A recent opinion-editorial in The Hill casts a harsh light on the unfolding state of “digital authoritarianism” in America’s schools. Public schools are increasingly adopting artificial intelligence to monitor students and shape curricula. This trend could ultimately have the effect of stifling education, invading privacy, and changing the attitude of adult American society about pervasive surveillance.
 
Civil rights attorney Clarence Okoh writes that “controversial, data-driven technologies are showing up in public schools nationwide at alarming rates.” These technologies include AI-enabled systems such as “facial recognition, predictive policing, geolocation tracking, student device monitoring and even aerial drones.”
 
A report compiled by the Center for Democracy & Technology found that over 88 percent of schools use student device monitoring, 33 percent use facial recognition and 38 percent share student data with law enforcement. These surveillance technologies enable schools to punish students with greater frequency.
 
A study conducted by Johns Hopkins University found that students at high schools with prominent security measures have lower math scores, are less likely to attend college, and are suspended more often compared to students in schools with less surveillance. The study claims to factor out social and economic background data. Okoh highlights a Florida case in which the sheriff’s office has purportedly used a secret predictive policing program against vulnerable schoolchildren. At some point, the punishments of “predictive” behavior could easily become a self-fulfilling prophecy.
 
A group known as the People Against the Surveillance of Children and Overpolicing (PASCO) has found through litigation and open records requests that the Pasco, Florida, sheriff’s office has a secret youth database that contains the names of up to 18,000 children each academic year. According to PASCO, the sheriff’s office built this database using an algorithm that assessed confidential student records: everything from grades, attendance records, and histories of child abuse are used to assess a student’s risk of falling into “a life of crime.”
 
Many programs directly target minority students. Wisconsin uses a dropout prevention algorithm that uses race as a risk factor. Such modeling, mixed with surveillance software in schools, could have a demonstrably harsher impact on minority students, leading to higher suspension rates.
 
State legislators need to drill down into these reports and verify these claims. One avenue to explore is the role of parents in this process. Are they informed of these practices? Have they been sufficiently heard on them? We have sympathy for why some schools would feel the need to resort to such tactics. But if these facts pan out, then artificial intelligence has just opened up a new front – not just in the war on privacy, but one that could seal the fate of children’s future lives.
 
It also could have an impact on adult society as well. An elementary school student might not understand what it means to be surveilled 24/7 and could become accustomed to it over time. This could lead to a generation of Americans who are inured to ever-present monitoring. If digital authoritarianism becomes the norm in school, it will soon become the norm in society.
 
PPSA looks forward to further developments in this story.

​When Richard Nixon wanted his minions to run a super-secret surveillance operation that came to be known as the White House Plumbers, the president had it set up in Room 16 in the basement of the Executive Office Building. A recent White House memo obtained and reported by Wired shows that a massive dragnet surveillance program – warrantlessly scooping up phone records from Americans by the trillions – is now being run out of the White House today.
 
This program, currently called Data Analytical Services (DAS) allows federal, state, and local law enforcement to mine the details, though not the content, of Americans’ calls. As a study at Stanford University showed, metadata alone can reveal startling amounts of highly personal information. When the government adds “chain analysis” – moving outward from one target to the person he or she communicated with, and on to the next person – vast networks of associational groups, whether religious, political, or journalistic, can be X-rayed.
 
“In response to a 2019 Freedom of Information Act request the Project for Privacy and Surveillance Accountability filed jointly with Demand Progress, we received a document from the Drug Enforcement Administration with a redaction into which one could easily fit the word ‘Hemisphere’” said Gene Schaerr, PPSA general counsel. “Hemisphere was the name of this warrantless surveillance program until it was rebranded as Data Analytical Services. Clearly, the government was holding on to something it didn’t want us to see. We had no idea, however, they were hiding it in the White House. With the ‘two-hop’ rule, government at all levels can not only target an individual, but also her spouse, children, parents, and friends.
 
“This is nothing less than warrantless, dragnet surveillance at the national level,” Schaerr said.
 
There is as of yet no evidence that implicates this program in political surveillance. But as with the Nixon Administration, running a program out of the White House has unique advantages. In the current era, a White House operation is not subject to the requirement to review its privacy impacts. It also cannot be subject to FOIA requests. Wired reports that the memo shows that over the years the White House has provided more than $6 million to target the records of any calls that cross AT&T’s infrastructure. Wired also reports that White House funding had intermittent starts and cancellations under the current and last two presidents. Still, the program seems to have been in continuous operation for over a decade.
 
Internal records suggest that the government can access records held by AT&T for at least ten years. These records include the names of callers and recipients, the dates and times of their calls, and their location histories, although the 2018 Supreme Court opinion, Carpenter v. United States, established a warrant requirement for location data.
 
On Sunday, Sen. Ron Wyden (D-OR) fired off a letter to Attorney General Merrick Garland saying, “I have serious concerns about the legality of this surveillance program, and the materials provided by the DOJ contain troubling information that would justifiably outrage many Americans and other Members of Congress.”
 
This breaking news story is certain to provide more momentum for the Government Surveillance Reform Act (GSRA), and the inclusion of a broad warrant requirement and other reforms within a House Judiciary Committee reform bill now being drafted. As this story makes clear, we must have these reforms before any extension of Section 702 of the Foreign Intelligence Surveillance Act can be contemplated.

Every now and then, even with an outlook jaded by knowledge of the many ways we can be surveilled, we come across some new outrage and find ourselves shouting – “no, wait, they’re doing what?”
 
The final dismissal of a class-action lawsuit law by a federal judge in Seattle on Tuesday reveals a precise and disturbing way in which our cars are spying on us. Cars hold the contents of our texts messages and phone call records in a way that can be retrieved by the government but not by us.
 
The judge in this case ruled that Honda, Toyota, Volkswagen, and General Motors did not meet the necessary threshold to be held in violation of a Washington State privacy law. The claim was that the onboard entertainment system in these vehicles record and intercept customers’ private text messages and mobile phone call logs. The class-action failed because the Washington Privacy Act’s standard requires a plaintiff to approve that “his or her business, his or her person, or his or her reputation” has been threatened.
 
What emerged from this loss in court is still alarming.
 
Software in cars made by Maryland-based Berla Corp. (slogan: “Staggering Amounts of Data. Endless Possibilities”) allows messages to be downloaded but makes it impossible for vehicle owners to access their communications and call logs. Law enforcement, however, can gain ready access to our data, while car manufacturers make extra money selling our data to advertisers.
 
This brings to mind legislation proposed in 2021 by Sens. Ron Wyden (D-OR) and Cynthia Lummis (R-WY) along with Reps. Peter Meijer (R-MI) and Ro Khanna (D-CA). Under their proposal, law enforcement would have to obtain a warrant based on probable cause before searching data from any vehicle that does not require a commercial driver’s license. Under the “Closing the Warrantless Digital Car Search Loophole Act,” any vehicle data obtained in violation of this law would be inadmissible in court.
 
Sen. Wyden in a statement at the time said: “Americans’ Fourth Amendment rights shouldn’t disappear just because they’ve stepped into a car.”
 
They shouldn’t. But as this federal judge made clear, they do.

​The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
 
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability.
 
Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership.
 
At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence.

Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process.
 
Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.”
 
The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief:
 
“The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
 
This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.”
 
Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.”
 
We stand with X and EFF in urging the Supreme Court to promptly address this alarming development.

