The Project for Privacy and Surveillance Accountability today filed a lawsuit against six federal agencies to compel them to reveal records mentioning the handling of policies governing classification decisions under Executive Order 13526.
President Obama issued this executive order in 2009, saying he was attempting to curb the breakneck growth of classified documents in the federal government by requiring agencies to create internal procedures to challenge improper classification decisions. In the president’s words, the agencies “must not withhold information for self-serving reasons or simply to avoid embarrassment.” “Think us naïve, but PPSA thought at the very least we could discover how agencies responded to the president,” said Gene Schaerr, PPSA general counsel. “We want to ask if the agencies have done anything to comply with President Obama’s executive order.” On Sept. 28, 2020, PPSA sent a Freedom of Information request to the six agencies asking for all records mentioning two sections of EO 13526 that limit classification decisions, covering a date range from Dec. 29. 2009 to Sept. 25, 2020. The FOIA requests went to the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Central Intelligence Agency, the Department of State and the National Archives and Records Administration. “The FBI did reply that the request did not have sufficient detail, though it is hard to imagine how the request could have been more detailed,” Schaerr said. “The State Department similarly denied the request, saying that PPSA’s filing did not reasonably describe the records sought. The CIA and ODNI agreed to search for records, but haven’t actually disclosed anything yet.” The Freedom of Information Act gives government agencies a maximum of thirty business days to comply with the request. All of these agencies well exceeded their time limit allowed under law. “With none of the six agencies giving a substantive or credible reply, we’re filing a lawsuit in the U.S. District Court for the District of Columbia to compel their disclosure,” Schaerr said. “We’ll report any significant responses or developments in court.” On Monday afternoon, the presiding judge of the Foreign Intelligence Surveillance Court (FISC), Judge James E. Boasberg, revealed new instances of warrantless use of National Security Agency data by the FBI, including the improper search of information about Americans in emails.
The government is allowed under Section 702 of the FISA Amendment Act to access phone calls and internet communications of noncitizens abroad with an American. The FBI can use this raw intelligence without a warrant, but only for national security investigations. Judge Boasberg’s report shows that while the FBI properly used some of this warrantless surveillance information to identify potential domestic terrorists, it ran over 40 improper queries for run-of-the-mill criminal investigations relating to health-care fraud, bribery, and other crimes by citizens posing no threat to national security and fully protected by the Fourth Amendment. “It has proven almost impossible for the FBI to resist the temptation to use powerful technology to gather warrantless evidence in purely criminal matters, not national security,” said Gene Schaerr, PPSA general counsel. In September, the judge revealed that an FBI field office used 124 improper queries of warrantless surveillance information, including background checks on community leaders in a law enforcement-sponsored “Citizens Academy,” and people providing office repairs. As with last year’s revelations, the most recent batch of warrantless queries happened before the FBI pledged to do better with improvements in training and procedural safeguards. While issuing the report, Judge Boasberg approved the NSA program for another year. He ruled that “the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.” “It’s an open question whether the FBI has been caught red handed or flat footed,” Schaerr said. “The FISC must keep close tabs on this program over the next year. Congress should consider adding statutory sanctions for using warrantless surveillance for ordinary, domestic law enforcement.” The Project for Privacy and Surveillance Accountability joined almost 70 civil liberties groups urging Homeland Security Secretary Alejandro Mayorkas to order his agencies to discontinue – or at least clarify – their use of Clearview AI facial recognition software.
Clearview AI boasts that it has the largest database of facial images, more than 3 billion in all. Many of these are scraped from popular social media platforms in violation of those platforms’ terms of service. “With one picture secretly taken with a cellphone or surveillance camera, a government agent without a warrant might access your religious and political beliefs, your home address and phone number, your work history and employer, pictures of your family, you name it,” said Erik Jaffe, president of PPSA. “With a snap, a government snoop can know everything about you. “While many groups who signed this letter are concerned about how Clearview AI might be used, or misused, by a specific government agency, our concern goes further,” Jaffe said. “We signed this letter because we believe it is an important shot across the bow to warn Washington of technology that enables Panopticon levels of surveillance normally reserved for regimes that routinely repress political freedom. “We hope this letter sparks the debate that is needed on how to restrain and govern the worrisome power of this technology,” Jaffe said. The Project for Privacy and Surveillance Accountability plans to file an amicus brief supporting an effort by the American Civil Liberties Union to require the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR) to make their opinions public.
