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MEDIA AVAILABILITY
March 15-20, 2021 Contact: Laura McMenamin laurakbellmc@gmail.com (pf) (703) 887-3988 WASHINGTON, D.C. – Bob Goodlatte, who represented Virginia’s 6th Congressional District for 13 terms and served as Chairman of the House Judiciary Committee, is available to discuss the possibility of mass surveillance of people in the United States without Congressional authorization or a court order. Former Rep. Goodlatte, a Republican, along with former Sen. Mark Udall, who represented Colorado as a Democrat, are vocally supporting a lawsuit by Demand Progress Education Fund and the Project for Privacy and Surveillance Accountability filed against the Department of Justice. These two civil liberties organizations seek to compel the government to disclose whether it is conducting secret mass surveillance. “What legal authority governs surveillance today?” Goodlatte asked. “The truth is, not even Congress is allowed to know. We do know that those in government and their defenders have sometimes claimed that they have an ‘inherent’ power to surveil Americans.” The state of domestic intelligence surveillance is unclear with the expiration of Section 215 – which expired a year ago today – known as the “business records provision” of the PATRIOT Act. A media release from the two organizations details the issue. A recent op-ed by Mr. Goodlatte and Mr. Udall outlines their broader concerns. Mr. Goodlatte now serves as Senior Policy Director of the non-partisan Project for Privacy and Surveillance Accountability (PPSA). Former chairman Goodlatte is available for interviews from March 15 to March 20. For more information about PPSA, visit protectprivacynow.org. FOR IMMEDIATE RELEASE CONTACT:
Sean Vitka: sean@demandprogress.org (570) 798-7678 Former Sen. Udall and House Judiciary Chairman Bob Goodlatte Support Lawsuit to Reveal Details of Government’s Secret Mass Surveillance WASHINGTON, D.C. – Former U.S. Sen. Mark Udall (D-CO) and former House Judiciary Committee Chairman Bob Goodlatte (R-VA) are supporting a lawsuit by Demand Progress Education Fund (DPEF) and the Project for Privacy and Surveillance Accountability (PPSA) filed against the Department of Justice today in the U.S. District Court for the District of Columbia. These two civil liberties organizations seek to compel the government to disclose whether it has secretly concluded it may conduct mass surveillance of people in the United States in the absence of Congressional authorization or court order. This weekend, the two former members of Congress also published an op-ed about this issue. “In October, Mark and I added our names to a Freedom of Information Act (FOIA) request to the Department of Justice, the FBI and other agencies asking for information about possible mass surveillance of American citizens,” said Bob Goodlatte, senior policy advisor to PPSA. “They did not bother to reply. So Demand Progress Education Fund and PPSA are going to court to get answers to our questions.” The state of domestic intelligence surveillance is unclear with the expiration of Section 215, known as the “business records provision” of the PATRIOT Act (later amended and reauthorized by the USA FREEDOM Act). Section 215 governed the surveillance of a wide range of personal information held by businesses with an elastic standard: If the FBI asserted such data was relevant to a foreign intelligence investigation, it did not need a warrant to access it. “What legal authority governs surveillance today?” Goodlatte asked. “The truth is, not even Congress is allowed to know. We do know that those in government and their defenders have sometimes claimed that they have an ‘inherent’ power to surveil Americans.” A fulsome response to the underlying DPEF/PPSA FOIA request (available here) would answer the following questions:
“In December, the public learned that the whole time the DOJ and FBI were urging Congress to reauthorize the Patriot Act, more was at stake than even members of Congress knew,” said former Senator Mark Udall, who served on the Senate Select Committee on Intelligence. “And since the partial Patriot Act sunset one year ago, the public also learned that the government has been secretly buying records about people in the United States without any Congressional authorization or judicial due process. This dangerous shell game of domestic mass surveillance must stop long enough for Congress to have its say: the stakes impact the privacy of every person in the United States.” “Every American is already concerned about the potential for misuse of the massive amounts of our data held by businesses, and clearly the problem is getting worse,” Goodlatte said. “The American people deserve to know if our records are being accessed without Congressional authorization or judicial due process.” DPEF educates 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. The FOIA request is available here. Additional context is available here. Additional background on Section 215 is available at www.Section215.org. CONTACT: Sean Vitka, Senior Policy Counsel at Demand Progress Education Fund: sean@demandprogress.org; (570) 798-7678 Gene Schaerr, General Counsel at Project for Privacy and Surveillance Accountability: gschaerr@schaerr-jaffe.com; (202) 787-1060 PPSA's Senior Policy Advisor, Bob Goodlatte, and Mark Udall, a former U.S. senator from Colorado who served on the Senate Select Committee on Intelligence, shared their thoughts on the opportunity President Biden and his Administration has on correcting our government's use of surveillance.