​Four bipartisan champions of civil liberties – Sen. Ron Wyden (D-OR), Sen. Mike Lee (R-UT), Rep. Warren Davidson (R-OH) and Rep. Zoe Lofgren (D-CA) – today introduced the Government Surveillance Reform Act (GSRA), legislation that restores force to overused Capitol Hill adjectives like “landmark,” “sweeping,” and “comprehensive.”
 
“The Government Surveillance Reform Act is ambitious in scope, thoughtful in its details, and wide-ranging in its application,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and PPSA’s Senior Policy Advisor. “The GSRA is a once-in-a-generation opportunity for wide-ranging reform.”
 
The GSRA curbs the warrantless surveillance of Americans by federal agencies, while restoring the principles of the Fourth Amendment and the policies that underlie it. The authors of this bill set out to achieve this goal by reforming how the government uses three mechanisms to surveil the American people.
 

• One mechanism is government spying on Americans’ telephone, text, and email communications with foreign persons, incidentally caught up in data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 is set to expire in December, which offers a legislative platform to reform not just that authority, but also other forms of warrantless government surveillance.

 

• The government spies on Americans’ communications and data of all kinds, including Americans’ internet activity, under a presidential directive known as Executive Order 12333. This is a self-proclaimed authority of the executive branch not authorized by a specific statute.

 

• And finally, federal agencies spy on Americans’ sensitive information of all kinds, including Americans’ location and internet histories, using private, personal data scraped from apps and sold to the government by third-party data brokers. The government takes other data from spy tools, such as cell-site simulators, that mimic cell towers to trick the cellphones of people within a geofenced area into giving up their location and other personal data.

 
The GSRA will rein in this ballooning surveillance system in many ways.
 

• It contains a general prohibition of the warrantless searches of the personal information of people in the United States. This prohibition includes warrantlessly acquired communications and geolocation, web browsing, and internet search history data. But it allows for reasonable exceptions in emergencies, such as identifying malicious software and countering imminent threats, such as terrorism.

 

• The GSRA ends the “backdoor search loophole” – through which agencies search for specific American communications within the massive database compiled under Section 702. This prohibition also includes reasonable exceptions for emergencies.

 

• The GSRA imposes a four-year sunset on Section 702, strengthening future Congressional oversight of that program.

 

• It phases out surveillance conducted under Section 215 of the PATRIOT Act – an authority that gave the government warrantless access to Americans’ “business records.” This expansive authority allowed searches of documents and emails of Americans’ stored in the cloud. Although Section 215 lapsed in 2020, agencies are authorized to continue using it in some cases. Government reports show that Section 215 surveillance is now approaching pre-sunset levels.

 

• The GSRA requires the secret FISA court to appoint civil liberties experts as amici to advise it in handling warrant requests in sensitive cases that threaten the constitutional rights of Americans.

 

• This bill limits the circumstances in which the federal government can warrantlessly use cell-site simulators, which pick up private data from cell phones.

 

• It holds officials in the FBI, CIA, NSA, ODNI and DOJ to account for negligent, willful, or knowing violations of the GSRA, FISA, or Executive Order 12333. In egregious cases, officials can be fired and stripped of their security clearances.

 
“The GSRA enjoys widespread bipartisan support because it represents the most balanced and comprehensive surveillance reform bill in 45 years,” Goodlatte said. “PPSA joins with a wide-ranging coalition of civil liberties organizations to urge Congress to make the most of this rare opportunity to put guardrails on federal surveillance of Americans.
 
“We commend Senators Wyden and Lee, and Representatives Davidson and Lofgren, for writing such a thorough and precise bill in the protection of the constitutional rights of every American.”

Pegasus – the Israeli-made spyware – continues to proliferate and enable bad actors to persecute journalists, dissidents, opposition politicians, and crime victims around the world.
 
This spyware transforms a smartphone into the surveillance equivalent of a Swiss Army knife. Pegasus has a “zero-day” capability, able to infiltrate any Apple or Android phone remotely, without requiring the users to fall for a phishing scam or click on some other trick. Once uploaded, Pegasus turns the victim’s camera and microphone into a 24/7 surveillance device, while also hoovering up every bit of data that passes through the device – from location histories to text, email, and phone messages.
 
We’ve written about how Mexican cartels have used Pegasus to track down and murder journalists. We’ve covered the role of Pegasus in the murder of Saudi dissident Adnan Khashoggi, and how an African government used it to spy on an American woman while she was receiving a briefing inside a State Department facility on her father’s abduction.
 
Now fresh evidence from Apple alerts shows how Pegasus continues to be used by governments to spy on political opponents. Journalists have learned that the Israeli-based NSO Group has sold its spyware to at least 10 governments. Two years ago, it was revealed that a government had used Pegasus to surveil Spanish politicians, including the prime minister, as well as regional politicians. Now it is happening in India. On Oct. 31, just in time for Halloween, Apple sent notices to more than 20 prominent journalists, think tank officials, and politicians in opposition to Prime Minster Narenda Modi that hacking attempts had been made on their smartphones.
 
In 2021, The Washington Post and other media organizations investigated a list obtained by Forbidden Stories, a Paris-based non-profit media outlet, tracking down more than 1,000 phone numbers of hundreds of prominent Indians who were set to be surveilled by Pegasus. This plan now seems to have been executed, at least in part.
 
“Spyware technology has been used to clamp down on human rights and stifle freedom of assembly and expression,” said Likhita Banerj of Amnesty International. “In this atmosphere, the reports of prominent journalists and opposition leaders receiving the Apple notifications are particularly concerning in the months leading up to state and national elections.”
 
Yesterday Spain, today India, tomorrow the United States? It is public knowledge that the FBI owns a copy of Pegasus and that a recent high-level government attorney from the intelligence community has signed on to represent the NSO Group. This is all the more reason for Congress to pass serious reforms to Section 702 of the Foreign Intelligence Surveillance Act, to curtail all forms of illicit government surveillance of Americans.
 
PPSA will continue to monitor this story.

When FBI Director Christopher Wray came under heated questioning during his testimony Tuesday before the Senate Homeland Security and Governmental Affairs Committee, he let slip a remark likely to haunt him for the rest of the debate over proposed reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA).
 
Director Wray said, “With everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack here on our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down.”
 
By “watered down” Wray meant reformers’ proposal requiring the FBI to meet the Fourth Amendment’s requirement to obtain a probable cause warrant before accessing the private communications of Americans taken from Section 702. This authority was enacted by Congress to enable surveillance of foreign terrorists and spies located on foreign soil. There is no reason why Section 702 cannot be used to surveil “a foreign terrorist overseas.” The problem is that this authority has become a prime resource for the FBI and other agencies to warrantlessly review the information of Americans. Sen. Rand Paul (R-KY), Ranking Member on the committee, responded: “You would think we’d be going after foreigners, but we are using the Foreign Intelligence Surveillance Act to go after Americans.”
 
In addition to skepticism from Sen. Paul and others on the committee, Director Wray’s assertions are contradicted by others with experience in FISA.
 
In a recent editorial, Sharon Bradford Franklin, chair of the independent government watchdog group, the Privacy and Civil Liberties Oversight Board (PCLOB), with two other board members in a recent Washington Times editorial, supported requiring a court order or warrant before the government can review Americans’ Section 702 data.
 
The PCLOB members noted that “the FBI has repeatedly violated querying rules to run searches on Americans. This includes impermissible searches for members of Congress, those who protested the murder of George Floyd, preachers, participants in an FBI community relations program, victims who reported crimes …The FBI has failed to get this right for more than a decade. The bureau’s persistent noncompliance over the years dramatically illustrates the need for independent, impartial, and external review. These compliance errors may also undermine the public’s trust in the FBI, raising real questions about its ability to police itself.”
 
