Penalties on American Hostages Act,” HR 9495, failed to pass the House last week. But it maintains momentum due to a little sweetener that is widely popular – a commendable side measure to offer tax relief to Americans held hostage in foreign countries. The main part of the bill would grant future U.S. Treasury Secretaries power to use secret surveillance to declare a tax-exempt, non-profit advocacy organization a supporter of foreign terrorism, and shut it down. This provision, in essence, does one thing – it removes due process from existing law that allows the government to crack down on supporters of terrorist organizations. CRS reports that the IRS is already empowered to revoke the tax-exempt status of charitable organizations that provide material support to terrorist organizations, a power it has used. But current law also requires IRS to conduct a painstaking examination of the charge before issuing a revocation. It gives groups the ability to answer charges and to appeal decisions. But the “Stop Terror-Financing” bill would give targeted organizations a 90-day window to challenge the designation, while giving them no access to the underlying evidence behind the determination. An organization could challenge the designation in court but might not be able to access the charges against it due to the state secrets doctrine. In the meantime, being designated a terrorist-affiliate would be a death penalty for any organization and its ability to attract donors. “The entire process is run at the sole discretion of the Secretary of the Treasury,” Kia Hamadanchy of the American Civil Liberties Union told the media. “So you could have your nonprofit status revoked before you ever have a chance to have a hearing.” The latest attempt to pass this measure failed to reach a two-thirds majority needed to pass, with 144 Democrats and one Republican voting against it. Democrats were buoyed by a Who’s Who of liberal organizations, ranging from the ACLU to Planned Parenthood and the Brennan Center for Justice, that denounced the bill. Not surprisingly, pro-Palestinian groups were united in opposition as well. But Republicans and conservatives would be well advised to consider the principled opposition to the bill by Rep. Thomas Massie (R-Ky). He surely appreciates that this power, once created, could be used by future administrations against nonprofits of all sorts. Could a conservative organization be targeted as a supporter of terrorism for advocating, for example, a settlement with Russia (certainly a state sponsor of terror) in its war against Ukraine? Conservative principles and an adherence to the Constitution should begin with the notion that the government should not have the unilateral right to shut down the speech of advocacy organizations on the basis of secret evidence from surveillance, even if you despise what they advocate. Conservatives would also be well-advised to consider not how this law would be used in the near future, but by future administrations. Have they forgotten Lois Lerner and the attempt to use tax law to shut down conservative advocacy groups? “We don’t need to worry about alien terrorists,” Lerner wrote in an email justifying her actions against right-leaning organizations. “It’s our own crazies that will take us down.” Conservatives should be wary. This bill creates a weapon that can be aimed in any direction.  The election may have shaken Washington, D.C., like a snow globe in the grip of a paint mixer, but the current Congress still has important business for the lame duck session. For anyone who cares about privacy in this age of surveillance, issue one has to be whether or not Congress will retain the promised fix to what so many call the “make everyone a spy” provision in the National Defense Authorization Act (NDAA). This story goes back to April, when the House Permanent Select Committee on Intelligence slipped into the reauthorization of FISA Section 702 (which authorizes foreign intelligence) a measure to allow the government to secretly enlist almost every kind of U.S. business to spy on their customers. In response to the outcry, carveouts were made that exempted coffee shops, hotels, and a few other business categories. But most businesses – ranging from gyms to dentists’ offices, to commercial landlords with tenants that could include political campaigns or journalists – are required to turn over their customers’ communications that run on ordinary Wi-Fi systems. It is widely believed that this legislation was aimed at cloud computing facilities, which were not previously covered by the relevant law. When the Senate took up reauthorization of Section 702, Intelligence Committee Chairman Mark Warner (D-VA) admitted to his colleagues that the new measure was overbroad, and that he would craft new legislation to fix it. Sen. Warner kept his word and crafted legislation to narrow the provision. Although the nature of this fix is classified, it is widely believed to limit this new surveillance power to cloud computing facilities. The House Intelligence Committee, however, did not adopt that fix. We hear that behind-the-scenes negotiations are taking place, but we cannot report exactly who might be blocking it or why. Suffice it to say that it is far from clear that Congress will ultimately adopt Sen. Warner’s fix. PPSA calls on Speaker Mike Johnson and Senate Minority Leader Mitch McConnell to make it clear that the NDAA will include a provision to narrow the scope of this extreme provision. We must not give the FBI and other government agencies warrantless access to practically all communications that run through any kind of equipment operated by almost any kind of business. Allowing the current law to remain unfixed and unreformed would be a terrible punch in the gut to the American people and the new Congress. The 119th Congress has many surveillance debates scheduled, including one over the reauthorization of Section 702 itself in 2026 – which passed the House with the breaking of a tie vote. It would be a mistake to saddle the new Republican majority and the incoming Trump administration with a broken promise.  If you do not change direction, an ancient Chinese philosopher wrote, you might wind up where you were heading. Where we are heading is a U.S. House of Representatives that is charged by the Constitution with oversight of the executive branch intelligence community (IC), but in fact is a supervisor being overseen by the supervised. Since 2020, PPSA has used every legal avenue from Freedom of Information Act requests to lawsuits to press the IC – the Department of Justice, the FBI, the Office of the Director of National Intelligence, the National Security Agency, and the Department of State – to provide records concerning the possible surveillance of 48 Members of Congress on committees of jurisdiction that oversee the intelligence community. We’ve reported on court revelations of warrantless intrusion into the personal communications or data of Rep. Darin LaHood (R-Ill), an unnamed U.S. senator, a state senator, and a state judge. When faced with queries and exposure, the government resorts to obfuscation and delaying tactics. Even when it is Congress that is doing the overseeing, attempts to understand intelligence operations often amount to howling in the wind. Agencies sometimes don’t answer congressional queries with substantive responses, if they even bother to reply at all. The House of Representatives can address this upside-down oversight scheme with one simple stroke. The House Rules Committee will soon craft the new rules by which that body will deliberate during the 119th Congress. We call on the Rules Committee to adopt a new rule to allow every House Member to choose one staffer to be eligible for a Top Secret/Sensitive Compartmented Information (TS/SCI) security clearance. Oversight falters because only a few Members have staffers with such clearances. Members without cleared staff are unable to ignore their other duties to spend long hours in a secure compartment leafing through hundreds of pages of classified reports. Without making cleared congressional aides eligible for TS/SCI clearances, most Members – even those serving on oversight committees like the House Judiciary Committee – will continue to lack a basic understanding of current intelligence agency practices. Worse, among the staffers who are cleared, some are “detailees” from the very agencies they are helping their Members to oversee. Defenders of the status quo will argue that expanding clearances in the House is a prohibitively dangerous idea. That assertion is laughable. The intelligence community itself extends an estimated 1.2 million top-secret security clearances to federal government employees and consultants. A few hundred more clearances for aides vetted by the FBI and serving Members accountable to the public would be a tiny addition to the current army of Americans with TS/SCI clearance. The Senate shows the House it doesn’t have to accept being supervised by the IC. In 2021, Senate Majority Leader Chuck Schumer took the bold step of allowing one top secret/sensitive clearance to be available for one personal aide per senator. The House can do the same. All that is needed to enhance House oversight is to make wider access to clearances part of the House Rules package for the 119th Congress that begins in January. Go here to call or email and tell your U.S. House Representative – “Please support a new House rule that allows every House Member to have one staffer eligible for TS/SCI security clearance.” Why Signal Refuses to Give Government Backdoor Access to Americans’ Encrypted Communications11/4/2024