PPSA blogged about this issue last September and remains deeply concerned by the fact that the courts have interpreted their jurisdiction so narrowly that they have largely insulated themselves from any accountability. “A secret court issuing secret opinions shaping the scope of secret government surveillance is inherently offensive to the Constitution,” said Gene Schaerr, PPSA’s general counsel. “If it is true that FISC and FISCR lack jurisdiction to even consider constitutional challenges, then the public will never know what the government is doing in its name. Kudos to the ACLU for taking the lead on asking the Supreme Court to take a definitive stand. PPSA is proud to join with our peers in the civil liberties community to support this effort.” Ted Olson, who was head of the Justice Department Office of Legal Counsel under President Reagan, oversaw the practices of the National Security Agency. He is now leading the team asking the Supreme Court to allow the American public to learn about government surveillance. “While some disclosures are allowed, it is the executive branch that decides what we can and cannot know,” Schaerr said. “There is no conceivable justification for judicial secrecy under our Constitution. We hope the Supreme Court takes this case, because if it does, the Justices will surely side with the Constitution.” Schaerr also noted that this case highlights the need for passage of the Lee-Leahy amendment to the Foreign Intelligence Surveillance Act, which would require the FISA court to include an independent expert in any case with significant constitutional implications. Co-sponsored by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT), the Lee-Leahy amendment passed the Senate with 77 votes last year. In September, 2020, PPSA filed a Freedom of Information Act (FOIA) request with the CIA, FBI, NSA, ODNI, Department of Justice, State Department, and National Archives and Records Administration. We asked them to simply reveal any references to Executive Order 13526 in their records since its adoption in 2009.
This order prohibits classification of material in order to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.” It also obligates each agency to create internal procedures to challenge improper classification decisions. While the CIA and ODNI stated that they had begun their searches pursuant to our FOIA request, the FBI and State Department have rejected identical requests, claiming they were “too vague.” This is despite the fact that our requests are bolstered by federal precedent compelling agency responses to FOIA requests for all documents mentioning specific search terms. As reviewing courts have explained, such requests for simple keyword searches leave "virtually no guesswork" about what documents will be responsive to the request. Every American knows the simple “CTRL F” function on our computer keyboards to search for keywords. The FBI and State Department nevertheless maintain our request to be too “vague” to manage such a simple search. The inconsistency is striking when compared with the other agencies that did not plead “vagueness.” As of now, both the FBI and the State Department have rejected our appeals, exhausting possible administrative remedies and freeing PPSA to enforce those agencies’ statutory disclosure duties in federal court. Concerns continue to mount over the quantity of classified materials and the possible circumvention of federal law. So troubling was this trend that even as far back as 1989, former Solicitor General for Richard Nixon, Erwin Griswold, who argued the Pentagon Papers case on behalf of the government, wrote: “[I]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.” More recently, a 2011 report to the President by the Information Security Oversight Office, as required by EO 13526, showed that even after the order’s passage, derivative classification activity continued to skyrocket, quadrupling in four recent years. Like a bad housekeeper sweeping dirt under the rug, the bureaucracy seems to be latching on to derivative classification as the place to evade accountability. PPSA will continue to fight for transparency and accountability in government surveillance. Congress relies on the Privacy and Civil Liberties Oversight Board (known by the inelegant acronym, PCLOB), an independent, bipartisan agency that conducts oversight of U.S. intelligence, to ensure that federal efforts to deter threats to the United States are balanced with Americans’ constitutional rights. Six years ago, PCLOB set out to examine the implications of Executive Order 12333 on privacy and civil liberties. They finally released their report on the afternoon of Good Friday, 2021. Perhaps they judged that a good time to avoid getting any attention whatsoever. EO 12333 was an executive order issued by President Reagan in 1981 to organize the government’s collection, analysis, and use of foreign intelligence and counterintelligence. This intelligence comes from human sources, by interception of communications, by cameras and other sensors on satellites and aerial systems, and through relationships with intelligence services of other government. Sen. Richard Burr, former chair of the Senate Intelligence Committee, alarmed the civil liberties community when he said 12333 allows the executive branch to do whatever it wants, without “guardrails” or statutory authority for mass surveillance. PPSA and many other civil liberties organizations were eagerly waiting for the completion of this study to see if any powers from this non-statutory order were being used to replace the legal authorities from Section 215 of the Patriot Act, which expired a year ago. After six years of asking questions and rummaging through classified material – in the words of the board, “deep dive reviews” of classified information – PCLOB has produced … a high school term paper. As