Several of our civil liberties peers have joined us in mounting campaigns to urge followers to contact key Members of Congress to hold hearings on the Fourth Amendment Is Not for Sale Act. Free Press Action is now offering a portal to contact all Members of Congress.
 
Free Press Action’s language is succinct and its purpose is clear.
 
“If you have a smartphone or tablet, chances are that federal agencies know where you are right now. Agencies like ICE, U.S Customs and Border Protection, the FBI and others are buying sensitive data, including location data, from the apps we download on our devices — and they’re gaining all of this information without a warrant.
 
“How can this be? In short, federal intelligence and law enforcement agencies are circumventing Congress, the Constitution and the courts by exploiting a loophole in the law. The laws regulating how the government acquires your data were written before the age of apps and digital data brokers — and federal agencies are taking advantage.”
 
The Fourth Amendment Is Not for Sale Act would close this loophole, ensuring that federal agencies can’t buy our private location data from apps or digital data brokers. Free Press Action urges hearings in the House and Senate Judiciary committees to move this legislation forward.
 
Click to the Free Press Action portal to tell Congress to pass the Fourth Amendment Is Not for Sale Act.

​The word “lacuna” comes from a Latin expression that meant “to jump into a pit.” The gaps and redactions in government responses to Freedom of Information Act (FOIA) request can sometimes feel like a leap into the void. But occasionally, the government reveals a glimpse of something hidden in the void.
 
Start with the Office of the Director of National Intelligence, which admitted to at least one 2019 order from the Foreign Intelligence Surveillance Act court that involved the collection of web browsing data from a U.S. web page. The Project for Privacy and Surveillance Accountability responded with a FOIA request on Feb. 4 asking the FBI to produce agency records mentioning the collection of web browsing data either originating in the United States or related to any U.S. person or person located within the United States.
 
PPSA also asked for records on reports, rules, regulations, memoranda, policies, communications or training materials that discuss such collection.
 
The FBI responded quickly, on Feb. 22, claiming the “request is overly broad … it does not provide enough detail to enable personnel to locate records ‘with a reasonable amount of effort.’” On Aug. 27, the FBI came back with another explanation that releasing the material “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”
 
However, attached to that second response was the cover page for a document, “Advanced Electronic Surveillance and Searches Policy Directives and Policy Guide.” The cover sheet shows that this document, published on July 17, 2013, was reviewed (and presumably updated) on July 26, 2019.
 
“This shows that the FBI has a secret policy governing the collection of web browsing data of Americans,” said Gene Schaerr, PPSA general counsel. “Web browsing data is deeply personal information. It can highlight a person’s religious beliefs, political allegiances, and personal relationships. 
 
“Surely the Fourth Amendment implications of a broad policy governing the surveillance of the browsing history of people within the United States is worthy of public disclosure and discussions,” Schaerr said.

​The Project for Privacy and Surveillance Accountability today joins 18 other civil liberties organizations in calling on the Biden Administration to appoint qualified nominees to fill three empty seats on the Privacy and Civil Liberties Oversight Board (PCLOB).
 
PCLOB is an independent, bipartisan privacy watchdog established by Congress to bring transparency and accountability to federal surveillance in counterterrorism programs. At present, this bipartisan board lacks a chair and cannot attain a quorum. Worse, PCLOB has recently degenerated into an intelligence agency lapdog instead of a watchdog. It is an embarrassment to rubber stamps everywhere.
 
PCLOB needs more than a quorum. It needs nominees who are curious, have expertise, are energetic and willing to perform the watchdog function.
 

• In April, PCLOB released a report, six years in the making, to examine the implications of Executive Order 12333 on privacy civil liberties.

 
EO 12333 is an executive order issued by President Reagan in 1981 to organize the government’s collection, analysis and use of foreign intelligence and counterintelligence. Sen. Richard Burr, former chair of the Senate Intelligence Committee, astonished the civil liberties community last year when he said that 12333 allows the executive branch to do whatever it wants, without statutory authority. Many privacy experts remain concerned that with the expiration of Section 215 of the Patriot Act, the “business records provision,” intelligence agencies have simply switched to 12333, in which the executive branch provides its own legal authority.
 
So what light did PCLOB shed on these vital issues? After six years of examination, it created what is in essence a high-school level book report. One can literally glean as much information from Google and Wikipedia … this, after six years of what PCLOB called a “deep dive review” of classified information.
 

