​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.”

Charter boat fishing companies recently won a major victory for the Fourth Amendment rights of all Americans. The Fifth Circuit Court of Appeals struck down a U.S. Department of Commerce requirement that would have forced charter boat owners to install, at their own expense, a “vessel monitoring system” that would continuously transmit their boats’ location, regardless of whether it was being used for commercial or personal purposes.
 
The court found that it “borders on incredible” that the government claimed it failed to notice personal privacy concerns in public comments to its rule.
 
This case is important because the Fourth Amendment warrant requirement protects more than homes. When the amendment was drafted, memories of British officials ransacking the offices of American merchants, shippers, and printers were fresh.
 
The Fourth Amendment, despite its absolute language, has eroded since the 1970s with the assertion by the courts that some industries have such a history of government oversight that no reasonable expectation of privacy exists. For such businesses – ranging from liquor sales, firearms dealing, mining, and auto junkyards – the threshold for whether a search is reasonable for purposes of the Fourth Amendment is much lower. Years ago, Justice William J. Brennan, Jr. worried that “heavily regulated” is an elastic concept which, if asked too broadly, would mean that “few businesses will escape such a finding.”
 
In the charter boat case, a lower court erred in lumping the charter boat fishing industry in with the more closely regulated commercial fishing industry. Charter boat fishing accounts for only two-tenths of one percent of annual fishing in the Gulf of Mexico. Nevertheless, the federal government found it necessary to require charter boat owners to install a GPS-enabled device at a cost of $3,000, with service fees of up to $75 per month, all for the pleasure of continuously reporting their whereabouts to Washington, D.C. The Fifth Circuit noted that charter boat owners earn, on average, $26,000 in net income. Disclosing the discovery of a prime fishing spot in the Gulf would constitute a hardship for many charter operators.
 
“The expansion of closely regulated-industry theory is a huge, huge danger to liberties for everybody,” said John Vecchione in a New Civil Liberties Alliance podcast, which represented the charter operators. Vecchione noted that the Fifth Circuit recognized that “as society grows, and regulation becomes more popular,” simply having to get a license could subject any business to warrantless inspections.
 
As it is, the reigning judicial standard seems thin to us. We fail to notice the “closely regulated” clause in the Fourth Amendment. But at least, we can be grateful that the Fifth Circuit placed an important guardrail against the expansion of this dubious doctrine.

​In this corner, we have Andrew Napolitano, libertarian-leaning former judge writing in The Washington Times. And in this corner, we have Bill Scher, liberal politics editor for The Washington Monthly.
 
Both men recently penned persuasive pieces about Section 702. Reading their articles in succession can be a vertigo-inducing experience. They look at the same federal surveillance authority embedded in the Foreign Intelligence Surveillance Act but see vastly different worlds.
 
Napolitano makes the case that Congress should allow Section 702 to expire at the end of this year. He traces the expansion of this authority – designed by Congress to allow U.S. intelligence agencies to track foreigners for the purpose of catching terrorists and spies – enabling domestic spying on U.S. citizens.
 
He concludes that Congress should allow Section 702 to die because it “permits the FBI to search those [702] databases without a search warrant, and if the NSA learns of evidence of criminal behavior without a warrant, requires it to share that evidence with the FBI.” He concludes that any Member of Congress who votes to reauthorize Section 702 “is unfit for office.”
 
Bill Scher describes the history of FISA, Section 702, and how partisan support for it has flipped back and forth. He notes that the Privacy and Civil Liberties Oversight Board (PCLOB), an independent watchdog set up by Congress, praised Section 702 in 2014 for contributing to “well over one hundred arrests on terrorism-related offenses.”
 
Scher acknowledges that the FBI is “overreaching” and has “given its critics plenty of fodder.” An Office of the Director of National Intelligence audit found that the FBI between December 2020 and November 2021 performed nearly 3.4 million queries on Americans, although Scher qualifies that this number contains large redundancies.
 
Scher buys into the argument that the FBI’s compliance is a problem of simply misunderstanding the querying rules. He adds that recent upgrades in FBI programs allow, as FBI Director Christopher Wray told Congress last week, a reduction of queries of Americans of 93 percent from the prior year.
 
What does PPSA say?
 
An FBI official has since disclosed to The New York Times that the actual number of individual Americans targeted with Section 702 queries in that roughly one year period is 204,090 times. That’s a lot less than 3.4 million, but it is still equal to about 560 searches per day, or roughly the population of Richmond, Virginia, illicitly searched every year.
 
Nor does Scher mention the change in attitude at PCLOB. Travis LeBlanc, who sits on the PCLOB Board, says: “We have a large number of compliance issues that we’ve seen over the years and the compliance issues particularly around U.S. person queries are quite significant.”
 
Most damningly, LeBlanc added that there are “minimal to negligible examples of the value” of domestic searches to national security. The FBI has used Section 702 data to do background checks, and in crimes ranging from bribery to health care fraud, hardly the stuff of national security.
 
Concerning the FBI’s learning curve, pardon us if we’re suspicious that the Bureau has taken 14 years to wrap its head around the need to use a warrant when checking data to investigate Americans. Yes, the program is complex. But 14 years? And if the Bureau truly has come up with methods of ensuring compliance, what harm would it be to add an explicit requirement for a probable cause warrant when investigating an American?
 
About Judge Napolitano’s piece, we sympathize with his outrage over the sometimes cavalier treatment of the U.S. Constitution. We agree with House Republicans who reject the administration’s proposal for a “clean” authorization without reforms. For Congress to pass Section 702, it will need to be rewritten. Surveillance that impacts Americans should be grounded in statute and Fourth Amendment-protected data should only be examined after obtaining a probable cause warrant.
 