 Signal is an instant messenger app operated by a non-profit to enable private conversations between users protected by end-to-end encryption. Governments hate that. From Australia, to Canada, to the EU, to the United States, democratic governments are exerting ever-greater pressure on companies like Telegram and Signal to give them backdoor entry into the private communications of their users. So far, these instant messaging companies don’t have access to users’ messages, chat lists, groups, contacts, stickers, profile names or avatars. If served with a probable cause warrant, these tech companies couldn’t respond if they wanted to. The Department of Justice under both Republican and Democratic administrations continue to press for backdoors to breach the privacy of these communications, citing the threat of terrorism and human trafficking as the reason. What could be wrong with that? In 2020, Martin Kaste of NPR told listeners that “as most computer scientists will tell you, when you build a secret way into an encrypted system for the good guys, it ends up getting hacked by the bad guys.” Kaste’s statement turned out to be prescient. AT&T, Verizon and other communications carriers complied with U.S. government requests and placed backdoors on their services. As a result, a Chinese hacking group with the moniker Salt Typhoon found a way to exploit these points of entry into America’s broadband networks. In September, U.S. intelligence revealed that China gained access through these backdoors to enact surveillance on American internet traffic and data of millions of Americans and U.S. businesses of all sizes. The consequences of this attack are still being evaluated, but they are already regarded as among of the most catastrophic breaches in U.S. history. There are more than just purely practical reasons for supporting encryption. Meredith Whittaker, president of Signal, delves into the deeper philosophical issues of what society would be like if there were no private communications at all in a talk with Robert Safian, former editor-in-chief of Fast Company. “For hundreds of thousands of years of human history, the norm for communicating with each other, with the people we loved, with the people we dealt with, with our world, was privacy,” Whittaker told Safian in a podcast. “We walk down the street, we’re having a conversation. We don’t assume that’s going into some database owned by a company in Mountain View.” Today, moreover, the company in Mountain View transfers the data to a data broker, who then sells it – including your search history, communications and other private information – to about a dozen federal agencies that can hold and access your information without a warrant. When it comes to our expectations of privacy, we are like the proverbial frogs being boiled by degrees. Whittaker says that this is a “trend that really has crept up in the last 20, 30 years without, I believe, clear social consent that a handful of private companies somehow have access to more intimate data and dossiers about all of us than has ever existed in human history.” Whittaker says that Signal is “rebuilding the stack to show” that the internet doesn’t have to operate this way. She concludes we don’t have to “demonize private activity while valorizing centralized surveillance in a way that’s often not critical.” We’re glad that a few stalwart tech companies, from Apple and its iPhone to Signal, refuse to cave on encryption. And we hope there are more, not fewer, such companies in the near future that refuse to expose their customers to hackers and government snooping. “We don’t want to be a single pine tree in the desert,” Whittaker says, adding she wants to “rewild that desert so a lot of pine trees can grow.” The CFPB Curbs Worker Surveillance – Will the Government Live Up to Its Own Privacy Standards?10/31/2024
 The Consumer Financial Protection Bureau (CFPB) is warning businesses that use of “black-box AI” or algorithmic scores about workers must be consistent with the rules of the Fair Credit Reporting Act. This means employers must obtain workers’ consent, provide transparency when data is used for an adverse decision, and make sure that workers have a chance to dispute inaccurate reports. That’s a good move for privacy, as far as it goes. The problem is, it doesn’t go nearly far enough because the federal government doesn’t impose these same standards on itself. First, PPSA agrees with the tightening of employers’ use of digital dossiers and AI monitoring. Whenever someone applies for a job, the prospective employer will usually perform a search about them on a common background-check site. It is not surprising that businesses want to know about applicants’ credit histories, to check on their reliability and conscientiousness, and if they have a possible criminal past. But third-party consumer reports offer much more than those obvious background checks. Some sites, for example, are used to predict the likelihood that you might favor union membership. More invasive still are apps that many employers are requiring new employees to install on personal phones to monitor their conduct and assess their performance. The decision to reassign employees, promote or demote them, or fire them are coming from automated systems, decisions made by machines that often lack context or key information. Federal agencies, from the CFPB to the Federal Trade Commission, have not been shy about calling out privacy violations like these of some businesses for years now. Too bad our government cannot live up to its own high standards. The government freely acknowledges that a dozen agencies – ranging from the FBI to the IRS, Department of Homeland Security, and the Pentagon – routinely buy the most intimate and personal data of Americans scraped from our apps and sold by shadowy data brokers. The data the government collects on us is far more extensive than anything a commercial data aggregator could find. The government can track our web browsing, those we communicate with, what we search for online, and our geolocation histories. This is far more invasive and intrusive than anything private businesses are doing in screening applicants and monitoring employees. Worse, the government observes no obligation to reveal how this data might be used to compile evidence against a criminal defendant in a courtroom, or if agencies are using purchased data to create dossiers on Americans to predict their future behavior. There is no equivalent of the Fair Credit Reporting Act when it comes to the government’s use of our data. But there is the Fourth Amendment Is Not For Sale Act, a bill that would require the government to obtain a probable cause warrant – as required by the Constitution – before inspecting our digital lives. The Fourth Amendment Is Not For Sale Act passed the House this year and awaits action in the U.S. Senate. Passing it in the coming lame-duck session would be one way to remove the hypocrisy of the federal government on the digital surveillance of American workers, consumers, and citizens.  