Last week, leading civil libertarians – including PPSA’s own Senior Policy Advisor Bob Goodlatte – addressed Members of Congress and staff in a virtual conference detailing the need to add reforms to Section 702 of the Foreign Intelligence Surveillance Act.
Rep. Zoe Lofgren (D-CA) posted a particularly succinct and yet comprehensive description of the principles at stake in this debate. She addresses FBI Director Christopher Wray’s admission that the Bureau had purchased Americans’ location information without a court order. She noted the habit of the government to purchase our most sensitive data, bypassing “the Fourth Amendment simply by writing a check.”
Rep. Lofgren sets out what’s wrong, what needs to change, and the growing bipartisan determination to get real reform this year. She reminds us that “Congress can enact privacy protections for Americans without compromising national security, as it has done many times in the past.”
By the end of 2023, Congress must decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Section 702 was intended to provide U.S. agencies with the statutory authority to collect intelligence only from foreigners abroad. Unfortunately, for over a decade, agencies have abused this authority, using loopholes in Section 702 to conduct warrantless surveillance on millions of Americans.
For example, a report published by ODNI in April 2022 disclosed that, in 2021 alone, the FBI conducted as many as 3.4 million searches of Section 702-acquired data for information about Americans and their communications. And in 2018, Foreign Intelligence Surveillance Court (FISC) Judge James Boasberg rebuked the FBI for improper use of 702 databases against Americans. The misuse of this surveillance is “widespread.” The FISC also revealed that the FBI has used warrantless NSA data in a range of cases involving purely domestic issues.
Such a system is worse than broken. It is assembling the elements for a pervasive, unaccountable surveillance state. Congress should not reauthorize Section 702 without making significant reforms to ensure these abuses do not continue under any authority.
Legislation that reauthorizes Section 702 must ensure compliance with key principles:
These principles are critical to Americans’ privacy and civil liberties. In 2023, Congress must end the pervasive abuse of Section 702 and other surveillance authorities.
Fourth Amendment, U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
2022 Year in Review: FOIA Revelations and Growing Bipartisan Support for Critical Reform Measures
The Project for Privacy and Surveillance Accountability wore holes in the bottoms of our shoes on Capitol Hill to advocate for common sense reforms of federal surveillance practices. We also wrestled with federal agencies in court to glean insights into the state of surveillance. Through our Freedom of Information Act (FOIA) requests and lawsuits, we compelled the release of documents about how federal agencies are getting around the Fourth Amendment of the U.S. Constitution to access our most private information.
PPSA’s Legislative Year
PPSA was instrumental in helping pass the NDO Fairness Act in the U.S. House of Representatives in 2022. This bill promises to curb the routine government practice of using Non-Disclosure Orders to block telecommunication service providers from notifying their customers that a search of their personal information has been conducted by prosecutors.
PPSA encouraged Members of Congress in both parties to sponsor the Fourth Amendment Is Not for Sale Act. This measure would require law enforcement and intelligence agencies to seek probable cause warrants before accessing our personal information scraped from social media and apps.
We also built on our advocacy that helped the Lee-Leahy Amendment pass the U.S. Senate with 77 votes in 2020. This amendment would require the secret Foreign Intelligence Surveillance Court to appoint an expert attorney to represent the privacy interests of American citizens – a common sense requirement in a court with secret operations that continues to withhold some of its past rulings to this day.
PPSA goes into 2023 with the firm intention of encouraging our champions in the House and Senate to block the reauthorization of Section 702 unless these necessary reform measures are attached to that authority or passed separately.
Freedom of Information Act Revelations
PPSA argued before a federal court that challenges the government’s abuse of the Glomar doctrine, a judicially created maneuver that allows the government to neither “confirm nor deny” the existence of records in response to a FOIA request. We have highlighted the absurd, Catch-22 response from the FBI that it cannot even conduct an internal search for its own documents (in this case, correspondence between the bureau and Members of Congress) without endangering national security.