On the other hand, following Napolitano’s advice and allowing Section 702 to expire would not end the federal surveillance of Americans. It would simply liberate it by permitting the federal government to conduct surveillance under no law, but under an executive order, 12333, without any legal barriers or guardrails.
 
Scher describes the opposition to reauthorizing Section 702 as coming from the ultra-conservative and ultra-progressive wings of the two parties. This is not the reality we see. We speak to Members of Congress every day. Many thoughtful Members – liberals, conservatives, and moderates – are deeply concerned that we have created a national security exception to the Fourth Amendment.
 
Bottom line: The opponents of Section 702 should know that reauthorizing this authority with serious reforms would amount to a great victory for civil liberties. The proponents of Section 702 should understand that if they succeed in rejecting these serious reforms, the denial of reauthorization is a real possibility.
 
Sticking too hard to maximalist positions could resemble a title bout with no winner.

​In “A Scanner Darkly,” a 2006 film based on a Philip K. Dick novel, Keanu Reeves plays a government undercover agent who must wear a “scramble suit” – a cloak that constantly alters his appearance and voice to avoid having his cover blown by ubiquitous facial recognition surveillance.
 
At the time, the phrase “ubiquitous facial recognition surveillance” was still science fiction.
 
Such surveillance now exists throughout much of the world, from Moscow, to London, to Beijing. Scramble suits do not yet exist, and sunglasses and masks won’t defeat facial recognition software (although “universal perturbation” masks sold on the internet purport to defeat facial tracking).
 
Now that companies like Clearview AI have reduced human faces to the equivalent of personal ID cards, the proliferation of cameras linked to robust facial recognition software has become a privacy nightmare. A year ago, PPSA reported on a technology industry presentation that showed how stationary cameras could follow a man, track his movements, locate people he knows, and compare all that to other data to map his social networks. Facial recognition doesn’t just show where you went and what you did: it can be a form of “social network analysis,” mapping networks of people associated by friendship, work, romance, politics, and ideology.
 
Nowhere is this capability more robust than in the People’s Republic of China, where the surveillance state has reached a level of sophistication worthy of the overused sobriquet “Orwellian.” A comprehensive net of data from a person’s devices, posts, searches, movements, and contacts tells the government of China all it needs to know about any one of 1.3 billion individuals.
 
That is why so many civil libertarians are alarmed by the responses to an ACLU Freedom of Information (FOIA) lawsuit. The Washington Post reports that government documents released in response to that FOIA lawsuit show that “FBI and Defense Department officials worked with academic researchers to refine artificial-intelligence techniques that could help in the identification or tracking of Americans without their awareness or consent.”
 
The Intelligence Advanced Research Projects agency, a research arm of the intelligence community, aimed in 2019 to increase the power of facial recognition, “scaling to support millions of subjects.” Included in this is the ability to identify faces from oblique angles, even from a half-mile away.
 
The Washington Post reports that dozens of volunteers were monitored within simulated real-world scenarios – a subway station, a hospital, a school, and an outdoor market. The faces and identities of the volunteers were captured in thousands of surveillance videos and images, some of them captured by drone. The result is an improved facial recognition search tool called Horus, which has since been offered to at least six federal agencies. An audit by the Government Accountability Office found in 2021 that 20 federal agencies, including the U.S. Post Office and the Fish and Wildlife Service, use some form of facial recognition technology.
 
In short, our government is aggressively researching facial recognition tools that are already used by the Russian and Chinese governments to conduct the mass surveillance of their peoples.
 
Nathan Wessler, deputy director of the ACLU, said that the regular use of this form of mass surveillance in ordinary scenarios would be a “nightmare scenario” that “could give the government the ability to pervasively track as many people as they want for as long as they want.”
 
As we’ve said before, one does not have to infer a malevolent intention by the government to worry about its actions. Many agency officials are desperate to catch bad guys and keep us safe. But they are nevertheless assembling, piece-by-piece, the elements of a comprehensive surveillance state.

​FBI Director Christopher Wray rankles many Members of Congress and civil libertarians by presenting a smooth, bland, and impenetrable affect when faced with tough questions. He did himself no favors when, responding to criticism about the 17 errors of commission and omission on the Carter Page scandal highlighted by the Department of Justice Inspector General, he said: “Thanks for the constructive criticism.”
 
Today he brought that poker face to Thursday’s House Permanent Select Committee on Intelligence. When asked about FBI’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) by Rep. Darin LaHood (R-IL), Wray said the FBI had made mistakes in the Page affair under Title I of FISA, another authority under a previous director. By implication, this means that 702 must be hunky-dory.
 
But this overlooks the acknowledgment by a senior FBI official to New York Times journalist Charlie Savage that the FBI had used Section 702 some 204,090 times in warrantless surveillance of Americans in just one year alone.
 
Rep. LaHood also dug into Wray on the revelation that at least one Member of Congress had his name used as a query term in one 702 search.
 
“I want to make clear the FBI's inappropriate querying of a duly elected member of Congress is egregious and a violation [that] not only that degrades the trust in FISA but is viewed as a threat to the separation of powers," LaHood said during the hearing.
 
Then came a development as close to a Perry Mason moment as a Congressional hearing room has experienced since the early Cold War.
 
“I have had the opportunity to review the classified summary of this violation, and it is my opinion that the member of Congress that was wrongfully queried multiple times solely by his name was in fact me,” Rep. LaHood said.
 
Toward the end of his questioning, Rep. LaHood underscored that he is heading the Section 702 reauthorization working group for Congress. Expect LaHood to ask if other Members of Congress were treated the same way by the FBI, with constructive criticism – and new limits on the FBI’s authority – to follow.

