For all the focus on digital privacy, traditional Fourth Amendment violations by the government are as common as ever. One area of habitual constitutional overreach is child welfare, as illustrated by a recent, disturbing event in Waltham, Massachusetts.
In the early morning hours of July 16, 2022, officials from the Massachusetts Department of Children and Families, flanked by several armed police officers, knocked on the door of Waltham residents Sarah Perkins and Joshua Sabey and demanded the surrender of their children. The officials had no warrant. There were no exigent circumstances. They had no reason to believe the children were in imminent threat of bodily harm. Yet, despite the parents’ reasonable protestations, the officers issued an ultimatum: Give us your children or we’ll break down the door and take them. Ultimately, Sarah and Josh gave in to the inevitable, ushering their sobbing children into the waiting cars of strangers, who whisked them away in the night. Nationally, more than three million children come under the care of state child protective services each year. In cases involving home searches, according to a recent study by ProPublica, authorities rarely – if ever – obtain a warrant. In New York, for example, research shows that the Administration for Children’s Services obtained a warrant or entry order in less than 0.2% of instances. The Fourth Amendment plainly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” (The founders never thought it was necessary to also add, “and their children!”) That amendment requires a probable cause warrant to examine a home. Constitutional protections extend to the states through the Due Process Clause of the Fourteenth Amendment, yet child welfare agencies largely operate as though exempt from such constitutional strictures, regularly entering homes based on vague determinations of imminent threat to a child. Let us be clear: such concerns are often well founded, and we support the right of the state to intervene to protect abused or neglected children. But there needs to be a lawful process. The case of Sarah Perkins and Joshua Sabey is an instructive example of what can happen when there are no guardrails on the discretionary exercise of police power. These parents fell under the suspicion of child welfare authorities after taking their three-month-old to the hospital for high fever. When staff members conducted an X-ray, they discovered a healing rib fracture. Concerned about abuse, they called in a social worker who questioned Sarah about the injury. For her part, Sarah had no clue how the injury occurred, though it was later determined that the child’s grandmother may have inadvertently caused it while removing the child from a car seat. For three days, the parents were subjected to a thorough investigation, which included home visits and persistent interference by state authorities, who found neither evidence of abuse nor danger in the home. Everything seemed fine until three days later, when a DCF supervisor made the seemingly arbitrary decision that the children should be taken into custody in the middle of the night. Sarah and Joshua were eventually cleared of any misconduct and re-acquired full custody following several months of legal wrangling. But what about families that lack the resources to engage in such a prolonged fight? The application of the Fourth Amendment to child protective services is an area that requires sharper legal definition. A circuit split exists on the issue and the Supreme Court has not specifically weighed in. Sarah and Josh, meanwhile, have rightly filed suit against individuals at DCF and the Waltham Police Department alleging unreasonable search and seizure and due process violations under the Fourth and Fourteenth Amendment, respectively. They’re also working with members of the Massachusetts legislature on a new law that would require approval by an on-call judge before any after-hours removal. It’s a reasonable constraint on the currently unchecked power of a vast, often adversarial government bureaucracy. There is no question that real and heartbreaking instances of child abuse occur. Child protective services must have the power to remove children from these circumstances. But such power must not be limitless. Of all our constitutional and natural rights, parental rights are the most precious. Admits Potential for Abuse of Government Spying into Americans’ Politics, Religion, and Sex Lives For years, PPSA has warned about the vast amounts of sensitive personal information about our private lives that are scraped from our apps and sold by third-party data brokers to government intelligence and law enforcement agencies. Now we have telling details from the inside.
On Friday, the Office of the Director of National Intelligence released a declassified report from a senior advisory group that sheds new light on the dangers posed by Commercially Available Information (CAI). Unlike most government documents, this report is remarkably self-aware and willing to explore the dangers of this policy in plain language. This panel details all the many sorts of data that the government collects about us from commercial sources.
One data broker with the exceptionally creepy name of PeekYou brags that it “collects and combines scattered content from social sites, news sources, homepages, and blog platforms to present comprehensive online identities.” The panel is forthright about how this data can be used to “facilitate blackmail, stalking, harassment, and public shaming.” It is not difficult, the report notes, for deanonymized information (which exposes a person’s identity) sold by data brokers to be combined or used with other data “to reverse engineer identities or deanonymize various forms of information.” The authors of this report recognize how dangerous it is for the intelligence community to have this much commercially available information on its citizenry at its fingertips. “The government would never have been permitted to compel billions of people to carry location tracking devices on their persons at all times, to log and track most of their social interactions, or to keep flawless records of all their reading habits. Yet smartphones, connected cars, web tracking technologies, the Internet of Things, and other innovations have had their effect without government participation. While the IC cannot willingly blind itself to this information, it must appreciate how unfettered access to CAI increases its power in ways that may exceed our constitutional traditions or other societal expectations.” The authors note that “CAI could be used, for example, to identify every person who attended a protest or rally based on their smartphone location or ad-tracking records.” And the danger to the American people is not just from our government: this report warns of “intelligence benefits to our adversaries,” allowing foreign agencies to use open-source intelligence and AI to disinform and influence the public. It cites a chilling factoid from a Duke University report that of the 10 major data brokers, three advertise an ability to provide data to identify U.S. military personnel. The ODNI report quotes the Duke study that foreign actors could use CAI “to bolster their influence campaigns to interfere in U.S. electoral processes. Criminal organizations could use this data to build profiles on and subsequently target prosecutors and judges. Foreign intelligence organizations could acquire this data through a variety of means – including through front companies that could legally purchase the data from U.S. brokers and through simply hacking a data broker and stealing it all – to build profiles on politicians, media figures, diplomats, civil servants, and even suspected or secretly identified intelligence operatives.” The authors recognize a danger for U.S. agencies, that “mission creep” can “subject CAI collected for one purpose to other purposes that might raise risks beyond those originally calculated.” It raises the question of the government’s obligation to respect the Fourth Amendment in accessing technologies that track our movements. It highlights the principles set out in a Supreme Court opinion that requires a warrant for certain kinds of cellsite location data. Yet the report notes that the Defense Intelligence Agency nevertheless provides funding to “another agency” for it to purchase commercially available geolocation data aggregated from smartphones. The author admits it is unclear whether this data is for U.S. locations or foreign ones. The report says that agencies rely on a facial recognition company, Clear, not only to “resolve identities,” but also to locate people. The authors challenge the bland assertions of federal agencies that Commercially Acquired Information, CAI, is the same as Publicly Available Information, PAI. “In our view, profound changes in the scope and sensitivity of CAI have overtaken traditional understandings, at least as a matter of policy. Today’s publicly available CAI is very different in degree and in kind from traditional PAI.” The authors refer to Riley v. California, a Supreme Court case that required a warrant before police could access information in a suspect’s cellphone. The report quotes the Court that asserting that modern CAI is materially indistinguishable from traditional PAI “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Having defined the problems, the authors of this report advance possible solutions. They propose internal processes that could minimize the dangers of mass collection of our private information, changes in how information is cataloged, developing standards and procedures, heightening approvals for information in “sensitive” categories, the creation of additional mitigation measures, and developing more “precise sensitivity and privacy-protecting guidance for PAI.” The authors of this report should be commended for their frankness. Their solution, however, would merely replicate the failed approach of the FBI in its repeated attempts to reform the processes used to extract Americans’ personal information from Section 702 of the Foreign Intelligence Surveillance Act. In both instances, the answer to these dilemmas is the Fourth Amendment’s probable cause warrant, an 18th century solution for these 21st century dilemmas. Sen. Ossoff Pins Down FBI: Why Not Warrants? When the Senate Judiciary Committee announced it was holding a hearing this morning on Section 702 of the Foreign Intelligence Surveillance Act with five men representing the Office of the Director of National Intelligence, the NSA, CIA, FBI, and the Department of Justice, many assumed it would amount to a bit of surveillance state agitprop.