Other FOIA requests have challenged the secret practices of U.S. law enforcement and intelligence agencies, as well as the suppression of judicial opinions. One such PPSA FOIA yielded an FBI document revealing its collection of web browsing histories of Americans.
“This shows the FBI has a secret policy governing the collection of web browsing data of Americans,” responded Gene Schaerr, PPSA general counsel. “Web browsing data is deeply personal information. It can highlight a person’s religious beliefs, political allegiances, and personal relationships.”
Another PPSA FOIA request is seeking to obtain the secret opinions of the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review.
“The very idea of secret law – which can affect the free expression and privacy of millions of Americans – is not compatible with the basics of American democracy,” Gene Schaerr declared in a public statement. “These secret precedents and opinions are corrosive to the operations of a free society. It’s time for the government to come clean.”
Other recent revelations revealed by PPSA FOIA requests show that training documents for U.S. Attorneys require them to “always” seek a Non-Disclosure Order with a warrant application or subpoena. Our FOIA request also revealed documents that direct U.S. Attorneys to seek targets’ location histories from email, social media, or web hosting providers.
In the Courts
PPSA petitioned the U.S. Supreme Court in Torcivia v. Suffolk County to decide whether the Fourth Amendment recognizes a “special-needs” exception to the Constitution’s warrant requirement. Although the petition was ultimately denied, we cast a spotlight on the importance of the High Court ruling on law enforcement’s exceptions to the Fourth Amendment.
In short, 2022 was a building year. Major reform legislation, from Lee-Leahy, to the Fourth Amendment Is Not for Sale Act, to the NDO Fairness Act, have attracted growing bipartisan support and momentum for passage. We look forward to a productive year, both on Capitol Hill and what can be learned about secret surveillance through the courts.
Bipartisan Stake in Republican FBI Report
Republicans of the House Judiciary Committee recently released a 1,000 page report concerning the creeping politicization of the Federal Bureau of Investigation and the Department of Justice. The report describes the “FBI’s Washington hierarchy as ‘rotted at its core’ with a ‘systemic culture of unaccountability.’”
Though it was drafted by House Republicans, Democrats should be worried enough about the scale and scope of abuses to jointly investigate at least some of the reports’ allegations.
Internet conspiracy theories notwithstanding, the report demonstrates all the valid reasons to be concerned about the integrity of the FBI. Michael Horowitz, the Inspector General of the U.S. Department of Justice, called out the rampant abuses, noncompliance, and mishandling that goes on daily within the Bureau. That such criticism comes from a senior official, a Democrat, now serving in President Biden’s Administration, should demonstrate the bipartisan nature of these concerns.
Under the Foreign Intelligence Surveillance Act (FISA), the FBI is authorized to examine data likely to return foreign intelligence information. Sometimes, U.S. citizens or residents get incidentally caught up in calls, texts, or emails with a targeted foreigner. In these cases, oversight should ensure constitutional rights are protected. One would expect in such a system, then, that “incidental” collections of U.S. person information would be modest.
According to information from the Office of the Director for National Intelligence, however, the FBI conducted an estimated 3,394,053 U.S. person queries in 2021. This is a staggering increase over the approximately 1,324,057 U.S. person queries conducted in the previous year.
The Foreign Intelligence Surveillance Court (FISC) disclosed numerous instances in which the FBI queried acquired information for criminal investigations and reviewed content results without first obtaining court permission. Judge James E. Boasberg, then-presiding judge of the FISC, concluded that “the Court is concerned about the apparent widespread violations …”
Most familiar is the FBI’s abuse of its FISA authority to illegally surveil former Trump campaign associate Carter Page. IG Horowitz reported “17 significant ‘errors or omissions’ and 51 wrong or unsupported factual assertions in the applications to surveil Page.” An FBI lawyer went so far as to manufacture evidence presented to a judge to support surveillance against Page. The Justice Department was later forced to admit that the whole basis for this secret surveillance of a presidential campaign aide was flawed. But by then, the damage to civil liberties was done.