In his written testimony, Director Wray also informed the committee that a warrant requirement would amount to a “de facto ban” on U.S. person queries because warrants are so difficult to obtain from a court. Would a warrant requirement necessarily be a “ban” that would “water down” the FBI’s ability to protect Americans?
 
David Aaron, who held several senior legal positions at the Department of Justice’s National Security Division, wrote in Just Security that “requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.”
 
A majority in Congress clearly agree. None other than Senate Judiciary Chairman Dick Durbin (D-IL) has said he will only support Section 702 reauthorization if there are “significant reforms,” including “first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”
 
Or, as Chair Franklin and her colleagues wrote: “We do not permit the police to break into a home without such court approval, and we should not permit government personnel to access our communications through U.S. person queries without court review. This is Civics 101.”
 
Sen. Paul told Wray: ”I fear that our federal government is still undertaking many of the same tactics that the Church Committee found to be unworthy of democracy.”
 
Perhaps it is the Fourth Amendment that has been watered down.

​PPSA continues to press a Freedom of Information Act (FOIA) request seeking documents that would shed light on the extent to which the executive branch is spying on Members of Congress. We are asking the government for production of documents on “unmasking” and other forms of government surveillance of 48 current and former House and Senate Members on committees that oversee the intelligence community.
 
Now the court and Congress have fresh reason to give the issue of executive branch spying on Congress and its oversight committees renewed attention.
 
Jason Foster, the former chief investigative counsel for Sen. Chuck Grassley – the Ranking Member of the Senate Judiciary Committee – recently learned that he is among numerous staffers, Democrats as well as Republicans, who had their personal phone and email records searched by the Department of Justice in 2017.
 
A FOIA request filed by the nonprofit Empower Oversight, founded by Foster, seeks documents concerning the government’s reasons for compelling Google to reveal the names, addresses, local and long-distance telephone records, text message logs and other information about the accounts of congressional attorneys who worked for committees that oversee DOJ. The government’s subpoena also compelled the release of records indicating with whom each user was communicating.
 
The Empower Oversight FOIA notes:
 
“This raises serious public interest questions about the basis of such intrusion into the personal communications of attorneys advising congressional committees conducting oversight of the Department. Constitutional separation of powers and privilege issues raised by the Speech or Debate Clause of (U.S. Const. art I. § 6) and attorney-client communications of those targeted with these subpoenas should have triggered requirements for enhanced procedural protections and approvals.”
 
As The Wall Street Journal noted in an editorial, these subpoenas coincided with leaks of classified information concerning a wiretapped phone call between incoming Trump national security adviser Michael Flynn and the Russian ambassador. This leak was investigated by the Senate Judiciary Committee. Many now wonder if DOJ’s dragnet of personal information of congressional staffers was an attempt at misdirection, perhaps a fishing expedition to find someone else to blame.
 
Empower Oversight’s FOIA states:
 
“If the only reason the Justice Department targeted the communications of these congressional attorneys was their access to classified information that was later published by the media, it raises the question of whether the Department also subpoenaed the personal phone and email records of every Executive Branch official who had access to the same information.”
 
The Empower Oversight FOIA concludes about this surveillance of Congressional staff:
 
“It begs the question whether DOJ was equally zealous in seeking the communications records of its own employees with access to any leaked document.”
 
Sen. Grassley, who aggressively pursues government surveillance overreach, will likely want to follow up on these questions. In the meantime, PPSA petitions the D.C. Circuit Court for an en banc hearing on the possible unmasking and other surveillance of some of the elected bosses of these congressional attorneys.

​The Congressional debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) has mostly centered around the outrage of federal agencies using an authority meant for the surveillance of foreigners on foreign soil to warrantlessly collect the communications of hundreds of thousands of Americans every year.
 
But the Section 702 debate highlights an even greater outrage that needs to be addressed – the routine practice by federal agencies to purchase and access the private data of Americans scraped from our apps and devices without a warrant.
 
While federal data purchases are not part of Section 702, history suggests that any reforms made to Section 702 to curtail the surveillance on Americans in the pool of “incidentally” collected communications will be futile if we don’t close this other loophole. Our data, freely collected and reviewed at will by the government, can be more personal than a diary – detailing our medical concerns, romantic lives, our daily movements, whom we associate with, our politics and religious beliefs.
 
The Wall Street Journal shined a much-needed light on this practice. It reported on the relationship between U.S. government agencies and the shadowy world of data-broker middlemen who peddle our most sensitive personal information. The Journal reported that India-based Near Intelligence has been “surreptitiously obtaining data from numerous advertising exchanges” and selling this data to the NSA, Joint Special Operations Command, the Department of Defense, and U.S. Air Force Cyber Ops.
 
The Journal accessed a memo from Jay Angelo, Near Intelligence general counsel and chief privacy officer, to CEO Anil Mathews about three privacy problems.
 
First, Angelo wrote that Near Intelligence sells “geolocation data for which we do not have consent to do so.”
 
Second, he wrote the company sells or shares “device ID data for which we do not have consent to do so.”
 
And, finally, Angelo wrote, the company violates the privacy laws of Europe by selling Europeans’ data outside of Europe. Customers include agencies of the U.S. federal government, which “gets our illegal EU data twice per day.” It is unclear the extent to which this company sells Americans’ data, though it seems likely that the privacy of Americans is implicated given that the company boasts of having access to data from a billion devices.
 
Near Intelligence is just one actor in this shadowy world of merchants of personal data. Congress should require government agencies to obtain a probable cause warrant to examine the private data of Americans, whether collected under Section 702 or through data purchases.

The titles slapped on government reports are often meant to downplay or obfuscate. Not so the title of a report from the Inspector General of the Department of Homeland Security – CBP, ICE, and Secret Service Did Not Adhere to Privacy Policies or Develop Sufficient Policies Before Procuring and Using Commercial Telemetry Data.
 
The title may be lengthy, but it describes the alarming extent of lawless surveillance by federal agencies. For years, these three agencies freely accessed Americans’ location histories and other data collected from mobile device applications and sold by third-party data vendors to the government.
 
The Department of Homeland Security Privacy Office itself “did not follow or enforce its own privacy policies and guidance.” The report notes that DHS itself has no department-wide policy regarding privacy. This negligence allowed DHS agencies to break the law and do so without any supervisory review.
 
The law in this case is the E-Government Act of 2002, in which Congress mandated that agencies conduct a Privacy Impact Assessment (PIA) that requires the government to spell out what information it is collecting, why it is collecting it, how that information will be used, stored, and shared. The law also requires agencies to describe how this information will be protected from unauthorized use or disclosure, and how long it will be retained.
 
Instead, CBP, ICE, and the Secret Service helped themselves to location data harvested from apps installed on Americans’ smartphones. One CBP official felt sufficiently comfortable with this technology to use it to track his coworkers’ daily movements, for what purpose only HR knows.
 
Why might have DHS leaned away from adhering to the law? Nate Wessler, deputy project director of ACLU’s Speech, Privacy and Technology project told 404 Media that if the agencies had performed the required Privacy Impact Assessments “they could have reached only one reasonable conclusion: the privacy impact is extreme.”
 