​In today’s public hearing before the U.S Senate Select Committee on Intelligence, Sen. Mike Rounds (R-SD) asked FBI Director Christopher Wray about the need to reauthorize Section 702 authority of the Foreign Intelligence Surveillance Act.
 
This question was asked in the shadow of a Wall Street Journal story last year reporting that the FBI had conducted up to 3.4 million U.S. person queries in 2021, or warrantless searches of Americans’ personal data from the 702 database.
 
At the time, the FBI cautioned on background that the number was inflated by the inclusion of Americans’ data in an effort to protect these potential victims from cyberattacks from China, Russia, and other hostile countries. In today’s session, Director Wray said the FBI is “surgical and judicious” in its searches, making big strides in its database systems and training to minimize such intrusions.
 
Director Wray further asserted that in 2022, the Bureau had achieved a 93 percent reduction in such U.S. person queries. This apparently includes the elimination of those cases that fall in the cyber category. Shortly after, Charlie Savage of The New York Times reported that a senior FBI official clarified that the actual number was shy of 204,090.
 
In other words, the FBI director today admitted that the Bureau had compromised the Fourth Amendment rights of Americans about 204,000 times in just one year, or about 559 times per day. To put this in comparative terms, Sen. Rounds might want to consider that this number equals the total population of South Dakota’s largest city – Sioux Falls – plus the small city of Aberdeen.

Travis LeBlanc, board member of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB), takes his position as a privacy watchdog seriously. Until the appointment of Sharon Bradford Franklin as PCLOB Chair, LeBlanc was the lone voice of public criticism and questioning of the largely secret activities of the intelligence community.
 
Expectations for PCLOB have long been low. A report on a surveillance authority, Executive Order 12333, was six years in the making. The public-facing version turned out to be a high school-level paper that seemed written out of Wikipedia. In June 2021, LeBlanc went public with his dissatisfaction with PCLOB’s timidity to explore contentious issues, such as 12333 and a program called XKEYSCORE that allows the NSA to sweep the global internet.
 
PCLOB of late has been showing its colors as an independent agency. It has long examined Section 702 of the Foreign Intelligence Surveillance Act, which allows intelligence agencies to carry out warrantless data collection. In recent years, there has been mounting evidence that the FBI has used Section 702 data as a “backdoor search” tool to warrantlessly locate information about Americans. The Office of the Director of National Intelligence has reported that the FBI has conducted up to 3.4 million searches for U.S. persons in the body of 702 data.
 
On Monday, LeBlanc appeared at the State of the Net Conference in Washington, reported by cyberscoop.com.
 
“We have a large number of compliance issues that we’ve seen over the years and the compliance issues particularly around U.S. person queries are quite significant,” LeBlanc said, expressing concern about Congress renewing this authority without serious reforms. He suggested Congress should consider adding a warrant process for searches of Americans.
 
Most interesting of all, LeBlanc said there are “minimal to negligible examples of the value” of these domestic searches. His statement rebuts the claim in January by Gen. Paul Nakasone, who heads the U.S. Cybercommand, who appeared before PCLOB in a public event to discuss many foreign threats that he said had been detected and neutralized because of Section 702. LeBlanc’s statement adds some missing context to the general’s characterization on the domestic uses of this program. It seems on the domestic side to be all violation and no value, at least from a national security standpoint.
 
At that same January event, Cindy Cohn of the Electronic Frontier Foundation: “I think we have to be honest at this point that the U.S. has de facto created a national security exception to the U.S. Constitution.” LeBlanc’s statement on Monday seems to add – “and for what?”

Politico on Monday released the results of an investigation into activities of “virtually unknown” domestic intelligence activities within the Department of Homeland Security.
 
In documents obtained by Politico, one DHS employee said that the DHS Office of Intelligence and Analysis is “shady” and is “run like a corrupt government.” Some employees were so worried about the thin legal justification for their domestic spying activities that they wanted their employer to cover them with legal liability insurance.
 
A survey by I&A Field Operations Division, now called the Office of Regional Intelligence, found that one-half of respondents said they had alerted managers that they were concerned their activity was inappropriate or illegal. Many felt senior leadership had an “inability to resist political pressure.”
 
“In recent years, the office’s political leadership – Democrat and Republican – has pushed I&A to take a more and more expansive view of its mandate, putting officers in the position of surveilling Americans’ views and associations protected by the U.S. Constitution,” said Spencer Reynolds, counsel at the Brennan Center for Justice at New York University Law School, himself a former DHS intelligence and counterintelligence attorney. “There’s a tendency to use the office’s power to paint political opponents – be they left-wing demonstrators or QAnon truthers – as extremists and dangerous. This has had a disastrous impact on morale – most people don’t join the Intelligence Community to monitor their fellow Americans’ political, religious, and social beliefs.”
 
He added that I&A’s leadership has “sidelined” oversight offices, leaving employees little recourse but to comply.
 
I&A intelligence agents can also seek voluntary interviews with incarcerated people, including people awaiting trial. They must state that the interview is voluntary and that they have no sway over judges either in criminal or immigration cases. But they also can seek these interviews with inmates and those awaiting trial without alerting their attorneys. In many cases, the interviewees’ lawyers aren’t aware that the conversations are happening.
 
“While this questioning is purportedly voluntary, DHS’s policy ignores the coercive environment these individuals are held in,” said Patrick Toomey of the American Civil Liberties Union National Security Project. “It fails to ensure that individuals have a lawyer present, and it does nothing to prevent the government from using a person’s word against them in court.”
 
The civil liberties community owes a big debt of gratitude to Politico for this in-depth piece. Domestic intelligence gathering is pervasive and often without guardrails. Congress has much to investigate.