Instead, senators from across the aisle grilled these intelligence community deputy directors and general counsel like so many hot dogs. The intelligence community representatives came lined up with talking points about a new “culture of compliance” in the intelligence community, only to be upended. Compliance with what? The law? The Constitution? No, the answer consistently was compliance with updated, byzantine internal regulations that this time – they swear! – will finally protect the constitutional rights of the American people. Sen. Mike Lee (R-UT) burst out like a rodeo bull to lecture the panelists that the government has shown “shocking disregard for Americans’ constitutional rights and civil liberties,” from illegal surveillance of political donors, protestors, and even a sitting Member of Congress. He expressed frustration from years of hearing from FBI directors and attorneys general under three presidents say, “just trust us, don’t worry, we’ve got good people … and lots and lots of procedural safeguards in place.” Sen. Lee ridiculed the FBI’s boast that it has vastly reduced the hundreds of thousands of spying incidents without a probable cause warrant. (Go to 1:37:51 mark) Sen. Lee said: “The number should not just be going down. That number should be zero. Every ‘non-complaint’ search violates an American’s constitutional rights.” Sen. Jon Ossoff (D-GA), who sits on both the Judiciary and Intelligence committees, was cool and unflappable as he brushed aside Assistant Attorney General Matt Olsen’s attempts to bat away his questions (go to 1:58:35). Sen. Ossoff drilled down on the need for a probable cause warrant in using “U.S. person communications” – when the FBI is looking at domestic crimes in the Section 702 database. “Section 702 is a foreign intelligence tool, it is not a law enforcement tool,” Olsen said. “So why is it used for domestic law enforcement purposes?” Sen. Ossoff asked. Olsen replied that such “crime only” searches are “exceedingly” rare. “If it is as rare as you state,” Sen. Ossoff said, “why not go get a warrant?” Olsen then told a story of an agent looking into Section 702 information on national security grounds only to find evidence of domestic child abuse. Sen. Ossoff recognized this as an attempt at obfuscation. “We’re talking about seeking evidence of a crime only, we’re not talking about encountering evidence of other crimes in the course of querying foreign intelligence information,” Sen. Ossoff said. “We’re talking about U.S. person queries whose sole purpose is investigating domestic crime. Why should that not require a warrant?” Olsen’s reply was a legal tautology. Section 702 data, he said, is “lawfully collected information that is in the FBI’s holdings.” “I don’t think you’ve made the case,” Sen. Ossoff said, again noting the FBI uses Section 702 for many purely domestic crimes. In his calm but persistent questioning, Sen. Ossoff revealed the deeper issue of how the FBI gets around the law by using a foreign surveillance authority to set up backdoor searches to target Americans in domestic cases. Sen. Dick Durbin (R-Il), committee chairman, had set the tone by asking why improper searches of Americans’ communications were conducted some 278,000 times in a recent one-year period. Chairman Durbin noted that 19,000 searches of a federal candidate’s donors were queried when, in fact, only 8 targeted donors showed a connection to foreign intelligence. Sen. Lindsey Graham asked how we can be sure FBI agents using Section 702 are “not being lazy, not getting around the law?” Olsen replied that one person in the Department of Justice was fired for misusing Section 702 and that the FBI now has a “three-strikes” policy regarding 702 violation. That seemed to win little gratitude from senators. Overall, the tone of this hearing was frank, harsh, and unrelenting. These five men may have started their day believing that their assurances, and 11th hour proposals to further reform the government’s internal processes, would ensure smooth sailing. Afterwards, these intelligence community representatives should return to the leaders of their respective agencies and tell them: “We’ve either got to accept serious reform of Section 702 or wave it goodbye.” Four Surveillance Experts Explain Ever wonder why Congress doesn’t do a better job of oversight of the intelligence community and its vast, unaccountable surveillance system that spies on us?
The answer, says Bob Goodlatte, former chairman of the House Judiciary Committee and PPSA Senior Policy Advisor, is that the security clearances held by Members are meaningless if the executive branch restricts what they are allowed to see. And some Members have become too close to the agencies they are tasked with overseeing to do their job objectively. Another factor in weakening Congressional oversight is that many Members of Congress are deeply reliant on staff to dig into intelligence reports, analyze what they are reading, and come away with critical insights into the surveillance activities of U.S. federal intelligence and law enforcement agencies. In the House, most Members do not even have staffers with high levels of security clearance to perform this function. Thus, free of strong Congressional oversight, federal agencies “spy first, ask for forgiveness later,” says Jake Laperruque of the Center for Democracy and Technology. As a result, Laperruque says, “violations are epic in scale.” When federal agencies are caught stretching or breaking the laws they respond with a charade of addressing rule-breaking with tighter rules. Thus, Laperruque adds, agencies follow a tried-and-true formula of “violate, tweak rules, repeat.” These are just some of the nuggets from an hour-long conversation between Goodlatte, Laperruque, Liza Goitein of the Brennan Center for Justice, in a discussion moderated by Cato Institute senior fellow, Patrick Eddington. Watch and you will learn about the origins of foreign surveillance authorities used by agencies to spy on Americans, as well as why Bob Goodlatte believes that simply allowing one of them, Section 702, to expire would be a mistake. (Go to 36:00 mark). John Greenwald at The Black Vault reports a curious change in the responsiveness of the National Security Agency to Freedom of Information Act (FOIA) requests regarding Intellipedia, a shared source within the intelligence community.
This online system gives the intelligence community a collaborative way to share information, insights, and theories across agencies, breaking down many of the barriers that restricted sharing of intel pre-9/11. Intellipedia consists of wikis that contain “Top Secret Sensitive Compartmented Information,” “Secret Information,” and “Sensitive But Unclassified Information.” Think of it as Wikipedia for spies. For years, NSA had routinely released articles and category pages that reside in this digital resource. The Black Vault filed FOIA requests with NSA – which handles such requests for Intellipedia – to obtain glimpses into the unclassified collaborative thinking of the intelligence community. Greenwald writes that in 2017, a successful FOIA appeal revealed that Intellipedia had more than 50,000 content pages in the unclassified section; more than 114,000 content pages in the “Secret” section; and more than 124,000 pages in the “Top Secret” section. It also included, he writes, “millions of additional pages within those three systems that includes other wiki pages, talk pages, and redirects, and finally, the three systems hold more than 600,000 uploaded files for download.” He postulates that these numbers are likely much larger five years later, a reasonable guess considering the swelling numbers of classified documents across government. The NSA, despite having released unclassified articles and pages for over a decade, is now issuing the all-too common Glomar response – neither confirming nor denying the existence of requested documents – and turning to statutory exemptions that it failed to invoke for over that ten years. What changed? “This sets a concerning precedent,” Greenwald writes, “as it suggests that government agencies might have the ability to bypass the established FOIA exemptions and deny information requests based on internal policy decisions made on a whim.” In our experience, the evolution of the Glomar response into an all-purpose stonewall is the rule. Intellipedia was a refreshing exception, perhaps a reflection of the creative impulse of the people behind it. Now it’s just like everything else in the government – even with unclassified information, it’s strictly need to know, old chum, and you don’t need to know. In a recent response to a Freedom of Information Act request PPSA submitted in 2020, the National Security Agency released a record showing an exponential – no, make that mind-blowing – increase in the number of “derivative classification” decisions.