The unclassified DHS report is a thunderclap of candid accounting of government agencies bending or breaking the law. It follows the unsparing analysis of the Crossfire Hurricane investigation by the 2019 Department of Justice Inspector General and PCLOB’s recent analysis of Section 702 of the Foreign Intelligence Surveillance Act, advocating for greater judicial oversight of that program’s use of Americans’ communication “incidentally” caught up in surveillance of foreign targets.
 
The DHS report should especially be read in the light of a surprisingly frank report released by the Office of the Director of National Intelligence that commercially acquired data can be used to follow protestors, degrade First Amendment expression, and “facilitate blackmail, stalking, harassment, and public shaming.”
 
The DHS report is just one more reason why Congress should take the pending reauthorization of Section 702 as a once-in-a-generation opportunity for reform. Congress should require federal agencies to obtain a probable cause warrant before examining Americans’ communications and data, whether obtained from Section 702 or through data purchases.

​Intelligence Community MYTH: The FBI has new minimization procedures that have dramatically reduced the numbers of U.S. person queries in the Section 702 database and the potential for violations. No fixes in the law are needed.
 
FACT: Even FBI Director Christopher Wray’s brag that refinements in internal procedures have reduced the number of warrantless searches for Americans’ communications to approximately 204,000 queries of Americans’ personal communications per year is alarming. The number of people who have been victimized by these civil rights violations is equal to the population of many medium-sized U.S. cities. As Sen. Mike Lee says, “That number should be zero. Every ‘non-compliant’ search violates an American’s constitutional rights.”
 
Jonathan Turley of the George Washington University Law School dismissed the FBI’s recent boasts about the reduced number of improper queries into Americans’ private information, likening that boast to “a bank robber saying we’re hitting smaller banks.”
 
The many broken promises of the FBI should leave the bureau with little room for a “trust me” clean reauthorization of Section 702. Consider the government’s long history of abuses. In just the last few years, in violation of its own rules:

• Victims of warrantless searches under Section 702 include people who came to the FBI to perform repairs; people who approached the FBI to report crimes; business, religious, and community leaders who applied to participate in the FBI’s “Citizens Academy”; college students participating in a “Collegiate Academy”; and colleagues and relatives of FBI agents.

 

• In a rare public rebuke to the FBI, the secret FISA Court recently revealed that the FBI has searched the Section 702 database for communications of 19,000 donors to a congressional campaign, a respected Republican House Member – and one yet-to-be-identified U.S. Senator – as well as a state senator, a state judge, journalists, political commentators, and a local political party.

Other actions outside Section 702, such as the wide-ranging politically motivated investigation of “radical traditional Catholics,” further reveal an FBI appetite for playing politics. Nobody in their right mind should want the FBI to have warrantless access to their private sensitive personal communications and data.

​Congress passed a mandate in 2021 that will require all new cars sold later in this decade to have a built-in drunk driver detection system. This law, well-intentioned as it may be, is fraught with enormous risks to the privacy of any American who drives a car.
 
The vague goal this mandate sets out is: If your car thinks you’re overserved, your car won’t start. Or perhaps it will pull over and call the police. It is not clear, exactly, how this technology will work. In any event, this law promises to make every car a patrol car, with you inside it.
 
Rep. Thomas Massie (R-KY), a long-time defender of civil liberties, is not having it. He is proposing an amendment to the Transportation, Housing and Urban Development (yes, the Washington acronym here is THUD) appropriations bill to safeguard Americans’ constitutional right to privacy by forbidding federal expenditures to implement this ill-conceived mandate. PPSA is proud to support this amendment and we stand together with other supporters, including FreedomWorks and the Due Process Institute.
 
While aggressive action to curb impaired driving is appropriate, the privacy issues raised by Rep. Massie about the mandate for this “advanced drunk driving and impaired driving prevention technology” are impossible to ignore. They are ultimately of great consequence to the future of our country.
 
First, consider that this technology will monitor the driving performance of millions of Americans who don’t drink and drive, potentially keeping many of them from operating their vehicles. While many states allow for court-mandated ignition interlock devices for people convicted of DUIs (requiring people under such an order to clear a self-administered breathalyzer test before their cars will start), these state restrictions are far more reasonably tailored than the broader and more intrusive federal mandate. Crucially, they make the necessary distinction between the irresponsible few who are under a court order, and the responsible many who are not. Additionally, the state regulations do not passively monitor drivers’ performance.
 
What do the responsible many have to lose under the federal mandate? The driver detection mandate could violate your privacy and constitutional rights on a massive scale.
 
Consider: Absent a breathalyzer, this technology might well – like some commercial delivery operators already do – use a camera and AI to passively monitor your body movements for signs of impairment.
 
Moreover, would your video data be stored? And if it is stored, would camera data follow you and any passengers in the car – perhaps with a sound recording of anything that you might say to each other? (After all, analyzing voice data could be used by AI to look for the possible slurring of your words.)
 
And if this video and/or voice data is stored, would these videos then be part of the enormous stream of data that federal agencies – from the IRS, to the FBI, to the DHS – now routinely purchase and access without a warrant? (This brings to mind an old joke: An FBI agent walks into a bar. The bartender says, “I’ve got a joke for you.” The agent replies, “heard it!”)
 
Video analytics technology, like facial recognition software, is hardly foolproof. Would this yet-to-be-developed device read people with disabilities as being intoxicated? Would perfectly sober people register false positives and not be able to drive?
 
Rep. Massie’s amendment would provide a much-needed sobriety check on the government’s foolhardy leap into mandating this technology. PPSA strongly urges Congress to pass the Massie amendment and protect the privacy and constitutional rights of millions of Americans.

​Intelligence Community MYTH: Warrantless access to Americans’ data is vital to defending people and companies against cyberattacks and ransomware. Otherwise, we’d be wide-open to cyberattacks from Russia and China.
 
FACT: Most cybersecurity experts disagree with the government’s argument. The Washington Post conducted a survey of “a group of high-level digital security experts from across government, the private sector and security research community.”
​

• Only 20 percent agreed with the Administration that Section 702 should be reauthorized without any changes.

 

• Some 64 percent wanted to see changes, and “many respondents advocate adding a warrant requirement when querying Americans’ communications.”

There is no “defensive” exception to the Fourth Amendment. The fact that the government claims to be doing something for our own good does not make it constitutional, nor does it mitigate the privacy intrusion or risk of abuse.
 
If government agents want to access our private communications for our own good, they should simply ask our permission. Without that permission, they should get a probable cause warrant to spy on Americans’ communications.

​This week, Baimadajie Angwang, an officer of the New York Police Department, appears before an administrative judge to make a bid to remain on the force. The long journey of Angwang – from Tibetan refugee to U.S. Marine in Afghanistan, to police officer, to accused spy – shows how an American can have his reputation destroyed and his freedom threatened by secret charges.
 
As a teenager, Angwang visited the United States on a cultural exchange program only to be beaten by Chinese police on his return to his homeland. He fled the country and successfully sought asylum and citizenship in the United States, serving as a Marine. Angwang joined the NYPD in 2016, married, and became a father.
 
On the morning of Sept. 21, 2020, Officer Angwang was confronted in front of his home by four souped-up pickup trucks squealing to a halt, half-a-dozen officers in tactical gear piling out, and rifles pointed inches from his face. Angwang was charged with spying for China on his fellow Tibetans in New York and lying on a security form. Angwang was held in the Metropolitan Detention Center in Brooklyn for five months.
 
The conditions in that jail are wretched, far worse than those of most prisons. Angwang had to borrow underwear from another prisoner. The facility lost power, leaving desperate prisoners to suffer in the cold through a bitter January. When Angwang fell ill, guards ignored his pleas for help.
 