​Federal intelligence and law enforcement agencies and their champions on Capitol Hill are bringing together – often with the best of intentions – all the elements needed to create a Chinese-style comprehensive surveillance state here at home. Rep. John Rose (R-TN), a member of the House Committee on Financial Services, is aiming to curb the government’s thirst for surveillance in at least one domain – our personal financial information.
 
First, some background. Last year, PPSA reported on the Transparency and Accountability in Service Providers Act that would have enlisted a host of employees of non-bank financial institutions to spy on their customers and report any activity deemed suspicious to the Federal Crimes Enforcement Network (FinCEN).
 
Among the 7.2 million government informants deputized to spy would have been “financial gatekeepers” ranging from attorneys to trustees, those who wire money, financial services advisors, financial managers, and most of the financial services industry. Thankfully, that proposal did not make it into law in the last Congress.
 
But existing financial regulations in the current anti-money laundering regime are extensive. Banks continuously scrutinize customers’ accounts and send voluminous reports to FinCEN, recording and reporting your financial life to the government without having to bother with warrants or other niceties required by the Fourth Amendment.
 
Other “financial institutions” are similarly required to make such reports, including merchants you might never have imagined would be in this category – ranging from pawn shops, to car dealers, to jewelers, to broker-dealers.
 
At a CATO event Monday, Rep. Rose, himself a former banker with deep experience in trying to comply with the law, spoke of the impossibility of financial institutions in deciphering exactly what regulations require of them in compiling “suspicious activity reports” and “currency transactions reports.”
 
“Banks have no idea what to report,” Rep. Rose said. As a result, reporting institutions, fearing that an omitted line of data might later be used against them by law enforcement, tend to throw as much of our data – aka, our privacy – as they can at the feds.
 
“They want as much as they can get,” Rep. Rose said. He added that these regulations largely explain the rising cost of opening a checking account. Similar federal requirements are heaped on ATM systems, raising costs, and creating fewer outlets for low-income and the unbanked or underbanked.
 
Aaron Kline of the Brookings Institution noted this system’s hunger for ever-more data isn’t even a good one for law enforcement. “They are looking for a needle in a haystack, but they keep pouring in more hay.”
 
Kline suggested that policymakers from across the spectrum have a common interest in reforming this flatly unconstitutional financial surveillance system. Those on the left want to make it easier and cheaper for the unbanked and low-income bank customers to get access to financial services. Those on the right are concerned that these programs violate civil liberties. And even law enforcement should be interested in reform so it can refine its searches for patterns typical of terrorists, human traffickers, and drug dealers, instead of drinking from a digital firehose.
 
Perhaps such a coalition will support Rep. Rose’s Bank Privacy Reform Act, which would reform the Bank Secrecy Act of 1970 by repealing requirements for financial institutions to report their customers’ financial information and transaction histories to government agencies without a warrant.
 
Under Rep. Rose’s bill, financial institutions would still maintain customer records for government to examine… but only after agents present them with a probable cause warrant, as the Founders intended.

​Our General Counsel, Gene Schaerr, writes in the Washington Examiner on how CBS News and their podcast, Intelligence Matters, enabled a completely one-sided, misleading interview about our government's domestic surveillance. Every citizen should be outraged on how our privacy rights are being abused all around.

You know you’ve in the hot seat when you get Rep. Pramilia Jayapal, Chair of the House Progressive Caucus; Rep. Andy Biggs, Former Chair of the House Freedom Caucus; and Rep. Warren Davidson, member of the Freedom Caucus and the House Republican Study Committee, on your case.
 
“This is totally unacceptable AND a great example of why any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights,” Rep. Jayapal tweeted in response to a Demand Progress report on FBI agents “breaking their own rules” and “unlawfully fishing through untold millions of communications that were swept up under Section 702.”
 
“The government abused its foreign intelligence gathering tools to spy on an unnamed Congressman and a local political organization,” tweeted Rep. Davidson. “These abuses are exactly why Congress must reform FISA this year. Warrantless surveillance of Americans is illegal.”
 
For years now, PPSA has been filing Freedom of Information requests and motions in federal courts to compel the intelligence community to release documents about government surveillance and unmasking of Members of Congress. We’ve yielded some data, but at times our efforts have felt like the long siege of an impregnable castle.
 
That stone wall has just been hit by a large boulder catapulted by Rep. Andy Biggs (R-AZ), Chairman of the Judiciary Subcommittee on Crime and Federal Government Surveillance. Rep. Biggs’ letter centers around Section 702 of the Foreign Intelligence Surveillance Act that grants authority to federal agencies to surveil the communications of foreigners located abroad.
 
Rep. Biggs fired off a letter to FBI Director Christopher Wray that begins by quoting a December report from the Office of the Director of National Intelligence (ODNI) that notes federal agents have used data collected under Section 702 authority to query:

• The name of a U.S. Member of Congress 
  ​
• The names of members of a local political party 

​
We would add that the ODNI also reported that similar queries included journalists and political commentators. Again, these domestic surveillance queries were conducted out of Section 702 data that Congress explicitly defined as being about foreign intelligence.
 
Rep. Biggs notes that when Section 702 was last up for reauthorization, Members of Congress had the temerity to consider adding an amendment requiring a warrant for access to 702 data relating to Americans. Strictly speaking, this provision would be redundant, since that requirement is already bright line set out by the Founders in the Fourth Amendment to the Constitution. But mules often need to be struck more than once.
 
Even this modest step, however, was opposed then by the federal intelligence agencies. Biggs wrote they “used scare tactics to convince legislators that unchecked use of this information is only way to keep our nation from harm.”
 
Now Rep. Biggs is putting questions to Director Wray, demanding to know if the Member of Congress in the ODNI report was informed of how his name was used in an investigation. Was anyone disciplined for using warrantless surveillance against a Member of Congress? Rep. Biggs asks about how many times queries were performed on other Members of Congress or their staff, political party officials, or campaign personnel and candidates. And then he poses the same questions about the queries concerning a local political party.
 
