Recent stories about potential cabinet picks for a Biden Administration prompts more careful attention to privacy concerns by new appointees. For example, the discussion of California Attorney General Xavier Becerra as a possible pick for U.S. Attorney General raises the concern that issues such as the privacy of donors to non-profit organizations might be given short shrift in the new administration.
General Becerra succeeded Vice-President-Elect Kamala Harris as Attorney General in California and, unfortunately, continued and expanded her earlier efforts to breach donor privacy. Indeed, he has defended efforts to force disclosure of donors to 501(c)(3) non-profit organizations in a manner that severely threatens privacy and the freedoms of speech and association. Donor and membership lists have been protected from government scrutiny dating back to the 1958 Supreme Court cases, NAACP v. Alabama. The NAACP was understandably concerned that disclosure of its members would subject them to threats and retaliation. Such fears are no less valid today.
One judge reviewing a challenge by Americans for Prosperity (AFP) to the disclosure requirements in California noted in 2016 that such disclosure “chills the exercise of [the group’s] First Amendment freedoms to speak anonymously and to engage in expressive association” and that “this court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.” One need only look at recent headlines to understand that advocates for unpopular causes on both sides of the political spectrum continue to be the targets of threats and harassment from opposing members of the public. And past IRS targeting of unpopular political groups shows that it is not merely private citizens, but very often government officials who improperly retaliate against political opponents.
PPSA has supported AFP and other groups challenging California’s threats to privacy and the First Amendment, filing amicus briefs in the Supreme Court in support of petitions raising those issues. We will continue to stand with friends and allies across the ideological spectrum to protect donors from being targeted and harassed in an attempt to chill the exercise of their First Amendment rights.
Which brings us back to General Becerra and Vice-President-Elect Harris: PPSA would far prefer to have them as allies in protecting the privacy of donors regardless of ideological stripe. We are hopeful that events since Harris’s time as California AG have shown that people on all sides of the political spectrum face genuine threats to their privacy. And we hope that, if nominated and confirmed as U.S. Attorney General, General Becerra seriously reconsiders the hostility to privacy that is currently ascendant in California. We look forward to trying to persuade the new administration to avoid a comparable hostility at the national level. But if past proves prologue, we will challenge actions against donor privacy through advocacy in Congress and the courts.
U.S. public health officials have responded to past epidemics with contact tracing – following an infected person’s interactions with other people through a private and sensitive query. We now have digital methods that employ Bluetooth proximity data and GPS location to correlate an infected person’s movements and interactions.
This is powerful technology, with tremendous promise for human health, as well as a tremendous potential threat to Americans’ privacy.
The incoming Biden Administration plans to create a “nationwide pandemic dashboard” much like that used by South Korea to display transmission rates across the country. This could incorporate a national contact tracing effort, likely putting together the programs of participating states, with the use of a contact tracing app. If so, we hope that the public health experts will take a cue from Apple, Google and other private industries and work to ensure that a digital contact tracing app relies on consent, not secret surveillance, and has built-in measures to protect personal privacy.
The government should also observe three other principles:
PPSA accepts that a national emergency requires us all to give a little. But history shows that many “temporary” and “emergency” measures often become permanent and employed for other uses. We will remain vigilant against the possibility that contact tracing could lead to forms of government surveillance of political opponents worthy of George Orwell – or the People’s Republic of China.
In states and local communities from coast to coast, politicians and voters have taken recent bold actions on privacy and surveillance, culminating in some big changes in policy and officeholders in the just-completed national elections.
In September, the city council in Portland, Oregon, passed the broadest prohibition ever of facial recognition technology. Portland follows the examples of San Francisco, Oakland and Boston – but ups the ante. The Portland measure not only bans this technology for police and city departments; it also bans it for public-facing businesses from stores, to restaurants, to hotels.
“Technology exists to make our lives easier, not for public and private entities to use as a weapon against the very citizens they serve and accommodate,” said Portland Mayor Ted Wheeler.
No Knock Warrants
On Oct. 20, the city counsel of Aurora, Colorado, voted to ban ‘no-knock’ police raids. Virginia Gov. Ralph Northam followed suit on Oct. 28, signing a ban on no-knock warrants, making Virginia the third state in the country to outlaw this practice.
Michigan Votes to Protect Electronic Communications
By a whopping majority of 88.7%, Michigan Voters approved a constitutional amendment to clarify that the government needs a warrant to inspect a person’s electronic data and communications.
Do we need national legislation to bring this same clarity to the actions of the federal government?
California Consumer Privacy Rights Act
On election day, voters in the Golden State approved Proposition 24, the California Privacy Rights Act, a measure that creates a new California Privacy Protection Agency that will promulgate and enforce rules that require businesses to provide additional mechanisms for individuals to access, correct or delete data. A similar measure had failed in Washington State, though proponents vow to bring it back in 2021.
A just-passed Michigan constitutional amendment reinforces the principles of the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects our “persons, houses, papers and effects” against unreasonable searches and seizures. It mandates probable cause warrants before the government can search our possessions. But should it cover our electronic data and communications? Acting under their own state constitution, Michigan voters answered with a resounding “Yes.”