• In June, Travis LeBlanc, a PCLOB board member, publicly expressed dissatisfaction with his colleagues and revealed he had voted against the report. He was concerned about the lack of “analysis of the efficacy, costs, and benefits” of a key surveillance program under 12333 authority. That program, XKEYSCORE, is an NSA search engine that allows the government to extract a person’s social media activity, browsing history and emails, almost at a click, from global datasets.

 

• In July, a federal judge ordered PCLOB to produce records sought by a PPSA

Freedom of Information Act (FOIA) request. This FOIA was filed in response to an earlier request filed by Patrick Eddington of the CATO Institute for records on EO 12333. PPSA is still waiting for the production of those records.
 

• Today, PPSA joins the American Civil Liberties Union, the Brennan Center for Justice, the Center for Democracy and Technology, Demand Progress Education Fund, Restore the Fourth and about a dozen other organizations in calling on the Biden Administration to take the first step to reconstitute PCLOB by appointing qualified nominees to fill vacant seats.

 
“We have seen what can happen when Board members fail to vigorously pursue the Board’s oversight mission,” the coalition letter says. “Years of work can be reduced to reports that provide little if any information or, worse, remain hidden from public view.”
 
PPSA urges President Biden to appoint qualified nominees as soon as possible.

​The Project for Privacy and Surveillance Accountability filed a lawsuit today in the U.S. District Court of the District of Columbia against the Department of Justice and FBI. PPSA is seeking records in which Members of Congress queried U.S. intelligence agencies about surveilling them and their colleagues.
 
“Spying on Members of Congress for suggesting that they’ve been spied on would be the kind of circular logic our government excels at,” said Gene Schaerr, PPSA general counsel. “Could Congressional criticism prompt government surveillance of these very Members?”
 

• Sen. Lindsey Graham (R-SC) told journalists in 2017 that he has “reason to believe” someone unmasked his identity in a call monitored by U.S. intelligence. He asked if a prior administration was involved in “politicizing” any of the almost 2,000 conversations of Americans collected inadvertently by intelligence agencies while surveilling foreigners.

 

• On the other side of the aisle, then-Rep. Jane Harman (D-CA) in 2009 vigorously denied leaked reports that a federal wiretap had shown her offering to help two pro-Israeli lobbyists accused of espionage. She called for the release of the full transcript of this wiretap and received a letter from the Department of Justice declaring her to be neither a subject nor a target of investigation.

 

• In 2017, then Rep. Lou Barletta (R-PA) tweeted “deeply troubling reports that Obama officials unmasked Trump transition members 4 political purposes, I joined letter demanding answers.”

 

• Former Rep. Dennis Kucinich (D-OH) said that journalists in 2015 had played a leaked recording for him of a conversation he had conducted in 2011 with a foreign official while he was still a member of the House of Representatives.

 
Members of Congress who have questioned the surveillance policies of administrations of both parties continue to voice suspicion that they may have been spied upon by the agencies they oversee. With this concern in mind, PPSA filed a Freedom of Information Act (FOIA) request with the FBI on Dec. 13, 2019, asking for information on the unmasking of a dozen members and former members of Congress who had made public inquiries into the U.S. intelligence community’s surveillance of them. PPSA specifically targeted correspondence between intelligence agencies and these Members of Congress, Congressional leadership and intelligence agencies about the unmasking of Members of Congress.
 
PPSA’s lawsuit holds that if Members of Congress have queried these agencies, as they have publicly said they have, then the records of this correspondence must surely exist.
 
On Oct. 13, 2020, the FBI denied the FOIA request and issued a “Glomar” non-response response that neither confirms nor denies the existence of such records. Having further exhausted all administrative remedies, PPSA today filed a lawsuit to compel the Department of Justice to produce these records.
 
“Americans deserve to know if a Member of Congress can be targeted for surveillance for daring to question the activities of intelligence agencies,” Schaerr said. “Under our Constitution, it is Congress that should oversee intelligence agencies, not the other way around.”

We commend Apple for delaying the rollout of its iPhone update to scan images and compare them to a database of Child Sexual Abuse Materials (CSAM). While everyone recognizes that Apple’s motives are commendable, there are more than a few devils in its details.
 