In plain English, “derivative classification” describes the decision to classify a document because it incorporates, paraphrases, restates, or generates in new form information that is already classified. Makes sense, right? Now explain this. NSA released forms showing that the number of derivative classification decisions in just that agency increased from approximately 11,500 in 2007-2008, to over 20 million in 2008-2009, and to more than 35 million in 2010. That’s an increase of more than 304,000 percent! And, while recent years have seen a decrease – 23 million in 2013 and 7 million in 2017, these are still eye-popping increases over the 2008 level of 11,544. What might explain this explosive reliance on derivative classification? Perhaps it is a response to President Obama’s Executive Order 13526, which was meant to stem the tide of classified documents and to prevent agencies from classifying documents “for self-serving reasons or simply to avoid embarrassment.” Does the explosive increase in derivative documents decisions represent the bureaucracy’s work-around President Obama’s order? Overtly classified documents grew from 55 million when President Obama issued his order to 77.5 million five years later. Are these newly released numbers evidence the government is using the derivative classification mechanism to enlarge the classified state even more? Yet another good question for Congress to ask. In the meantime, PPSA has recently filed a Freedom of Information Act request asking NSA, as well as the FBI and Office of the Director of Intelligence, to produce documents that would explain wild fluctuations in derivative classification and increases in hiring and software purchases to handle such volumes. We will report any details PPSA receives that might explain this explosive growth of derivative classification. Much of the congressional debate about the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act concerns the paradox that an authority designed by Congress to spy on foreigners on foreign soil has been used by U.S. government agencies to spy on Americans – 278,000 warrantless searches of Americans in a recent one-year period.
The U.S. debate understandably revolves around Americans’ concern about our government spying on us. But it shouldn’t come as a surprise that Europeans – who enjoy no Fourth Amendment protections under U.S. law – are also not thrilled by the idea that the U.S. government freely accesses their private information and communications. European frustration with the U.S. government’s appetite for surveillance is becoming a source of major trade friction with the United States. In 2020, the European Court of Justice struck down a U.S.-EU data flow agreement known as the Privacy Shield precisely because of concerns about the aggressive use of surveillance by U.S. intelligence services. The EU and U.S. appear to be finalizing a new data flow deal this summer. But this deal could be upended by continuing rows between the two economic zones over surveillance. The Irish Data Protection Commission in late May found Meta – owner of Facebook – in violation of Europe’s General Data Protection Regulation when it transferred the personal data of Facebook users to the United States without sufficiently protecting them from U.S. government surveillance. The EU followed up by enforcing Ireland’s finding with a fine of €1.2 billion. Meta will appeal. Even for Meta, this is an eye-popper of a fine. But it is perhaps small potatoes compared to the potential cost to the more than 5,000 U.S. companies that do business in Europe if a data sharing agreement cannot be reached. To be fair, there is a bit of disingenuousness here. There is sometimes a whiff of protectionism in Europe’s high-minded critiques of companies that, surprise, always turn out to be American. And EU countries are hardly innocent when it comes to spying. They have massive surveillance operations targeting Americans, as well as their own citizens, with no Fourth Amendment protections offered under their law. But the issue remains that Europe is demanding that its private citizens who are not likely to communicate information about foreign threats not be targets of routine U.S. surveillance. Congress will, of course, maintain foreign intelligence. But if it places reasonable limits on surveillance generally, and especially bulk surveillance, and if it removes barriers to judicial review of surveillance, those steps alone might be enough to rebuild trust with Europe. Reforming FISA would help as well. Simply applying a warrant standard for U.S. persons would go a long way in demonstrating to Europe that the United States is turning the page on unrestrained surveillance. PPSA has long reported on the suspension of the Fourth Amendment at the border. Americans often find upon re-entering the United States that the contents of their digital devices are subject to being scanned and recorded, just as agents are free to riffle through our luggage.
This is not a rare event. Customs and Border Patrol reports that digital scanning hit a high of almost 45,500 device searches at airports, seaports, and land borders in 2022. Now our civil liberties coalition partners at the Electronic Frontier Foundation – who’ve long advocated for a warrant requirement to search electronic devices – report that a district court judge in New York has “made history” by being the first court to require a warrant for a cellphone search at the border. This has been a gray area because federal courts have inconsistently applied Riley v. California to the border. This is the 2014 Supreme Court ruling that requires a warrant for cellphone inspections because these devices hold “the privacies of life." In that Supreme Court opinion, the Court held that police may conduct a warrantless search of an arrestee to look for weapons or to prevent the destruction of evidence. But to review the contents of a cellphone requires a warrant. Federal Judge Jed S. Rakoff in his opinion on Tuesday drew on the “logic and analysis” of Riley. Judge Rakoff noted that border agents saved an electronic copy of the contents of a cellphone owned by an American returning to New York from Jamaica. Only after they reviewed the contents did they apply for and obtain a search warrant. He wrote: “While border agents have very substantial latitude to search a person’s body and effects without a warrant or probable cause during a border cross, the Supreme Court has now made clear that searching the data contained on a person’s cell phone is not like searching his body or his pockets. Rather, searching a cell phone will often allow law enforcement to learn all there is to know about its owner’s past movements, communications, and transactions – reams of information that differ quantitatively and qualitatively from the sorts of information a person could ever have carried with him before the advent of the ‘smart’ phone.” Much like the Supreme Court in allowing warrantless searches for weapons, the judge did not extend the warrant requirement to an American’s “effects” at the border, upholding the court-created “border search exception.” Instead, Judge Rakoff wrote that, unlike “a traveler’s luggage or cargo – which, quite obviously, is not yet in the country at the time the traveler presents herself for inspection at the border and can therefore be stopped from coming in – the information on that traveler’s phone most likely already exists outside the phone (in cloud storage or other backups), such that a border search is far less likely to actually prevent anything unwanted from entering or leaving the country.” He concluded that it would be contrary to the Fourth Amendment to “extend the Government’s reach far beyond the person and luggage of the border-crosser – as if the fact of a border crossing somehow entitled the Government to search that traveler’s home, car, and office. The border search exception does not extend so far.” This is welcome news that should establish a final standard for the protection of our most sensitive digital information at the border. All civil liberties advocates are in debt to EFF – as well as to the ACLU – for years of advocacy before the courts on this issue. Congress enacted Section 702 of the Foreign Intelligence Surveillance Act to authorize the surveillance of foreigners believed to be located abroad. Unfortunately, in the hands of federal agencies, Section 702 has become a way for our government to conduct warrantless spying on Americans inside the United States.