Members of Congress and politicians are entitled to the same Fourth Amendment protection as any other American. More to the point, when the rights of a politician are violated – even if it is a candidate you dislike – such a violation affects the political rights of every American.
 
PPSA has been posing these questions in the form of FOIA requests and lawsuits for years. It is good to know that we now have backup from a leading member of the House Judiciary Committee.
 
Director Wray, the next move is yours.

​Our senior policy advisors, former U.S. Congressman Bob Goodlatte and former U.S. Senator Mark Udall, map out four basic principles all surveillance programs should be subject to by Congress before the reauthorization of Section 702 can be contemplated. 

We reported last March on the incisive – but curiously incomplete – ruling by Judge Mary Hannah Lauck of the federal district court in Richmond, Virginia, who held that a broad geofence warrant was unconstitutional.
 
This case began when Richmond police set out to catch a bank robber. They asked Google to sweep seven days’ worth of location data from a geofenced area large enough to track people and their devices in a targeted area, from diners at a Ruby Tuesday restaurant, to any one of the guests at a Hampton Inn, to residents of an apartment complex and a senior living facility.
 
In this case, United States v. Chatrie, Judge Lauck noted Google logs cellphone users’ location 240 times a day. She wrote that because of this, Google gives the police “an almost unlimited pool from which to seek location data” in a broad area in which everyone in that pool has “effectively been tailed.” 
 
In a detailed ruling, she wrote that Google’s database “appears to be the most sweeping, granular, and comprehensive tool – to a significant degree – when it comes to storing location data.” Despite finding the warrant unconstitutional, however, Judge Lauck did not suppress the evidence because she ruled that the police acted in “good faith.”
 
The technology in question is both granular and unreliable. It can tell police which floor of a building a person was on. But this same technology can also yield false positives – putting someone at a location she was not at, transforming an innocent person into a suspect.
 
Now the ACLU and Electronic Frontier Foundation have teamed up to file two amicus briefs in Chatrie and another case yielding similar issues, People v. Meza. In the latter case, police requested data for a geographic area equivalent to about 24 football fields.
 
In their briefs before appellate courts, ACLU and EFF argued that these “general warrants” do not require the police to show probable cause to believe any one device was linked to a crime under investigation.
 
Despite Judge Lauck’s well-reasoned and well-researched affirmation of the Fourth Amendment, her decision lacked teeth because the evidence – tainted as it was – was ruled admissible. This is no mere pedantic distinction in a single case involving a bank robber.
 
Google reports that geofenced warrants now constitute more than one-quarter of the total warrants it receives. PPSA joins our civil liberties colleagues in urging the appellate courts to crack down on these wide-ranging, indiscriminate general warrants for the digital age.

​The U.S. Supreme Court should grant review in Moore v. United States, a case loaded with unintended consequences for digital as well as physical privacy but one clouded by a 3-3 deadlock in the First Circuit Court of Appeals.
 
The case involves the suspicion by the Bureau of Alcohol, Tobacco and Firearms (ATF) that Nia Moore-Bush was using the home of her mother, Daphne, to sell narcotics and firearms. Without seeking a warrant, ATF placed a video camera on a utility pole across the street from her house. Agents could control the camera, allowing them to see (both live and in recordings) the facial expressions of visitors, details of their clothing, small objects in their hands, and the license plate numbers of cars parked in the home’s driveway.
 
And so the ATF agents watched and waited… watched and waited… for eight months… until they obtained the purported evidence they were hoping for.
 
The presence of a neighbor’s Ring camera across the street would be problematic enough. But the installation of a persistent watch over a house by the police necessarily involves the Fourth Amendment at its core.
 
Three judges on the First Circuit believed this persistent surveillance violated the Fourth Amendment. Three did not. The three who saw a violation rested their case on Justice Harlan’s test of whether an activity violated a “reasonable expectation of privacy.” In its amicus brief, the Cato Institute criticized Justice Harlan’s test as circular, one that requires judges to “use their own views or best estimations about privacy,” which in turn “guide societal expectations.”
 
Cato presented a clearer standard, calling on the Court to “hew more closely to the actual text of the Fourth Amendment in determining whether government action amounts to a constitutionally cognizable search […] And here, the highly directed and persistent observation of Moore at her home is a ‘search’ for evidence against her in the natural sense of the term.” Cato also noted that the Supreme Court has repeatedly emphasized that “the home is first among equals. At the [Fourth] Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
 
But what about the actual act of “retreating?” The ATF’s intrusion brings into play the idea of “curtilage” – how far out from the door does the heightened protection of one’s home extend? The Supreme Court had found in June 2021 in Lange v. California that a Fourth Amendment violation had occurred when a police officer put his foot under a closing garage door sensor to force a door open to chase a misdemeanant.
 
What PPSA told the Court in our Lange brief applies here:
 
While the protections for electronic devices and communications remain under development, it is unlikely that courts would give such information sources more protection than the home. Accordingly, if the Court were to create a categorical misdemeanor exigency rule applicable to home entry, that rule would inexorably be extended to warrantless entry into electronic sources of information, posing an even more pernicious and extensive threat to privacy and its Fourth Amendment protections.
 
For example, today’s smartphones and other devices contain information detailing every aspect of a person’s life: messages to family, identifying documents, intimate pictures, personal journals, health information, financial data, and more are likely to be found on a device that the government has the technical ability to search remotely.
 
The Supreme Court can help curtail the many threats to Americans’ privacy – including digital privacy – by upholding the principle that intrusive, persistent surveillance always requires a probable cause warrant. Moore offers the Court a good opportunity to do just that.