term papers go, it is well organized and thorough in its description of how 12333 organizes intelligence. It has sections on “History” and “Contents of EO 12333.” It does offer a gentle recommendation that the agencies should accelerate their reviews of policies and constitutional requirements in light of the pace of technological change. One can almost sense their racing hearts as they dared to put themselves right on the line with that one. Other than that, there is no mention of how 12333 might be filling in for Section 215 or much of anything else. It tells us it examined NSA XKEYSCORE on global internet surveillance, but doesn’t offer any useful insights into this program. There are no criticisms of any substance, no revelations or serious recommendations. What you do get is a source on 12333 that reads like Wikipedia. PCLOB also helpfully assures us that at every turn, the intelligence agencies have procedures for the collection and use of information concerning U.S. persons in accordance with guidelines approved by the Attorney General. That’s it. That’s what six years of investigation by PCLOB gets you. Perhaps for its next assignment, PCLOB might spend the next six years producing a graphic on “How a Bill Is Made.” Congress should quit pretending that it can rely on PCLOB, whose chairman and four part-time board members must be confirmed by the Senate. PCLOB has not even bothered to pretend it is about oversight. PPSA urges you to contact your House representative and senators and demand they conduct hearings into the dependability of PCLOB, as well as to ask about the legal authorities under which the government is now conducting surveillance. Late last week, the Supreme Court issued an opinion in Torres v. Madrid. This case considered whether a Fourth Amendment seizure occurs when a police officer shoots someone, even if that person “temporarily eludes capture” after being shot. Citing common-law history and its own precedents, the Court answered that a Fourth Amendment seizure does, in fact, occur.
This case is an important win for all Americans. The Fourth Amendment’s text promises the “right of the people to be secure in their persons.” In resolving the question before it, the Court took the opportunity to highlight how the “essence” of the Fourth Amendment’s promise is the “privacy and security of individuals.” The Fourth Amendment, it reasoned, protects against “arbitrary invasion by government officials” by securing the same “degree of privacy against government that existed” at the Founding. In so doing, the Fourth Amendment “preserves personal security with respect to methods of apprehension old and new.” As PPSA argued in briefs we filed earlier this year in Lange v. California and in Caniglia v. Strom, we agree with the Court about how the Fourth Amendment secures individual privacy. Both Lange and Caniglia are still pending before the Court, and both cases ask important questions about when the government can enter a person’s home. We expect opinions in those cases in June, and we will report back once we have them. For now, we can optimistically look to the Court’s invocation of privacy’s importance in Torres as a sign of how it will resolve Lange and Caniglia. PPSA today filed a Freedom of Information Act (FOIA) request for FBI records related to a government admission that at least one Foreign Intelligence Surveillance Act (FISA) Court order involved the collection of web browsing data of an identified U.S. web page.
PPSA first got involved in this issue after Charlie Savage of The New York Times reported on a Nov. 25 letter from John Ratcliffe, former director of National Intelligence, to Sen. Ron Wyden (D-OR), correcting an earlier letter denying that any of the 61 orders issued by the FISA court in the past year involved tracking web browsing. In his revision, Ratcliffe said that one of the orders did involve collection of visits from foreign IP addresses to a U.S. web page. At the time of the report of the correction, we noted that as usual with the surveillance bureaucracy, we are left with more questions than answers. Did the FBI collect web browsing data before that time? With the expiration of Section 215, is the FBI collecting web browsing data now under a different authority? With an agency tracking visits from foreign IP addresses to a U.S. website, how does it treat the incidental collection of data on U.S. persons that would inevitably be revealed during such tracking? With these questions in mind, PPSA is asking for all FBI records mentioning or responding to the correspondence between Sen. Wyden and Richard Grenell and John Ratcliffe, both former heads of the Office of the Director of National Intelligence. “Our request is targeted and highly specific,” said Gene Schaerr, general counsel of PPSA. “Given the high level of this correspondence, there is no reason why the FBI should not be able to produce these documents. We hope that when they do, it will shed light on why the government felt the need to undertake warrantless surveillance of web browsing in the United States.” PPSA will report the FBI’s response as soon as it is delivered. BREAKING: PPSA Wins Appeal to Require NSA To Search Surveillance Records on Members of Congress3/26/2021