We’re all resigned to the need to go through security at high-profile sporting and cultural events, just as we do at the airport. The American Civil Liberties Union is raising the question – will that level of scrutiny be the new normal at the mall, at open-air tourist attractions, outdoor concerts, and just plain walking around town? The Department of Homeland Security (DHS) is investing in research and development to “assess soft targets and address security gaps” with new technology to track people in public places. It is funding SENTRY, the Soft Target Engineering to Neutralize the Threat Reality. SENTRY will combine artificial intelligence from the “integration of data from multiple sources,” which no doubt will include facial recognition scans of everyone in a given area to give them a “threat assessment.” We do not dismiss DHS’s concern. The world has no lack of violent people and our country is full of soft targets. Just hark back to the deranged shooter in 2017 who turned the Route 91 Harvest music festival in Las Vegas into a shooting gallery. He killed 60 people and wounded more than 400. A similar act by a terrorist backed by a malevolent state could inflict even greater casualties. But we agree with ACLU’s concern that such intense inspection of Americans going about their daily business could lead to the “airportization” of America, in which we are always in a high-security zone whenever we gather. ACLU writes that “security technology does not operate itself; people will be subject to the petty authority of some martinet guards who are constantly stopping them based on some AI-generated flag of suspicion.” We would add another concern. Could SENTRY be misused, just as FISA Section 702 and other surveillance authorities have been misused? What is to keep the government from accessing SENTRY data for warrantless political surveillance, whether against protestors or disfavored groups targeted by biased FBI agents? If this technology is to be deployed, guardrails are needed. PPSA seconds ACLU’s comment to the watchdog agency, the Privacy and Civil Liberties Oversight Board (PCLOB), that asks it to investigate AI-based programs as they develop. Congress should watch the results of PCLOB’s efforts and follow up with legal guardrails to prevent the misuse of SENTRY and similar technologies.  Supreme Court Justice Oliver Wendell Holmes observed that anyone “who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime.” A century after Justice Holmes delivered that warning, the U.S. Securities and Exchange Commission is doing just that. This agency is methodically sweeping all our traditions into the fire to direct fishing expeditions that treat every investor as a criminal suspect. The good news is that the constitutionality of the SEC’s program is on trial in a case now before a federal judge in Waco, Texas. Here’s the background: Historically, when the SEC has suspected someone of insider trading, it had to issue an investigative subpoena. Then in 2010, the market suffered the “flash crash” – a trillion-dollar decline caused by technical glitches that lasted for 36 minutes. The SEC responded to this technical glitch by proposing Rule 613, which established the Consolidated Audit Trail (CAT), a database that collects not just investors’ trades, but also their privately identifiable information. This “solution” had nothing to do with the crash, but it perfectly illustrates former Chicago Mayor Rahm Emmanuel’s dictum that “you never want a serious crisis to go to waste.” Rule 613 requires self-regulatory organizations, like private stock exchanges, to collect every detail about trades in securities on a U.S. exchange. It also includes confidential data on more than 100 million private investors, making it the largest database outside of the National Security Agency. This database includes investors’ names, dates of birth, taxpayer identification numbers, Social Security numbers, and more. Now two Texas investors, in affiliation with the National Center for Public Policy Research, are suing the SEC for this massive violation of privacy. Their lawsuit, represented by the New Civil Liberties Alliance, could be required reading for law students seeking to understand the application of our constitutional rights, beginning with the Fourth Amendment. This lawsuit makes the case:
The lawsuit makes a convincing case that the U.S. Supreme Court’s 2018 Carpenter decision – which held that the government violates the Fourth Amendment whenever it seeks a suspect’s cellphone location history without a warrant – should make this case against CAT a slam-dunk. After all, the plaintiffs assert that unlike the issue in Carpenter, “with Rule 613 SEC does not need an investigative predicate, much less a court order, to obtain and analyze private information, nor is the information limited to any particular person or time frame.” Even if a federal judge declares CAT to be unconstitutional, however, it will only strike down one of many intrusive violations of Americans’ financial privacy by federal agencies. These include a new requirement of all business owners to file “beneficial ownership” forms, for which any American business owner can face two years in prison for a clerical mistake, and the U.S. Treasury’s Financial Crimes Enforcement Networks snooping into Americans’ financial transactions with the coerced cooperation of 650 private financial institutions. Once the election is over, Congress should pass the “Protecting Investors' Personally Identifiable Information Act,” introduced by Sen. John Kennedy, (R-LA), and Rep. Barry Loudermilk, (R-Ga.), which would allow the SEC to obtain personally identifiable information only by requesting it on a case-by-case basis. As the risks of the SEC’s reckless program become clearer, more Members of Congress should embrace another Holmes dictum: “State interference is an evil, where it cannot be shown to be a good.”  The Securities and Exchange Commission is tracking the 61 percent of Americans who buy and sell stocks, from the trades they make to their personal identifying information. Some 3,000 SEC bureaucrats now have ready access to this database containing every single stock in the United States in a database called the Consolidated Audit Trail. Marc Wheat of Advancing American Freedom in The Washington Examiner writes: “The database is a disaster for the privacy of millions of people. In terms of the amount of information collected, only the National Security Agency’s data-collection program is larger, and that database is not focused on people. What is worse, these types of databases are not secure. In 2016, hackers made off with over $4 million by trading on at least 157 nonpublic earnings releases from the SEC’s very own Electronic Data Gathering, Analysis, and Retrieval system. “A commission that cannot protect a filing system that processes 1.7 million filings every year cannot be trusted to maintain the security of what will likely become a 100 million data point database. It is only a matter of time before it is breached, leaking people’s personal information to nefarious actors.” Police Chief: “A Nice Curtain of Technology” We’ve long followed the threat to privacy from the proliferation of automated license plate readers (ALPRs). Now the Institute for Justice has filed a lawsuit against the Norfolk, Virginia, police department for its use of this Orwellian technology. More than 5,000 communities across the country have installed the most popular ALPR brand, Flock, which records and keeps the daily movements of American citizens driving in their cars. Norfolk is an enthusiastic adopter of Flock technology, with a network of 172 advanced cameras that make it impossible for citizens to go anywhere in their city without being followed and recorded. Flock applies artificial intelligence software to its national database of billions of images, adding advanced search and intelligence functions. “This sort of tracking that would have taken days of effort, multiple officers, and significant resources just a decade ago now takes just a few mouse clicks,” the Institute for Justice tells a federal court in its lawsuit. “City officers can output a list of locations a car has been seen, create lists of cars that visited specific locations, and even track cars that are often seen together.” No wonder the Norfolk police chief calls Flock’s network “a nice curtain of technology.” The Institute for Justice has a different characterization, calling this network “172 unblinking eyes.” Americans are used to the idea of being occasionally spotted by a friend or neighbor while on the road, but no one expects to have every mile of one’s daily movements imaged and recorded. The nefarious nature of this technology is revealed in the concerns of the two Norfolk-area plaintiffs named in the lawsuit.