​H.L. Mencken observed that “balloonists have an unsurpassed view of the scenery, but there is always the possibility that it may collide with them.” On Saturday came the collision. With the undisguised joy of children popping a balloon with a needle, Americans celebrated when a U.S. Air Force F-22 Raptor fired a single missile to send China’s surveillance balloon, aka “the red zeppelin,” into the Atlantic off the coast of South Carolina.
 
Good enough. But is our own government also using surveillance balloons to spy on American citizens?
 
In 2019, a Pentagon contractor sought permission from the Federal Communications Commission to conduct wide-area surveillance tests over six Midwestern states – South Dakota, Minnesota, Iowa, Wisconsin, Missouri, and Illinois. The aerospace-defense corporation Sierra Nevada said in this filing that balloons would be tested to “provide a persistent surveillance system to locate and deter narcotic trafficking and homeland security threats.”
 
The Guardian broke the story that these spy balloons, capable of loitering over cities for weeks or months, probably carried military-grade surveillance equipment, perhaps even Gorgon Stare – a pack of nine cameras capable of taking panoramic images of city-sized or larger areas to offer 24-hour coverage. Such visuals, downloaded and recorded, would give federal agents the ability to rewind and follow the movements of a single person or vehicle.
 
“We do not think American cities should be subject to wide-area surveillance in which every vehicle could be tracked wherever they go,” Jan Stanley of the American Civil Liberties Union told The Guardian. “Even in tests, they’re still collecting a lot of data on Americans: who’s driving to the union house, the church, the mosque, the Alzheimer’s clinic.”
 
The Baltimore police ran a similar program using a spy plane that captured panoramas of that city. A federal appeals court declared the program unconstitutional in June 2021. By then, however, almost 1 million images had already been entered as evidence in criminal cases.
 
It would be good to know the outcome of the Pentagon’s balloon experiment. Was any actionable intelligence used from this program? Did this program continue domestically in some form or fashion, or was it (forgive us) merely a trial balloon that went nowhere?

​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 authority to collect foreign intelligence. Unfortunately, for over a decade agencies have abused this authority to an extreme degree, using loopholes in Section 702 to conduct warrantless surveillance on millions of everyday Americans.
 
A report published by ODNI in April 2022 disclosed that, in 2021 alone, the FBI conducted as many as 3.3 million searches of Section 702-derived data for information about Americans' communications. And in 2018, Foreign Intelligence Surveillance Court (FISC) Judge James Boasberg rebuked the FBI for improper use of 702 databases against Americans. The FISC also revealed that the FBI has used warrantless NSA data in a wide 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 end once and for all.
 
Specifically, legislation to reauthorize Section 702 should ensure compliance with these key principles:

1. Any surveillance of Americans should be undertaken only pursuant to a statute, duly enacted by the people’s representatives in Congress.  
   
   
2. Any surveillance of Americans should be undertaken only pursuant to a probable cause judicial warrant.  
   
   
3. Any surveillance of Americans should be subject to adequate mechanisms—in both Congress and the judiciary—to ensure accountability for compliance with governing law.  
   ​
4. “Surveillance” should be defined broadly, to include (among other things) data purchases, searches of databases compiled by governments, and searches of private records held by third parties.  

These principles are critical to protecting Americans’ privacy and civil liberties. We must end the pervasive abuse of Section 702 and other surveillance authorities.

​The generation of children who grew up entranced by Dr. Seuss’s 1990 bestseller “Oh, the Places You’ll Go!” are now adults who are definitely going places – with every move tracked and recorded in multiple ways.
 
In the 2018 Carpenter case, the U.S. Supreme Court held that Americans have a reasonable expectation of privacy with respect to their historical location data. This expectation, the Court reasoned, requires a probable cause warrant under the Fourth Amendment before someone’s location history can be inspected by law enforcement. That sounds like a definitive ruling, but it wasn’t.
 
Law enforcement agencies expand legal loopholes and use legal tricks to get around this narrow opinion. For example, last year the Virginia Mercury news organization found that 18 police departments around the state accessed more than 7,000-days-worth of surveillance, often in pursuit of minor criminal cases. How did the police get around the Carpenter rule? By creating their very own assembly line for warrants. In another example, stingrays – cell-site simulators that mimic cell towers – are still used by at least 14 federal agencies and 75 state agencies to locate people. And, of course, our cars have become digital devices with GPS features that record our trips.
 
Now it has been revealed by security researchers that they can track one’s location by hacking digital license plates in California. These are special plates that Golden State residents can sport for a monthly fee, giving them a battery- or wire-powered plate that can digitally update the bottom line of their license plate to display changing messages (such as celebrating a recent bowl win by the customer’s football team). They also text owners if a car has been removed without permission, sending a “stolen” alert.
 
Vice’s Motherboard reports that security researchers gained administrative access to the sole provider of these plates, Reviver. Through this access, the researchers tracked vehicles and their movements by GPS. They could also change the digital slogans at the bottom. On the more benign end, imagine switching someone’s “Go Cal!” license plate to “Go Stanford!” Far more maliciously, the researchers surmised that an actual attacker could also delete a customer’s Reviver plate. Somewhat concerning is the researchers’ discovery that granting themselves superuser access gave them the ability to track vehicles – which begs the question of why the company manufacturing these license plates felt the need to give themselves this ability to begin with.
 
Reviver told Vice that it had quickly patched the system. The security of digital license plates is a concern for the minority of drivers who’ve purchased this technology and can afford its monthly fee. The larger issue is that as the Internet of Things unfolds, we’re going to be tracked eight ways to Sunday that the law allows.
 
When more cases about permutations of location tracking next appear before the Supreme Court – and the narrowness of Carpenter ensures that it will – the Justices should take that as an opportunity to issue a more comprehensive ban on warrantless tracking.