The National Security Agency, facing a Freedom of Information Act (FOIA) request and lawsuit from PPSA, reversed its position and promised to search for records regarding its possible surveillance of 48 current and former Members of Congress with oversight responsibility over U.S. intelligence agencies. In December, PPSA filed suit against the NSA and with five other departments and agencies, seeking these records. Almost fifty lawmakers were listed in the lawsuit, including now-Vice President Kamala Harris, Sen. Marco Rubio, Sen. Dianne Feinstein, Sen. Tom Cotton, Rep. Adam Schiff and Rep. Devin Nunes. The lawsuit followed a Freedom of Information Act (FOIA) request in October, 2020, seeking records on the “unmasking” of identities of these 48 Members and former Members of Congress in communications, as well as the use of their identities as search terms in internet traffic, a practice called “upstreaming.” The NSA had previously rejected PPSA’s request in an earlier filing. In a communication with PPSA, NSA wrote: “[P]lease be advised that NSA collects and provides intelligence derived from foreign communications to policymakers, military commanders, and law enforcement officials. We do this to help these individuals protect the security of the United States, its allies, and their citizens from threats such as terrorism, weapons of mass destruction, foreign espionage, international organized crime, and other hostile activities.” NSA denied the request because “FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations.” In December, 2020, PPSA filed a lawsuit challenging the rejection. This week, PPSA received the following letter from an officer at NSA: “I have determined the FOIA Officer’s processing of your request was inadequate, and I am granting your appeal.” NSA: “I have determined the FOIA Officer’s processing of your request was inadequate, and I am granting your appeal.” The NSA should now reveal whether these Members of Congress have been subjected to either of the two intelligence practices under the Foreign Intelligence Surveillance Act (FISA), Section 702, which allows foreign surveillance but forbids spying on “U.S. persons” located inside the United States. With unmasking, approximately twenty employees of the NSA have the authority to internally reveal the identities of Americans caught up in the surveillance of foreign communications. Unmasking results in the naming of an American in intelligence summaries. Upstreaming, like unmasking, is subject to minimization procedures, meant to restrict the use of information about a U.S. person to a tight circle of recipients with a need to know.
PPSA will report our findings on possible government surveillance of Members of Congress with intelligence oversight authority as soon as we obtain them. PPSA has also filed similar lawsuits against the Department of Justice and FBI, the Office of Director of National Intelligence, the Central Intelligence Agency and the Department of State.
Here is the list of 48 current and former members of committees with intelligence oversight responsibility including in PPSA’s suits and inquiries:
Yesterday, the Supreme Court heard oral argument in Caniglia v. Strom, a case asking whether the police can enter a person’s home without a warrant when they are acting in a non-investigative, “community-caretaking” capacity. The limited community-caretaking exception previously has allowed the police to search impounded vehicles, but the Supreme Court has never before extended it to the home. PPSA filed a brief in this case earlier this year examining the common-law history of the Fourth Amendment’s warrant requirement and explaining that, at common law, a community-caretaking exception broad enough to allow warrantless entry into the home would have been unthinkable.
Based on the oral argument, Americans concerned with protecting the home from warrantless government intrusion have reason to be partially optimistic. Although there was plainly some disagreement between the Justices, multiple Justices expressed concern with categorically extending the community-caretaking exception to the warrant requirement for searches of and seizures from the home:
Several Justices, most vigorously the Chief Justice and Justices Alito and Kavanaugh, however, seemed highly concerned with various potential, but uncertain, emergencies that might not satisfy a strict “exigent circumstances” rule, but nonetheless seemed like reasonable warrantless searches to them. The examples pressed involved the elderly who may have fallen or otherwise injured themselves as well as potential suicide risks. Where you cannot be sure an emergency exists, but there is a fear that it might. Given the Justices’ voiced concerns over limiting the doctrine, it seems likely that, even if the Court were to expand the community-caretaking exception to the home in some cases involving risks to the elderly, children, or potentially suicidal individuals, it would may provide some limiting guidance to stop the exception to the warrant requirement from overrunning the rule when it comes to the home. As PPSA explained in our brief in this case, however, even a narrow expansion of the exception to the home would pose grave concerns for privacy and deviate from the common law. Most notably, anything the police see in a person’s home while lawfully acting as caretakers could be used in criminal proceedings against them under what is known as the plain-view doctrine. And the concerns over health and safety of persons in the home can more than adequately be addressed through the historically grounded exigent circumstances doctrine or simply by getting a warrant in cases of genuine concern. We hope the Court here continues its longstanding practice of looking to the common law by requiring the government to obtain a warrant before entering a home in all but the most extreme cases. Only by declining to extend the exception to the home will the Court be able to preserve the home’s centuries-old protections. PPSA will report on the Court’s opinion, expected by June. True story: A billionaire is enjoying dinner in a restaurant when his daughter unexpectedly walks in with a date he does not recognize. The billionaire surreptitiously snaps a picture of the young man and uses his phone to run the image through software from a leading facial recognition company in which he has invested. Within a short time, the father has the man’s name and can access vast amounts of information about him.