Apple pledged to use digital tools that would compare encrypted images stored in the cloud to CSAM databases in a way that not even Apple could use to access. Apple also pledged to have a rigorous auditing process.
 
An excerpt from TechCrunch explains the hidden dangers with this approach:
 
[S]ecurity experts and privacy advocates have expressed concern that the system could be abused by highly resourced actors, like governments, to implicate innocent victims or to manipulate the system to detect other materials that authoritarian nation states find objectionable.
 
TechCrunch also reports that researchers were able to create the means to trick the system into thinking two entirely different images were the same. Under this scenario, it is easy to imagine that a repressive foreign government could silence a critic in the United States or elsewhere by framing him or her as a collector of child pornography.
 
Over the next few months, Apple, outside experts and civil liberties organizations should join forces to look for ways to weed out illegal images without opening a backdoor into consumer accounts. 

Consider: With a single click from a smartphone or capture from a public camera, the government can now identify you and sweep your social media. This means that at a glance, the government can know how you vote, your religious beliefs, your relationships and activities.
 
The power of this technology for surveillance is chilling, but also tempting for those tasked with law enforcement and intelligence collection. The General Accounting Office last week reported that 10 of 24 federal agencies surveyed plan to broaden their use of facial recognition technology by 2023. Ten agencies are also investing in research and development for the technology.

At the forefront in commercializing this technology is Clearview AI, the controversial startup that is a leader in providing facial recognition capability to public entities. In late August, Business Insider discovered a contract between Clearview and the U.S. Army’s Criminal Investigation Command.
 
At the same time, the story broke that Clearview AI’s controversial facial-recognition system has been trialed by police, government agencies, and universities around the world. BuzzFeed News revealed that Clearview, following the grocery store model of giving away free samples, is offering its technology on a trial basis to law enforcement agencies, governments, and academic institutions in 24 countries, including the UK, Brazil, and Saudi Arabia.

The only negative news for Clearview in the last week came in an Illinois state court, where the company stands accused of violating the Illinois Biometric Information Privacy Act. This ACLU and ACLU of Illinois lawsuit against Clearview moved forward when a judge rejected Clearview’s contention that the First Amendment protected its surveillance activities.
 
The use of facial recognition technology, if not checked, will soon be ubiquitous and inescapable. A recent House Judiciary Committee hearing on the government’s pervasive use of facial recognition technology brought leading Democrats and Republicans together to warn of the potential of this technology to encroach on our fundamental rights as Americans.
 
Chairman Jerrold Nadler began the hearing by noting “facial recognition technology has proliferated in a manner largely unchecked by Congress.” He spoke of a rising tension between this technology that is now a commonplace fixture in our lives, but one the American people have little understanding how pervasive and powerful it actually is.
 
Ranking Republican Jim Jordan added that a recent GAO report “makes clear that the federal law enforcement agencies using facial recognition technology haven’t even assessed the risk when using this technology.”
 
Some other choice excerpts from the hearing:
 
Rep. Karen Bass, (D-CA), on Error Rates
“We can be certain of one thing: most if not all facial recognition systems are less accurate for people of color and women. For the most part, we can be confident that the darker your skin tone, the higher the error rate. Studies have found error rates in facial recognition software to be up to 34 percent higher for darker skinned women than lighter skinned men. It is not just sometimes wrong; it can be wrong up to a third of the time.”
 
Rep. Andy Biggs (R-AZ) on Constitutional Rights
“I am also concerned about the potential for First and Fourth amendment erosions that facial recognition technology can cause. Law enforcement agencies could potentially use the systems for the surveillance of individuals not involved in any suspicious activity whatsoever.”
 
Barry Friedman, New York University School of Law, on Different Kinds of Harms
“There are very, very serious costs, very, very serious potential harms. There are racial harms from the disparities. There are privacy harms. There are harms of giving too much power to the government, as we can all see by the use of this technology by totalitarian governments.”
 
Kara Frederick, The Heritage Foundation
“Reports that the Biden administration intends to expand the use of private companies unencumbered by constitutional strictures, and with a history of reckless privacy practices are troubling. Although government entities like the DHS have long used private firms to identify patterns in publicly available information, a renewed push to make use of outside expertise for domestic spying on the heels of the new White House plan to counter domestic extremism portends potential Fourth Amendment concerns.
 