PPSA is now joining with nine other civil liberties organizations from the left, right, and center to sponsor a new website, fisareform.org. We want to inform you about the growing debate on how Congress should reform Section 702 before its expiration at the end of this year. We invite you to explore our website and bookmark the Resources and Media pages, which will be regularly updated to provide you with the latest research, analysis, and developments in the 702 debate. Get started here! “What Would You Like the Power to Do?”When you use an ATM while out of town, you probably don’t expect your bank to report your transactions and location to the FBI. But that is exactly what Bank of America did to an unknown but undoubtedly large number of customers who used their credit or debit cards in Washington, D.C., from Jan. 5 to Jan. 7, 2021.
PPSA heartily agrees with the prosecution of those who planned and executed the ransacking of the U.S. Capitol on Jan. 6 and beat Capitol Hill police officers senseless. But it does us no good to uphold the inviolability of the Capitol and the constitutional process for electing a president if we jettison the Constitution by illicitly surveilling large numbers of innocent Americans as potential suspects. House Judiciary Chairman Jim Jordan (R-OH) and subcommittee chairman Thomas Massie (R-KY) brought this incident to light when they announced an investigation of Bank of America, which compiled mass information on bank users only to “voluntarily and without any legal process” gift it to the FBI. Bank of America’s slogan, “What would you like the power to do?” seems to be an open invitation to the FBI to snoop. “This information undoubtedly included private details about Bank of America customers who had nothing at all to do with the events of January 6,” FBI whistleblower George Hill testified before Congress. “Even worse, BoA provided information about Americans who exercised their Second Amendment right to purchase a firearm.” The FBI has had a duty to investigate the terrible events of Jan. 6. But it doesn’t have the right to obtain mass, bulk customer information from private entities. Looking beyond this issue, the greater danger is that the FBI, like a dozen other federal agencies, can simply purchase much of our consumer information from third-party data brokers who sell our private information scraped from apps. The easy coordination of Bank of America with the FBI also begs for greater transparency for the FBI’s backdoor access to customer data from other corporations, especially social media companies. The demand of the two congressmen for Bank of America’s internal communications on this collection and for the bank’s communications with the FBI ought to shed light on the nature of their collaboration. What precipitated this curious gift of customer data to the FBI? The FBI has a duty to investigate. When it does, and when it wants access to Americans’ private communications, this duty necessarily requires warrants, as the Constitution requires. Defenders of the surveillance status quo argue that the FBI and other agencies must be allowed to perform warrantless “defensive surveillance” of Americans’ communications to defend us against foreign cyberattacks. Civil libertarians respond that there is no “defensive exception” in the Fourth Amendment of the U.S. Constitution, which requires probable cause warrants before our communications can be monitored.
Left out of this debate, until now, is the practical effect of removing warrantless defensive surveillance. Do actual cyber experts agree that it would be a disaster? Now, thanks to Tim Starks of The Washington Post, we know the answer to that question. The Post conducted a survey of “a group of high-level digital security experts from across government, the private sector and security research community.” That survey asked these experts what Congress should do about Section 702 of the Foreign Intelligence Surveillance Act, the authority that enables the surveillance of foreigners on foreign soil, but which federal agencies have used to eavesdrop on Americans’ communications without a warrant. They asked: Should Congress not reauthorize Section 702 this year, allowing this authority to expire? Or reauthorize it without changes? Or make changes to the law as the price of reauthorization? Only 16 percent of respondents said that privacy violations under Section 702 justify scrapping the authority entirely. These respondents include the highly respected Sascha Meinrath of The X-Lab think tank. “Antiquated frameworks like Section 702 have led to rampant unconstitutional surveillance of millions of innocent Americans,” The Post quoted Meinrath. “Section 702 does not function as intended and needs to be sunset in favor of a completely new surveillance-oversight framework that ensures meaningful transparency to Congress and individual accountability for violating the law.” An opposite view comes from the leaders of federal law enforcement and intelligence agencies that Section 702 should be reauthorized without any changes. Only 20 percent of the cyber experts agreed with this position. The rest – 64 percent – responded that Section 702 should be reauthorized with some changes. Some worried that the current form of Section 702 could gum up U.S. negotiations with the EU to secure a data privacy agreement. But many respondents advocate adding a warrant requirement when querying Americans’ communications. Imagine that: requiring a federal statute to adhere to the Fourth Amendment of the U.S. Constitution. More than six out of ten cyber experts agree! A bipartisan letter from eight U.S. senators to the Chief Postal Inspector brings to light the extent to which the U.S. government is spying on us through our mail. Digital scanning, and no doubt AI, have revived the relevance of pen and paper privacy concerns that led the Founders to craft the Fourth Amendment.
This surveillance involves “metadata,” a record of communications that typically refers to digital communications in the form of emails, instant messaging, and phone calls. Without delving into the content of a message, metadata can yield a surprisingly robust portrait of a target’s most sensitive and personal information. A Stanford University study of the phone records of 800 volunteers revealed who had an abortion, who was diagnosed with a neurological ailment, and who had purchased a firearm. Courts recognize this power of metadata in the digital realm, requiring a judicial order before a government agency can monitor Americans’ metadata (although, like many such rules, it is sometimes more honored in the breach). But no such rules restrict the government from taking vast numbers of images of mail envelopes. Such images are called “mail covers.” No court order is required for a federal agent to obtain your mail covers, just a request in writing to the U.S. Postal Inspection Service. Postal inspectors and law enforcement agencies had requested more than 135,000 mail covers between 2010-2014. There is no telling how many they request today. Government audits reveal that the top agencies asking for mail covers were the IRS, the FBI, the Drug Enforcement Administration, and the Department of Homeland Security. This is a well-worn path. As the senators note, Thomas Jefferson, worried about “the infidelities of the post office,” had worked out early encryption technology for his correspondence with James Madison. The senators added: “While encryption technology has come a long way since then, and is now built into widely used mobile messaging apps, postal communications remain just as vulnerable to warrantless surveillance as they were in the 1700s.” There are more modern examples of mass abuse of postal privacy. The Senate’s Church Committee revealed in 1976 that the CIA had photographed the exteriors of over two million pieces of mail and opened hundreds of thousands of letters. The FBI’s mass surveillance of the mail goes back to the 1940s. PPSA supports the demand of these senators to harmonize the rules that govern postal metadata with those that govern digital metadata. We support their call to postal authorities that they “should, except in emergencies, only conduct mail covers when a federal judge has approved this surveillance.” Meanwhile, be careful what you scribble on the back of an envelope. Some champions of the reauthorization of Section 702 without changes have tried to spin proposed reforms of this authority to be a hobbyhorse of conservatives angered about the FBI’s baseless investigation of Trump campaign aide Carter Page.