This is one detail in Kashmir Hill’s New York Times riveting investigative piece on Clearview AI, demonstrating how the company skirts the terms of service rules of big social media platforms and stretches the law to scrape data and thereby obtain a powerful capability in facial recognition. Deploying facial recognition to identify strangers had generally been seen as taboo, a dangerous technological superpower that the world wasn’t ready for. It could help a creep ID you at a bar or let a stranger eavesdrop on a sensitive conversation and know the identities of those talking. It could galvanize countless name-and-shame campaigns, allow the police to identify protesters and generally eliminate the comfort that comes from being anonymous as you move through the world. Hill also demonstrates how the company’s technology has been a boon in catching pedophiles and human traffickers. Somewhere between 600 and 3,000 law enforcement agencies use this technology. Clearview’s database grew from 20 million faces to more than 1 billion in 2018. So if you are on Facebook, LinkedIn or the like, it’s likely that your face is already in Clearview’s database. Does Clearview technology’s data scrapping violate the Computer Fraud and Abuse Act? A federal judge in the Ninth Circuit found that the copying of publicly available information does not violate this anti-hacking law. But the ACLU is using a tough Illinois statute to challenge Clearview. PPSA will monitor and report regularly on this rapidly evolving issue. “Every time you ride your bike down this block, there are probably 50 cameras that watch you going past,” said a California mother to her 7-year-old son. “If you make a bad choice, those cameras will catch you.”
This is one of the powerful nuggets from an investigative piece by Drew Harwell in The Washington Post. He writes that “the proliferation of the kind of surveillance cameras once limited primarily to airports, banks and convenience stores also has meant millions of unsuspecting people – including camera owners’ neighbors, peaceful protestors, and anyone else walking down a residential block – are being recording without their knowledge or consent.”
Ring also has its own social network, Neighbors, the very system that caught the 7-year-old throwing a foam volleyball that harmlessly bounced off a neighbor’s security camera. More than 70 people, Harwell reports, formed opinions about appropriate punishments for the boy and commented on the mother’s parenting skills. Turns out the panopticon is being run by nosy neighbors rather than jailers. While the Ring system has helped solve crimes, from porch pirates to homicides, something this pervasive has a troubling, if less visible, cost. Once again, Americans are becoming inured to another technology taking away more of our privacy. 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. 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.” 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.” 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.
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. The Fourth Amendment forbids warrantless surveillance of Americans. As we’ve reported before, government agencies are getting around this pesky constitutional requirement by simply purchasing Americans’ private information from data brokers.
In today’s nomination hearing for the Biden Administration’s nominee for Director of National Intelligence, Sen. Ron Wyden (D-OR) asked nominee Avril Haines if she would agree to inform the American people about this growing practice. She said: “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 under that we do that under … so people have an understanding of the guidelines under which the intelligence community operates.” “PPSA will keep a close eye on the DNI to see if this promised transparency is forthcoming,” said PPSA general counsel Gene Schaerr. “If it is not, expect to see more FOIA filings citing this pledge.” In the waning days of the Trump Administration, the leadership of U.S. Customs and Border Protection seems intent on going ahead with a plan to massively increase the use of facial recognition technology at airports and other ports of entry. Under the proposed rule change, nearly all aliens entering or exiting the country would have their “faceprint” collected and stored in a government database for up to 75 years.
This database would then be made available for use by federal and state law enforcement for comparison purposes, and potentially even for use by foreign governments. In calling these plans a “civil liberties disaster in the making,” the ACLU points out consent issues with the collection of “faceprints” and describes the potential risk for “a unique and unprecedented form of persistent surveillance, one that allows the government to identify and track people without their knowledge.” In short, it would be another step toward making us more like the People’s Republic of China. This is an issue that PPSA is tracking closely and we will continue to do so as the transition to the incoming Biden Administration unfolds. |
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