"While threatening to veto FISA reauthorization legislation in May 2020, then-President Trump said that “warrantless surveillance of Americans is wrong.” Taking the steps we’ve outlined would cement Joe Biden as the people’s civil liberties ally that Donald Trump never became. The new administration has the opportunity to become that ally by providing honest answers about, and taking action on, the legitimate surveillance concerns that have dogged the American people since at least the start of this century."  Congress ostensibly oversees how federal agencies conduct surveillance that could infringe on Americans’ privacy and Fourth Amendment rights. With this in mind, PPSA joined a coalition that includes six other civil liberties organizations in sending a briefing to Members of the 117th Congress advising them to dig deeper into how the government surveils Americans.
The coalition warned Congress that, in recent decades, “our government has become comfortable acting in ways that violate the letter and the spirit” of the Fourth Amendment. “For example, the government routinely uses the powers of the Foreign Intelligence Surveillance Act, meant to catch foreign spies and their enablers, to watch Americans. It sidesteps warrant requirements through a growing practice of simply purchasing our personal data from data brokers. It deploys new modes of aerial and biometric surveillance in ways that chill the First Amendment rights of Americans to protest and political groups to organize. Relying on secret legal interpretations, it plays verbal games and exploits new technologies to open loopholes in privacy laws that Congress never envisioned. “Further, there is reason to believe the government may have secretly concluded that intelligence agencies have inherent authority, in the absence of any court order or Congressional authorization, to conduct surveillance on people in the United States.” The coalition added: “As a result, the government has multiple ways to access Americans’ communications and other highly sensitive information without any suspicion of wrongdoing — let alone probable cause and a warrant. Predictably, these tools for warrantless surveillance have been turned on racial, ethnic, and religious minorities, as well as political activists and opponents.” The briefing points Members of Congress and their staff to upcoming legislative opportunities to restore balance between current government practices and the constitution. The document suggests Congress:
Other coalition organizations that developed this document include the American Civil Liberties Union, Americans for Prosperity, the Brennan Center for Justice, Demand Progress, Free Press Action and FreedomWorks. The coalition plans to follow up with webinars on these issues for Members of Congress and their staff.  Inside the Supreme Court. Photo courtesy Wikimedia In a case testing the limits of warrantless entry, liberal and conservative justices of the U.S. Supreme Court on Wednesday posed questions to counsel that kept returning to the durable guidance of the Fourth Amendment.
In Lange v. California, a California Highway Patrol officer had observed Arthur Gregory Lange commit a minor traffic offense. The officer flashed his lights at the entrance to Lange’s driveway while Lange, possibly unaware of the officer, entered his garage. The officer then entered Lange’s garage without a warrant. The core issue the court considered: Is a police officer’s pursuit of a person suspected of a misdemeanor enough of an “exigent circumstance” to justify a warrantless entry? Several Supreme Court justices seemed concerned that a new, looser standard would deviate from the Fourth Amendment. They were skeptical that a new standard, perhaps one separating felonies from misdemeanors, would even work as a national standard, given that states define criminal categories so differently.
“Why would we create a rule that is less protective than what everyone understands to be the case of the Fourth Amendment as [an] original matter? Why would we adopt a rule we know is wrong as an original matter? … I don’t know why we would adopt a rule that’s less protective than the original meaning.”
Considerations of rabbits and driving violations may make the issue seem arcane. Adam Forester Griffin and Josh Windham in a Federalist blog see the core issue: “The question of when and how police may enter our homes strikes at the core of American liberty. It was on the Founding Fathers’ minds when they rallied a nation to revolution. It’s on many of our minds today following the tragic shooting of Breonna Taylor in her Louisville apartment. And it’s a question the Supreme Court is poised to address yet again this term in an important Fourth Amendment case called Lange v. California.”  FILE: Attorney General nominee Judge Merrick Garland speaks during an event on Thursday, Jan. 7, 2021. (AP Photo/Susan Walsh) Our policy advisor, Bob Goodlatte, makes an important case on why Senators in both parties should use their hearing for Attorney General nominee Merrick Garland as an opportunity to extract promises of transparency about the state of government surveillance.
 The Project for Privacy and Surveillance Accountability (PPSA) filed a Freedom of Information Act request today asking the Department of Justice to release records on its use of cell site simulator technology.