But liberals and progressives are also becoming equally passionate about “reform or die.” Late last week we reported that the FBI used Section 702 to conduct warrantless and illicit searches of Americans 278,000 times – and that some of the victims of these warrantless searches were protestors angered by the killing of George Floyd. We quoted House Judiciary Chairman Jim Jordan (R-OH) and Ranking Member Jerry Nadler (D-NY) about their outrage over this revelation from an unsealed court document. Rep. Nadler noted that the FBI has repeatedly broken its promises, declaring: “Without significant changes to the law to prevent this abuse, I will oppose the reauthorization of this authority.” Now the Chairman of the Senate Judiciary Committee, Sen. Dick Durbin (D-Ill), has weighed in. He tweeted: Section 702 of FISA exists to protect America from foreign threats. Instead, it has been abused again and again to spy on Americans. This authority should not be renewed without significant reforms to safeguard Americans’ privacy and constitutional rights. How direct – how simple – how inarguable. When the chairmen of both the House and Senate Judiciary Committees, and the Ranking Member of the House Committee, insist on reform or nothing, surveillance hawks on the Hill would be wise to prepare for major concessions. The first of them should be to include a warrant requirement whenever an American’s 702 information is surveilled. COURT BOMBSHELL: FBI Improperly Used Section 702 Against Left, Right and 19,000 Political Donors5/19/2023
Total of 278,000 Searches of Americans The FBI just completed one of the worst weeks in its history.
On Monday, Special Counsel John Durham came out with a detailed and scathing report that showed unmistakable bias by the FBI in using discredited allegations, paid for by a political campaign, to hoodwink the secret Foreign Intelligence Surveillance Court into allowing the agency to investigate presidential candidate Donald Trump. While the Durham report has been generally dismissed by major media and most on the left (with some notable exceptions), Republicans are hopping mad. Now an unsealed court document shows that the FBI illicitly used Section 702 of FISA more than 278,000 times to delve into data meant to authorize the surveillance of foreigners on foreign soil – and Americans who “incidentally” get caught up in communications with those targeted foreigners. Who were the FBI’s targets? They included activists arrested protesting the police killing of George Floyd. The FBI freely dipped into Section 702 to search the communications and digital trails of 133 people – presumably all Americans – for George Floyd-related demonstrations. Redactions make it unclear what, if any, nexus to foreign influence the FBI was looking for. But wait, as they say in the ShamWow commercial, there’s more! This same authority was used to run queries on 23,132 Americans to see if their presence at the Jan. 6, 2021, U.S. Capitol riot had any connection to foreign influence. The release from FISA Court Judge Rudolph Contreras stated that there was no reason to believe foreign powers were involved. Still more! The FBI conducted 656 queries of FISA information to do background checks on informants. Between 2016 and 2020, the FBI also used this foreign intelligence authority to conduct background searches on “police homicide reports, including victims, next-of-kin, witnesses, and suspects.” Remember, this is an authority designed by Congress to catch foreign terrorists and spies. Finally, the FBI conducted a batch query of 19,000 donors to a congressional campaign believed to be a target of foreign influence. Only eight identifiers had sufficient ties to “foreign influence activities” to meet FISA standards. While expressing relief at recent procedural changes at the FBI, Judge Contreras wrote: “Nonetheless, compliance problems with querying of Section 702 information have proven to be persistent and widespread. If they are not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel with access to unminimized Section 702 information.” Or Congress could just reform Section 702 to require warrants whenever the communications of Americans are searched. Alienated conservatives, progressives and civil libertarians, and their champions on the Hill now have more than enough reason to make it happen. Jim Jordan (R-OH), Chairman of the House Judiciary Committee, tweeted in response to this Friday afternoon revelation: “Chris Wray told us we can sleep well at night because of the FBI’s so-called FISA reforms. But it just keeps getting worse.” Ranking Member Rep. Jerry Nadler (D-NY) put out a statement: “The FBI says that they have instituted new procedures to make this kind of abuse impossible. They have made that promise before. Without significant changes to the law to prevent this abuse, I will oppose the reauthorization of this authority.” It looks like the stars are aligning for Section 702 reform this year. Time for the Senate to Act!Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, reacted to the unanimous passage of the Non-Disclosure Order (NDO) Fairness Act by the U.S. House of Representatives. This bill restricts the government’s currently unlimited ability to impose gag orders on telecom and digital companies. These gag orders keep these companies’ customers from learning that their sensitive, personal information has been surveilled by the government.
“This practice keeps thousands of Americans in the dark, never knowing that the government has snooped into their most sensitive, personal information – including communications that concern their health, financial transactions, and personal relationships,” Goodlatte said. “The NDO Fairness Act closes this privacy loophole in a way that balances the needs of the judicial process and public safety with the Fourth Amendment rights of Americans. When a bill is this popular – passing unanimously in the House Judiciary Committee and the full floor of the House – the Senate must take notice. “At a time when just about everything is gridlocked in Washington, passing this measure would be a sure sign that Congress can get something done that appeals to Americans in both parties. PPSA and our civil liberties partners – left, right, and center – urge the Senate to pass the NDO Fairness Act.” DNA technology has become so refined that, according to the New York Times, scientists can now conjure your identity and wanderings out of thin air.
In their quest to monitor animal species in nature, wildlife researchers have accidentally stumbled upon the ability to decode a person’s DNA found floating in the air, or lingering in water, snow, or practically anywhere you’ve been. The technology is so precise that scientists could recover medical and ancestry information from minute fragments you left behind while sitting in a park. The wind really does cry Mary, and all her relatives too. This discovery is another technological accelerant of comprehensive surveillance. Authoritarian states could use this technology to locate downstream traces of repressed ethnic minorities, like Uighurs in China. Healthcare and biotech firms could trace genetic diseases to specific individuals and preemptively deny healthcare coverage or advertise treatments before that person would even know they have a vulnerability. Police could end up using this untested technology to mistakenly convict someone with DNA evidence, for which there are few legal protections, and from which there are minimal legal remedies. Erin Murphy, a professor at New York University School of Law who specializes in the use of new technologies in the criminal legal system, is worried about the surveillance potential of this technology. She told The Times that the state of privacy protections is “a total wild west, a free for all… The understanding is police can sort of do whatever they want unless it’s explicitly prohibited.” The history of forensic data use by authorities does not instill comfort. According to another NYT article, more than 150 men and women in America were exonerated in 2018 – just one year – because forensic experts exaggerated statistical claims to bolster unscientific assertions. While DNA matching is very reliable, it is not clear that trace amounts taken from the environment would equal that high degree of certainty. Despite the uncertainty about these technologies, “courts are still reluctant not to allow it or to overturn a case” because of the long precedent of their use, said Aliza Kaplan, a professor at Lewis & Clark Law School. The problem is that, since the early 2000s, courts have held that a warrant is unnecessary for DNA that is not still attached to a person. As a result, the Fourth Amendment’s prohibition of “unreasonable search and seizure” without probable cause flies out the window the moment your DNA leaves your body. But given that DNA technology can now be used to sequence a person’s entire genome instantly and provide nuanced biological information, DNA can share a library full of your private information with third parties. This is just another example of the widening capability of the surveillance state, from facial recognition, to our digital traces being purchased, to now actual traces of us in the environment. It is clear that privacy law has not kept pace with the rapid scientific developments of the last few decades, to the detriment of Americans. Congress must take steps to improve privacy of Americans’ data, including that taken from our very selves. Most everyone has heard of Breonna Taylor, the 26-year-old emergency technician in Louisville, Kentucky, who was gunned down by police after a no-knock warrant was mistakenly executed at her apartment. But have you heard of Dennis Tuttle and Rhogena Nicholas?
