“The First Amendment bars the government from deciding for us what is true or false, online or anywhere,” the ACLU recently tweeted. “Our government can’t use private pressure to get around our constitutional rights.”
 
The ACLU responded to a report from Ken Klippenstein and Lee Fang of The Intercept news organization that the federal government works in secret to suggest content that social media organizations should suppress. The Intercept claims that years of internal DHS memos, emails, and documents, as well as a confidential source within the FBI, reveal the extent to which the government works secretly with social media executives in squashing content.
 
After a few days of cool appraisal of this story, we have to say we have more questions than answers. It is fair to note that The Intercept has had its share of journalistic controversies with questions raised regarding the validity of its reporting. It also appears that this report is significantly sourced on a lawsuit filed by the Missouri Attorney General, a Republican candidate for the U.S. Senate. We’ve also sounded out experts in this space who speculate that much of the content government is flagging is probably illegal content, such as Child Sexual Abuse Materials.
 
There is also reason for the government to track and report to websites state-sponsored propaganda, malicious disinformation, or use of a platform by individuals or groups that may be planning violent acts. If Russian hackers promote a fiction about Ukrainians committing atrocities with U.S. weapons – or if a geofenced alert is posted that due to the threat of inclement weather, an election has been postponed – there is good reason for officials to act.
 
The government is in possession of information derived from its domestic or foreign information-gathering that websites don't have, and the timely provision of that information to websites could be helpful in removing content that poses a threat to public safety, endangers children, or is otherwise inappropriate for social media sharing. It would certainly be interesting to know whether the social media companies find the government’s information-sharing efforts to be helpful or whether they feel pressured.
 
The undeniable problem here is the secret nature of this program. Why did we have to find out about it from an investigative report? The insidious potential of this program is that we will never know when information has been suppressed, much less if the reason for the government’s concern was valid.
 
The Intercept reports that the meeting minutes appended to Missouri Attorney General Eric Schmitt’s lawsuit includes discussions that have “ranged from the scale and scope of government intervention in online discourse to the mechanics of streamlining takedown requests for false or intentionally misleading information.”
 
In a meeting in March, one FBI official reportedly told senior executives from Twitter and JPMorgan Chase “we need a media infrastructure that is held accountable.” Does she mean a media secretly accountable to the government? Klippenstein and Fang report a formalized process for government officials to directly flag content on Facebook or Instagram and request that it be suppressed. The Intercept included the link to Facebook’s “content request system” that visitors with law enforcement or government email addresses can access.
 
The Intercept reports that the purpose of this program is to remove misinformation (false information spread unintentionally), disinformation (false information spread intentionally), and malinformation (factual information shared, typically out of context, with harmful intent). According to The Intercept, the department plans to target “inaccurate information” on a wide range of topics, including “the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”
 
The Intercept also reports that “disinformation” is not clearly defined in these government documents. Such a secret government program may include information gathered from activities that violate the Fourth Amendment prohibition on accessing personal information without a warrant. It would also be, to amplify the spirited words of the ACLU, a Mack Truck-sized flattening of the First Amendment.
 
One cannot ignore the potential that the government is doing more than helpfully sharing information with websites along with a suggestion that it be taken down. Is the information-sharing accompanied by pressure exerted by the government on the website? From the information now available, we simply don't know.
 
Bottom line: if these allegations are true, the U.S. government in some cases may be secretly determining what is and what is not truth, and on that basis may be quietly working with large social media companies behind the scenes to effect the removal of content. So, the possible origin of COVID-19 in a Chinese laboratory was deemed suppressible, until U.S. intelligence agencies reversed course and determined that a man-made origin of the virus is, in fact, a possibility. And the U.S. withdrawal from Afghanistan? Is our government suppressing content that suggests that it was somehow a less-than-stellar example of American power in action?
 
If these allegations are true, Jonathan Turley, George Washington University professor of law, is correct in calling this “censorship by surrogate.”
 
This program, which Klippenstein and Fang report is becoming ever more central to the mission of DHS and other agencies, is not without its wins. “A 2021 report by the Election Integrity Partnership at Stanford University found that of nearly 4,800 flagged items, technology platforms took action on 35 percent – either removing, labeling, or soft-blocking speech, meaning the users were only able to view content after bypassing a warning screen.” On the other hand, the Stanford research shows that in 65 percent of the cases websites exercised independent judgment to maintain the content unmoderated notwithstanding the government's suggestion.
 
After mulling this over for a few days, we propose the following:
 

• Congressional hearings into the nature of these programs and what kinds of content has been flagged. It would be helpful if the likely new Republican majority makes this a deep dive into all the parameters of this government program, one that Democrats should be invited to join.

 

• Congressional hearings should elicit detailed answers from social media executives about how they respond to government takedown requests. And do these companies, most of which have large government contracts, feel pressure when offered “suggestions” by the government or do they believe that the government program is helpful to their content moderation efforts?

 

• If the hearings validate the story, we propose that when government flags content, it should be publicly labeled with a stated reason why it is being flagged. Social media companies can then remove or flag that information in response to a publicly posted request. And the decision to flag a post should be contestable by an identifiable person.

 
There is no reason why the government cannot stand behind its finding that a given post is the product of, say, Russian or Chinese disinformation, or a call to violence, or some other explicit danger to public safety. But we need to know if the most powerful media in existence is subject to editorial influence from the secret preferences of bureaucrats and politicians. If so, this secret content moderation must end immediately or be radically overhauled.

Evan Greer and Anna Bonesteel of Fight for the Future have an impassioned piece on NBC’s News Think on the effects of near-ubiquitous doorbell cameras like Amazon’s Ring, Google’s Nest, and Wyze. Reading their piece feels being the proverbial frog that finally understands it is already in boiling hot water.
 
Greer and Bonesteel write:
 
“Devices like Ring and the apps associated with them are made to keep us on constant alert. They ping us with notifications, demanding our attention, and offer ‘infinite scroll’ like Facebook and Instagram, but for neighborhood crime. These devices make watching one another constantly feel acceptable, expected and even addicting.”
 
As we’ve reported, Amazon encourages customers to share images with about 2,000 police and fire departments. Greer and Bonesteel write that Amazon is “effectively giving police an easy push-button portal to request video from Ring camera owners in exchange for officers’ help in marketing Amazon products.”
 
They add that “Ring’s lax security practices in the past have allowed stalkers and hackers to break into people’s cameras … This dystopian vision of a private police camera on every home would have been unthinkable a generation ago.” We would add to that observation the disturbing fact that general counsels of federal law enforcement and intelligence agencies assert a right to purchase Americans’ personal data from digital data brokers without a warrant.
 
In China, the erection of universal surveillance is the result of a deliberate campaign by the Chinese Communist Party to watch and listen in on everyone. In the United States, a similar Panopticon is being erected, piece by piece, out of desire to gain market share for doorbell cameras, lawn furniture, and home fitness equipment sold online. But the destination is beginning to look the same.