These devices give government the ability to conduct sweeping dragnets of the metadata, location, text messages and more in the cell phones of people within a geofenced area. Commonly called stingrays (after the Harris Corp. brand name StingRay), and dirtboxes (or DRT boxes used on helicopters or drones for aerial surveillance), these devices can sweep up sensitive and personal information, not just from a suspect, but from hundreds or thousands of people in the vicinity. The use of such technologies is supposed to be governed by a September, 2015, policy document prescribing restrictions on the use of stingrays and requiring an order under the pen register statute and a probable cause warrant before they can be used. These requirements, however, can be overlooked in a few “exigent” circumstances, such as a threat to life and limb, or hot pursuit of a fugitive, kidnapping, and the like. “The 2015 DOJ memo spells out some useful standards for resorting to the use of a stingray,” said Gene Schaerr, PPSA general counsel. However, “in 2018, the ACLU documented at least 14 federal agencies that use stingrays, as well as 75 state agencies. Since then, there has been little insight into how federal and state agencies are actually deploying this increasingly affordable and ubiquitous technology.” Accordingly, Schaerr concluded, “It is well past the time to shed light on how widespread the use of these devices is, and to determine if standards or governance has changed, or needs to change.” PPSA’s request seeks the following records, among others:
“This last request is particularly important,” Schaerr said. “There have been many reports of NDAs keeping state and local law enforcement from discussing the use of this technology even in the courtroom and in legislative testimony. “As a civil liberties community, we need to get our arms around the use of a technology that so easily breaches the Fourth Amendment,” Schaerr said. “This is PPSA’s opening effort, one that will culminate in a closer and fuller examination of how this technology is being used on the ground and in the air by states and localities as well as the federal government.”  IMAGE CREDIT: /Ina Fassbender /AFP Countries around the world use apps for Covid 19 contact tracing. In most countries, the government swears it will never use our sensitive location and meeting data for any purpose except for tracing the spread of the virus.
In Singapore, 78 percent of that city-state’s residents – or 4.2 million people – used TraceTogether to allow the government to notify them if they’ve been in contact with someone who tested positive for the virus. The government pledged to use this data for no other purpose but public health. Now it’s come to light that Singapore secretly allowed its police to access that data in a murder investigation. “Singapore is saying to other governments, with a wink and a nod, that we’ve done it and you can do it too,” Phil Robertson, deputy director in Asia for Human rights watch, told Bloomberg News. “Many countries look to Singapore as a success story, so they think whatever Singaporeans do must be good, and that’s a problem.” For many governments, and perhaps our own federal and state governments, all that data just sitting there is a temptation. Consider our recent report on CDC’s order to the states to share personal information on people receiving coronavirus vaccines. What does this mean for U.S. citizens and policymakers? The risk that governments will misuse such private information highlights the need to protect that information through legislation, without leaving its protection to the whims of individual agencies and officers.  IMAGE CREDITS: (c) BigStockPhoto – Pixinoo
 © Reporters Committee for Freedom of the Press Imagine if the police could search your home – and the contents of your iPhone and other digital devices – by asserting it was for your own good, then charge you with a crime if their warrantless snooping revealed something illegal.
A case currently before the Supreme Court, Caniglia v. Strom, risks making that terrifying hypothetical situation reality. The case asks whether the police may enter a home without a warrant in a “community-caretaking capacity.” This exception stems from the recognition that police sometimes perform “community-caretaking” functions beyond law enforcement or keeping the peace. The Supreme Court has authorized a narrow subset of warrantless vehicle searches for police fulfilling a community-caretaking role. But the Court has never previously extended that exception to the home. The Project for Privacy and Surveillance Accountability (PPSA) Friday joined with Restore the Fourth to file an amicus brief arguing that such a loophole in the Fourth Amendment “would have been nonsensical to the Framers” and that “permitting entry into the home for such functions would have been even more outlandish.” “If the government can enter your home without a warrant in a community-caretaking capacity,” said Gene Schaerr, PPSA general counsel, “the government will argue that it may treat electronic sources of information in just the same way. After all, the home has historically been the space most protected from government intrusion.” Our brief argued that non-investigative searches performed in the name of community caretaking could lead to criminal prosecutions: “Imagine, for example, that the police believe a person posed a risk to himself or others. Under a broadened view of the community-caretaking exception, the police would be free to conduct a warrantless search of the person’s smartphone to evaluate the risk. The police would then be free to browse through the person’s search history, text messages, call logs, and photos—all in the name of caretaking.” If any illegal activity was detected, “seemingly benevolent searches would then become an engine for criminal prosecutions even though no warrant was ever obtained, and no probable cause ever existed.” “Such a precedent could pose a monumental threat to privacy and the foundations of the Fourth Amendment,” Schaerr said. “If this principle were logically extended to our digital devices, which enjoy fewer protections than the home, the most sensitive aspects of a person’s life would be routinely accessible to the government whenever it seeks to perform a community-caretaking function. Big Brother would be watching you for your own good!” PPSA will continue to monitor the government’s attempts to circumvent the Fourth Amendment’s warrant requirement by expanding exceptions to it. PPSA is a nonprofit, nonpartisan organization concerned about a range of privacy and surveillance issues—from the surveillance of American citizens under the guise of foreign-intelligence gathering, to the monitoring of domestic activities under the guise of law enforcement. Restore the Fourth is a national, non-partisan civil liberties organization dedicated to the robust enforcement of the Fourth Amendment. |