“Now, multiple data sources can be aggregated and synchronized to allow governments to look for patterns in citizens’ behavior.
 
“This can engender a climate of fear, self-censorship, and the chilling of free speech and the right to peaceably assemble in public places. While authoritarian powers like China are at the bleeding edge of using facial recognition for internal control, the demonstrated inclination by governments to expand these powers in democratic nations renders the slope a slippery one. And we know that once these powers expand, they almost never contract.”
 
Barry Friedman informed the committee that recent studies of facial recognition technology by the National Institute of Standards and Technology (NIST) are not telling us much about the accuracy of this technology when law enforcement uses it, because the government uses it with a different process and much larger databases.
 
No wonder many groups – from the ACLU to the Heritage Foundation – are questioning the expansion of facial recognition technology by law enforcement. Many civil liberties groups are calling for a complete halt to the use of the technology. At the very least, absent serious “hot pursuit” cases, it makes sense to require probable cause warrants to use it. The enormous data generated by facial recognition technology should not be a stocked pond in which the authorities can always go fishing.

Do Americans who feel protected against “unreasonable searches and seizures” have an unreasonable expectation?
 
That clause, of course, comes from the Fourth Amendment. The Founders’ farsighted handiwork bequeathed to us the sacred gift of court-ordered warrants with which, in the interest of ordered liberty, perfectly reasonable searches and seizures can be conducted by officers of the law.
 
Most Americans, if they read the news, know that over the past several decades the surveillance state has notably undermined the Fourth Amendment and our sense of personal security. Add to that the ever-growing suspicion that private parties spy on our web searches, and suddenly our expectations of privacy vanish into the constitutional ether.
 
What would it take to push us over the precipice into a dread state of Big Brother Orwellia like the People’s Republic of China? Perhaps it would be a public-private partnership combining the will of the political state with the capability of the private sector. Remember that in any such partnership, the senior partner is always the one with the legal monopoly on coercion.
 
Consider Homeland Security Secretary Alejandro Mayorkas, who has emerged as an enthusiastic proponent of such an unconstitutional combination of public power and private technology. Also consider the disturbing White House confirmation that the Department of Homeland Security (DHS) has been working with big social media companies to monitor and censor Covid-related “misinformation.” Now Mayorkas intends to forge alliances with social media to search for “extremist” content.
 
“Who’s an extremist?” asked Bob Goodlatte, the former House Judiciary chairman who now serves as senior policy advisor to Project for Privacy and Surveillance Accountability. “In some cases, it depends on who you ask. Are all controversial people now going to be surveilled by the government for their ideology?”
 
Not amused, Rep. Jim Jordan, R-Ohio, wrote to the secretary, “According to recent reports, DHS intends to use third-party contractors to spy on the social media communications of American citizens for signs of ‘extremist’ threats.”
 
This, Jordan continued, “is even more dangerous when viewed in the context of DHS’s prior targeting of American citizens for holding benign political opinions. Although the reports indicate that DHS intends to monitor ‘extremist’ threats, the Department has a history of targeting Americans for holding ‘suspicious views,’ such as being pro-Second Amendment, favoring lower levels of immigration, or opposing the use of force by police.”
 
Jordan’s letter, giving a Sept. 1 deadline, demands Mayorkas provide detailed communications between DHS staff and with social media companies pertaining to his surveillance project.

The UK has long been a realm with ubiquitous closed-circuit television on every corner. Scotland Yard moved last year to connect this system with facial recognition software that pixilates all faces except those on a watchlist database.
 
That facial recognition software has social value is undeniable. In February, facial recognition caught a wanted serial sexual predator from an image of him boarding a bus in Cardiff. But also in Cardiff, Ed Bridges, an activist and sometime Liberal-Democrat politician, was tracked twice by a facial recognition van – once while Bridges was having lunch, and once while he was peacefully protesting at an arms fair. Bridges won a court ruling that the wide use of automatic surveillance by the South Wales police was unlawful. The ruling did not strike down the practice – indeed, a police spokesman said that “this is a judgment we can work with.” But it did restrict the practice, finding the South Wales police have been too unrestrained in their use of the system.
 
This week, the Home Office issued guidelines for rules governing live facial-recognition systems. These rules were criticized as being “bare bones” with a lot of gaps that could still compromise privacy.
 