​In March, PPSA reported on the existence of a unit of the Department of Homeland Security that accessed bulk data on Americans’ money wire transfers above $500. This data was collected by a non-profit, private-sector organization, the Transaction Record Analysis Center (TRAC), that relied on what the ACLU calls “overbroad and illegal subpoenas” issued by the State of Arizona.
 
At the time, PPSA asked how many federal, state, and local agencies accessed this data from TRAC. Now we know, thanks to an investigation by Sen. Ron Wyden (D-OR) and the ACLU, which released startling results today. Surveying more than 200 documents, they report:

• The database of money transfers grew from 75 million records from 14 service businesses in 2017 to 145 million records from 28 companies in 2021.

 

• More than 600 law enforcement agencies have access to this information, ranging from a sheriff’s office in a small Idaho county to the FBI and the Drug Enforcement Administration, no probable cause warrant needed.

 

• More than 150 million money transfers between people in the United States and more than 20 countries have been accessed without judicial oversight.

 
Under the law, a bank must receive a subpoena for bank records and notify customers that their records have been examined. No such protections exist for money transfer companies subpoenaed to provide bulk information to the TRAC program.
 
As we reported last year, domestic wire transfers within the United States between American citizens are also being pulled by TRAC.
 
Arizona had set up TRAC with settlement money from Western Union. With that money now exhausted, Sen. Wyden believes that TRAC is now federally funded. 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.”
 
Gene Schaerr, PPSA general counsel, said:
 
“This purely illegal program treats the Fourth Amendment as a dish rag. We commend Sen. Wyden and ACLU for giving us a better understanding of the scale of this program, as well as the likelihood that taxpayers’ dollars are being used to spy on us. This warrantless intrusion into the financial privacy of millions of Americans suspected of no crime ought to excite the bipartisan interest of the newly elected House majority as well as Sen. Wyden and his colleagues.”

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

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

The Privacy and Civil Liberties Oversight Board (PCLOB) has posted a rich discussion among its board members, civil libertarians, and representatives of the intelligence community.
 
General Paul Nakasone, who heads the U.S. Cyber Command, gave the group a keynote address that is a likely harbinger of how the intelligence community will approach Congress when it seeks reauthorization of Section 702, an amendment to the Foreign Intelligence Surveillance Act that authorizes the government to surveil foreigners, with a specific prohibition against the targeting of Americans, but also allows “incidental” surveillance of Americans.
 
Gen. Nakasone detailed cases in which would-be subway bombers and ISIS planners were disrupted because of skillful use of 702 surveillance. Mike Harrington of the FBI doubled down with a description of thwarted attacks and looming threats. April Doss, general counsel of the National Security Agency, emphasized how each request from an analyst for surveillance must be reviewed by two supervisors.
 
Civil liberties scholar Julian Sanchez reached back to the formation of the U.S. Constitution to compare today’s use of Section 702 authority to the thinking behind the Fourth Amendment. He asked if a program that mixes the private data of Americans with surveilled foreigners could possibly clear the Founders’ objection to general warrants. (31:50)
 
Jeramie Scott (40:25) of the Electronic Privacy Information Center, who argued for greater transparency in 702 collection, questioned whether “about” collection truly ended with downstream collection (i.e., information taken directly from Google, Facebook, and other social media companies). The NSA declared in 2017 it had ended the practice of such “about” collection, which moves beyond an intelligence target to email chains and people mentioned in a thread. Could such collection still be occurring in downstream surveillance?
 
Travis LeBlanc, a board member who had previously criticized a milquetoast report from PCLOB for a lack of analysis of key programs, seemed liberated by the board’s new chair, Sharon Bradford Franklin. (Chair Franklin also brings a critical eye of surveillance programs, reflecting her views at the Center for Democracy and Technology.) LeBlanc asked Julian Sanchez if the Constitution requires warrants when an individual’s data is searched under Section 702. Sanchez said that delegating such an authority under the honor system has led to FBI’s behaving as if compliance were a game of “whack-a-mole.” (57:15)
 
Cindy Cohn of the Electronic Frontier Foundation suggested PCLOB examine Section 702’s tendency to be subject to “mission creep,” such as the recent practice of using Section 702 to justify surveillance for “strategic competition” as well as the statutory purpose of anti-terrorism. Cohn said she was not aware of any defendant in a criminal trial ever getting access to Section 702 evidence. (128:45)
 
Cohn concluded:
 
“I think we have to be honest at this point that the U.S. has de facto created a national security exception to the U.S. Constitution.”
 
A revealing insight came from Jeff Kosseth, cybersecurity professor at the U.S. Naval Academy. He pointed to a paper he wrote with colleague Chris Inglis that concluded that Section 702 is “constitutional” and “absolutely essential for national security.” (See 143:40) That opinion, Kosseth added, is something he has “reconsidered” over “deep concern about the FBI’s access” to 702 data, especially concerning U.S. persons.
 
Kosseth said:
 
“At a certain point, we must stop giving the nation’s largest law enforcement agency every benefit of the doubt. The FBI cannot play fast and loose with Americans’ most private information. This has to stop now. And if the FBI cannot stop itself, the Congress has to step in.”
 
Congress needs to “step in” regardless: surveillance of Americans should never occur without express authority in a statute passed by the people’s representatives.

​Facial recognition technology has proven to be useful but fallible. It relies on probabilities, not certainties, algorithms measuring the angle of a nose or the tilt of an eyebrow. It has a higher chance of misidentifying women and people of color. And in the hands of law enforcement, it can be a dangerous tool for mass surveillance and wrongful arrest.
 