What was Angwang’s alleged crime? It grew out of his quest to secure a long-term visa from the Chinese consulate to visit his elderly parents in Tibet and allow them to meet their granddaughter. In extensive conversations with a consular official, Angwang had tried to get this visa by demonstrating that he was friendly and apolitical. Angwang’s lawyer, John F. Carman, wrote to a federal judge that his client tried to strike a “solicitous tone and accommodating posture.” Prosecutors said that Angwang invited Chinese consular officials to NYPD events and reported on the activities of other Tibetans in New York.
 
The prosecution’s case was based on calls and likely texts between Angwang and the consulate, all secretly recorded. To be fair, the government arguably has good reason to watch how Chinese diplomats try to convert American citizens into spies. Furthermore, the government did obtain a warrant to surveil Angwang. Carman said that evidence from these communications, however, was misinterpreted and taken out of context by prosecutors.
 
In court, Angwang faced a dilemma shared with many charged with evidence they are not allowed to see. In such cases, when classified evidence is introduced in a trial, the judge and prosecutors secretly determine in a sealed court what evidence can be seen by the defense attorney and what can be presented in court. In August 2022, Carman read a single-page summary of these charges in the prosecutor’s office.
 
“What I saw was so powerful, it caused me to write the judge and ask if that’s what they have, why hasn’t there been a motion to dismiss?” Carman told The New York Times. In January, prosecutors dropped the case, citing a “holistic” assessment of the evidence and “additional information bearing on the charges.”
 
Now Angwang is asking an administrative court to let him keep his job as a New York City police officer. If he loses his job, Angwang will have to seek another job with a resume and a reputation forever under the shadow of secret evidence. “It creates a cloud of mystery,” Carman said. “You only have to assume that this guy did stuff that was bad for the country. Which is an inference that’s easily drawn, but in this case should not have been drawn.”
 
And should a defendant like Angwang, who escapes the crosshairs of secret evidence, sue the government for compensation, the state secrets privilege will ensure that he cannot win. The evidence against the government, you see, must remain secret. The defamatory effect, however, lives on.
 
Is there really a good justification – the protection of sources and methods – for withholding so much of a secret case? Can the government at least issue a note of exoneration for Angwang and others when secret charges are dropped?

​What are the topline takeaways from the report from the Privacy and Civil Liberties Oversight Board (PCLOB) on Section 702 of the Foreign Intelligence Surveillance Act (FISA)?
 
A majority of board members of this government watchdog panel directly counter the claims of the Biden Administration and the intelligence community that a requirement for the government to seek judicial review of the private communications of Americans would be “operationally unworkable” and lead to extreme danger to national security. The report punctures the FBI’s frequent claims that having the ability to rifle through Americans’ communications without a warrant is essential to national security and protecting the United States from harm.
 
The PCLOB majority endorses “individualized and particularized judicial review” by the FISA Court before the government can review data of U.S. citizens and legal residents.
 
PCLOB is coming down firmly on the side of civil liberties organizations that have long argued against intelligence and law enforcement agencies being allowed to have ready access to Americans’ private data and communications, with little judicial oversight.
 
Internal FBI Procedures Insufficient

The PCLOB majority finds the internal changes by the FBI in its Section 702 procedures to be far less than what is needed to protect Americans from backdoor searches, the practice of using secretly derived information to develop a case. Moreover, these searches are generally useless, as are the FBI’s internal procedures. The report also rejects that broad categories of searches, such as so-called “defensive” searches for potential victims’ information, should be exempted from judicial review.

Amici, Abouts and Unmasking

The report endorses the proposal to require amici – or qualified civil liberties experts to advise the FISA Court whenever proposed investigations touch sensitive cases that implicate basic constitutional rights. The board would narrow the standards by which the government selects targets. And the board would formally restrict “abouts” collection – information in which a target is merely mentioned.
 
Even the two board members who voted against the report found that “The U.S. Intelligence Community should adopt new rules to protect against the unmasking of U.S. Persons for political purposes.”
 
The Chair’s Call for a Warrant Requirement

Chair Sharon Bradford Franklin (see p. 226) writes that a “search through Section 702 communications data seeking information about a particular American constitutes a search under the Fourth Amendment, and current query standards are insufficient to meet constitutional requirements.”
 
Chair Franklin notes that the FBI routinely runs searches of U.S. persons at a preliminary stages of an inquiry. The FBI “asserted that it could not meet a probable cause standard for such queries conducted at these early stages.” Nor could the FBI identify, outside the categories of “victim” or “defensive” queries, “a single criminal prosecution that relied on evidence identified through a U.S. person query.”
 
Chair Franklin raises the ante on PCLOB’s recommendation that a FISA Court provide judicial review for U.S. person queries.
 
“But I believe that Congress should also require a probable cause standard for FBI’s U.S. person queries conducted at least in part to seek evidence of a crime in order to fully protect Americans’ privacy and civil liberties.”
 
Franklin writes that this is the only way to ensure such queries fully comply with the Fourth Amendment, while being consistent with criminal law in other contexts. She would explicitly adopt the standards of Carpenter v. United States (2018), in which the U.S. Supreme Court held that the police don’t need a warrant to seize a cellphone but do need a warrant to search the contents of that cellphone, which contain “the privacies of life.” She analogizes this case to the “seizure” of the incidental collection of Americans’ information under Section 702, and the need to have a warrant to search it.
 
Chair Franklin’s conclusions, and the PCLOB’s full list of 19 recommendations, are included in the executive summary of its report.

​Your phone, like your dog, knows all about you. But your dog will never tell. Your smartphone does, all day long, producing data that the federal government can buy and access without a warrant.
 
The same, increasingly, is true of your car. It knows where you go, and for how long. For example, Tesla has internal cameras, and according to Elon Musk biographer, Walter Isaacson, that CEO wanted them to record drivers to defend the company against lawsuits in the event of an accident.
 
As your car integrates with your smartphone, the automobile becomes just another digital device that tracks your every move. A contemporary car can accumulate 4,000 gigabytes of data every day. Our cars’ entertainment and communications systems track our address books, call logs and what we listen to. Systems made to monitor performance can report our weight, as well as where we’ve driven, and if we’ve driven there alone or with someone else.
 
But at least your dog in the backseat still won’t rat you out.
 
This is just one more way digital technology is narrowing the bounds of privacy to, essentially, floatation tanks. The good news is that lawmakers in the Bay State are reacting to defend the privacy of their constituents. Two bills, one introduced in the Massachusetts House and one in the Senate, would limit collected data, set rules for the security of that data, and require it to be purged after it becomes irrelevant. Moreover, data collection would require the consent of the owner.
 
Jalopnik.com reports that privacy advocates, however, are finding loopholes in the law “wide enough to drive a Nissan through.” Whatever the strength of these bills, Protect The 1st commends Massachusetts lawmakers for thinking around the technological curve while that very technology hurtles us ever faster, ever forward.
​
As with AI, a sense of urgency for predictive rulemaking is in order. There was a time when talking cars were a staple of science fiction. Now our cars tell us where to go and when to turn – and sometimes won’t shut up. What our cars will do next we may not be able to quite imagine.
 
Massachusetts has started a debate that needs to go national and in high gear.

​PPSA works hard to counter growing government surveillance. This generally means surveillance by U.S. federal agencies – such as FISA’s Section 702 authority passed by Congress for foreign surveillance but used to spy on Americans. We also scrutinize expanding surveillance by state and local police, including cell-site simulators that trick your smartphone into giving up your location and other information, and ubiquitous facial recognition software that can follow you around.
 