Carolyn Iodice of Clause 40 Foundation has penned a brilliant analysis and history of the Foreign Intelligence Surveillance Act (FISA), a worldly examination of how that law operates in practice. Briefly put, FISA is a statute that is often treated by the government not as law that must be obeyed, but as a potpourri to mask the stench of illicit surveillance.
 
Iodice begins her paper with a report issued earlier this year by Sens. Ron Wyden and Martin Heinrich that the CIA has secretly gathered Americans’ records as part of a warrantless bulk data collection program. This program, the senators noted, works “entirely outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional, or even executive branch oversight that comes with FISA collection.”
 
To enter the world of FISA is to enter Alice’s Wonderland where agency general counsels talk backwards and agency chiefs assert six impossible things before breakfast. Iodice makes a bold statement in the beginning that the rest of her paper validates:
 
“In the context of FISA, the government has succeeded in violating the law by using implausible interpretations of statutory language and even by evading the statute entirely. Of course, it’s not uncommon for the executive branch to overstep its statutory authorities, but if FISA is understood to be legally binding on the government’s surveillance activities in the same way that, for instance, the EPA’s authority to set national air quality standards is granted and defined by the Clean Air Act, then the flagrancy and frequency of the government’s unlawful surveillance activities is puzzling. If FISA—a law duly passed by Congress and signed by the president—sets legal rules for surveillance programs, why does the government keep flouting them?”
 
Unlike with the Clean Air Act, she explains, with FISA there is no agreement where the lines exist between legislative, judicial, and executive authority. Worse still, there is a lack of agreement how far executive authority can be extended when national security is invoked. The need for the Fourth Amendment’s requirement for a probable cause warrant in criminal cases is clear, even if that principle is often now observed in the breach. But the Supreme Court has not supplied much guidance on how the Fourth Amendment applies to operations within the United States that are for intelligence purposes.
 
The rest of Iodice’s paper tracks the steady weakening of FISA in the post-9/11 world.
 
This paper is a timely primer for what promises to be a key surveillance debate: By the end of next year, FISA’s Section 702 must be reauthorized or expire. Section 702 grants the intelligence community the authority to surveil foreign intelligence targets. While Fourth Amendment protections prevent Americans from being targeted, the law allows the communications of Americans to get swept up in “incidental” collection. This loophole has been extended to whatever width or shape the government needs to do whatever it wants.
 
Iodice concludes that if Congress reasserted its authority, or the courts resolved the Fourth Amendment and separation-of-powers issues in FISA, then FISA would operate more like a statute should. In the meantime, civil liberties champions in Congress need to be deadly serious about holding up reauthorization of Section 702 if demands for serious FISA reforms are not met.

​Last year, we reported on Apple’s plan to open a digital backdoor on CSAM, or Child Sexual Abuse Material. We reported that a content-flagging system was not just invasive of people’s privacy, but it could open a backdoor for China to use the technology to persecute dissidents and spy on Americans.
 
Throughout the privacy discussion, the European Union has generally led the world in pushing for higher standards for digital privacy, often challenging the United States to follow its lead.
 
Now, in the necessary drive to detect and prosecute those who abuse children, the EU Commission is driving a proposal that could result in the scanning of every private message, photo, and video to detect CSAM. It is also proposing using software to seek out adults engaged in “grooming” children to be victimized.
 
Every decent person agrees that we need to be aggressive in rooting out and prosecuting adults who exploit children. What could go wrong with the EU proposal?
 
Joe Mullin of the Electronic Frontier Foundation reports that the Commission “wants to open the intimate data of our digital lives up to review by government-approved scanning software, and then checked against databases that maintain image of child abuse.” Private digital conversations, even for Americans, will no longer be truly private.
 
Problem: The detection software produces far more false positives than catches.
 
Mullin writes: “Once the EU votes to start running the software on billions more messages, it will lead to millions of more false accusations. These false accusations get forwarded on to law enforcement agencies. At best, they’re wasteful; they also have potential to produce real-world suffering … That is why we shouldn’t waste efforts on actions that are ineffectual and even harmful.”
 
We would add that PPSA is concerned that technology developed for an admirable purpose is technology that will soon be used for any purpose.

In a twist on the classic song, “Yes, We Have No Bananas,” the FBI issued a non-response response to a PPSA Freedom of Information Act (FOIA) request for opinions concerning the bureau from the secret Foreign Intelligence Surveillance Court (FISC) since 1978.
 
The FBI’s response to the Project for Privacy and Surveillance Accountability is simple but direct: We have these opinions, but our computer systems cannot access them. The section chief of the FBI’s Information Management Division wrote:
 
“Your request for the above referenced subject is not searchable in our indices. The FBI Central Records System (CRS) is indexed according to investigatory interests, and it is not arranged in a manner that allows for the retrieval of information in the form you have requested.”
 
In a filing before Judge Rudy Contreras of the FISC Court earlier this year, the FBI said it has difficulty complying with FOIA requests as it transitions the workflow of the bureau’s components to a new system known as “the Bridge.” The FBI projects that this systemic transition will be complete in first quarter, 2023, at the earliest.
 
Gene Schaerr, general counsel of the Project for Privacy, responded:
 
“We are told that it is beyond the ability of one of the world’s most storied investigative and intelligence agencies to find secret court opinions that directly responded to it. If this is true, it is a wonder that FBI employees can do anything. Those of us in the civil liberties community, however, cannot summon such a level of naïveté. The FBI’s non-response response is risible and can only be taken as disdain for the Freedom of Information Act.
 
“Ultimately, it is up to federal judges, including those on the FISC, to compel the FBI to obey the law.”

“Why Elon Musk’s Idea of ‘Free Speech’ Will Help Ruin America,” reads a headline in the liberal The New Republic. Bottom line – the sale of Twitter to Elon Musk “means that lies and disinformation will overwhelm the truth and the fascists will take over.”
 
“Stop the Twitterverse – I Want to Get Off,” writes Debra Saunders in the conservative American Spectator a few weeks before Elon Musk’s acquisition of Twitter became inevitable.
 
From left and right, cynicism is the dominant reaction to the potential of Twitter under Elon Musk’s direction. The left hates Twitter because it can be abused by noxious personalities with extreme politics. The right hates Twitter because of a perception among conservatives that Twitter takes out the magnifying glass only when evaluating conservative speech.
 
Both sides have become so used to distortion and the failure of public enterprises and personalities that they have come to welcome it. We’ve even started to root for failure. There is an emotional comfort to always assuming the worst will happen – you will never be disappointed. E.K. Hornbeck, the journalist character in Inherit the Wind, captured the mentality of our times in a play written by Jerome Lawrence half-a-century before the emergence of social media:

Social media has elevated Hornbeckism and taught us not just expect the worst, but to celebrate it. We should pause, then, to take note that on the day Elon Musk visited the headquarters of Twitter as he assumes ownership, the billionaire released a surprisingly sweet note to advertisers about the direction the platform will take.
 