This married couple were napping at home in east Houston on the evening of Jan. 19, 2019, when the Houston Police Department’s Narcotics Division burst through their front door. An officer immediately fired a shotgun, killing their dog. Dennis Tuttle reached for a revolver and fired at the intruders. “Once the homeowners thought that their doors were being kicked down by home invaders, they started firing, and the police responded in kind,” Rep. Gene Wu (D-Houston) told Houston Public Media. Nicholas, 58, was shot twice. Tuttle, a 59-year-old Navy vet, was shot nine times. Both died at the scene. Four police officers were wounded, one paralyzed. Many observers strongly dispute the official contention that none of the officers’ injuries came from friendly fire. The veteran narcotics officer who obtained the no-knock warrant from a municipal court judge was later found to have lied. He said that the couple had been selling “black tar” heroin, a fact he had learned from a confidential informant. But there was no heroin or even a confidential informant. That officer, Gerald Goines, was hit with multiple federal and state charges, including two murder charges. No-knock warrants are allowed by courts when there is an overwhelming threat of violence or destruction of evidence. Like many extraordinary law enforcement procedures – from the ability of the FBI to obtain Americans’ personal information from a surveillance program meant to catch foreign terrorists and spies, to “caretaker” entries by police into homes – the extraordinary no-knock warrant has become routine. But at least in the case of no-knock warrants, states are beginning to restrict these procedures. Rep. Gene Wu, a Democrat, introduced a bill in the Texas House of Representatives to require a chief of police or a designated supervisor to approve no-knock warrants. Officers carrying out the warrant would have to be in uniform or otherwise identifiable as police. Rep. Wu’s bill passed overwhelmingly in the House by a 104-33 margin, with strong Republican support. If the Texas Senate passes it and Gov. Greg Abbott signs it, Texas will become the fourth state after Florida, Oregon, and Virginia to restrict no-knock warrants. In our many federal and state lawsuits, amicus briefs, and blogging, PPSA stresses that authorities must adhere to the Constitution’s Fourth Amendment requirement for a probable cause warrant to enter a home or surveil someone’s private information. But warrants are meaningless if the process is corrupted or judges act as rubber stamps. The municipal judge in this case had routinely approved many such no-knock warrants. He had not, the judge told The Washington Post, reasoned that officer Goines was a liar. It turns out that Goines was a prolific liar. Texas authorities are now having to work through 14,000 cases touched by Goines to find innocent people railroaded by his false statements. So far, more than 160 cases have been dismissed. Some people serving prison sentences have been exonerated. If Rep. Wu’s bill becomes law, it will tighten the requirements for a no-knock warrant. Municipal court judges who are not state-licensed attorneys will not be allowed to sign bench warrants for no-knocks. We would add, however, that these same principles need to be applied to the highest levels of law enforcement, including the secret Foreign Intelligence Surveillance Court. A Department of Justice investigation revealed that the FBI lied by omission and commission to the judge of the secret court – and even submitted forged evidence – to secure a warrant to surveil an aide, Carter Page, in a presidential campaign and transition. The warrants issued by the secret FISA court rarely, if ever, result in doors being knocked off their hinges. The existence of these warrants often never come to light, even to the targets of an investigation, yet they can be in their own way destructive to civil liberties. If only a qualified judge should scrutinize a no-knock warrant for genuine evidence of an unmitigable danger, so too should a FISA judge have the advice and scrutiny afforded by civil liberties experts, or amici, in their secret proceedings. Credit to the Department of Justice for a voluminous response to our Freedom of Information Act (FOIA) request. Our request concerned the use of stingrays, or cell-site simulators, by that department and its agencies. Out of more than 1,000 pages in DOJ’s response, we’ve found a few gems. Perhaps you can find your own.
Review our digest of this document here, and the source document here. The original FOIA request concerned DOJ policies on cell-site simulators, commonly known by the commercial brand name “stingrays.” These devices mimic cell towers to extract location and other highly personal information from your smartphone. The DOJ FOIA response shows that the FBI in 2021 invested $16.1 million in these cell-site simulators (p. 209) in part to ensure they “are capable of operating against evolving wireless communications.” The bureau also asked for $13 million for “communications intercept resources.” This includes support for the Sensitive Investigations Unit’s work in El Salvador (p. 111). On the policy side, we’ve reported that some federal agencies, such as the Bureau of Alcohol, Tobacco, Firearms and Explosives, maintain that stingrays are not GPS location identifiers for people with cellphones. This is technically true. Stingrays do not download location data or function as GPS locators. But this is too clever by half. Included in this release is an Obama-era statement by former Department of Justice official Sally Yates that undermines this federal claim by stating: “Law enforcement agents can use cell-site simulators to help locate cellular devices whose unique identifiers are known …” (p. 17) This release gives an idea of how versatile stingrays have become. The U.S. Marshals Service (p. 977) reveals that it operates cell-site simulators and passive wireless collection sensors to specifically locate devices inside multi-dwelling buildings. Other details sprinkled throughout this release concern other, more exotic forms of domestic surveillance. For example, the U.S. Marshals Service Service has access to seven aircraft located around the country armed with “a unique combination of USMS ELSUR suite, high resolution video surveillance capability … proven to be the most successful law enforcement package” (p.881-883). A surveillance software, “Dark HunTor,” exposes user data from Tor, the browser meant to make searches anonymous, as well as from dark web searches for information. (p. 105) In addition, the U.S. Marshals Service Service “has created the Open-Source Intelligence Unit (OSINT) to proactively review and research social media content. OSINT identifies threats and situations of concern that may be currently undetected through traditional investigative methods. Analyzing public discourse on social media, its spread (‘likes,’ comments, and shares), and the target audience, the USMS can effectively manage its resources appropriate to the identified threats.” (p. 931) The DOJ release also includes details on biometric devices, from facial recognition software to other biometric identifiers, (p.353), as well as more than $10 million for “DNA Capability Expansion” (p.365). Is that all? Feel free to look for yourself. The House Judiciary Committee today passed the NDO Fairness Act by unanimous voice vote, clearing this bill for a vote on the House floor next week.
The Non-Disclosure Order (NDO) Fairness Act would place restrictions on the government’s current unlimited ability to impose gag orders on telecom and digital companies, keeping them from informing their customers that their sensitive, personal information has been surveilled. As a result, thousands of Americans – who are not suspected of any wrongdoing – never learn that communications about their health, financial transactions and personal relations have been reviewed by the government. “We are grateful to Rep. Scott Fitzgerald and Ranking Member Jerry Nadler for working to close a privacy loophole that has evolved into a serious encroachment of Americans’ constitutional rights,” said Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee. “All the Members of the Judiciary Committee deserve our gratitude for propelling the NDO Fairness Act along to floor of the House.” Goodlatte noted that the NDO Fairness Act passed the House by voice vote in June 2022, only to languish in the Senate. The bill passed by the House Judiciary Committee today directs courts to more heavily scrutinize gag order requests. It sets a time limit on these gag orders, requires notice to be given to customers soon after the expiration of the order, and gives Americans standing to contest a gag order in court. “This bill is well thought out, balancing the Fourth Amendment and privacy needs of Americans against the need to protect the judicial process and public safety,” Goodlatte said. “That is why this is such a popular bill enjoying such broad, bipartisan support. We hope the full House will swiftly pass this bill and give it new momentum in the Senate.” Friday’s government report on surveillance from the Office of the Director of National Intelligence (ODNI) shows that the number of times the FBI searched for Americans’ data in the Section 702 database fell by 95 percent from 2021 to 2022.