“If the Flock cameras record Lee going straight through the intersection outside his neighborhood, for example, the NPD (Norfolk Police Department) can infer that he is going to his daughter’s school. If the cameras capture him turning right, the NPD can infer that he is going to the shooting range. If the cameras capture him turning left, the NPD can infer that he is going to the grocery store […] “Lee finds all of this deeply intrusive. Even if ordinary people see him out and about from time to time, Lee does not expect and does not want people – much less government officials – tracking his every movement over 30 days or more and analyzing that data the way the Flock cameras allow the NPD and other Flock users to do.”
“As a healthcare worker, Crystal is legally and ethically required to protect her clients’ privacy,” the filing states. “She also understands that her clients expect her to maintain their confidentiality … If she failed to live up to those expectations, her business would suffer.” Both plaintiffs are concerned another Flock user, perhaps a commercial entity, might misuse the records of their movements. They are also worried about “the potential that Defendants, Flock users, or third-party hackers could misuse her information.” No warrants or permissions are needed for Norfolk officers to freely access the system. The Institute for Justice was shrewd in its selection of venues. Norfolk is in the jurisdiction of the federal Fourth Circuit Court of Appeals, which in 2021 struck down the use of drone images over the city in a case called Beautiful Struggle v. Baltimore Police Department. “The Beautiful Struggle opinion was about a relatively, comparatively, crude system, just a drone that was flying in the air for 12 hours a day that at most had a couple of pixels that made it hard to identify anyone,” Institute for Justice attorney Robert Frommer told 404 Media. “By contrast, anyone with the Flock cameras has a crystal-clear record of your car, a digital fingerprint that can track anywhere you go. The police chief even said you can’t really go anywhere in Norfolk without being caught by one of these cameras.” The consistent principle from the Fourth Circuit’s precedent should make it clear, in the words of the Institute for Justice, that tracking a driver “to church, to a doctor’s office, to a drug-abuse treatment clinic, to a political protest,” is unconstitutional.  The intelligence community’s disregard for solemnly made pledges reminds us of the hit song by the ‘80s new wave band Naked Eyes: “You made me promises promises/ Knowing I'd believe …” Forgive the Boomer reference, but the failure of the intelligence community to live up to its promises is also a golden oldie. For example, in 2017, Dan Coats was asked in a Congressional hearing if he would, if confirmed as Director of National Intelligence, provide public estimates of the number of people inside the United States with communications “incidentally” collected by National Security Agency surveillance. Coats said he would “do everything I can” to work with the head of the NSA “to get you that number.” That pledge was followed up by NSA Deputy Director Richard Ledgett to provide an estimate by the end of that year. This would have been important information for the reauthorization of FISA Section 702 in 2018, as well as congressional debate and reauthorization of this same authority this year. Section 702 allows the NSA to scour global networks in search of the communications of foreign spies and terrorists. Given the interconnected nature of global communications, surveillance technology cannot help but also collect the private communications of Americans at home, potentially violating the Fourth Amendment. Having a ballpark estimate of how many Americans have had their privacy rights implicated by federal surveillance would be very useful guidance for congressional oversight of the intelligence agencies. Yet, Director Coats and the NSA backtracked. Their estimates never came. Their excuse was that separating Americans from this global trawl would be too impractical, somewhat like counting all the krill picked up in a large fishing net. But this argument, to strain a metaphor, doesn’t hold water. The watchdog Privacy and Civil Liberties Board made it clear in 2023 that in order to comply with the Constitution’s Fourth Amendment, as well as directives from the Foreign Intelligence Surveillance Court (FISC), the NSA already filters out domestic communications in its programs. In 2022, Princeton researchers published a methodology for a rough estimate of how many people in the United States have their communications caught up under programs authorized by Section 702. Under such partial proxies, Congress could at least have some idea of how many Americans have their communications captured by their government. Beyond ballpark numbers, Congress needs to know how government agencies – the FBI in particular – might be using Americans’ personal information gleaned from Section 702 programs for warrantless domestic surveillance. Despite solemn promises by the champions of the intelligence community that this never happens, the FISC Court revealed that such surveillance has been used by the FBI in ordinary domestic cases – evidence against American citizens that is never revealed in court. Frustrated by the government’s many broken promises, PPSA joined with Restore The Fourth and 22 other civil liberties organizations across the ideological spectrum – ranging from the American Civil Liberties Union to Americans for Prosperity – to send a letter to the directors of national intelligence and NSA. We demand access to numbers that the government clearly has and pledged to Congress to provide. Director of National Intelligence Avril Haines and NSA Director Gen. Timothy Haugh would be well advised not to toss this one into the round file. The reauthorization of Section 702 passed by one tie-breaking vote in the House this year. If the government once again fails to keep its promise, it will not augur well for the next reauthorization of Section 702 on the legislative calendar for 2026. Government Promises to Protect Personal Data While Collecting and Using Americans’ Personal Data10/21/2024
 Digital data, especially when parsed through the analytical lens of AI, can detail almost every element of our personal lives, from our relationships to our location histories, to data about our health, financial stability, religious practices, and political beliefs and activities.
