Earlier this month, we surveyed the House Members who lost their bids for re-election, and found that nine out of ten who were unseated had a low ranking of 1 (on a scale of 0-5) in our PPSA scorecard ranking of votes and actions on privacy and surveillance.
We can report that four more incumbents have lost their seat that were also ranked at a very low score of 1.
It may be a stretch to conclude that a weak stand on privacy and surveillance issues cost these House Members their seats. On the other hand, it is hard to believe that it is pure coincidence that almost every single defeated House Member has a very low score on privacy issues.
77 Percent of Americans Believe Government Should Get a Warrant to Buy Detailed Location Information
If I know where you go, I know what you do and perhaps what you believe. Our location data can be very personal and sensitive information.
Since most of us travel with a cellphone, we have a device with apps that can precisely map our every move. Surely, this information falls under the rubric of our personal “effects” under the Fourth Amendment prohibition against warrantless searches and seizures.
The U.S. Supreme Court’s decision in Carpenter v. United States (2018) showed that a majority on the court agreed. In a majority opinion written by Chief Justice John Roberts, the court decided that before law enforcement can obtain our location data, it must obtain a warrant. The court, however, did not explicitly rule on the possibility that the government could simply buy our data from data brokers who scrape our location histories from apps on our phones.
That unresolved issue has only become more important. Recently, the IRS, U.S. military and Department of Homeland Security have been regularly obtaining the location data of millions of Americans by buying it from data brokers, information frequently purchased and sold on the commercial market.
A new Harris Poll survey sounds out the reaction of the American people to this surveillance:
If these powers are left unchecked, what else might the government purchase to spy on us? There is good reason to believe the government also has access to billions of images from Facebook, LinkedIn, Twitter and YouTube. If the government can simply buy all of our information from data brokers, who get it from app developers, the Fourth Amendment truly does not apply to our “effects.”
We expect Senators Ron Wyden, Rand Paul, Patrick Leahy and Mike Lee to soon propose landmark legislation addressing this issue, and entitled “The Fourth Amendment Is Not for Sale Act.” We’ll keep you posted on the provisions in this legislation, what they mean, who supports the bill, and who is against it.
PPSA/Coalition Sends Letter to House Leadership: “Reject the Senate’s Intelligence Authorization Act of 2021”
The Project for Privacy and Surveillance Accountability (PPSA) today joined Demand Progress, the Brennan Center for Justice, ACLU, Americans for Prosperity, NAACP, FreedomWorks and almost thirty other civil liberties organizations to caution House Speaker Nancy Pelosi and Minority Leader Kevin McCarthy to reject inclusion of the Senate version of the Intelligence Authorization Act (IAA) in any conference negotiations over the National Defense Authorization Act of 2021. As the coalition letter put it, “[t]he IAA is a significant piece of legislation, which, as passed by the Senate, includes controversial provisions and entirely fails to address the many intelligence scandals that have come to light in the past year.”
The Lee-Leahy Amendment
The letter urges the House to pass an IAA that includes the Lee-Leahy Amendment, which would bring outside civil liberties expertise to the secret court of the Foreign Intelligence Surveillance Act (FISA). This amendment, which won 77 votes in the Senate, would safeguard Americans’ First Amendment rights by requiring the FISA court to seek a review of “sensitive” surveillance requests by independent, outside experts. These reviews would be encouraged whenever the government seeks to use FISA surveillance against political candidates, campaigns and organizations, as well as religious groups or domestic media.
The coalition letter also asks House leaders to give Representatives a chance to:
Strip “Fourth Amendment End-Run” Section 9307 from the IAA.
This section would establish a Social Media Data and Threat Analysis Center that would bring together social media companies, journalists, academic researchers and others around “foreign influence operations.” The coalition of civil liberties organizations is concerned that the language establishing this center is so vague and lacking in safeguards that it could lead to “an end-run around the Fourth Amendment.”
Remove “Informer Program” Sec. 9505 from the Senate’s version of the IAA:
This provision, meant to give members of the public the means to report influence activities of the Government of the People’s Republic of China, “fails to provide safeguards against the reporting of baseless suspicions that Asian-Americans are foreign agents.”
Recent stories about potential cabinet picks for a Biden Administration prompts more careful attention to privacy concerns by new appointees. For example, the discussion of California Attorney General Xavier Becerra as a possible pick for U.S. Attorney General raises the concern that issues such as the privacy of donors to non-profit organizations might be given short shrift in the new administration.
General Becerra succeeded Vice-President-Elect Kamala Harris as Attorney General in California and, unfortunately, continued and expanded her earlier efforts to breach donor privacy. Indeed, he has defended efforts to force disclosure of donors to 501(c)(3) non-profit organizations in a manner that severely threatens privacy and the freedoms of speech and association. Donor and membership lists have been protected from government scrutiny dating back to the 1958 Supreme Court cases, NAACP v. Alabama. The NAACP was understandably concerned that disclosure of its members would subject them to threats and retaliation. Such fears are no less valid today.