The FBI may also be maintaining the technological capacity to unleash “zero-click” spyware programs, including NSO Group’s Pegasus. The U.S. Commerce Department has put Pegasus’ developer, NSO Group, on a list of foreign companies that restricts the ability of U.S. companies to work with it, but that didn’t stop the FBI from obtaining, testing, and retaining it for later use.
In March, members of the Judiciary Committee wrote to FBI Director Wray seeking documents and information relating to the FBI’s acquisition, testing, and uses of NSO Group’s spyware. The FBI has provided none of the requested documentation, while concerns about its intentions with such a dangerous piece of spyware only grow.
As has been reiterated by Republicans, Democrats, and President Biden’s own Inspector General, there is serious cause for concern about the agency’s hierarchy, culture, and use of its authorities.
We all have a stake in these investigations.
Measure to Bring Civil Liberties Experts into Secret Court
George Washington is often quoted as telling Thomas Jefferson that the Senate was meant to “cool” hot legislation from the House, just as saucers were used to cool tea. Senators today furiously debate whether the extra-constitutional rule that enables the filibuster is needed to facilitate the cooling of political passions, or if the 60-vote threshold has transformed the Senate into an abattoir for change of any sort.
Whichever side one comes down on in that debate, shouldn’t the Senate move swiftly on an issue it had already overwhelmingly approved with a filibuster-proof majority in the recent past?
In 2020, 77 senators voted in favor of the measure then known as the Lee-Leahy Amendment, which would give the secret Foreign Intelligence Surveillance Court (FISC) access to independent advice from experts on civil liberties, known as amici, when the government seeks to spy on domestic media, as well as religious, political, and other particularly sensitive groups. The amendment died when the underlying bill reauthorizing government access to business records was pulled at the last minute by President Trump.
Now known as Leahy-Lee, this measure is being proposed as an amendment to the defense authorization bill. Leahy-Lee would satisfy liberal concerns that the FBI uses powers meant for foreign intelligence to target the First Amendment rights of vulnerable minorities and protest groups. Conservatives have fresh reason for concern given the revelations from the Durham investigation about FBI applications before the FISC to spy on a presidential campaign aide. Time and again, the FBI has proven reckless and disingenuous.
Aside from National Eat a Peach Day and the like, a 77-vote margin is about as enthusiastic a showing as any substantive bill gets in the Senate. And yet when there was a recent chance to append Leahy-Lee to the National Defense Authorization Act for 2023, the amendment appeared nowhere in the manager’s report.
The Project for Privacy and Surveillance Accountability is joining with the American Civil Liberties Union, Americans for Prosperity, Demand Progress, the Due Process Institute, FreedomWorks, Restore the Fourth, and the Wikimedia Foundation to call on senators to hold a floor vote on Leahy-Lee now or in the coming lame duck session.
In our coalition letter, we told the Senate that “Leahy-Lee would safeguard Americans’ First Amendment rights by empowering the Court with the advice of amici when government seeks to use foreign intelligence surveillance in such sensitive investigative matters. Expert amici are the only representatives the public has before the FISC, even though these court decisions can secretly affect the privacy of every single person in the United States.”
We urge the Senate to show that it can respond to popular support and broad, bipartisan agreement in its own ranks to hold a vote on this needed check and balance on federal surveillance.
Senate Courts a Zero Rating on Privacy
PPSA rated the 116th Congress (2019-2021) for votes to protect the privacy of Americans from intrusive surveillance. In the Senate, for example, 77 Senators voted in 2020 for a measure that would require a qualified legal expert to represent the civil liberties interests of the American people in sensitive cases before the secret Foreign Intelligence Surveillance Court (FISC). As a result of this and other key votes, PPSA was able to rate each Member of the Senate and House on a scale of 0 to 5 on their support for privacy.