Victories like the capture of the sexual predator are welcome, but they also tempt us to overlook the larger picture and what can be lost.
 
Silkie Carlo, Director, Big Brother Watch, offered a view that we would be well-advised to import to the United States:
 
Never before have members of the public been treated like walking ID cards, subjected to an ongoing police line-up that our identities have to be biometrically checked to make sure that we’re not criminals. That’s a complete inversion of the traditional presumption of innocence that is so at the heart of British civilization.
 
America, too.

Thanks to the CATO Institute, we learned that the FBI in 2016 conducted a criminal “charity assessment” of the Concerned Women for America (CWA), an evangelical women’s non-profit activist group dedicated to upholding traditional family values and opposing abortion.
 
The suspicion raised by this investigation is that CWA may have been targeted more for its political point of view than out of any concern for its adherence to the law. Civil libertarians have equal reason for concern that from 2017-2020, the shoe might have been on the other foot, ideologically speaking. During that period, the FBI targeted “Black identity extremists” that many believed included Black Lives Matter and other racial activist groups
 
In this case, with no criminal predicate, CWA was targeted for an “embezzlement of non-profit organizations/corporate fraud” investigation. The apparent trigger for the investigation, according to material obtained by CATO in a Freedom of Information Act (FOIA) request, was a “two-star rating” from Charity Navigator, a non-profit that gives charities online evaluations. A cursory review shows that of almost 5,500 charities rated by this organization, almost 1,000 received a two-star review. (Charity Navigator now gives CWA a rating of three stars out of four.)
 
Patrick Eddington of CATO reports that the Foreign Intelligence Surveillance Court, which approves FBI electronic surveillance of foreigners under Section 702 of the FISA Amendments, “has repeatedly chastised – but not punished – the FBI for unwarranted digital database searches involving American citizens.” That the FBI opened this “assessment” on CWA on an unwarranted basis is beyond dispute. Did it also access authorities for foreign intelligence to surveil CWA as well? We can’t tell from the FOIA, since the FBI redacted all the databases that were searched.
 
Rep. Jim Jordan, the Ranking Member of the House Judiciary Committee, fired off a recent letter to FBI Director Christopher Wray about such “charity assessments.”
 
“This document raises serious questions about the FBI’s targeting of domestic civil society organizations on the basis of a third-party opinion, and not any credible allegation of a crime,” Jordan wrote. He asked the FBI to provide unredacted documents, a staff-level briefing, and information about all such “charity assessments” from January 2016 to the present.
 
The information is required by Rep. Jordan by the close of business on August 24.
 
One doesn’t have to agree with Concerned Women for America to be bothered by the FBI’s actions. The chilling effect of such investigations could impact the First Amendment rights of organizations across the ideological spectrum, from CWA to Black Lives Matter and the Human Rights Campaign. PPSA will follow this story and report developments on possible political surveillance under both Democratic and Republican Administrations.

The Project for Privacy and Surveillance Accountability announced today that the government informed our organization that it will not respond in any way to our Freedom of Information Act (FOIA) request concerning the possibility that agencies are buying data on current and former Members of the House and Senate judiciary committees.
 
“The government doesn’t want to even entertain our question,” said Gene Schaerr, PPSA General Counsel. “What do they have to hide?”
 
On July 27, 2021, PPSA filed this FOIA request with the Office of the Director of National Intelligence and other intelligence agencies concerning the possible purchases of information on 110 House and Senate judiciary committee members. The list of representatives in the request include Jerrold Nadler, chairman of the House Judiciary Committee; ranking member Jim Jordan; Sen. Dick Durbin, chairman of the Senate Judiciary Committee; and ranking member Sen. Chuck Grassley. The list includes many leading lights of both parties, from current Vice President Kamala Harris to Florida Gov. Ron DeSantis, both former Members of Congress.
 
“The government’s answer to us is known as a Glomar Response, essentially a non-denial denial in which the government refuses to even entertain the question,” Schaerr said. “The next remedy available to PPSA under law is to file an administrative appeal to force the government to answer us, which we intend to do shortly.
 
“This troubling refusal gives all the more reason for Congress to pass the Fourth Amendment Is Not for Sale Act, which would ban such surveillance from purchased data,” Schaerr said. “If Vice President Harris and Gov. DeSantis are potentially having their constitutional rights violated, imagine how little protection you and I have.”