One judge reviewing a challenge by Americans for Prosperity (AFP) to the disclosure requirements in California noted in 2016 that such disclosure “chills the exercise of [the group’s] First Amendment freedoms to speak anonymously and to engage in expressive association” and that “this court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.” One need only look at recent headlines to understand that advocates for unpopular causes on both sides of the political spectrum continue to be the targets of threats and harassment from opposing members of the public. And past IRS targeting of unpopular political groups shows that it is not merely private citizens, but very often government officials who improperly retaliate against political opponents.
PPSA has supported AFP and other groups challenging California’s threats to privacy and the First Amendment, filing amicus briefs in the Supreme Court in support of petitions raising those issues. We will continue to stand with friends and allies across the ideological spectrum to protect donors from being targeted and harassed in an attempt to chill the exercise of their First Amendment rights.
Which brings us back to General Becerra and Vice-President-Elect Harris: PPSA would far prefer to have them as allies in protecting the privacy of donors regardless of ideological stripe. We are hopeful that events since Harris’s time as California AG have shown that people on all sides of the political spectrum face genuine threats to their privacy. And we hope that, if nominated and confirmed as U.S. Attorney General, General Becerra seriously reconsiders the hostility to privacy that is currently ascendant in California. We look forward to trying to persuade the new administration to avoid a comparable hostility at the national level. But if past proves prologue, we will challenge actions against donor privacy through advocacy in Congress and the courts.
U.S. public health officials have responded to past epidemics with contact tracing – following an infected person’s interactions with other people through a private and sensitive query. We now have digital methods that employ Bluetooth proximity data and GPS location to correlate an infected person’s movements and interactions.
This is powerful technology, with tremendous promise for human health, as well as a tremendous potential threat to Americans’ privacy.
The incoming Biden Administration plans to create a “nationwide pandemic dashboard” much like that used by South Korea to display transmission rates across the country. This could incorporate a national contact tracing effort, likely putting together the programs of participating states, with the use of a contact tracing app. If so, we hope that the public health experts will take a cue from Apple, Google and other private industries and work to ensure that a digital contact tracing app relies on consent, not secret surveillance, and has built-in measures to protect personal privacy.
The government should also observe three other principles:
PPSA accepts that a national emergency requires us all to give a little. But history shows that many “temporary” and “emergency” measures often become permanent and employed for other uses. We will remain vigilant against the possibility that contact tracing could lead to forms of government surveillance of political opponents worthy of George Orwell – or the People’s Republic of China.
In states and local communities from coast to coast, politicians and voters have taken recent bold actions on privacy and surveillance, culminating in some big changes in policy and officeholders in the just-completed national elections.
In September, the city council in Portland, Oregon, passed the broadest prohibition ever of facial recognition technology. Portland follows the examples of San Francisco, Oakland and Boston – but ups the ante. The Portland measure not only bans this technology for police and city departments; it also bans it for public-facing businesses from stores, to restaurants, to hotels.
“Technology exists to make our lives easier, not for public and private entities to use as a weapon against the very citizens they serve and accommodate,” said Portland Mayor Ted Wheeler.
No Knock Warrants
On Oct. 20, the city counsel of Aurora, Colorado, voted to ban ‘no-knock’ police raids. Virginia Gov. Ralph Northam followed suit on Oct. 28, signing a ban on no-knock warrants, making Virginia the third state in the country to outlaw this practice.
Michigan Votes to Protect Electronic Communications
By a whopping majority of 88.7%, Michigan Voters approved a constitutional amendment to clarify that the government needs a warrant to inspect a person’s electronic data and communications.
Do we need national legislation to bring this same clarity to the actions of the federal government?
California Consumer Privacy Rights Act
On election day, voters in the Golden State approved Proposition 24, the California Privacy Rights Act, a measure that creates a new California Privacy Protection Agency that will promulgate and enforce rules that require businesses to provide additional mechanisms for individuals to access, correct or delete data. A similar measure had failed in Washington State, though proponents vow to bring it back in 2021.
A just-passed Michigan constitutional amendment reinforces the principles of the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects our “persons, houses, papers and effects” against unreasonable searches and seizures. It mandates probable cause warrants before the government can search our possessions. But should it cover our electronic data and communications? Acting under their own state constitution, Michigan voters answered with a resounding “Yes.”
The measure’s background is instructive. In 2008, the ACLU submitted a Freedom of Information Act request to the Michigan State Police asking about its use of data extraction devices. Were the police pulling documents, emails, photos and calling metadata from suspects’ cellphones?
After a three-year wait, the state police agreed to answer the FOIA request. But first, the police said, the ACLU would have to pay the $544,000 cost for the government to fulfill the request. The state police did admit that “specialty teams” on criminal cases might use the technology. The answer for other law enforcement agencies was not clear.
The predictable public reaction buoyed the efforts of Sen. Jim Runestad, a Republican, who persuaded the state legislature to pass a constitutional amendment to ban warrantless snooping of electronic data and communications. In time, the Michigan State Police and the ACLU came together, vocally supporting the measure, which passed last Tuesday by a whopping 88.7 percent.