But our concerns about government surveillance don’t end with just our government.
 
We are increasingly concerned about the regular and sometimes pervasive surveillance of Americans by the People’s Republic of China, most recently the potential for Beijing to use TikTok as a way to track 80 million Americans.
 
Now, thanks to an investigative piece in The Free Press, we’ve learned that China is also looking to surveil Americans through an increasingly common technology in American cars – LIDAR, or Light Detection and Ranging. This is the system that allows self-driving and semiautonomous cars to track the traffic around them. LIDAR is also, The Free Press reports, “a mapping technology, an aid to the growing number of smart cities, a tool for robotics, farming, meteorology, you name it.”
 
Who is the dominant manufacturer and seller of LIDAR technology in the United States? It is Hesai, a Chinese company that sells nearly one out of every two LIDAR systems globally. In sales, it far outsells all of its American competitors together.
 
China is relying on an old playbook to dominate the U.S. and world markets in LIDAR. The Free Press reports that Hesai does this by offering a solid product, but one backed by Chinese subsidies to sell at below price. Why would they do that?
 
An explanation comes from Sen. Ted Budd (R-NC), who fired off a letter earlier this summer to the Assistant Secretary of Defense for Industrial Base Policy. 
 
“[I]t is my understanding that the Chinese LIDAR companies are working with the Chinese Government and the People’s Liberation Army (PLA) to improve this technology and leverage it for Chinese military applications. Simultaneously, these companies have been flooding the U.S. market with low-cost, heavily subsidized Chinese LIDAR, potentially enabling the Chinese to collect a trove of valuable information …
 
“Moreover, the Chinese Government is using LIDAR sensors to conduct police surveillance in the Xinjiang Uyghur Autonomous Region, where evidence suggests China is engaged in ongoing genocide of the Uyghur people.”
 
Given that Chinese law enforces a “military-civil fusion” strategy on Chinese businesses, requiring every Chinese organization and citizen to “support, assist, and cooperate with the state intelligence work,” why on earth would we allow that same government to be able to spy on every American in every near-future car?
 
It is one thing to be forced into the position of the Uyghurs. It is quite something else for the United States to willingly submit to techno-masochism.

The Fourth Amendment of the U.S. Constitution protects Americans against “unreasonable” searches and seizures. But what is unreasonable? Is a low-flying drone taking photos of you and your property behind a privacy fence reasonable?
 
In October, the Michigan Supreme Court will hear oral arguments in what could well become a landmark privacy case. The outcome may help determine the national limits of drone surveillance – and perhaps influence the limits of government surveillance – for all Americans.
 
The facts are pretty simple. Todd and Heather Maxon of Long Lake Township in Michigan live on a five-acre estate, where Todd likes to repair old cars.
 
In 2008, the Township government charged the Maxons with operating an illegal junkyard. The couple and the Township reached a settlement. In 2018, the Township received tips that the Maxons had violated their settlement by bringing more cars onto their property, even though such vehicles were not visible from the street. So the Township hired a private drone operator to fly a high-resolution camera over the Maxon property to take images.
 
The Maxons sued, claiming that their Fourth Amendment rights were violated. A lower court agreed with the government but was overturned in 2021 by the Michigan Court of Appeals. That court ordered that the drone photos be suppressed.
 
At the heart of this case is the “reasonable expectation of privacy” articulated by Supreme Court Justice John Marshall Harlan II in Katz v. United States (1967). But technology keeps testing what is a reasonable expectation of privacy. The Supreme Court has zigged and zagged along the way, once upholding a wiretap to be permissible because it occurred at the telephone pole and did not require a physical intrusion into the home.
​
Katz overturned that standard, invalidating an FBI wiretap of a public payphone, where the caller (a sports bookie) had a reasonable expectation that he would not be overheard. “The Fourth Amendment protects people, not places,” Justice Potter Steward declared in the Court’s majority opinion. But the Court returned somewhat to the physical intrusion standard – invalidating thermal imaging by police from the street that penetrated inside a target’s home in Kyllo v. United States (2001).
 
The Cato Institute and Rutherford Institute, in an amicus brief, noted the problem with the physical intrusion standard: “At present, police are free to go through people’s garbage, look into their barn with a flashlight, and read through their bank records without going through the hassle of first securing a warrant.” We now live in an age of ubiquitous digital intrusion with government purchases of our private data, as well as optical intrusion from drones and other aerial surveillance.
 
In other words, the current privacy standard is a jumbled mess. That is why the Maxon case is potentially so important. At its simplest, it will determine if drones – an increasingly ubiquitous reality in American life – will be freely used to spy on Americans in their backyards (as the New York City Police recently did over backyard barbecues during Labor Day).
 
But we think the Maxon case may prove to be pivotal in defining – perhaps, eventually, by the U.S. Supreme Court – what privacy and reasonableness mean in an era of drones, facial recognition software, and artificial intelligence.

​For years PPSA has documented the increasing disposition of federal intelligence and law enforcement agencies to use the ever-expanding Glomar response – a “cannot confirm or deny” answer once reserved for the nation’s most closely guarded secrets – as a blanket response to any meddlesome Freedom of Information Act (FOIA) requests.
 
We should not overlook, however, another handy tool for FOIA avoidance, and that is to release the requested document but redact many or all of its meaningful parts. Now the Department of Justice Office of the General Counsel has perfected this technique, taking it to its logical end.
 
It began in 2020 when PPSA joined with Demand Progress to file a FOIA request. Our request concerned surveillance that may be taking place under no statute, but instead under a self-professed authority of the executive branch known as Executive Order 12333. The reply from the FBI is, in its own way, telling.
 
In the DOJ response, a certain Mr. or Ms. BLANK who holds the title of BLANK in the Office of the General Counsel returned with 40 pages of responsive documents. Thirty-nine pages are redacted in their entirety, as is the 40th page, with the redacted name of the signator and his/her redacted title, but with one, unredacted statement:
 
Hope that’s helpful.
 
There’s honestly no other way to take this than the Department of Justice shooting a middle finger at the very idea of a FOIA request, an exercise of the Freedom of Information Act, passed by Congress and signed into law by President Lyndon Johnson. This is a shame because the subject of this request is an important one.
 
Demand Progress and PPSA based our FOIA request on a July 2020 letter from now-retired Sen. Patrick Leahy (D-VT) and current Sen. Mike Lee (R-UT) to then-Attorney General William Barr and then-Director of National Intelligence John Ratcliffe. The two senators noted the expiration of Section 215 of the Foreign Intelligence Surveillance Act (FISA), commonly known as the “business records” provision of FISA. The intelligence community had vociferously lobbied for the renewal of Section 215 with predictions that allowing its expiration would lead to something akin to the city-destroying scenes in the 1996 movie Independence Day.
 
Then the Trump Administration called their bluff and allowed this authority to expire. The response from the intelligence community? Crickets.
 
The sudden complacency of the intelligence community struck many as suspicious. Were federal intelligence and law enforcement agencies shifting their surveillance to another authority? Sens. Leahy and Lee seemed to think so. They wrote:
 
“At times the executive branch has tenuously relied on Executive Order 12333, issued in 1981, to conduct surveillance operations wholly independent of any statutory authorization … This would constitute a system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations at tremendous scale … We strongly believe that such reliance on Executive Order 12333 would be plainly illegal.”
 