This proves, the FBI claims, that its “culture of compliance” and reformation of its internal processes are working. Agents must now affirmatively opt-in to Section 702, whereas before, the FBI says, they could bumble into using Section 702 data without fully realizing it. In terms of raw numbers, the FBI searched the Section 702 database almost 120,000 times last year, down from around 3 million such searches in 2021. And almost all of those 120,000 queries were to seek out connections between Americans’ communications and foreign spies and security threats. Slightly different definitions yield 200,000 as the number of such queries, but still a significant drop from 3 million. Civil liberties advocates and their champions on the Hill are not impressed. As Congress faces the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, Members from both parties continue to insist that statutory reforms be made in Section 702 to compel FBI compliance with the Fourth Amendment requirement for a probable cause warrant. The FBI has been caught in the past using these surveillance tools for purely domestic crimes, ranging from bribery to health care fraud, that clearly should have required a warrant. FBI agents have delved into Section 702-derived information to do background checks on journalists, community leaders, religious communities, and activists, and at least one Member of Congress, Rep. Darin LaHood (R-Ill). Perhaps this explains why Rep. LaHood, with House Permanent Select Committee on Intelligence Chairman Rep. Mike Turner (R-OH), issued a cool response to the ODNI report: “While there was a sharp decline in U.S. person queries from December 2021 to November 2022, it is incumbent upon Congress, not the Executive Branch, to codify reforms to FISA Section 702.” Translation: FBI, we still don’t trust you – Congress is going to have to enact rules to make you adhere to the Fourth Amendment’s requirement for a probable cause warrant. It’s easy to see why. If the FBI’s programmatic change to opt-in is what made the difference, then either the great majority of queries before changes were made to the FBI system were unlawful – likely many millions of unlawful searches – or the FBI is willing to forgo a huge number of lawful queries for the sake of compliance. If you buy the FBI’s arguments, they are doing this despite the bureau’s often dire warnings that any pullback would result in massive risks to national security and public safety. So which is it? “Is 200,000 warrantless queries better than 3.4 million warrantless queries?” Elizabeth Goitein of the Brennan Center for Justice’s liberty and national security program told The Washington Post. “When you ask the question, you get a sense of how warped the universe we’re in is – that somehow 200,000 warrantless searches a year are an acceptable number.” We add that it’s as if the residents of cities the size of Montgomery, Alabama, or Tacoma, Washington, were illegally surveilled. Does that sound like something to celebrate? The FBI responds that many of its searches are conducted to protect victims from cybercrimes. But there is, Goitein says, no “victim exception” to the Fourth Amendment. “They are basically admitting that they’re searching Americans’ communications and most private, personal information without probable cause.” All of which begs the question – if you think there’s a crime, why not obtain a criminal search warrant? Worse, Congress and the public are left to look at this latest report through a glass, darkly. The FBI is not transparent in its methodology. It does not give a full accounting of the rules by which it catalogs and lists its searches. If the Drug Enforcement Administration runs a query and shares what it learns about an American citizen with the FBI, is that counted under these rules? How does the FBI count batch queries (multiple queries under a common justification) over one-offs? Only Congress can dispel the murkiness by demanding answers. And as it does, expect to see even more reasons for statutory reforms as the precondition for the reauthorization of Section 702. Happy World Press Freedom Day! If you are a journalist heading out to do an interview, please be careful in your movements, your digital security, and the protection of your sources. In some countries, you might want to check under your car before starting the ignition.
But be advised that even these safety measures may not be enough to protect you. Like many declarations of the United Nations, the 30th anniversary of World Press Freedom Day is observed in the breach in many UN member countries. The UN Secretary General Antonio Guterres said that the number of journalists killed in 2022 was 50 percent higher than the previous year. UNESCO reports that in all, 86 journalists were killed last year. That’s a reporter killed every four days. In Mexico, where many journalists have been murdered, the government and the cartels are the most prolific users of Pegasus, surveillance software that can transform any smartphone into a comprehensive 24/7 surveillance device. This spyware reveals one’s texts, emails, images, and calendar, while turning a smartphone’s microphone and camera against its owner. The New York Times reports that Mexico’s federal spy agency has “targeted more cellphones with the spyware than any other government agency in the world.” And, of course, criminal actors have full use of this technology in much of the world. Cartels used Pegasus to track down journalist Cecilio Pineda Birto hours after he accused the state police force and local politicians of conspiring with violent criminals. He was gunned down while waiting for his car to come out of a carwash. Twenty-six Mexican journalists were targets of interest by a buyer of this technology in recent years. This is in keeping with Secretary Guterres’ statement that “90 percent of the journalists killed” are “covering local issues, human rights violation, corruption, illegal mining, environment problems.” He added that many of the killers “are not only state actors, they are organized crime, drug lords, environmental criminals.” In some parts of the world, the line between state actors and thuggery is nonexistent. Witness the ordeal of Evan Gershkovich of The Wall Street Journal, arrested on specious charges of being an American spy by the judicial puppets of the Vladimir Putin regime. Or Jimmy Lai, the Hong Kong publisher who bravely defied the Chinese Communist Party and has disappeared behind bars. In other parts of the world, journalists are intimidated by online attacks and loose libel laws that keep journalists legally and psychologically intimidated. Throughout, the marriage of increasingly potent surveillance technology and illiberal regimes is making the practice of journalism more difficult. This is true even in the United States. A Texas journalist was arrested for – get this – “misuse of official information.” A Wall Street Journal reporter in Arizona was arrested for doing man-on-the-street interviews. The press can often come at the truth with a slant or a sensational angle. The press can just get a story wrong. But the free and open practice of journalism is in the long run the only way for a free society to self-correct and sift out the truth. As the founders insisted, freedom of the press safeguards society against official corruption, malfeasance, and the lawless exercise of power. Now the free practice of journalism globally, and even at home, can be compromised by powerful spyware. It is also threatened by our government’s possession of our communications and online activity through Section 702 of the Foreign Intelligence Surveillance Act, as well as the bulk purchase of Americans’ digital information from data brokers. While 49 U.S. states have press shield laws, there is no federal law that protects the notes and sources of a journalist from being seized by a federal prosecutor. All the more reason to celebrate World Press Freedom in America by asking Congress to get behind the PRESS Act, which would extend these basic protections to the federal government. A House subcommittee hearing today demonstrated widespread, bipartisan recognition of the need to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA). Both the Chairman and Ranking Member of the full House Judiciary Committee – Rep. Jim Jordan (R-OH) and Rep. Jerry Nadler (D-NY) – called for their committee colleagues to lead bipartisan reforms to prevent further, significant abuses of this authority. Jordan, looking over his shoulder to Rep. Nadler, highlighted “the fact that we can get bipartisan on protecting civil liberties.” Subcommittee chairman Andy Biggs (R-AZ) had earlier opened the hearing by saying Section 702 reform requires a “rare bipartisan effort.” Rep. Jerry Nadler (D-NY) agreed bipartisan action is needed. He complained about the government “keeping us in the dark” on the numbers of warrantlessly collected data of Americans. The result of this secrecy, he said, is the backdoor surveillance of Americans that “is neither hypothetical nor rare.” Sharon Bradford Franklin, chair of the independent watchdog of the independent agency that protects civil liberties in government counterterrorism programs, spelled out three specific reforms. Even the title of the hearing, “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them,” was telling. It set the tenor of skeptical and substantive questions from representatives from both parties. By the end, it was clear that the push for Section 702 reform is strong and accelerating. Franklin, Chair of the Private and Civil Liberties Oversight Board (PCLOB), noted that Section 702 – because it aims to collect the data of foreigners presumed to be located abroad – does not need to observe the Fourth Amendment requirement for a probable cause warrant. Nevertheless, Americans’ communications get “incidentally” caught up in this surveillance. “The term incidental makes it sound like a small amount, but we don’t actually know the scope of this collection,” Franklin said. “The government argues it is not feasible to calculate a meaningful number.” “They won’t tell us,” Chairman Jordan said sharply. “No idea how many Americans are pulled into incidental collection – the FBI won’t tell us.” He later fired a warning shot, “How about we put the FBI out of this business altogether?” There was widespread recognition among committee members that the FBI is withholding any suggestion of the magnitude of incidental collection. This was a perfect set-up for Franklin to make the first of her three recommendations.