As heart-warming as this story is to surveillance reformers, it highlights the dangerous possibility that this principle holding our electronic data to be our “effects” is not currently respected by the federal government. The Snowden revelations shocked many with the extent to which the NSA was hoovering up Americans’ data. And today, apologists for the Intelligence Community maintain that the government has authority to surveil Americans under Executive Order 12333 without a statute or congressional oversight.
Do we need a national version of the Michigan initiative?
Shortly before the election, PPSA issued a new Congressional privacy scorecard that rates federal House and Senate Members on a rising scale, from 0 to 5, based on their efforts (or not) to protect Americans’ privacy.
With a few races outstanding in the House, at least nine Democrats lost their seats who were rated at 1:
The House lost one Member who was rated a 3.
It would be a stretch to conclude that these low privacy ratings caused these House Members’ defeat. Still, is it a coincidence that almost every one of the defeated House Members had a low privacy score?
In the Senate, privacy advocates lost two champions – Martha McSally of Arizona and Cory Gardner, two Republicans who earned a 4. Also defeated for re-election was Doug Jones, Democratic Senator from Alabama, who was rated at a 2.
PPSA looks forward to working with our privacy and civil liberties peer organizations to reach out to new Members and educate them and their staffs on important privacy and surveillance measures for the 117th Congress.
ANNOUNCEMENT: Former Sen. Mark Udall and Former House Chairman Bob Goodlatte Challenge Government’s Secrecy Around Claims of “Inherent Authority” to Conduct Mass Domestic Surveillance
FOR IMMEDIATE RELEASE
WASHINGTON – Former U.S. Sen. Mark Udall (D-CO) and former House Judiciary Committee Chairman Bob Goodlatte (R-VA) are leading an effort by Demand Progress Education Fund (DPEF) and the Project for Privacy and Surveillance Accountability (PPSA) to compel the government to come clean about the legal basis for mass domestic surveillance of Americans in the absence of Congressional authorization.
“Our request follows months of efforts by Members of Congress and civil liberties organizations to get the government to explain on what authority the government bases domestic surveillance of U.S. persons,” said Bob Goodlatte, senior policy advisor to PPSA who joined with former Sen. Mark Udall to add their names to the Freedom of Information Act (FOIA) request submitted today to the Department of Justice, FBI and other agencies.
Section 215, known as the “business records provision” of the PATRIOT Act (later amended and reauthorized by the USA FREEDOM Act), governed the warrantless surveillance of a wide range of personal information held by businesses. To acquire such sensitive records, all the FBI had to do was assert the data sought was relevant to a foreign intelligence investigation. With the expiration of Section 215 on March 15, Members of Congress and civil liberties organizations want to know the current legal basis for government surveillance.
“Those in government and their defenders have sometimes claimed that they have an ‘inherent’ power to surveil Americans,” Goodlatte said. “Our FOIA request is intended to learn if that is in fact what is happening.”
Among the categories of information the DPEF/PPSA FOIA request asks for:
“Despite decades of abuse and debate around domestic spying, the government is still refusing to be forthright with Congress and the public about the scope of its surveillance activities following the expiration of Section 215,” said former Senator Mark Udall, who served on the Senate Select Committee on Intelligence. “If the government has secretly decided that it may lawfully spy on Americans without Congressional authorization or oversight, it must not hide that legal conclusion or its reach. What could be at stake impacts the privacy of every person in the United States. We are filing this FOIA request on behalf of the people's right to know."
“Companies hold enormous and growing databases on every single person in the United States,” Goodlatte said. “The American people deserve to know if those records are being accessed without Congressional authorization or judicial due process.”
DPEF educates our more than two million members and the general public about matters pertaining to the democratic nature of our nation’s communications infrastructure and governance structures. PPSA is a nonpartisan group of U.S. citizens who advocate for greater protection of our privacy and civil liberties in government surveillance programs.
Background on the Issue
The government has missed the relevant deadlines and refused to provide answers in every case.
In August, Rep. Eshoo (D-CA) also demanded information about what surveillance of the legislative and judicial branches has occurred. After being refused a substantive answer, she called on the Inspector General of the Intelligence Community to investigate the issue. Similarly, Reps. Eshoo and Rush (D-IL) and Senator Wyden (D-OR) just called on the Privacy and Civil Liberties Oversight Board to investigate executive branch surveillance of protesters.
Additional context is available here (https://s3.amazonaws.com/demandprogress/documents/Additional_background_on_Udall_Goodlatte_DPEF_PPSA_FOIA.pdf).
Additional background on Section 215 is available at www.Section215.org.
Sean Vitka, Senior Policy Counsel at Demand Progress Education Fund: firstname.lastname@example.org; (570) 798-7678
Gene Schaerr, General Counsel at Project for Privacy and Surveillance Accountability: email@example.com; (202) 787-1060
PPSA Launches Our First Congressional Privacy Scorecard: How Strong Are Your U.S. Representative and Senators on Privacy?
As the 116th Congress concludes, we are giving our PPSA members, allies and followers a scorecard assigning Members of Congress rankings on their votes and sponsorships on bills that shape government surveillance practices and privacy. We offer this scorecard so we can encourage our leaders to continue or improve their protection of privacy.
Go here to learn more about your representatives’ actions on privacy.