This July 2020 letter, with a detailed series of penetrating questions about the practice and scope of 12333 surveillance, was issued by two powerful and respected members of the United States Senate … And it hit the walls of the Department of Justice and the Office of the Director of National Intelligence with all the full force of wet spaghetti. As with so many other congressional requests, this letter was not answered in any substantive way.
 
So Demand Progress joined with PPSA in October 2020, in an effort to use the law to compel an answer, this time as a formal FOIA request. We leveraged that law to request responsive documents that would reveal how the agencies might be repurposing EO 12333 to pick up the slack from the expired 215 authority, in order to spy on persons inside the United States.
 
And this is the answer we get. It can only be taken, in a general way, as confirmation that Executive Order 12333 is, in fact, being relied upon for the surveillance of people in the United States. This is one more reason why Congress should use the reauthorization of Section 702 to seek broad surveillance reform, including significant guardrails on Executive Order 12333. With mounting evidence of abuses of Americans’ civil rights, a powerful coalition of leading conservatives and liberals in Congress is building steam to do just that.
 
Hope that’s helpful.

The output of former NSA officials in pushing for a “clean,” or unamended, reauthorization of Section 702 of the Foreign Intelligence Surveillance Act has been prolific. Several such pieces have recently run in the op-ed pages of The Hill newspaper alone.
 
The latest op-ed, by former senior NSA and Department of Homeland Security officials Jon Darby and Thomas Warrick, is a masterpiece of misdirection.
 
It begins with the oft-told tale of Secretary of State Henry Stimson in 1929 closing down the “Black Chamber,” a New York City office in which government cryptographers broke the codes of Japanese and other foreign diplomats. “Gentlemen,” Stimson famously said, “do not read each other’s mail.” Stimson reversed his elevated sense of etiquette when he became Secretary of War during World War Two – and the ability to break Japanese codes became central to Allied victory.
 
The implication here is that civil libertarians today who complain about Section 702 are sniffy idealists who would expose us to great danger. To buttress this point, Darby and Warrick cite several intelligence successes, including the breaking of the plot to bomb New York City’s subway in 2009. With Russia and China turning increasingly hostile, Darby and Warrick say that we need robust means to intercept those who threaten the safety of the American homeland.
 
To which PPSA and many other civil libertarians say, “hurrah!”
 
We take issue, however, with the central metaphor of their piece – Henry Stimson’s ending of foreign surveillance. No foreigner enjoys the protections of the Fourth Amendment of the Constitution. When it comes to foreign terrorists and spies, we say surveil away. Our concern arises when the communications of millions of Americans are folded into Section 702 surveillance.

Whenever an American becomes a target of a government investigation, a probable cause warrant is required by the Fourth Amendment of the Constitution to examine their communications. Take the case cited by Darby and Warrick – the planned New York City bombing involving an Afghan-American who was in communication with Al-Qaeda in Pakistan and traveled to meet them. That alone should have been enough to obtain a probable cause warrant to inspect the target’s communications.
 
Darby and Warrick acknowledge that “for a time, the FBI routinely searched databases with information collected under Section 702’s authority even in non-national security investigations.” Victims of such improper government surveillance included a Member of the U.S. House, a U.S. senator, a state senator, a judge, a local political party, and 19,000 donors to a congressional campaign, among many others. Darby and Warrick assure us that these abuses were “corrected” when “additional safeguards” were put in place.
 
Despite large reductions in the numbers of Americans who have their data hoovered up, however, more than 200,000 warrantless searches are still taking place every year. As Sen. Mike Lee of Utah notes, the correct number for violations of the Constitution is zero. If Congress misses this rare opportunity to impose a warrant requirement, expect the FBI and other agencies to quickly revert to old ways.
 
A final point: There is an air of unreality surrounding the debate over the Section 702 database. It is, after all, likely small compared to the database of warrantlessly obtained and inspected personal information of Americans that is commercially acquired by our government.
 
About a dozen federal agencies, from NSA, to DoD, to IRS, to the FBI, to DHS, purchase our personal data scraped from apps and sold by third-party data brokers. Government lawyers blandly assert they are not violating the constitution’s prohibition against seizing our data. They are, after all, merely buying it.
 
That strikes most Members of Congress and their constituents as sophistry. Our digital actions – whom we communicate with, where we go, what we search online for – can be our most personal information, revealing our romantic lives, our health issues, our religious beliefs and worship, and our political activities. Yet the government – including the agencies that Darby and Warrick served – routinely ransack what essentially are our personal diaries without a warrant or oversight of any sort.
 
The coming debate over the reauthorization of Section 702 will be our best opportunity in a generation to curb the government’s appetite for all our information. We should not let this rare chance pass us by.

​While many of us were grilling hot dogs and hamburgers, the line between sci-fi dystopia and reality got a little blurrier. The New York City Police Department announced it was using aerial drones to “check in” on parties held across the city over the Labor Day weekend.
 
The NYPD is making the move, it says, in response to complaints about large and noisy parties during the holiday weekend. At a press conference, Assistant NYPD Commissioner Kaz Daughtry said: “If a caller states there’s a large crowd, a large party in a backyard, we’re going to be utilizing our assets to go up and go check on the party.” The practice of aerial surveillance is escalating. New York police used drones just four times in 2022 but have so far used them 124 times in 2023. Mayor Eric Adams has said he wants to see police further embrace the “endless” potential of drones.
 
The decision is almost certainly illegal. Daniel Schwarz, a privacy and technology strategist at the New York Civil Liberties Union, says mass drone surveillance may violate the city’s Public Oversight of Surveillance Technology (POST) Act. This is an ordinance passed in 2020 that requires the NYPD to disclose its surveillance tactics.
 
The proliferation of drones over our backyards, however, may not be unconstitutional. U.S. Supreme Court precedent on the Fourth Amendment has dealt with aerial surveillance before. In the 1988 case Florida v. Riley, the Court held that Florida did not violate a man’s right against unreasonable searches when police, on a tip, flew a helicopter over his property and observed a greenhouse in which the man was growing marijuana. The greenhouse was not visible from the ground and could only be detected aerially.
 
But nearly 40 years have passed since Florida v. Riley, and in that time police departments across the country have been able to amass and deploy an entire fleet of small, flexible aerial drones. Whereas police might have been constrained by the cost to own and operate a helicopter in the past, today’s police departments can operate a sizable drone fleet at a fraction of the price, enabling a near permanent aerial surveillance force.
 
Further compounding the problem is the high degree of reciprocity between local law enforcement and the national security center. A Department of Justice response to a PPSA Freedom of Information Act request shows that local governments have received fleets of drones and other surveillance technology from the federal government.
 
As Washington floods local police forces with hovering spies, it is time for cities and states to update our laws and jurisprudence on aerial surveillance.

​Rep. Matt Gaetz (R-FL) recently introduced the USPIS Surveillance Protection Act, legislation that would defund the Internet Covert Operations Program (iCOP), an initiative of the United States Postal Inspection Service (USPS) that, among other things, gathers intelligence from U.S. citizens' social media posts. Under this program, yet another federal agency is assuming the disturbing power to surveil broad swaths of Americans’ digital communications.
 
Documents reveal that the USPS used the iCOP program to monitor social media content that revealed the when and where of planned protests and other posts it found “inflammatory.” The program was also used to monitor conservative-leaning social media sites for potential violent activity by groups like the Proud Boys. You don’t have to defend the extreme views of some of these groups to feel the tug of the slippery slope.
 