Franklin then turned to how Section 702 – an authority designed by Congress to permit the surveillance of foreigners – has become a method by which the government can warrantlessly surveil Americans. “No judge ever reviews analysts’ targeting procedures,” she said, because they target foreigners who do not enjoy U.S. constitutional protections. Thus, she said, there is no judicial review on the front-end of the process. Nor, because the authority is ostensibly about foreigners, is there a warrant “requirement at the backend to establish probable cause or obtain permission from a federal judge,” even when Americans become the target of 702 surveillance. This is what, Franklin said, privacy advocates mean by Section 702 enabling “backdoor searches.” She noted the FBI has recently released a set of reforms and improvements to its FISA process. These include changing default settings in the FBI’s query system so agents must affirmatively opt in to have their queries run through 702 data and establishing special approvals for sensitive queries such as those involving elected officials, members of the media, academia, and religious leaders. “These reforms are welcome,” Franklin said, “but I do not believe these changes are sufficient to address the privacy threats posed by these warrantless searches seeking information about specific Americans.”
Third and finally, Franklin addressed the issue of “abouts” information – collecting references from third parties about an American. In 2018, Congress suspended the collection of “abouts” data, but the current law allows the government to restart the practice at will. This is dangerous, she said, because it allows the government to “acquire communications extensively between people about whom the government had no prior suspicion, or even knowledge of their existence, based entirely on what is contained within the contents of their communications.”
Franklin’s testimony was a good summation of the issues at stake in Section 702, as well as her recommendations. Rep. Laurel Lee (R-FL) noted the call to require amici – legal experts in civil liberties – to advise the secret FISA court whenever it considers surveillance requests from the government that involve Americans’ fundamental freedoms in politics, religion, and journalism. Department of Justice Inspector General Michael Horowitz seemed to agree. He responded that in the secret hearings, “agents never face a challenge or a cross examination” unlike an ordinary criminal trial. Facing cross-examination by a privacy advocate, Inspector Horowitz said, “focuses the mind.” The lasting impact of the hearing will likely be Franklin’s three recommendations – to get the government to produce an estimate of incidental collection of Americans communications, to involve FISA court review of the query terms for Americans, and to remove the ability of the government to return to the collection of “abouts” information. Watch the full hearing: The Capitol dome is ringing and reverberating like a bell after being struck by Jordain Carney’s article in Monday’s Politico about the FBI’s lack of credibility on the Hill.
Carney spells out what until now has been whispered – that years of disingenuous claims by the FBI is making it the odd man out in this year’s reform of Section 702 of the Foreign Intelligence Surveillance Act (FISA). For years, PPSA has been critical of the defensive, often patronizing, tone of FBI Director Christopher Wray who praises the bureau’s “culture of compliance.” He glosses over years of FBI lying about bulk collection of Americans’ data and massive amounts of backdoor searches as if he had accidentally taken a sip from someone else’s water glass over lunch. Wray has particularly rubbed Republicans the wrong way. After the Justice Department Inspector General detailed the manifold failings of the FBI in its FISA Title I Carter Page investigation – from lying by omission to the secret FISA court (later to be compounded by the submission of a forged document by an FBI lawyer) – Wray had a snappy comeback. He thanked the inspector for his “constructive criticism.” At the time, Rep. Tom McClintock (R-CA) responded by detailing how much is at stake when the FBI overreaches: “The FBI can be entrusted with the most terrifying powers that we can give our government – the power to ruin people’s lives, the power to invade their privacy, to launch pre-dawn raids on their homes, to bankrupt them with legal costs, to deprive them of their liberty.” Undaunted, Wray doubled down with his smooth, nothing-to-see here demeanor in recent testimony on the Hill. He revealed that the Section 702 program saw a 93 percent decrease between 2021 and 2022 in the number of FBI searches for U.S. persons – only to have staff reveal to The New York Times that the remaining number is 204,090. That’s still millions of Americans illicitly surveilled outside the Constitution in just a few years. “The FBI is absolutely the problem child in FISA and 702,” House Intelligence Chairman Mike Turner (R-OH) told Carney. “The abuses are abhorrent. Wray is not a compelling advocate for FISA or 702, because he’s not been a compelling advocate for reform.” It didn’t help that the lawmaker tasked with spearheading the reauthorization of Section 702, Rep. Darin LaHood (R-IL), turned out to be the very Member of Congress who had his name used in three queries, compromising all his private communications. Rep. LaHood, who is generally supportive of 702 reauthorization, told Wray in a recent hearing that a clean, or unamended, reauthorization of Section 702 was not in the cards. Now Carney reveals that congressional “negotiators are already signaling that they will likely miss the Dec. 31 deadline to re-up the warrantless surveillance.” PPSA hopes that in investigating FBI abuses that Congress looks at other agencies – from NSA to DEA – that also promise a “culture of compliance.” They all need to be reined in instead of following the FBI in the wrong direction. Congress needs to act with strong reforms of Section 702 that require probable cause warrants whenever an American is targeted, as the Constitution requires. PPSA Joins With More Than A Dozen Civil Liberties Organizations Warning Congress On Restrict Act4/21/2023
The Project for Privacy and Surveillance Accountability joined with more than a dozen civil liberties organizations in an open letter warning Congress about the dangers of the Restrict Act, which would give the Secretary of Commerce sweeping powers over virtually all information technology.
“The scope of the act is enormous,” the coalition letter reads, “and may allow the administrative state to issue regulations affecting telecommunications, cryptocurrencies, press freedoms, and the use of and access to the Internet itself.” The bill would create criminal penalties that carry up to 20 years in prison and up to $1 million in fines, as well as civil asset forfeitures. If enacted, the Restrict Act would necessitate and likely authorize even more domestic spying on Americans than currently occurs, while cracking down on lawful speech. It is a recipe for an American surveillance state. PPSA's senior policy advisors, Bob Goodlatte and Mark Udall, writes in Real Clear Politics.
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