Any illusions that warrantless bulk collection ended with the Snowden era have been put to rest by the revelations of the last few weeks. In February, thanks to the efforts of the indefatigable Sen. Ron Wyden (with his colleague, Sen. Martin Heinrich) we learned that the CIA has been conducting warrantless, bulk surveillance of Americans’ financial data outside of any statutory framework. A few days later, The Wall Street Journal reported special prosecutor John Durham’s revelation that academic researchers, private cybersecurity companies and experts inside and outside the government are extracting vast quantities of Americans’ personal data with little oversight or public awareness.
Now, thanks once again to Sen. Wyden, we know that the Homeland Security Investigations (HSI) component of the Department of Homeland Security (DHS) operated a warrantless bulk surveillance program that swept up Americans’ financial records by the millions.
HSI issued eight administrative summonses to compel Western Union and Maxitransfers Corporation to conduct bulk collection of Americans’ financial records. These two companies were directed to send millions of records of money transfers above $500 to or from Arizona, California, New Mexico, Texas and Mexico, to a nonprofit, nongovernmental agency, the Transaction Record Analysis Center (TRAC).
TRAC, in turn, made its data widely available to hundreds of federal, state and local law enforcement agencies. These agencies are allowed to query this database of 6,211,000 records without any court supervision.
Sen. Wyden wrote the DHS Inspector General that HSI abused its customs summons authority by conducting bulk surveillance. The fact that DHS pulled the plug on this program immediately after the senator’s office requested a briefing suggests the department is aware of the extent to which it is on thin, legal ice. Once informed of this program, Sen. Wyden questioned the use of the official customs summons authority to direct these companies to submit their records to a non-governmental authority.
“It sounds as if the government tried to use TRAC as a work-around for the Fourth Amendment and its requirement for probable cause warrants,” said Bob Goodlatte, senior policy advisor for the Project for Privacy and Surveillance Accountability (PPSA) and former chairman of the House Judiciary Committee. “To use governmental authority to oblige companies to report customers’ personal data to a non-profit – which then eagerly shares its data with hundreds of state and local law enforcement agencies – is too clever by half.
“With the CIA and DHS now caught up in warrantless, bulk collection, it beyond time for the House and Senate Judiciary committees to hold hearings,” Goodlatte said.