Musk wrote that he bought Twitter “because it is important to the future of civilization to have a common digital town square, where a wide range of beliefs can be debated in a healthy manner, without resorting to violence. There is currently great danger that social media will splinter into far-right wing and far-left wing echo chambers that generate more hate and divide our society.”
 
He wrote that the “relentless pursuit of clicks” of traditional and social media fuels caters to polarized extremes. Musk admits that failure is real possibility for him and that he must allow some degree of content moderation to keep Twitter from becoming a “free-for-all-hellscape.”
 
Musk and his team face many granular decisions between statements that are edgy and even offensive to many, and those that are over the line. That line will probably waver back and forth as Twitter experiments with a broader array of speech and speakers. Security will also need to be addressed. A fired former senior executive of Twitter, Peiter “Mudge” Zatko, testified before the Senate Judiciary Committee that there are “no locks on the doors” at Twitter when it comes to securing users’ data. Twitter, he said, had been infiltrated by foreign spies, including actors on behalf of the People’s Republic of China, seeking Americans’ personal data.
 
It will be up to Musk to assess and if necessary correct security flaws. He will lead a team that must be capable of executing operations while bringing a more open-minded ethos to the Twitterverse. We can be certain that there will be mistakes, embarrassments, policies made and revoked. But Elon Musk’s rockets exploded on the launchpad before he got SpaceX right. Maybe the same will happen this time.
 
We should all hope so.
 
As Twitter evolves, stumbles, evolves some more, we should remain calm and continue to cheer for the platform’s success. There’s nothing quite like it. And if Twitter fails because we cannot as a nation manage a dialogue, then we will all fail as well.

​The Supreme Court will consider whether to hear the Project for Privacy and Surveillance Accountability’s petition in Torcivia v. Suffolk County on Nov. 10.
 
The Second Circuit Court of Appeals ignored the obvious application of a SCOTUS ruling in Caniglia against the police for entering the home of a New York man to confiscate his guns on the basis of the “community caretaking” exception to the Fourth Amendment. The Second Circuit affirmed the right to do the same to another man in New York State on a similar, but more malleable “special needs” doctrine – which is essentially any priority the government deems important.
 
PPSA hopes the Supreme Court grants its petition and takes this opportunity to reinforce the plain meaning of its ruling and the Fourth Amendment.

​Is a “special needs exception” to the Fourth Amendment much different from a “community caretaking exception?” PPSA filed a brief before the U.S. Supreme Court demonstrating that it is not.
 
The U.S. Supreme Court ruled in 2021 in Caniglia that the police acted improperly by entering a man’s home and confiscating his guns under the “community caretaking” doctrine – in which the police are making a “welfare check” rather than acting as law enforcement officers. The High Court saw through this precedent from the 1970s and ruled that supposedly “non-investigative” intrusions into a home are what they seem to be – plain violations of the Fourth Amendment.
 
To the astonishment of many legal observers, the Second Circuit Court of Appeals ignored this unanimous Supreme Court opinion in a nearly identical case. In Torcivia v. Suffolk County, the Second Circuit applied a flexible “special needs exception” to the Fourth Amendment. One familiar example of this exception is when authorities decide that some local requirement, such as curbing drunk driving with spot checks, is necessary. But this case did not involve a car on the highway: it involved warrantless entry into a home and the confiscation of a citizen’s lawfully-owned firearms.
 
The government responded to our petition for the Court to hear Torcivia with the straight-face argument that the community caretaking exception is not the special needs exception. No one claimed it was. But we told the Court that the “logic underlying the special needs exception is indistinguishable from the logic this Court rejected in Caniglia.”
 
Our brief demonstrates to the Court that absent emergency circumstances or consent, if the “government can overcome the warrant requirement that has traditionally protected the home merely by pointing to an interest that the government feels is sufficiently strong, then the Fourth Amendment no longer serves as a meaningful limit on government power.”
 
We added:
 
“Respondents cannot escape that the Second Circuit applied the special needs exception to a seizure of firearms located in the home of a person not on probation or parole. That extension cannot be squared with this Court’s precedents or with the text, history, and tradition of the Fourth Amendment.”

Chris Gilliard in Atlantic describes a day of “luxury surveillance” – what an affluent consumer experiences by being willing to have his heartbeat, sleep, fitness, mood, digital orders, and daily queries continuously tracked.
 
This is not, Gilliard writes, a dystopian vision. In Gilliard’s “day in the life” description all the services and devices are current Amazon products endowed with what the company calls “ambient surveillance.” They could just as easily be Apple Watches, Apple, Samsung or Google smartphones, or Google Nest devices. What could be wrong, then, with consumers by the millions opting into ambient surveillance?
 
Gilliard sees a lot wrong. He offers a cautionary note from personal experience:
 
“Growing up in Detroit under the specter of the police unit STRESS – an acronym for ‘Stop the Robberies, Enjoy Safe Streets’ – armed me with a very specific perspective on surveillance and how it is deployed against Black communities. A key tactic of the unit was the deployment of the surveillance in the city’s ‘high crime’ areas. In two and a half years of operation during the 1970s, the unit killed 22 people, 21 of whom were Black.”
 
Now, Gilliard writes, “think of facial recognition falsely incriminating Black men, or the Los Angeles Police Department requesting Ring-doorbell footage of Black Lives Matter protests.”
 
We would add that one problem with luxury surveillance is that all this data being compiled on us can be easily acquired by local law enforcement, as well as by federal agencies ranging from the Department of Defense to the Department of Homeland Security. It is one thing to be surveilled in order to have an ad slipped into your social media feed. It is something else to find a SWAT team knocking down your door at dawn. Luxury surveillance is a boon for consumers until it isn’t. All the more reason why Americans should support the Fourth Amendment Is Not for Sale Act, which would at least constrain the ability of the government to get around the Constitution by buying our most personal information.

George Washington is often quoted as telling Thomas Jefferson that the Senate was meant to “cool” hot legislation from the House, just as saucers were used to cool tea. Senators today furiously debate whether the extra-constitutional rule that enables the filibuster is needed to facilitate the cooling of political passions, or if the 60-vote threshold has transformed the Senate into an abattoir for change of any sort.
 
Whichever side one comes down on in that debate, shouldn’t the Senate move swiftly on an issue it had already overwhelmingly approved with a filibuster-proof majority in the recent past?
 
In 2020, 77 senators voted in favor of the measure then known as the Lee-Leahy Amendment, which would give the secret Foreign Intelligence Surveillance Court (FISC) access to independent advice from experts on civil liberties, known as amici, when the government seeks to spy on domestic media, as well as religious, political, and other particularly sensitive groups. The amendment died when the underlying bill reauthorizing government access to business records was pulled at the last minute by President Trump.
 