Arizona Sen. Kyrsten Sinema, for example, received a rating of 4, reflecting her strong stand in multiple votes for the measure to require civil liberties perspectives for sensitive FISC cases. As the Senate nears the end of the 117th Congress, and Senators turn their attention to the midterm elections in 2022, popular, viable, ready-to-pass bills on privacy and surveillance are at the ready. But will they actually get a vote on the Senate calendar?
These measures include:
The House has done a solid job of passing bills that protect Americans’ privacy from government surveillance. Their companion bills enjoy strong bipartisan support from leaders that include Sens. Patrick Leahy, Mike Lee, Steve Daines, Ron Wyden, and others. We hope the full Senate follows their lead. We want to give all Senators a strong rating for following these privacy leaders and passing measures to restore at least some of Americans’ privacy.
Should We Dismantle the FBI?
Charles C.W. Cooke in National Review recently penned a provocative essay that says what some conservative Republicans and progressive Democrats are thinking – dismantle the FBI!
Cooke makes a case that ever since J. Edgar Hoover took over the Bureau of Investigation, the FBI has been “a violent, expansionist, self-aggrandizing, and careless outfit that sits awkwardly within the American constitutional order.”
Cooke presents the FBI’s parade of horribles: J. Edgar Hoover presented President Truman with a plan to suspend habeas corpus and put 12,000 Americans into military facilities and prisons at the outbreak of the Korean War. The FBI under Hoover’s leadership tried to convince Dr. Martin Luther King Jr. to commit suicide. It helped presidents destroy their enemies and used blackmail to intimidate the FBI’s critics (paranoia fueled from the likely fact that Hoover himself was eminently blackmailable). It doubled down on a macho confrontation with David Koresh, clearly a psychopath, leading to the deaths of 75 people, 17 of them children. We would add to that list a bureau headquarters that actively blocked investigations from the field that could have stopped 9/11.
Many have more recent reasons to suspect the FBI is rigging its investigations. In recent years, an FBI lawyer was caught and convicted of presenting altered evidence and lying to the Foreign Intelligence Surveillance Court in an effort to hide Carter Page’s service to the CIA. The FBI today has excellent justification to pursue those who invaded and trashed the U.S. Capitol on Jan. 6, and perhaps reason to pursue an investigation of former President Donald Trump’s handling of classified material – but these investigations will always be suspect to millions of Americans because of the FBI’s involvement in partisan forgery and in peddling the Steele Report, which the FBI knew at the time was unreliable. On the other side of the ideological fence, the FBI has employed invasive surveillance techniques to spy on Americans who exercised their First Amendment rights by protesting police misconduct.
So Cooke’s cry to dismantle the FBI, once a fringe opinion, is sure to have resonance with many on the right and left.
As outrageous as the FBI has been at times, however, we counsel critics remember its value in keeping us safe from terrorists, human traffickers, cyber-criminals and foreign intelligence agents from Russia and China. And make no mistake, Russian and Chinese agents and their subordinated or blackmailed helpers are in America in force and doing great harm to our country. Fighting these threats are some of the most capable and patriotic men and women we’ve ever met.
So what to do?
Cooke offers a list of potential reforms he had toyed with before deciding to argue for the wholesale dismantlement of the FBI. Cooke’s list is well thought-out and worthy of a second look and of being quoted at length:
We endorse Cooke’s strong list of reforms, to which we propose two of our own.
In looking at the history of the FBI, strong leadership has often come from its field offices. But leadership in the top tiers of the J. Edgar Hoover Building has shown itself to be entrenched with Washington power-seeking and socially enmeshed with media and political circles.
If one wants to bring about change, perhaps a good place to start would be to divert resources taken up by HQ and spread them out of Washington and into the field offices.