A new blog post from the White House details a Request for Information (RFI) from OMB’s Office of Information and Regulatory Affairs (OIRA) seeking to get its arms around this practice. The RFI seeks public input on “Federal agency collection, processing, maintenance, use, sharing, dissemination, and disposition of commercially available information (CAI) containing personally identifiable information (PII).” In plain language, the government is seeking to understand how agencies – from the FBI to the IRS, the Department of Homeland Security, and the Pentagon – collect and use our personal information scraped from our apps and sold by data brokers to agencies. This request for public input follows last year’s Executive Order 14110, which represented that “the Federal Government will ensure that the collection, use, and retention of data is lawful, is secure, and mitigates privacy and confidentiality risks.” What to make of this? On the one hand, we commend the White House and intelligence agencies for being proactive for once on understanding the privacy risks of the mass purchase of Americans’ data. On the other hand, we can’t shake out of our heads Ronald Reagan’s joke about the most terrifying words in the English language: “I’m from the government and I’m here to help.” The blog, written by OIRA administrator Richard L. Revesz, points out that procuring “CAI containing PII from third parties, such as data brokers, for use with AI and for other purposes, raises privacy concerns stemming from a lack of transparency with respect to the collection and processing of high volumes of potentially sensitive information.” Revesz is correct that AI elevates the privacy risks of data purchases. The government might take “additional steps to apply the framework of privacy law and policy to mitigate the risks exacerbated by new technology.” Until we have clear rules that expressly lay out how CAI is acquired and managed within the executive branch, you’ll forgive us for withholding our applause. This year’s “Policy Framework for Commercially Available Information” released by Director of National Intelligence Avril Haines, ordered all 18 intelligence agencies to devise safeguards “tailored to the sensitivity of the information” and produce an annual report on how each agency uses such data. It is hard to say if Haines’ directive represents a new awareness of the Orwellian potential of these technologies, or if they are political theater to head off legislative efforts at reform. Earlier this year, the U.S. House of Representatives passed the Fourth Amendment Is Not For Sale Act, which would subject purchased data to the same standard as any other personal information – a probable cause warrant. The Senate should do the same. The government’s recognition of the sensitivity of CAI and accompanying PII is certainly a step in the right direction. It is also clear that intelligence agencies have every intention of continuing to utilize this information for their own purposes, despite lofty proclamations and vague policy goals about Americans’ privacy. To quote Ronald Reagan again, when it comes to the promises of the intel community, we should “trust but verify.”  The recent approval of the House Intelligence Committee’s annual intelligence policy bill sets up a critical moment for the ongoing debate over surveillance powers, particularly the controversial FISA Section 702. While the bill does not include a provision to narrow the definition of "electronic communication service providers" (ECSP), this issue will soon come to a head in the House-Senate conference. Rep. Jim Himes (D-CT) signaled his acceptance of Senate Intelligence Chair Mark Warner’s "technical fix," which would narrow the scope of the ECSP definition. Himes said the change “would be totally fine with me,” and that “I always believed that the language was overbroad in the initial amendment…” This change would prevent ordinary businesses—like coffee shops or small offices—from being forced to assist in government surveillance. While Himes expressed he would be "totally fine" with Warner’s proposal, the issue has yet to be fully debated or incorporated into House legislation. We’ve seen efforts at reform falter before, and the final outcome will be determined behind closed doors in the House-Senate conference, where transparency is sorely lacking. As we’ve previously noted, broadening the ECSP definition without clear limitations would create a “Make Everyone a Spy” law, enlisting small businesses into the surveillance apparatus. Moreover, the administration’s reassurance that the law will only be applied to specific providers, based on a classified FISA court decision, is insufficient. History shows that such promises often erode over time, allowing the intelligence community to expand its surveillance reach through legal loopholes. John Wiegmann, the new top lawyer for the Office of the Director of National Intelligence, also supported Warner’s. But as with everything, we want to see the changes in writing in the bill. The closed-room conference between the House and Senate is where these decisions will play out, but the lack of public scrutiny makes it a fraught process. Given past betrayals on surveillance reform, we have ample reason for anxiety. Privacy advocates must remain vigilant and press for real reforms that ensure no further expansion of surveillance powers. The House and Senate need to guarantee that any changes made truly limit the scope of ECSPs and protect Americans from warrantless data collection. PPSA will be monitoring this situation closely as it unfolds.  The Project for Privacy and Surveillance Accountability recently submitted a series of FOIA requests to law enforcement and intelligence agencies seeking critical information on how the agencies handle data obtained through the use of cell-site simulators, also known as Stingrays or Dirtboxes, which impersonate cell towers and collect sensitive data from wireless devices. Specifically, PPSA submitted requests to DOJ, CIA, DHS, NSA, and ODNI. These requests focus on what happens after the government collects this data. As PPSA’s requests state, PPSA “seeks information on how, once the agency obtains information or data from a cell-site simulator, the information obtained is used.” We are particularly interested in learning about the agencies’ policies for data retention, usage, and deletion, especially for data collected from individuals who are not the target of surveillance. PPSA has long been concerned with the invasive nature of these surveillance tools, which capture not only targeted individuals' data but also data from anyone nearby. As we previously stated in a 2021 FOIA request, “this technology gives the government the ability to conduct sweeping dragnets of metadata, location, and even text messages from anyone within a geofenced area.” These FOIA requests specifically demand transparency about what happens after the government collects such data. We seek records regarding policies on data retention, use, and destruction, particularly for information unrelated to surveillance targets. As our requests state, “PPSA wishes to know what policies govern such use and what policies, if any, are in place to protect the civil liberties and privacy of those whose data might happen to get swept up in a cell-site simulator’s data collection activities.” As we previously highlighted, Stingrays represent a significant intrusion into personal privacy, and we are committed to holding the government accountable for its use of such tools. By pursuing these requests, we aim to inform the public about the scope and potential risks of the agencies’ surveillance activities, and to push for greater safeguards over Americans’ private information. PPSA will continue to push towards transparency, and we will keep the public informed of our efforts.  An important analysis from Real Clear Investigations probes the extent to which censorship abroad threatens the First Amendment here at home. Writer Ben Weingarten asks whether foreign demands that domestic media companies operating abroad comply with those nations’ often far more censorial legal requirements will lead in turn to more censorship here at home. The preponderance of the evidence suggests bad news for fans of the First Amendment. Weingarten points specifically to the European Union’s Digital Services Act, which imposes content moderation standards that far exceed what would be considered constitutional in the United States. For example, companies doing business in the EU must combat “illegal content online,” which includes the disfavored rhetoric like “illegal hate speech.” Writes Weingarten: “Platforms also must take ‘risk-based action,’ including undergoing independent audits to combat ‘disinformation or election manipulation’ – with the expectation those measures should be taken in consultation with ‘independent experts and civil society organisations.’ The Commission says these measures are aimed at mitigating ‘systemic issues such as … hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms’ driven by ‘harmful’ but not illegal content.” What’s more, investigations pursuant to the DSA can result in fines of up to 6% of annual global revenue, a potential outcome likely to give companies like X and Facebook pause when considering whether to comply with the invasive oversight of European bureaucrats and NGOs serving as arbiters of the appropriate. Then there’s the question of whether social media companies that agree to the EU’s demands are likely to run parallel services – for example, a DSA compliant version of X and another that is consistent with the requirements of the First Amendment. Elon Musk seemed willing to abandon Brazil after that country banned X for failing to de-platform the account of former president Jair Bolsonaro. (Though Musk’s company is now very much back in business there.) But the EU is a much bigger market with a lot more monetizable users. As Weingarten documents, the punishment of media companies abroad for speech that is well within the bounds of the First Amendment is a growing trend – not just in the EU but also in countries like the UK and Australia. And Weingarten reserves no small amount of criticism for the Biden Administration’s silence – and even capitulation – in the face of such foreign censorship. Bills like the No Censors on our Shores Act, which could “punish foreign individuals and entities that promote or engage in the censorship of American speech,” offer one potential solution to foreign censorship creep. So do articles like Weingarten’s, which provide a much-needed diagnosis of our speech-related ailings and failings.  The Cato Institute is challenging the FBI and Department of Justice in court to demand transparency regarding the government’s warrantless surveillance practices under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The lawsuit, brought under the Freedom of Information Act (FOIA), seeks the release of records on how well the FBI is complying with restrictions placed on the use of this controversial program. Section 702 allows U.S. agencies to monitor communications between foreigners abroad, but it has also been used to capture the communications of Americans, leading to allegations of overreach and privacy violations. Despite bipartisan efforts in Congress to reform or even dismantle Section 702, the public has been kept in the dark about whether any meaningful changes have occurred. Cato has been stonewalled in its efforts to obtain information that could reveal the extent of this surveillance. As Cato Senior Fellow Patrick Eddington pointed out: “When the FBI stonewalls public records requests about a massive surveillance program that gobbles up billions of communications yearly — including yours and mine — it’s violating the law… A law its agents and managers are sworn to uphold.” This case is about more than just documents; it’s about shedding light on potential abuses of power and ensuring that the law protects ordinary citizens from unwarranted government surveillance. The lawsuit raises an essential question about the balance between national security and civil liberties. Without transparency, it's impossible to know whether surveillance programs are being misused or if they adequately protect Americans’ privacy. Cato’s case is a crucial step toward uncovering whether the FBI is following the legal limits placed on Section 702 or if it continues to overreach under the cover of secrecy. If successful, this case could force the government to reveal whether it is truly adhering to the law in its use of FISA's broad surveillance powers. At stake is the privacy of millions of Americans whose communications could be intercepted without their knowledge or consent. This case deserves attention from everyone who values privacy and accountability. PPSA is proud to support Cato’s efforts to push for a future where government overreach is kept in check and individual liberties are safeguarded. We look forward to further developments in this case.  The intelligence agencies are, on paper, subject to congressional oversight. From the Senate’s Church Committee that revealed CIA misdeeds in the 1970s, to the current revelations of the House Judiciary Committee about domestic political surveillance by the federal government, the nation has benefited from the watchdog role of Congress.
But such moments are rare. Many congressional attempts to peer into the actual intelligence operations of federal agencies amount to howling in the wind. Often, the agencies don’t bother to even answer congressional queries with substantive responses, if they reply at all. This includes efforts to learn if the agencies are spying on those tasked with overseeing them. The arrogance of the agencies arises from the fact that Congress doesn’t know what it is overseeing. Often accused of fishing expeditions by the intelligence community, Congress is reduced to fishing for the lack of a diving mask to see clearly. When few congressional staff members are given the top secret/sensitive clearances, they cannot inform their bosses what is actually going on within the intelligence agencies. Historically, only a few staffers for a few select committees, such as the House and Senate intelligence committees, were given clearances. The actual Members of these committees, tasked with many other responsibilities, simply don’t have the time to go into a secure compartment to do a deep dive into the hundreds of pages of classified documents that reveal how federal agencies might be conducting warrantless surveillance on Americans. In 2021, Majority Leader Chuck Schumer changed that for the Senate. He took the bold step to improve oversight by the Senate by allowing top secret/sensitive clearance to be available for one personal aide per senator. The intelligence community and its champions on the Hill now resolutely oppose, behind the scenes of course, extending a similar rule to one personal aide for each House Member. Members should take this as the calculated insult that it is. Every aide granted clearance, like those in the Senate, would have to clear an FBI background check. The idea that a few hundred clearances cannot be extended to trusted advisors of House Members accountable to their constituents is laughable given that the federal government itself issues an estimated 1.3 million top-secret security clearances to people working in the intelligence community and consultants. Yet only a small number of staffers in the U.S. House of Representatives are allowed to review top secret information for their Members. The good news is that it doesn’t have to be this way. We don’t need a new law. All that is needed is for the next Republican or Democratic House majority to ensure that wider access to clearances is part of the House Rules package for the 119th Congress that begins in January. Even without enhanced Congressional oversight, what we have learned about federal government surveillance abuse has kept PPSA busy since we began five years ago. What we don’t know is undoubtedly more significant. House Members of all political leanings have a stake in extending Congressional oversight in a healthy way. What better way to kick off the next Congress?  Sen. Mike Lee (R-UT) (Pictured Left) and Sen. Rick Scott (R-FL) (Pictured Right) Sen. Mike Lee (R-UT) is advancing his new Saving Privacy Act to protect Americans’ personal financial information from warrantless snooping by federal agencies.“The current system erodes the privacy rights of citizens, while doing little to effectively catch true financial criminals,” Sen. Lee said. The bill’s co-sponsor, Sen. Rick Scott (R-FL), added: “Big government has no place in law-abiding Americans’ personal finances. It is a massive overreach of the government and a gross violation of their privacy.”
Are these two senators paranoid? Or are they reacting to genuine “massive overreach” from a government that already illicitly spies on Americans’ personal finances? Consider what PPSA has reported in the last three years:
“Traditionally, Americans’ financial holdings are kept between them and their broker, not them, their broker, and a massive government database,” state auditors and treasurers wrote in a recent letter to House Speaker Mike Johnson. “The only exception has been legal investigations with a warrant.”