Now known as Leahy-Lee, this measure is being proposed as an amendment to the defense authorization bill. Leahy-Lee would satisfy liberal concerns that the FBI uses powers meant for foreign intelligence to target the First Amendment rights of vulnerable minorities and protest groups. Conservatives have fresh reason for concern given the revelations from the Durham investigation about FBI applications before the FISC to spy on a presidential campaign aide. Time and again, the FBI has proven reckless and disingenuous.
 
Aside from National Eat a Peach Day and the like, a 77-vote margin is about as enthusiastic a showing as any substantive bill gets in the Senate. And yet when there was a recent chance to append Leahy-Lee to the National Defense Authorization Act for 2023, the amendment appeared nowhere in the manager’s report.
 
The Project for Privacy and Surveillance Accountability is joining with the American Civil Liberties Union, Americans for Prosperity, Demand Progress, the Due Process Institute, FreedomWorks, Restore the Fourth, and the Wikimedia Foundation to call on senators to hold a floor vote on Leahy-Lee now or in the coming lame duck session.
 
In our coalition letter, we told the Senate that “Leahy-Lee would safeguard Americans’ First Amendment rights by empowering the Court with the advice of amici when government seeks to use foreign intelligence surveillance in such sensitive investigative matters. Expert amici are the only representatives the public has before the FISC, even though these court decisions can secretly affect the privacy of every single person in the United States.”
 
We urge the Senate to show that it can respond to popular support and broad, bipartisan agreement in its own ranks to hold a vote on this needed check and balance on federal surveillance.

​PPSA rated the 116th Congress (2019-2021) for votes to protect the privacy of Americans from intrusive surveillance. In the Senate, for example, 77 Senators voted in 2020 for a measure that would require a qualified legal expert to represent the civil liberties interests of the American people in sensitive cases before the secret Foreign Intelligence Surveillance Court (FISC). As a result of this and other key votes, PPSA was able to rate each Member of the Senate and House on a scale of 0 to 5 on their support for privacy.
 
Arizona Sen. Kyrsten Sinema, for example, received a rating of 4, reflecting her strong stand in multiple votes for the measure to require civil liberties perspectives for sensitive FISC cases. As the Senate nears the end of the 117th Congress, and Senators turn their attention to the midterm elections in 2022, popular, viable, ready-to-pass bills on privacy and surveillance are at the ready. But will they actually get a vote on the Senate calendar?
 
These measures include:

• The Leahy-Lee Amendment, the FISC amicus requirement, did not make the manager’s amendment to the National Defense Authorization Act of 2023 (the budget of the Department of Defense). PPSA and our civil liberties allies are urging Senators to now bring it up for a vote on the floor.

 

• The House attached the Jacobs-Davidson Amendment to the Department of Defense budget requiring the Pentagon to disclose its spending on buying the personal information of Americans scraped from apps and sold by data brokers. Given the strong bipartisan support for this disclosure requirement in the House, the Senate version, the Wyden-Daines Amendment, should move forward without opposition.

 

• House Judiciary Chairman Jerrold Nadler touted his NDO Fairness Act, which would end automatic gag orders that prevent communications service providers from informing their customers that they’ve been surveilled by prosecutors. That measure passed the House by voice vote. The Senate companion, introduced by Sens. Patrick Leahy and Mike Lee, has yet to move forward.

 

• The PRESS Act, which would grant a limited shield for journalists’ confidential sources, also passed the House. This measure, needed to allow journalists to expose domestic surveillance and hold government agencies accountable, could be another easy win in the Senate.

 
The House has done a solid job of passing bills that protect Americans’ privacy from government surveillance. Their companion bills enjoy strong bipartisan support from leaders that include Sens. Patrick Leahy, Mike Lee, Steve Daines, Ron Wyden, and others. We hope the full Senate follows their lead. We want to give all Senators a strong rating for following these privacy leaders and passing measures to restore at least some of Americans’ privacy.

​Charles C.W. Cooke in National Review recently penned a provocative essay that says what some conservative Republicans and progressive Democrats are thinking – dismantle the FBI!
 
Cooke makes a case that ever since J. Edgar Hoover took over the Bureau of Investigation, the FBI has been “a violent, expansionist, self-aggrandizing, and careless outfit that sits awkwardly within the American constitutional order.”
 
Cooke presents the FBI’s parade of horribles: J. Edgar Hoover presented President Truman with a plan to suspend habeas corpus and put 12,000 Americans into military facilities and prisons at the outbreak of the Korean War. The FBI under Hoover’s leadership tried to convince Dr. Martin Luther King Jr. to commit suicide. It helped presidents destroy their enemies and used blackmail to intimidate the FBI’s critics (paranoia fueled from the likely fact that Hoover himself was eminently blackmailable). It doubled down on a macho confrontation with David Koresh, clearly a psychopath, leading to the deaths of 75 people, 17 of them children. We would add to that list a bureau headquarters that actively blocked investigations from the field that could have stopped 9/11.
 
Many have more recent reasons to suspect the FBI is rigging its investigations. In recent years, an FBI lawyer was caught and convicted of presenting altered evidence and lying to the Foreign Intelligence Surveillance Court in an effort to hide Carter Page’s service to the CIA. The FBI today has excellent justification to pursue those who invaded and trashed the U.S. Capitol on Jan. 6, and perhaps reason to pursue an investigation of former President Donald Trump’s handling of classified material – but these investigations will always be suspect to millions of Americans because of the FBI’s involvement in partisan forgery and in peddling the Steele Report, which the FBI knew at the time was unreliable. On the other side of the ideological fence, the FBI has employed invasive surveillance techniques to spy on Americans who exercised their First Amendment rights by protesting police misconduct.
 
So Cooke’s cry to dismantle the FBI, once a fringe opinion, is sure to have resonance with many on the right and left.
 
As outrageous as the FBI has been at times, however, we counsel critics remember its value in keeping us safe from terrorists, human traffickers, cyber-criminals and foreign intelligence agents from Russia and China. And make no mistake, Russian and Chinese agents and their subordinated or blackmailed helpers are in America in force and doing great harm to our country. Fighting these threats are some of the most capable and patriotic men and women we’ve ever met.
 
So what to do?
 
Cooke offers a list of potential reforms he had toyed with before deciding to argue for the wholesale dismantlement of the FBI. Cooke’s list is well thought-out and worthy of a second look and of being quoted at length:

• Mandate that no “process” crimes can result from an investigation if no underlying crime is discovered by the FBI during the course of an investigation, unless those process crimes are a lie to a grand jury or a lie that prevents the exoneration of an innocent person;

 

• Mandate that because it is expected to investigate crimes, rather than people, the FBI explain in detail at the outset of any investigation the specific cause it has to begin its work;

 

• Mandate that the FBI, as an agency of the federal government, explain in detail at the outset of any investigation why it, rather than a state or local police force, is getting involved in the case;

 

• Mandate that the FBI is forbidden from publicly announcing it is conducting an investigation until charges are brought;

 

• Mandate that if an investigation is announced in error, or leaked, the FBI publicly announce the closure of the case – if and when that closure comes – and that the FBI refrain from implying in public that the subject of their closed investigation is guilty.