Andrew McCarthy, in a reply to Cooke in National Review, promotes the idea of separating the intelligence function of the FBI from its law enforcement function. This would return the FBI to being an agency dedicated solely to law enforcement. It would create an American version of the UK’s MI-5 for the purpose of counterintelligence. Like MI-5, the new agency would have no police powers (though the creation of a 19th intelligence agency in the U.S. government would undoubtedly bring fresh concerns about surveillance and privacy).
Another needed change would be to instill into the culture of headquarters something similar to that of the senior ranks of the U.S. military, which eschews any sign of partisanship. Many generals and admirals will not discuss their political views. Some make it a point of pride not to vote. This may be asking too much of civilian officials, but if an agent is assigned to a team that deals with political crimes, with First Amendment implications that resonate nationally, being an outspoken partisan should be reason enough for an immediate transfer to some other important line of duty.
The Federal Department of Innuendo?
A witness in the John Durham investigation of the FBI’s Crossfire Hurricane investigation testified that the FBI offered former British MI-6 agent Christopher Steele $1 million if he could corroborate the lurid claims in his infamous report.
The FBI had serious doubts about the reliability of Steele and his report while filing four unverified and false applications for surveillance before the Foreign Intelligence Surveillance Court. This latest revelation shows that the FBI was so desperate to nail down the facts in the Steele Report, paid for by a rival presidential campaign, that agents were willing to give Steele $1 million to prove something – anything – within it. Furthermore, they did this while presenting this report with a straight face as evidence before the secret FISA Court – again, four times.
When you add to this latest revelation the conviction of FBI lawyer Kevin Clinesmith for forging a document to hide Carter Page’s relationship with the CIA, you can see an FBI that uses criminal investigations to advance an explicitly political agenda.
We live in a highly partisan era in which Republicans have one set of scandals to focus on and Democrats have their own. It would be refreshing if Republicans and Democrats would come together to examine the FBI’s actions in detail. The FBI’s interference in a presidential campaign, and therefore the First Amendment rights of every American, casts a shadow on necessary investigations – such as the actions surrounding the Jan. 6 attack on the U.S. Capitol.
“This is yet another reason for Congress to pass long-needed bipartisan reform legislation like the Leahy-Lee Amendment on Amicus Curiae and Exculpatory Evidence Reforms, which would add crucial, common-sense privacy and civil liberties protections to sensitive FISA cases," said Bob Goodlatte, senior policy advisor for PPSA and former Chairman of the House Judiciary Committee.
Facial recognition software is a problem when it doesn’t work. It can conflate the innocent with the guilty if the two have only a passing resemblance. In one test, it identified 27 Members of Congress as arrested criminals. It is also apt to work less well on people of color, leading to false arrests.
But facial recognition is also problem when it does work. One company, Vintra, has software that follows a person camera by camera to track any person he or she may interact with along the way. Another company, Clearview AI, identifies a person and creates an instant digital dossier on him or her with data scrapped from social media platforms.
Thus, facial recognition software does more than locate and identify a person. It has the power to map relationships and networks that could be personal, religious, activist, or political. Major Neill Franklin (Ret.) Maryland State Police and Baltimore Police Department, writes that facial recognition software has been used to violate “the constitutionally protected rights of citizens during lawful protest.”
False arrests and crackdowns on dissenters and protestors are bound to result when such robust technology is employed by state and local law enforcement agencies with no oversight or governing law. The spread of this technology takes us inch by inch closer to the kind of surveillance state perfected by the People’s Republic of China.
It is for all these reasons that PPSA is heartened to see Rep. Ted Lieu join with Reps. Shelia Jackson Lee, Yvette Clark and Jimmy Gomez on Thursday to introduce the Facial Recognition Act of 2022. This bill would place strong limits and prohibitions on the use of facial recognition technology (FRT) in law enforcement. Some of the provisions of this bill would:
The introduction of this bill is the result of more than a year of hard work and fine tuning by Rep. Lieu. This bill deserves widespread recognition and bipartisan support.