TRAC sucks in wire transfers within the United States between American citizens, as well as with those sending or receiving money from abroad. Sen. Wyden told The Wall Street Journal that TRAC lets the government “serve itself an all-you-can-eat buffet of Americans’ personal financial data while bypassing the normal protections for Americans’ privacy.”
Could that actually happen? It did across the border, when the Canadian government used emergency powers to debank truckers engaged in a political protest. At home, the tracking of Americans’ spending is a Fourth Amendment violation that inevitably leads to the degradation of the First Amendment.
Sen. Lee’s bill counters this financial surveillance state by repealing many of the reporting requirements of the Bank Secrecy Act. It also repeals the Corporate Transparency Act (which forces small businesses to reveal their ownership), closes the SEC’s database on Americans’ trades, prohibits the creation of a Central Bank Digital Currency, and requires congressional approval before any agency can create a database that collects personally identifiable information of U.S. citizens. Finally, Sen. Lee’s Saving Privacy Act would institute punishments for federal employees who release Americans’ protected financial information, while establishing a private right of action for Americans and financial institutions harmed when their privacy is compromised by the government. The Saving Privacy Act is a landmark bill that deserves to become the basis of debate and action in the next Congress.  A whitepaper from social media company Meta presents a startling new reality in bland language. It claims that magnetoencephalography (MEG) neural imaging technology “can be used to decipher, with millisecond precision, the rise of complex representations generated in the brain.”
In layman’s terms, AI can crunch a person’s brainwaves and apply an image generator to create an astonishingly accurate representation of what a person has seen. Paul Simon was right, these really are the days of miracles and wonders – and also of new threats to personal privacy. (If you want to see this science-fictional sounding technology in action, check out these images from science.org to see how close AI is to representing images extrapolated from brain waves.) Until now, even in a total surveillance state such as North Korea or China, netizens could have their faces, movements, emails, online searches and other external attributes recorded throughout the day. But at least they could take comfort that any unapproved thoughts about the Dear Leader and his regime were theirs and theirs alone. That is still true. But the robustness of this new technology indicates that the ability of brain data to fully read minds is not far off. Researchers in China in 2022 announced technology to measure a person’s loyalty to the Chinese Communist Party. A number of non-invasive brain-wave reading helmets are on the U.S. market for wellness, education, and entertainment. The Members of the California State Assembly and Senate were sufficiently alarmed by these developments to follow the example of Colorado and regulate this technology. This new law amends the California Consumer Privacy Act to include “neural data” under the protected category of “personal sensitive information.” On Saturday, Gov. Gavin Newsom signed that bill into law. Under this new law, California citizens can now request, delete, correct, and limit what neural data is being collected by big tech companies. We know what you’re thinking, would I be sufficiently concerned about my privacy that I would register with a state-mandated database to make changes to my privacy profile? Actually, that was just our best guess about what you’re thinking. But give it a few years.  The Customs and Border Patrol (CBP) has little respect for the Fourth Amendment. From international airports to border stations, Americans returning from abroad often fall prey to the routine CBP practice of scanning their laptops, mobile phones, and other digital devices without a warrant.
As if that were not enough, CBP also scans people’s faith, violating their First Amendment rights as well. Consider the case of Hassan Shibly, a U.S. citizen and student at the University of Buffalo Law School. When he returned to the United States in 2010 with his wife, a lawful permanent resident, and their seven-month-old son, from a religious pilgrimage and family visit in the Middle East, Shibly was taken aside by CBP agents. A CBP officer asked him: “Do you visit any Islamist extremist websites?” And: “Are you part of any Islamic tribes?” And then the kicker: “How many gods or prophets do you believe in?” Other returning Muslim-Americans are interrogated about the mosques they attend, their religious beliefs, and their opinions about the U.S. invasion of Iraq and support for Israel. One New Jerseyan, Lawrence Ho, attended a conference in Canada and returned to the United States by car. He was asked: “When did you convert?” Ho does not know how the agent knew he had converted to Islam. A group of Muslim-Americans, fed up by this treatment, are now being represented by the American Civil Liberties Union in a suit before the Ninth Circuit Court of Appeals against CBP for civil rights violations. The plaintiffs are correct that subjecting Americans to deep questions about their faith – as a condition to reentry to their home – violates their First Amendment rights, as well as the Religious Freedom Restoration Act (RFRA). Ashley Gorski, senior staff attorney with ACLU’s National Security Project, said that “this religious questioning is demeaning, intrusive, and unconstitutional. We’re fighting for our clients’ rights to be treated equally and to practice their faith without undue government scrutiny.” To be fair, CBP has its work cut out for it when it comes to screening the border for potential terrorists. And we should not avert our eyes to the fact that there are sick and dangerous ideologies at work around the world. But we are also fairly confident that actual terrorists would not be stumped by the kind of naïve and unlawful interrogations CBP has imposed on these returning Americans. Heavy-handed questions about adherence to one of the great world religions doesn’t seem to be a useful security strategy or a demonstration that our government is familiar with its own Constitution.  A Federal Trade Commission staff report released last week got huge play in the media. We were bombarded by stories about the FTC’s report that Meta, YouTube, and other major social media and video streaming companies are lax in controlling and protecting the data privacy of users, especially children and teens.