 
We endorse Cooke’s strong list of reforms, to which we propose two of our own.

• Mandate that the FBI may not review any Americans metadata or electronic records without a warrant. In other words, make the FBI comply with the Fourth Amendment.

 

• Trim the sails of headquarters by enacting a more balanced distribution of resources between HQ and the field offices.

 
In looking at the history of the FBI, strong leadership has often come from its field offices. But leadership in the top tiers of the J. Edgar Hoover Building has shown itself to be entrenched with Washington power-seeking and socially enmeshed with media and political circles.
 
If one wants to bring about change, perhaps a good place to start would be to divert resources taken up by HQ and spread them out of Washington and into the field offices.
 
Andrew McCarthy, in a reply to Cooke in National Review, promotes the idea of separating the intelligence function of the FBI from its law enforcement function. This would return the FBI to being an agency dedicated solely to law enforcement. It would create an American version of the UK’s MI-5 for the purpose of counterintelligence. Like MI-5, the new agency would have no police powers (though the creation of a 19th intelligence agency in the U.S. government would undoubtedly bring fresh concerns about surveillance and privacy).
 
Another needed change would be to instill into the culture of headquarters something similar to that of the senior ranks of the U.S. military, which eschews any sign of partisanship. Many generals and admirals will not discuss their political views. Some make it a point of pride not to vote. This may be asking too much of civilian officials, but if an agent is assigned to a team that deals with political crimes, with First Amendment implications that resonate nationally, being an outspoken partisan should be reason enough for an immediate transfer to some other important line of duty.

​A witness in the John Durham investigation of the FBI’s Crossfire Hurricane investigation testified that the FBI offered former British MI-6 agent Christopher Steele $1 million if he could corroborate the lurid claims in his infamous report.
 
The FBI had serious doubts about the reliability of Steele and his report while filing four unverified and false applications for surveillance before the Foreign Intelligence Surveillance Court. This latest revelation shows that the FBI was so desperate to nail down the facts in the Steele Report, paid for by a rival presidential campaign, that agents were willing to give Steele $1 million to prove something – anything – within it. Furthermore, they did this while presenting this report with a straight face as evidence before the secret FISA Court – again, four times.
 
When you add to this latest revelation the conviction of FBI lawyer Kevin Clinesmith for forging a document to hide Carter Page’s relationship with the CIA, you can see an FBI that uses criminal investigations to advance an explicitly political agenda.
 
We live in a highly partisan era in which Republicans have one set of scandals to focus on and Democrats have their own. It would be refreshing if Republicans and Democrats would come together to examine the FBI’s actions in detail. The FBI’s interference in a presidential campaign, and therefore the First Amendment rights of every American, casts a shadow on necessary investigations – such as the actions surrounding the Jan. 6 attack on the U.S. Capitol.
 
“This is yet another reason for Congress to pass long-needed bipartisan reform legislation like the Leahy-Lee Amendment on Amicus Curiae and Exculpatory Evidence Reforms, which would add crucial, common-sense privacy and civil liberties protections to sensitive FISA cases," said Bob Goodlatte, senior policy advisor for PPSA and former Chairman of the House Judiciary Committee.

​Eight years ago, the U.S. Supreme Court held in Riley v. California that because cellphones hold “the privacies of life” – in the form of texts, images, emails, calls and more – that police (barring extreme circumstances) need a warrant to search it.
 
The application of a new legal standard, however, is never so simply adopted. Ever since, federal and state courts have applied Riley in contradictory ways.
 
To cite just one example, the Montana Supreme Court recently came down hard on the side of digital privacy. As we reported in February, parolee Bradley Mefford was challenged for leaving his apartment by parole officer Jake Miller. Mefford told his parole officer that he merely went into the parking lot to get reception to engage a Facebook Messenger conversation with his daughter. He gave the officer permission to read his Messenger thread to prove he was communicating with his daughter. The officer took the phone and surveilled all its contents, including images. Beyond Messenger, Miller found evidence of a serious crime.
 
The ACLU vigorously defended Mefford’s cellphone privacy rights. Montana’s high court agreed, vacating the charges stemming from that officer’s sweeping, generalized surveillance.
 
The court found: “It was no more reasonable for Miller to believe he had permission to search Mefford’s photos to corroborate the identify of his daughter than it would have been for him to search through a photo album in Mefford’s bedroom or a rolodex on Mefford’s office desk for information regarding Mefford’s daughter.”
 
Other courts have come down on opposing sides. EFF’s Jennifer Lynch and Allie Schiele offer a sweeping look at recent rulings. They write that “some courts have constrained police searches to certain types of data on the phone, specific time periods, or limited the use of data, other courts have authorized warrants that allow the police to search the entire phone.”
 
In United States v. Morton, the Fifth Circuit sitting en banc overturned a panel opinion that had overturned a broadly executed warrant. The court upheld a “good faith exception” that “evidence should not be suppressed when law enforcement obtained it in good-faith reliance on a warrant.” Dissenting judges wrote: “Searching a cellphone is much more invasive than a self-contained search of a pocket compartment or a bag.”
 
The dissenters also complained that the affidavit was supported by “sweeping generalizations,” a precedent that allows officers to hide behind the good-faith exception – which is “unjust, unfair, and unconstitutional.”
 
In Richardson v. State, the Maryland Court of Appeals found that “the privacy concerns implicated by cellphone storage capacity and the pervasiveness of cellphones in daily life do not fade away when police obtain warrants to search cellphones.” Maryland’s highest court held that there is no “one size fits all” solution for cellphone searches. Some might search within a specific timeframe or confine the search to an app or set of apps, or other restricted search protocols.
 
Ultimately, the Maryland high court found, “a search warrant for a cellphone must be specific enough so that officers will only search for the items that are related to the probable cause that justifies the search in the first place.”
 
EFF’s Lynch and Schiele conclude that Maryland sets the right precedent, writing that courts should “require cellphone warrants that are narrowly tailored to the crime under investigation.”
 
PPSA agrees. We also acknowledge, however, that such restrictions sometimes impose a cost at the expense of justice. In the Mefford case the underlying charges vacated by the Montana court arose from child pornography discovered on the parolee’s phone. In the Maryland case, a search of multiple phones of a high school student who had carried a gun to school showed evidence that he was planning a robbery (though in that case, the court did not vacate the evidence).
 
Painful tradeoffs arise when weighing privacy against policing, sometimes hard to stomach. We must remember, however, that such limits on cellphone searches are needed to prevent the United States from becoming a surveillance state.