The measure’s background is instructive. In 2008, the ACLU submitted a Freedom of Information Act request to the Michigan State Police asking about its use of data extraction devices. Were the police pulling documents, emails, photos and calling metadata from suspects’ cellphones?
After a three-year wait, the state police agreed to answer the FOIA request. But first, the police said, the ACLU would have to pay the $544,000 cost for the government to fulfill the request. The state police did admit that “specialty teams” on criminal cases might use the technology. The answer for other law enforcement agencies was not clear.
The predictable public reaction buoyed the efforts of Sen. Jim Runestad, a Republican, who persuaded the state legislature to pass a constitutional amendment to ban warrantless snooping of electronic data and communications. In time, the Michigan State Police and the ACLU came together, vocally supporting the measure, which passed last Tuesday by a whopping 88.7 percent.
As heart-warming as this story is to surveillance reformers, it highlights the dangerous possibility that this principle holding our electronic data to be our “effects” is not currently respected by the federal government. The Snowden revelations shocked many with the extent to which the NSA was hoovering up Americans’ data. And today, apologists for the Intelligence Community maintain that the government has authority to surveil Americans under Executive Order 12333 without a statute or congressional oversight.
Do we need a national version of the Michigan initiative?
ANNOUNCEMENT: Former Sen. Mark Udall and Former House Chairman Bob Goodlatte Challenge Government’s Secrecy Around Claims of “Inherent Authority” to Conduct Mass Domestic Surveillance
FOR IMMEDIATE RELEASE
WASHINGTON – Former U.S. Sen. Mark Udall (D-CO) and former House Judiciary Committee Chairman Bob Goodlatte (R-VA) are leading an effort by Demand Progress Education Fund (DPEF) and the Project for Privacy and Surveillance Accountability (PPSA) to compel the government to come clean about the legal basis for mass domestic surveillance of Americans in the absence of Congressional authorization.
“Our request follows months of efforts by Members of Congress and civil liberties organizations to get the government to explain on what authority the government bases domestic surveillance of U.S. persons,” said Bob Goodlatte, senior policy advisor to PPSA who joined with former Sen. Mark Udall to add their names to the Freedom of Information Act (FOIA) request submitted today to the Department of Justice, FBI and other agencies.
Section 215, known as the “business records provision” of the PATRIOT Act (later amended and reauthorized by the USA FREEDOM Act), governed the warrantless surveillance of a wide range of personal information held by businesses. To acquire such sensitive records, all the FBI had to do was assert the data sought was relevant to a foreign intelligence investigation. With the expiration of Section 215 on March 15, Members of Congress and civil liberties organizations want to know the current legal basis for government surveillance.
“Those in government and their defenders have sometimes claimed that they have an ‘inherent’ power to surveil Americans,” Goodlatte said. “Our FOIA request is intended to learn if that is in fact what is happening.”
Among the categories of information the DPEF/PPSA FOIA request asks for:
“Despite decades of abuse and debate around domestic spying, the government is still refusing to be forthright with Congress and the public about the scope of its surveillance activities following the expiration of Section 215,” said former Senator Mark Udall, who served on the Senate Select Committee on Intelligence. “If the government has secretly decided that it may lawfully spy on Americans without Congressional authorization or oversight, it must not hide that legal conclusion or its reach. What could be at stake impacts the privacy of every person in the United States. We are filing this FOIA request on behalf of the people's right to know."
“Companies hold enormous and growing databases on every single person in the United States,” Goodlatte said. “The American people deserve to know if those records are being accessed without Congressional authorization or judicial due process.”
DPEF educates our more than two million members and the general public about matters pertaining to the democratic nature of our nation’s communications infrastructure and governance structures. PPSA is a nonpartisan group of U.S. citizens who advocate for greater protection of our privacy and civil liberties in government surveillance programs.
Background on the Issue
The government has missed the relevant deadlines and refused to provide answers in every case.
In August, Rep. Eshoo (D-CA) also demanded information about what surveillance of the legislative and judicial branches has occurred. After being refused a substantive answer, she called on the Inspector General of the Intelligence Community to investigate the issue. Similarly, Reps. Eshoo and Rush (D-IL) and Senator Wyden (D-OR) just called on the Privacy and Civil Liberties Oversight Board to investigate executive branch surveillance of protesters.
Additional context is available here (https://s3.amazonaws.com/demandprogress/documents/Additional_background_on_Udall_Goodlatte_DPEF_PPSA_FOIA.pdf).
Additional background on Section 215 is available at www.Section215.org.
Sean Vitka, Senior Policy Counsel at Demand Progress Education Fund: firstname.lastname@example.org; (570) 798-7678
Gene Schaerr, General Counsel at Project for Privacy and Surveillance Accountability: email@example.com; (202) 787-1060
PPSA Launches Our First Congressional Privacy Scorecard: How Strong Are Your U.S. Representative and Senators on Privacy?
As the 116th Congress concludes, we are giving our PPSA members, allies and followers a scorecard assigning Members of Congress rankings on their votes and sponsorships on bills that shape government surveillance practices and privacy. We offer this scorecard so we can encourage our leaders to continue or improve their protection of privacy.