It should come as no surprise, then, that police mistakenly arrested yet another man using facial recognition technology. Randall Reid, a Black man in Georgia, was recently arrested and held for a week by police for allegedly stealing $10,000 of Chanel and Louis Vuitton handbags in Louisiana. Reid was traveling to a Thanksgiving dinner with his mother when he was arrested three states and seven hours away from the scene of the crime.
 
Despite Reid’s claim he’d never even been to Louisiana, facial recognition software identified Reid as a suspect in the theft of the luxury purses. That was all the police needed to hold him for close to a week in jail, according to The New Orleans Advocate.
 
Gizmodo reports, “numerous studies show the technology is especially inaccurate when identifying people of color and women compared to identifications of white men. Some law enforcement officials regularly acknowledge this fact, saying facial recognition is only suitable to generate leads and should never be used as the sole basis for arrest warrants. But there are very few rules governing the technology. Cops often ignore that advice and take face recognition at face value.”
 
When scientists tested three facial recognition tools with 16 pairs of doppelgangers – people with extraordinary resemblances – the computers found all of them to be a match. In the case of Reid, however, he was 40 pounds lighter than the criminal caught on camera.
 
In Metairie, the New Orleans suburb where Reid was accused of theft, law enforcement officials can use facial recognition without legal restriction. In most cases, “prosecutors don’t even have to disclose that facial recognition was involved in investigations when suspects make it to court.” Elsewhere in Louisiana, there is no regulation. A state bill to restrict use of facial recognition died in 2021 in committee. Some localities use facial recognition just to generate leads. Others take it and run with it, using it more aggressively to pursue supposed criminals.
 
As facial recognition technology proliferates, from Ring cameras to urban CCTVs, states must put guardrails around the use of this technology. If facial recognition tech is to be used, it must be one tool for investigators, not a sole cause for arrest and prosecution. Police should use other leads and facts to generate probable cause for arrest. And legal defense must always be notified when facial recognition technology was used to generate a case.
 
It may be decades before the technical flaws in facial recognition are resolved. Even then, we should ensure that the technology is closely governed and monitored.

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.

• Rep. Jim Jordan, slated to be the Chairman of the House Judiciary Committee, joined with fellow Republicans and with Democrats, including then-Chairman Jerry Nadler, to sing the praises of this bill. With backing like that, the NDO Fairness Act sailed through the full House with a voice vote.

 

• PPSA is determined that this momentum not be squandered, but focused to push the NDO Fairness Act through this Congress and to the president’s desk in 2023.

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.

• General counsels of federal agencies assert with a straight face that there is no violation of the U.S. Constitution if they pay private data brokers for your information. PPSA believes this argument is beyond disingenuous.

 

• “A loophole that we never imagined, one as big as the J. Edgar Hoover Building, has weakened the Constitution’s protection of Americans’ privacy,” Bob Goodlatte, PPSA Senior Advisor, testified about this practice to the House Judiciary Committee in July. PPSA believes that government’s lawless extraction of Americans’ personal information is a ready-made issue for the 118th Congress.

 

• Goodlatte also described in an op-ed in The Hill how the government uses statutes designed to allow the surveillance of foreign nationals to spy on Americans.

 

• PPSA Senior Policy Advisors Bob Goodlatte and Mark Udall, one a former  Chairman of the House Judiciary Committee, the other a former U.S. Senator, ran an op-ed in The Hill that revealed how, in response to PPSA’s FOIA work, the government has responded that it can neither confirm nor deny that it is spying on individual members of Congress.

 
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.

• In 2022, PPSA lobbied hard to persuade Congress to attach this measure in funding bills, as well as a standalone bill.

 

• In 2023, civil libertarians and our champions on the Hill will have leverage to see a future version of Lee-Leahy through to the president’s desk. We are optimistic because by the end of this year, Section 702 of the Foreign Intelligence Surveillance Act will expire if it is not renewed.

 

• A prime legislative goal for 2023 will be to ensure that limits are set around the government’s ability to use Section 702 authority for warrantless surveillance of Americans of all political ideologies in political, civic, and religious organizations, or who are members of vulnerable groups. Installing a civil liberties expert in such sensitive cases is the best way to ensure these protections.

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.

• Our petition was designated as a Petition of the Week by SCOTUSBlog, and drew support from many civil-liberty groups. This petition will lay the groundwork for the Supreme Court to resolve questions about law enforcement’s ability to ignore citizens’ Fourth Amendment rights. 

 

• We filed a brief in Egbert v. Boule, a case asking whether federal officials can be sued for violating the Constitution even without Congress creating an express cause of action. While the Court decided that it would not create such a cause of action on its own, the decision in that case will strengthen our efforts to persuade Congress to enact affirmative remedies for victims of improper surveillance or other violations of privacy.  

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.

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

​The State, Foreign Operations, and Related Programs Subcommittee (SFOP) released its Joint Explanatory Statement (JES) for this upcoming fiscal year. In it, the SFOP reports that the budget for the Open Technology Fund (OTF) has been raised to $40 million. This is a $13 million increase from this past fiscal year’s budget of $27 million, and double the 2021 budget of $20 million. This is excellent news for the development of a free and open internet.
 
The OTF funds emerging internet technologies that promote freedom around the world, from development through deployment. The OTF "support[s] open technologies and communities that increase free expression, circumvent censorship, and obstruct repressive surveillance as a way to promote human rights and open societies." This budget increase is the largest since the OTF was founded in 2012.
 
PPSA is pleased by the rapid increase in the OTF’s budget. Such an expansion marks an increasing commitment by the United States to support digital freedom, privacy, and security around the globe. PPSA believes the OTF should continue to expand its operations, most notably by making its services and technology available to U.S. citizens. Americans deserve the same privacy tools and resources as the rest of the world, and the OTF is in a prime position to promote U.S. developers as global leaders in internet freedom and privacy.