​Judge Rudolph Contreras, of the U.S. District Court for the District of Columbia, gave PPSA a victory in our quest to compel the FBI to search and possibly produce correspondence between Members of Congress and agencies about their “unmasking.”
 
More than one year ago, PPSA filed suit to follow up on a Freedom of Information Act (FOIA) request asking the FBI to produce documents about the potential unmasking or identification of individual members of Congress whose messages are caught up in intercepts of foreign communications. We specifically asked for correspondence between House Members and Senators with federal agencies regarding unmasking. We also asserted that since the Gates Procedures – the method by which congressional identities are handled and can be deanonymized – are in the public domain, the FBI cannot issue a Glomar response, which neither confirms nor denies the existence of such records.
 
Judge Contreras denied this broader motion, saying it wasn’t relevant to the core request about acquiring correspondence. But he found merit with the other request about correspondence.
 
The judge wrote: “But there exists a separate category of documents: communications between the FBI and Congress that are a degree removed from FISA-derived documents and which discuss congressional unmasking as a matter of legislative interest, policy, or oversight … The FBI must conduct a search for any ‘policy documents’ in its possession.”
 
FBI attorneys had argued that the core of our request was for “operational documents” concerning congressional unmasking. Judge Contreras rejected that contention, noting there are not necessarily any law enforcement procedures, techniques, or guidelines “that would risk circumvention of the law … because acknowledging the existence of congressional inquiries would not necessarily reveal anything about the FBI’s operations.” Such policy documents are “well within the four corners of the FOIA request.”
 
If the FBI follows it traditional path and issues a Glomar response anyway, PPSA will be there to press further litigation. And we will report any findings with alacrity.

Samantha Murphy Kelly of CNN Business news has a snappy take on Amazon’s recent product press event. The company, she wrote, “knows when you’re in and out of the room. A gadget that monitors your breathing pattern while you sleep. An enhanced voice assistant that highlights just how much it knows about your everyday life.”
 
She notes another event where Amazon introduced drones and Astro, a dog-like robot that can patrol the home when you’re gone.

Will consumers be deterred by the creep factor of giving so much of our personal information taken from the intimacy of our homes? Kelly quotes a consumer analyst who said that “negative consumer attitudes” about data collection is lessened by the service, price, and convenience of these products.
 
It is easy to see why consumers are sanguine about sharing data with a company that sells products and services they like. All Amazon wants to do is to sell us even more products. Dangers emerge, however, when consumer data migrates beyond the company you’re doing business with. Amazon, for its part, says that “information about our customers is an important part of our business, and we are not in the business of selling our customers’ personal information to others.”
 
The company does share information with third parties, such as vendors whose goods are sold through Amazon. A recent FTC filing against the data broker Kochava shows that Amazon Web Services Marketplace allows companies to buy consumers’ IP addresses and precise geolocation histories. Amazon also encourages its Ring customers to share their data with police agencies across the country – creating a national surveillance network stitched together from more than three million cameras.
 
Whatever the limits of Amazon’s privacy policies, most of the other major social media platforms freely sell consumer data to brokers. Among the major customers of this data, as PPSA has endlessly reported, are the intelligence and law enforcement agencies of the U.S. government – reason why PPSA has joined with almost fifty other civil liberties organizations to call for the passage of the Fourth Amendment Is Not for Sale Act.
 
Your dog may follow you around the house, but she will never judge you. Not so with the many devices that are infiltrating into our lives.

Talk about bad timing.
 
A provisional finding by the Information Commission Office in the UK seems poised to slap a £27 million fine on TikTok for failing to meet Britain’s heightened online protections for minors. At the same time, the Biden administration is still conducting furious internal debate on the terms of a preliminary agreement with TikTok on how it stores the data of Americans.
 
A social media platform that has spread like wildfire, TikTok is owned by ByteDance, a Chinese company that must operate under a 2017 law requiring it to make all data available to Chinese intelligence. Given that TikTok has 80 million active users in the United States, the Biden administration understandably sees a massive security gap in allowing the Chinese Communist Party to follow one-fourth of the U.S. population.
 
This is not a speculative worry: PPSA reported in June that internal documents from TikTok made it clear that the Chinese Community Party could access its data.
 
The New York Times today reports that the outline of the provisional agreement with the administration would require TikTok to store its American data in the United States, most likely with Oracle. Oracle would monitor the service for algorithms that the Chinese government could use to steer Americans to its propaganda. And the deal would require TikTok to create a board of security experts answerable to the U.S. government.
 
Former President Trump had failed in his effort to force ByteDance to sell TikTok to a U.S. company. Sen. Marco Rubio (R-FL), chairman of the U.S. Senate Select Committee on Intelligence, said that without such a divestiture, the relationship with Beijing will “likely leave significant national security issues regarding operations, data and algorithms unresolved.”

Facial recognition software is a problem when it doesn’t work. It can conflate the innocent with the guilty if the two have only a passing resemblance. In one test, it identified 27 Members of Congress as arrested criminals. It is also apt to work less well on people of color, leading to false arrests.
 
But facial recognition is also problem when it does work. One company, Vintra, has software that follows a person camera by camera to track any person he or she may interact with along the way. Another company, Clearview AI, identifies a person and creates an instant digital dossier on him or her with data scrapped from social media platforms.
 
Thus, facial recognition software does more than locate and identify a person. It has the power to map relationships and networks that could be personal, religious, activist, or political. Major Neill Franklin (Ret.) Maryland State Police and Baltimore Police Department, writes that facial recognition software has been used to violate “the constitutionally protected rights of citizens during lawful protest.”
 
False arrests and crackdowns on dissenters and protestors are bound to result when such robust technology is employed by state and local law enforcement agencies with no oversight or governing law. The spread of this technology takes us inch by inch closer to the kind of surveillance state perfected by the People’s Republic of China.
 
It is for all these reasons that PPSA is heartened to see Rep. Ted Lieu join with Reps. Shelia Jackson Lee, Yvette Clark and Jimmy Gomez on Thursday to introduce the Facial Recognition Act of 2022. This bill would place strong limits and prohibitions on the use of facial recognition technology (FRT) in law enforcement. Some of the provisions of this bill would:
 

• Limit law enforcement use of FRT to situations in which a warrant is obtained that shows probable cause that an individual committed a serious violent felony.

 

• Prohibit law enforcement from using FRT to create a record documenting how an individual expresses rights guaranteed by the Constitution, such as lawful protests.

 

• Prohibit a FRT match from being the sole basis upon which probable cause can be established for a search, arrest, or other law enforcement action.

 

• Ban the use of FRT in conjunction with databases that contain illegitimately obtained information.

 

• Ban the use of FRT to track individuals with live or stored video footage.

 

• Require law enforcement to provide notice to individuals who are subjects of an FRT search and copy of the court order and/or other key data points.

