An elegant essay by Adrian Wooldridge in Bloomberg makes a connection between the Chinese surveillance state – “using the awesome power of data harvesting and artificial intelligence to compile more information on its citizens than any society has ever managed before” – and Western “surveillance capitalists” who are making our country a little more like China day by day.
PPSA has long warned that all the elements are falling into place to create an American surveillance state.
Here are just a few of the ways in which this is happening: The federal government and local police departments use “stingray” technology to trick Americans’ phones to betray your location and other personal information. Authorities can purchase your location history with Fog Reveal technology and capture all your comings and goings. Or they can just buy your personal information from a private data broker, as many federal agencies do.
The growing web of the “internet of things” will only produce more reportable data about you, from the cars we drive, to our refrigerators and other appliances in our home. A surveillance loophole was even recently found in a Chinese-made coffee maker.
Wooldridge reports that the Chinese Communist Party is at the cutting edge, “developing a new sort of ‘digital phrenology’ by monitoring people’s facial expression for signs of anger and new forms of racial profiling by creating a world-leading DNA database.” Governments, including our own, exert “relentless pressure for the misuse of information even as the quality and quantity of available information grows exponentially.”
The techno-optimists of the 1990s waxed rhapsodic about how the internet was going to liberate the human mind. Wooldridge comes to an opposite conclusion with these chilling words: “The arc of the digital revolution bends toward tyranny.”
Agencies Avoid Answering Questions About the Purchase of Private Information of Members of Congress
Since the mid-1960s, the Freedom of Information Act (FOIA) has allowed American citizens and civil liberties organizations to obtain unclassified documents from federal agencies, shedding light on official actions and policies. In recent years, however, the government has devised many creative ways to stall, obfuscate, and outright withhold answers to FOIA requests, while seeming to be as responsive as possible. Cato Institute scholar Patrick Eddington calls these tactics “constructive denial.”
For over two years, Cato filed FOIA requests to obtain FBI records on militia groups of the left and the right, including the white supremacist Patriot Front. “Groups like the Patriot Front,” Eddington writes in The Hill, “are, in the view of most Americans, a moral and political blight that the country would be far better off without. At the same time, the protection of offensive ideas and speech are at the heart of the purpose of the First Amendment.” Thus, Cato sought records to better understand the threat posed by these groups and the nature of the government’s response.
In defiance of FOIA’s requirement that the FBI send the requested documents to the requester himself, the FBI replied to Cato that it would eventually file the documents on an FBI website. “You will be notified when releases are available.”
In other words, buzz off.
Constructive denial can be seen in another form after PPSA filed suit against the National Security Agency, the CIA, the Department of Justice and FBI, and the Office of the Director of National Intelligence in June to compel the release of records pertaining to the possible purchase of the personal information of more than 100 current and former Members of the House and Senate Judiciary Committees from private data brokers.
This is understandably a sensitive question, given that current and former judiciary committee lawmakers include Chairman Jerrold Nadler, Ranking Member Jim Jordan, Chairman Dick Durbin, Ranking Member Chuck Grassley, as well as Vice President Kamala Harris and Florida Gov. Ron DeSantis. Still, it would be a matter of public interest – not to mention to these legislators themselves – if the government were buying up their personal information. Such an act could yield leverage for executive branch agencies to bully leading Members of Congress, subtly undermining democracy.
The agencies’ response to PPSA’s FOIA request over summer 2021 was to issue Glomar responses, a judicially invented doctrine that neither confirms nor denies that such records exist.
Now that PPSA has sued to enforce its request, these agencies have come back with an answer that doubles down on a government theory that it would be too dangerous to national security for these agencies to even search for such documents. At the same time, government responses strike a tone of wanting to be as cooperative as possible.
One choice example: PPSA asserted a “right of prompt access to requested records under the law.” The National Security Agency responded: “To the extent that a response is required, Defendant NSA denies the allegation, including the fact that NSA has wrongfully withheld records.” This is a construction worthy of Joseph Heller’s Catch-22.
Gene Schaerr, PPSA general counsel, responds: “The government’s answers disingenuously conflate an internal search for documents with an external response to a question. The government feels free to treat FOIA as polite supplication instead of a law that must be obeyed. PPSA will continue to press on for a serious answer in federal court.”
In the meantime, expect the government to come up with many new forms of constructive denial.
Courts throw out cases in which the government violated the Fourth Amendment to gain evidence obtained illegally. Prosecutors, dreading such a rebuke, have sometimes resorted to “parallel construction” – using illicitly gained knowledge to turn up evidence from a source acceptable in court.
Suppose, for example, that an illegal wiretap by federal investigators reveals that a target will deliver drugs to a certain street corner. They could then alert local police to decide that specific corner is a good place for a spot-check with drug-sniffing dogs.
In this way, evidence obtained by illicit surveillance can be laundered. This seems to be especially prone to happen when law enforcement relies on “stingrays” – the common name for cell-site simulators, equipment that mimics a cellphone tower to ping the location of a cellphone.
The FBI, in 2014, after providing the Oklahoma City police with stingray technology, sent that department a memo telling the police that the stingray is for “lead purposes” only and “may not be used as primary evidence in any affidavits, hearings or trials.” Instead, the FBI required the police to use “additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial” to corroborate information obtained using the stingray. The Cato Institute’s Adam Bates analyzed such agreements and concluded that “law enforcement uses some surreptitious and, perhaps, constitutionally dubious tactics to generate a piece of evidence. In order to obscure the source of that evidence, police will use the new information as a lead to gather information from which they construct a case that appears to have been cracked using routine police work.”
Perhaps because of reporting like Cato’s analysis, formal FBI agreements to sell stingrays to local law enforcement – at least those released to the public – appear to be missing this language.
But what about informal agreements?
In two responses to PPSA’s Freedom of Information Act requests, the FBI has used similar language in 2015 and 2020 deals to allow police to use stingrays. To be fair, these may be one-off situations. Both cases seem to have been loaner deals, in which stingrays were deployed in “exigent” or emergency circumstances.
For example, one 2015 email chain shows that an agency agreed to the FBI’s request that “it is required to use additional and independent investigative means and methods, such as [redacted] that would be admissible at trial to corroborate information concerning the location of the target obtained through the use of this equipment.”
Comparing this redacted language to the unredacted provisions imposed on the Oklahoma City police, it appears that the FBI continues to push local law enforcement to hide their stingray use from the courts. On the other hand, this language is missing from other NDA forms PPSA has obtained. Has the FBI abandoned this practice? Or is it continuing “off the books” in some fashion to encourage local law enforcement to launder evidence?