There is much in this report to consider, especially where children are concerned. But there was also a lot that was off-target and missing. The FTC’s report blithely recommended that social media and video streaming companies abandon their practice of tracking users’ data. This would be no small thing. Without the tracking that allows Facebook to know that you’re an aficionado of, say, old movie posters, you would not receive ads in your feed trying to sell you just that – old movie posters. Forbid the trade-off in which we give away a bit of our privacy for a free service, and overnight large social media companies would collapse. Countless small businesses would lose the ability to go toe-to-toe with big brands. Trillions of dollars in equity would evaporate, degrading the portfolio of retirees and putting millions of Americans out of work. In a crisply written concurring and dissenting statement, FTC Commissioner Andrew Ferguson notes that the FTC report “reveals this mass data collection has been very difficult to avoid. Many of these products are necessities of modern life. They are critical access points to markets, social engagement, and civil society.” Ferguson looks beyond what the advertising logarithms of Meta or Google do with our data. He looks to how our data is combined with information from a host of sources, including our location histories from our smartphones, to enable surveillance. It is this combination of data, increasingly woven by AI, that creates such comprehensive portraits of our activities, beliefs and interests. These digital dossiers can then be put up for sale by a third-party data broker to any willing buyer. Ferguson writes: “Sometimes this information remains internal to the company that collected it. But often, they share the information with affiliates or other third parties, including entities in foreign countries like China, over which the collecting company exercises no control. This information is often retained indefinitely, and American users generally have no legal right to demand that their personal information be deleted. Companies often aggregate and anonymize collected data, but the information can often be reassembled to identify the user with trivial effort. “This massive collection, repackaging, sharing, and retention of our private and intimate details puts Americans at great risk. Bad actors can buy or steal the data and use them to target Americans for all sorts of crimes and scams. Others, including foreign governments who routinely purchase Americans’ information, can use it to damage the reputations of Americans by releasing, or threatening to release, their most private details, like their browsing histories, sexual interests, private political views, and so forth.” We would add that the FBI, IRS, and a host of other federal law enforcement and intelligence agencies also purchase our “dossiers” and access them without warrants. As dangerous as China is, it cannot send a SWAT team to break down our doors at dawn. Only our government can do that. The FTC report ignores this concern, focusing on the commercial abuses of digital surveillance while ignoring its usefulness to an American surveillance state. It is no small irony that a federal government report on digital surveillance doesn’t concern itself with how that surveillance is routinely abused by government. This insight gives us all the more reason to urge the U.S. Senate to follow the example of the House and pass the Fourth Amendment Is Not For Sale Act. This legislation requires the FBI and other federal agencies to obtain a warrant before they can purchase Americans’ personal data, including internet records and location histories. It is also time for Congress to shine a bright light on data brokers to identify all the customers – commercial, foreign, and federal – who are watching our digital lives.  This year, the coalition of surveillance reformers in Washington, D.C., mounted the most spirited, bipartisan campaign in legislative history.
The reform coalition fought to require warrants for FISA Section 702, which authorizes the government to surveil foreign threats on foreign soil but is often used to spy on Americans. The House also passed the Fourth Amendment Is Not For Sale Act, which would forbid the warrantless collection of Americans’ personal, digital information. How did we do? The Section 702 fix was lost to a single, tie-breaking vote in the House. The Fourth Amendment Is Not For Sale Act remains stuck behind last-minute business in the Senate. It is easy for surveillance reformers to feel like Sisyphus, rolling legislative stones up Capitol Hill only have them come tumbling back down. But national reformers should take heart from the example set by Utah, which proves that surveillance reform is popular and that reasonable compromises can be set into law. Start with geofence warrants, which use a reverse search technique to pluck the identities of criminal suspects out of pools of data extracted from a given area. The federal Fifth and Fourth Circuit Courts of Appeal have taken starkly opposite views over whether geofence warrants can be allowed. The Fifth Circuit finds them to be inherently unconstitutional. The Fourth Circuit finds them to raise no Fourth Amendment issues at all. Meanwhile, the intrusion of government snooping grows. Google reports that requests for geofence warrants grew by 9,000 in 2019 to 11,500 in 2020. That number is surely much higher today. When the U.S. Supreme Court inevitably wades into this issue to resolve the circuit split, the Justices would well to consider the example set by Utah. Last year, Utah passed HB57, which balances law enforcement’s protection of public safety with the privacy rights of Utahans in law enforcement’s use of geofencing. Leslie Corbly of the Libertas Institute in Utah reports that as a result of this new law, police must now submit requests for geofence data to a judge for a warrant application. This new law also mandates that warrant applications must “include a notification to judges regarding the nature of a geofence search by way of a map or written description showing the size of the virtual geofence.” Results from the search must be specified and reported to the court, including not just the identification of criminal perpetrators, but also people not involved in a crime. Armed with enough information to evaluate the merits of a warrant request, judges remain involved with geofence warrants throughout the process. Finally, state law enforcement agencies must report the number of geofence warrants requested, the number approved by a judge, the number of investigations that used information obtained through a geofence warrant, and the number of electronic devices used for this collection. Mike Maharrey of the Tenth Amendment Center reports that Utah has “chipped away at the surveillance state,” passing laws limiting surveillance of all kinds. These include:
Utah demonstrates to Congress and the Supreme Court that we can place limits on surveillance while accepting reasonable access to information agencies need to protect the public. Gary Herbert, a former governor of Utah who signed many of these measures into law, said “Utah is no longer a flyover state.” When it comes to surveillance reform, Utah is a state that should lead the nation. And Utah should be an inspiration to reformers in Congress to keep pushing those boulders all the way to the top of the Hill.  Does Congress have oversight of the federal intelligence community, or do the spies and intelligence officials have oversight of Congress?
Under our Constitution, the answer should be obvious – the legislative branch oversees executive agencies. Besides, no American should want spies and intelligence officials looking over the shoulders of our elected representatives. That is why the founders established Congress in Article One of the Constitution. And yet, at times, it seems as if the intelligence community regards oversight of Congress as its legitimate business. We learned last year that Jason Foster, the former chief investigative counsel for Sen. Chuck Grassley – Ranking Member of the Senate Judiciary Committee – is among numerous staffers and Congressional lawyers, Democrats and Republicans, who had their personal phone and email records searched by the Department of Justice in 2017. Foster later founded Empower Oversight Whistleblowers & Research, which went to court to press for disclosure of the misuse of Justice’s subpoena power that risked identifying confidential whistleblowers who provided information to Congress about governmental misconduct. Now federal Judge James E. Boasberg has ordered the partial unsealing of a Non-Disclosure Order (NDO) application filed by the Department of Justice to prevent Google from notifying users like Foster that their phone records, email, and other communications were ransacked by the Justice Department. This is a significant victory for transparency. We eagerly await the results of the unsealed NDO for clues about the Justice Department’s intentions in spying on Congressional attorneys with oversight responsibility. In the meantime, PPSA continues to use every legal means to press a Freedom of Information Act request seeking documents on “unmasking” and other forms of surveillance of 48 current and former House and Senate Members on committees that oversee the intelligence agencies. We will alert you about any further revelations from the court. In the meantime, the Senate can do its part by following up on the unanimous passage of the Non-Disclosure Order Fairness Act by the House. This bill restricts the government’s currently unlimited ability to impose gag orders on telecom and digital companies. These gag orders keep these companies’ customers from learning that their sensitive, personal information has been surveilled by the government. As Congress learns about the degree to which its Members are being watched by the executive branch, the NDO Fairness Act should be more popular than ever. |
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