 
The introduction of this bill is the result of more than a year of hard work and fine tuning by Rep. Lieu. This bill deserves widespread recognition and bipartisan support.

The first responsive information from the Office of the Director of National Intelligence to a Freedom of Information Act (FOIA) lawsuit for records concerning U.S. intelligence purchases of the private data of American citizens is trickling in. As often happens, cursory information allows us to catch a glimpse of secret practices, if only through a glass darkly.
 
The ears of civil libertarians perked up when Director of National Intelligence Avril Haines (1:17:05 mark) in her Senate confirmation hearings in early 2021 was asked about purchases of Americans’ data by Sen. Ron Wyden, (D-OR). She responded:
 
“I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.”
 
Haines further promised to provide transparency “so people have an understanding of the guidelines under which the intelligence community operates.”
 
On May 17, 2021, PPSA requested records related to statements by Director Haines concerning the promise to publicize the circumstances under which the U.S. intelligence community purchases Americans’ private data, and its legal basis for doing so. After one year of awaiting a response – long past the statutory deadline – PPSA filed a lawsuit in July 2022 to press ODNI to respond to the request.
 
PPSA announces today that it received a reply that ODNI conducted a search and found approximately 1,000 emails potentially responsive to our request.
 
ODNI, however, explains that it does not have “de-duplication” software that would winnow the body of records to single copies. This is remarkable, since almost every other executive agency has such software, including many under ODNI’s purview. Searches of the documents will have to be done by hand and eye. With personnel changes, ODNI explains, it can only begin releasing records in late November – eighteen months after the submission of the FOIA request and in the middle of the holiday and travel season.
 
PPSA filed a motion asking a federal court to require ODNI to process at least 500 pages of records a month.
 
“What is most interesting about ODNI’s response,” said Gene Schaerr, general counsel of PPSA, “is that it has perhaps a thousand emails about living up to Director Haines’ promise of a degree of transparency without referring to a single document that would actually indicate that the office is transparent.”
 
PPSA will release more information from this legal action as ODNI produces results.

A new report by the United Nations Human Rights Council highlights how much of a global issue spyware has become. The Office of the High Commissioner for Human Rights calls for greater attention to threats to data privacy, to the development of state-sponsored spyware capabilities, and especially to the dangerous software Pegasus, which can remotely infiltrate smartphones and turn them into spying devices. PPSA has reported in the past on the emerging threat Pegasus poses to nations and individuals around the world. It is heartening to see the UN take this data privacy crisis seriously as a human rights issue.
 
The UN report focuses on three core trends relating to the role of member states in safeguarding and promoting the right to privacy:
 

1. The abuse of intrusive hacking tools (“spyware”) by state authorities.
2. The key role of robust encryption methods in protecting human rights online.
3. The impacts of widespread digital monitoring of public spaces, both offline and online.

 
The report draws special attention to Pegasus.
 
“The extent of Pegasus spyware operations and the number of victims are staggering… Reporting in 2021 revealed that at least 189 journalists, 85 human rights defenders, over 600 politicians and government officials, including cabinet ministers, and diplomats were affected as targets.”
 
The report notes that at least 65 governments have acquired commercial spyware surveillance tools. NSO Group, the Israeli company that developed Pegasus, reported that 60 government agencies in 45 countries are among its customers.
 
The UN report states: “While purportedly being deployed for combating terrorism and crime, such spyware tools have often been used for illegitimate reasons, including to clamp down on critical or dissenting views and on those who express them, including journalists, opposition political figures and human rights defenders…”
 
The report also condemned efforts by governments to undermine the security and confidentiality of encrypted communications – a key goal not just of repressive regimes, PPSA would add, but of some in the Department of Justice and FBI.
 
Governments continue to take steps to undermine that privacy, either by legislative fiat or by sophisticated hacking techniques. In some countries, encryption providers have been required to ensure that law enforcement or other government agencies have access to all communications upon request, effectively obliterating any privacy that encryption may have provided.
 
This is a brave report. PPSA is pleased to see the UN Human Rights Council recognize privacy as a human right, contrary to the practice of repressive governments, including China and Russia, which have seats on the UN Security Council. Unfortunately, the UN’s warnings on pervasive surveillance also need to be taken seriously by democratic governments, including some in positions of authority in the United States. 

If you thought being subjected to “random” TSA screenings at airports was dehumanizing, just imagine your most sensitive, personal digital information being secretly reviewed by any one of thousands of government agents operating without a warrant or public oversight.
 
The Customs and Border Protection Commissioner Christopher Magnus revealed to Sen. Ron Wyden (D-OR) that the agency is scooping data from thousands of seized electronic devices every year. (Hat tip to Drew Harwell of The Washington Post for detailing this abuse of privacy.) That data is then added to a CBP database accessible by more than 2,700 CBP agents. That data – which can include call logs, messages, contact lists, and photos – can be kept for up to 15 years.
 
This story is just the latest development in a long-running series of data privacy breaches by federal law enforcement officials. Sen. Wyden criticized the agency for “allowing indiscriminate rifling through Americans’ private records.”
 
CBP conducted more than 37,000 searches of travelers’ devices in the 12 months ending in October 2021. According to The Washington Post, the default configuration for some data searches has been to download and retain all contact lists, call logs and messages. This means potentially millions of calls, contacts, and text messages from thousands of phones could be compromised.
 
It has long been known that CBP makes generous use of the “border search” exception in Fourth Amendment law. Sen. Wyden’s revelation about the scale and the scope of this loophole reveals an egregious new threat to the security of Americans’ data privacy. Congress must act now to bolster protections for data privacy.
 
It is high time for the Supreme Court to review and modify the judicially created border search exception in light of the massive amounts of information being seized from law-abiding citizens and then stored for long periods of time. If the Court does not protect the Fourth Amendment, then Congress should step up.
 
Last year, Sens. Wyden and Rand Paul (R-KY) introduced legislation that would require border officials to get a warrant before searching a traveler’s device. Congress should also pass the Fourth Amendment Is Not for Sale Act to ensure this database doesn’t fall into the hands of data brokers.

The U.S. House of Representatives passed the Protect Reporters from Exploitative State Spying (PRESS) Act with unanimous, bipartisan support today.
 
This bill, long supported by PPSA and civil liberties sister organizations, would protect journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. Former Rep. Rick Boucher (D-VA), friend of PPSA and the original author of an earlier version of this bill, said:
 
“Kudos to Rep. Jamie Raskin for shepherding this bill through the House in such a busy season. The PRESS Act passed unanimously today because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources. The House today made a bold statement that this is not acceptable. I am heartened to see such a strong, bipartisan stand for a free and unintimidated press.”
 
PPSA general counsel Gene Schaerr, said:
 
“Today’s approval reflects the common sense behind this bill. Passage of this bill with unanimous, bipartisan support is a reaffirmation of the First Amendment’s guarantee of protection for a free press. If such a law works well for the vast majority of states, there is no excuse for the federal government to be so far behind the times.”
 