Go here to learn more about your representatives’ actions on privacy.
PPSA applauds the ACLU for taking a brave stand to protect its donors’ First Amendment right to anonymity.
Like the ACLU, PPSA stands for the privacy of donors of all ideological stripes. For example, in March, PPSA filed an amicus brief (along with Pacific Research Institution) with the Supreme Court in support of donor privacy. Our concern stems not from a desire to protect political interests, but rather the proven necessity of protecting donors to controversial causes across the political spectrum from harassment and intimidation by those in power.
This principle dates back to the landmark Supreme Court case of NAACP v. Alabama, in which the civil rights organization successfully fought to keep its membership list secret from vindictive state authorities. That principle was also championed by the late Justice Ruth Bader Ginsburg, who wrote in a 1995 opinion, it is sometimes necessary to protect an individual who “spoke her mind, but sometimes not her name.”
PPSA's Gene Schaerr and Bob Goodlatte's latest opinion piece featured on the Washington Examiner:
When U.S. Attorney John Durham recently secured a guilty plea from former FBI lawyer Kevin Clinesmith, it was only the latest in a string of mishaps and scandals for the FBI. Soon after, Attorney General William Barr proposed a series of laudable, far-reaching administrative reforms designed to reduce opportunities for mischief at the FBI. But is internal reform enough? Or will new laws be needed to restore the trustworthiness of America’s premier law enforcement agency?
That the FBI has had a very bad run is undeniable.
Yesterday morning, we reviewed Judge Amy Coney Barrett’s Seventh Circuit decisions for hints as to how she might vote as a Justice of the U.S. Supreme Court in cases related to surveillance law and privacy. A subsequent exchange with Sen. Ben Sasse, R-NE, gave us a greater insight into her thinking on the Fourth Amendment – which appears to be similar to that of her mentor, the late Justice Antonin Scalia, as well as the justice she has been nominated to replace, the late Justice Ruth Bader Ginsburg.
Sen. Sasse, in exploring Judge Barrett’s thinking on the judicial philosophy of originalism, delved into the question of how 18th century language – such as the text of the Fourth Amendment – can resolve questions involving modern technology. He asked: “Does the Fourth Amendment have nothing to say about cell phones and reasonable search and seizure? [It] was obviously not written at a time when they had imagined mobile technological devices that addicted our kids. Does the Fourth Amendment have nothing to say about cellphones?”
Judge Barrett answered:
The Constitution, one reason why it’s the longest lasting written constitution in the world, is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting. So that … when you’re talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it as the court did in Carpenter v. United States to cellphones.
So the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalogue the instances in which an unreasonable search or seizure could take place. So you take that principle, and then you apply it to modern technology, like cell phones … Or what if technological advances enable someone with Superman X-ray vision to simply see in your house, so there’s no need to knock on your door to go in? Well I think that could still be analyzed under the Fourth Amendment.”
She later said:
[A]s I said with the Fourth Amendment, many of [the Constitution’s] principles are more general: unreasonable searches and seizures, free speech. These are things that have to be identified or fleshed out, applied over time. So the fact that there wasn’t the internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s Free Speech Clause wouldn’t apply to those things now. It enshrines a principle … that is capable of being applied to new circumstances.”
Under questioning from Sen. Marsha Blackburn, R-TN, about the applications of the Fourth Amendment, Judge Barrett favorably cited Justice Scalia’s reasoning in Kyllo v. United States (2001). In this case, a man accused of growing marijuana was targeted for prosecution after the police used infrared, thermal imaging technology to identify increased power use in his home. A 5-4 majority in that case – including Scalia’s friend, Justice Ginsburg – held that thermal imaging constituted a search and should have required a warrant.
“The late Justice Ruth Bader Ginsburg had similarly sided with the majority in restricting the ability of the government to track Americans’ cellphone location history without a warrant,” said Gene Schaerr, PPSA general counsel. “Judge Amy Coney Barrett’s answers today indicate that she would likely follow in the footsteps of Justices Ginsburg and Scalia as another champion of the Fourth Amendment.”
If your local police department wants to know your search history, it must obtain a warrant, as required by the Fourth Amendment. But if it wants to know everyone who searched for a keyword, Google will provide it, even if the keyword is something very specific and personal to you – like an address or a person’s name.
In August, police arrested a man for setting fire to the car of a purported witness. Police caught him by sending a request to Google for everyone who searched the address of the residence close to the time of the arson. They made their arrest.
“This ‘keyword warrant’ evades the Fourth Amendment checks on police surveillance,” Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, told Alfred Ng of CNET, “When a court authorizes a data dump on every person who searched for a specific term or address, it’s likely unconstitutional.”
Ng notes that keyword warrants are similar to geofence warrants, in which police ask Google for data on all devices logged in at a specific time and area. Google received 15 times more geofence warrant requests in 2018 compared with 2017, and five times more in 2019 than in 2018.
One wonders when courts will crack down on these too-clever-by-half tactics to get around the Fourth Amendment.