Rep. Gaetz called the program a “clandestine domestic surveillance program,” saying, “The USP Inspection Service is operating outside of its USPS jurisdiction when it monitors internet users’ sharing of information.”
 
The government is no stranger to using the mail service to spy on American citizens. In May, PPSA wrote that agencies often obtain so-called “mail covers,” photo images of mail envelopes. Such analog-style “metadata” can give any interested party information about whom you are writing to and who is writing back. Between 2010 to 2014, postal inspectors and law enforcement agencies requested more than 135,000 mail covers. Among the top agencies requesting mail covers were the IRS, the FBI, and the Department of Homeland Security.
 
PPSA is pleased to see Rep. Gaetz’ bill begin to address the widespread practice of federal monitoring of Americans’ internet posts. In the era of digital communications, it is worrying to see the USPS transition from a postal to a surveillance agency. Congress must take steps to reign in this covert and lesser-known form of government spying now.

When spy novelist John le Carré left MI-6 to become a writer, he said that he had resolved to have “nothing to do with the intelligence world.” Would that the same could be said of former intelligence community lawyers. During the relative quiet of August, attorneys who once served the alphabet soup of agencies – NSA, NSC, CIA – have been busy posting pieces and writing op-eds why Congressional reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) should be passed with minimal changes. If Congress amends Section 702 with a warrant requirement to spy on the communications of American citizens, they tell us, the nation will be in peril.
 
Civil libertarians are responding with vigor.
 
Witness the incisive piece by Patrick Toomey, Sarah Taitz, and Kia Hamadanchy of the American Civil Liberties Union in the online journal justsecurity.org, a clear-eyed response to all the recent fearmongering by this intelligence community campaign. Toomey and his colleagues offer a wide-ranging survey of Section 702 and the dangers posed by how it is used in a way that is both deep and accessible.
 
The ACLU hits the main point early and with great clarity:
 
“If the purpose of Section 702 is to ‘target’ foreigners for intelligence gathering, then officials should have no qualms about imposing robust safeguards for Americans … but for too long, officials have tried to have it both ways – claiming that the law was not intended to spy on Americans, while using Section 702 to do just that.”
 
ACLU more than amply demonstrates that Section 702 has become a “domestic surveillance tool, with agents and analysts routinely searching through the enormous pool of collected data for the private communications of Americans.” ACLU adds: “With that fact finally in the open, the rules written into the law should reflect the bedrock protections the Constitution requires.”
 
This strong piece is a welcome rejoinder. As Congress prepares to return in September, defenders of the surveillance status quo have been busy warning that a warrant requirement of Section 702 would allow Chinese and Russian agents to run rampant, or that warrants would hobble law enforcement, drowning the nation in fentanyl.
 
The ACLU’s recent piece is a sign, however, that champions of reforms are not going to let up in our corrections and rebuttals. Our coalition of civil liberties groups will be briefing leading newspapers and their editorial boards. We are reaching out to reporters to correct misleading claims and steer journalists to the right information. And we will continue to update our resource on Section 702, fisareform.org.
 
Intelligence community disinformation is, as they say, a target-rich environment. We act in the confidence that the case for warrants and other reforms will be matters of common sense and bedrock American principles for Members of Congress and their constituents.

​Sen. Rick Scott (R-FL) recently fired off a letter to FBI Director Christopher Wray holding the Bureau to account for its abuses of Section 702 of the Foreign Intelligence Surveillance Act to spy on American citizens through improper, warrantless searches. The senator points to the “growing list of abuses that have come to light committed by the employees of your agency and the apparent lack of public accountability.”

Sen. Scott’s letter comes on the heels of a tidal wave of reports detailing rampant misbehavior in the FBI. To cite a recent example, PPSA reported on a Foreign Intelligence Surveillance Court opinion that revealed the FBI has spied on high-level U.S. officials, including a U.S. senator, a state senator, and a judge. (The FBI had previously been caught examining the communications of Rep. Darin LaHood, Republican from Illinois). Sen. Scott wrote: “The most recent revelations of frequent and repeated abuses … by the FBI raise concerns for the American public that there are no limits—legal or otherwise—on your investigative powers even when it comes to spying on American citizens.”
 
Sen. Scott’s letter was as substantive as it was critical, requesting the FBI to “explain the accountability for those rogue agents who conducted those illegal queries,” as well as a copy of the range of “‘possible’ disciplinary actions that could be implemented through ‘a new policy of escalating consequences.’”
 
Sen. Scott put it best when he concludes, “the American people and their elected representatives in Congress want to believe in their government and deserve nothing short of full transparency and accountability from the FBI.”
 
PPSA hopes the FBI will respond to this letter with more humility than the mixture of hubris and defensiveness that characterize the communications of Director Wray.

​The Heritage Foundation recently published a sweeping take on FBI reform by Distinguished Fellow Steven Bradbury that amounts to ripping up the current structure of the Bureau and starting over. There is much to appreciate in this iconoclastic report, with far-reaching changes that warrant careful review on Capitol Hill.
 
Here are some of Bradbury’s more intriguing proposals to “reimagine the FBI from the ground up”:

• Both a “complete makeover” of the existing agency or the establishment of an entirely new agency that would absorb the FBI’s intelligence functions are presented. With the latter, reformers could separate the FBI’s intelligence function from law enforcement, creating a new agency, perhaps akin to Britain’s MI6. This makes sense given that in FISA’s Section 702, for example, we see foreign intelligence and national security used as justifications for domestic snooping. Separation would focus the FBI on its principal purview of domestic crimes, although care would have to be taken not to erect silos that could lead to another 9/11.

 

• The report calls on Congress to limit the tools of investigation used by the Bureau and prohibit efforts to suppress free speech, religious liberty, and other constitutional rights. Under the plan, Congress could restrict the FBI’s authority to conduct assessments of Americans without any evident connection to a possible crime. Congress could restrict the FBI’s ability to stimulate or induce Americans into engaging in criminal activity, a sensible reform given the FBI’s history of entrapment and sometimes becoming itself entrapped.

 

• Bradbury suggests Congress should rebalance the FBI’s operational staff away from its D.C. headquarters and towards the field offices. Such moves would both structure the FBI so as to force the agency to focus on domestic law enforcement, as well as help remove it from the Beltway’s political ecosystem. The latter reform may go some way towards depoliticizing the agency and help restore Americans’ trust that the agency stands apart from “the swamp.”

 

• One suggestion should make privacy advocates everywhere cheer – it calls on the Attorney General to isolate and purge all information improperly collected on Americans by the FBI or other components of the Department of Justice. While this reform would go a long way towards preventing further violations of Americans’ privacy rights, it would first rely on another of the Heritage report’s more questionable suggestions – that the FBI should be placed within the DOJ’s chain of command for more effective management and control. On one hand, the FBI is in sore need of oversight and accountability. On the other hand, bringing the FBI into the DOJ’s chain of command could risk further politicization.

 
In addition to these structural changes, the report proposes a minimum set of actions required to end the FBI’s abuses of its authority. Worthy and sensible recommendations include reforms to insulate the FBI from the Section 702 program, to require the FISA Court to appoint an amicus in all politically sensitive cases involving U.S. persons, and to improve oversight of politically sensitive FBI investigations.
 
PPSA commends Heritage for thinking outside of the Beltway box; however, countering FBI abuses is just one Washington element in need of reform. We are hopeful Congress will also focus on reforming Section 702, end warrantless data purchases, and address other abuses of Americans’ civil liberties.