Former Rep. Bob Goodlatte who served as Chairman of the House Judiciary Committee, and now as PPSA Senior Policy Advisor, said:
 
“When a bill passes so easily after being praised by two of my former colleagues, House Judiciary Committee Chairman Jerry Nadler and Ranking Member Jim Jordan, that tells you something about the need for this bill to become law.
 
“The question now is will the U.S. Senate respond to the enthusiastic, bipartisan support displayed by the House? This bill has been sponsored in the past by now-Senate Majority Leader Chuck Schumer and Sen. Lindsey Graham. Enacting this bill into law would be a positive message that every senator can take home.”

Last week, PPSA reported on Fog Reveal, a product from Fog Data Science that sells billions of data points extracted from apps on 250 million mobile devices to local police departments. An unlimited-use, one-year subscription costs a department only $7,500.
 
For this price, Fog Reveal offers a powerful capability, the ability to track hundreds of millions of Americans in their daily movements. It allows police to locate every device in a given geo-fenced area. It also allows police to trace the location history of a single device (and therefore, its user) over months or years.
 
Fog Data Science claims that it is respectful of privacy because it does not reveal the names or addresses of individual users. But a slide show from Fog Data Science prepared for police highlights how this technology can easily be used to track a suspect to his or her “bed-down” over a 180-day period. (Hat tip to the Electronic Frontier Foundation, which helpfully added yellow highlights to significant passages of Fog documents.)
 
It is more than a stretch then to call this data “anonymized” when it follows people to their homes, as well as to their houses of worship, meetings with friends or lovers, trips to health or mental health clinics, journalists meeting with whistleblowers, or other locales that reveal sensitive and personal information.
 
For those in law enforcement who go through the motions of filing a warrant, Fog Data Science offers a template warrant. Such warrants are misbegotten. They can be employed to follow a number of people in the vicinity of a crime or track everyone who attended a political protest. The Fourth Amendment requires “probable cause” in which a warrant describes “the place to be searched, and the persons or things to be seized.” It makes a mockery of the Constitution’s requirement for particularity when the police have at their fingertips a whole ocean of data involving many people. How can such a requirement be fulfilled when Fog technology allows police to go on a fishing expedition in that ocean, with any American potentially being a catch?
 
It is through technologies such as Fog Reveal that our country, device by device, is moving steadily toward becoming a full-fledged surveillance state.
 
Such details should spur Congress to investigate the uses of this technology. It should also inspire Congress to pass the Fourth Amendment Is Not for Sale Act, which would block the auctioning of our private, personal information to all government agencies.

​An elegant essay by Adrian Wooldridge in Bloomberg makes a connection between the Chinese surveillance state – “using the awesome power of data harvesting and artificial intelligence to compile more information on its citizens than any society has ever managed before” – and Western “surveillance capitalists” who are making our country a little more like China day by day.
 
PPSA has long warned that all the elements are falling into place to create an American surveillance state.
 
Here are just a few of the ways in which this is happening: The federal government and local police departments use “stingray” technology to trick Americans’ phones to betray your location and other personal information. Authorities can purchase your location history with Fog Reveal technology and capture all your comings and goings. Or they can just buy your personal information from a private data broker, as many federal agencies do.
 
The growing web of the “internet of things” will only produce more reportable data about you, from the cars we drive, to our refrigerators and other appliances in our home. A surveillance loophole was even recently found in a Chinese-made coffee maker.
 
Wooldridge reports that the Chinese Communist Party is at the cutting edge, “developing a new sort of ‘digital phrenology’ by monitoring people’s facial expression for signs of anger and new forms of racial profiling by creating a world-leading DNA database.” Governments, including our own, exert “relentless pressure for the misuse of information even as the quality and quantity of available information grows exponentially.”
 
The techno-optimists of the 1990s waxed rhapsodic about how the internet was going to liberate the human mind. Wooldridge comes to an opposite conclusion with these chilling words: “The arc of the digital revolution bends toward tyranny.”

​Since the mid-1960s, the Freedom of Information Act (FOIA) has allowed American citizens and civil liberties organizations to obtain unclassified documents from federal agencies, shedding light on official actions and policies. In recent years, however, the government has devised many creative ways to stall, obfuscate, and outright withhold answers to FOIA requests, while seeming to be as responsive as possible. Cato Institute scholar Patrick Eddington calls these tactics “constructive denial.”
 
For over two years, Cato filed FOIA requests to obtain FBI records on militia groups of the left and the right, including the white supremacist Patriot Front. “Groups like the Patriot Front,” Eddington writes in The Hill, “are, in the view of most Americans, a moral and political blight that the country would be far better off without. At the same time, the protection of offensive ideas and speech are at the heart of the purpose of the First Amendment.” Thus, Cato sought records to better understand the threat posed by these groups and the nature of the government’s response.
 
In defiance of FOIA’s requirement that the FBI send the requested documents to the requester himself, the FBI replied to Cato that it would eventually file the documents on an FBI website. “You will be notified when releases are available.”
 
In other words, buzz off.
 
Constructive denial can be seen in another form after PPSA filed suit against the National Security Agency, the CIA, the Department of Justice and FBI, and the Office of the Director of National Intelligence in June to compel the release of records pertaining to the possible purchase of the personal information of more than 100 current and former Members of the House and Senate Judiciary Committees from private data brokers.
 
This is understandably a sensitive question, given that current and former judiciary committee lawmakers include Chairman Jerrold Nadler, Ranking Member Jim Jordan, Chairman Dick Durbin, Ranking Member Chuck Grassley, as well as Vice President Kamala Harris and Florida Gov. Ron DeSantis. Still, it would be a matter of public interest – not to mention to these legislators themselves – if the government were buying up their personal information. Such an act could yield leverage for executive branch agencies to bully leading Members of Congress, subtly undermining democracy.
 
The agencies’ response to PPSA’s FOIA request over summer 2021 was to issue Glomar responses, a judicially invented doctrine that neither confirms nor denies that such records exist.
 
Now that PPSA has sued to enforce its request, these agencies have come back with an answer that doubles down on a government theory that it would be too dangerous to national security for these agencies to even search for such documents. At the same time, government responses strike a tone of wanting to be as cooperative as possible.
 
One choice example: PPSA asserted a “right of prompt access to requested records under the law.” The National Security Agency responded: “To the extent that a response is required, Defendant NSA denies the allegation, including the fact that NSA has wrongfully withheld records.” This is a construction worthy of Joseph Heller’s Catch-22.
 
Gene Schaerr, PPSA general counsel, responds: “The government’s answers disingenuously conflate an internal search for documents with an external response to a question. The government feels free to treat FOIA as polite supplication instead of a law that must be obeyed. PPSA will continue to press on for a serious answer in federal court.”
 
In the meantime, expect the government to come up with many new forms of constructive denial.