Late last week, word began to circulate that the Senate majority is considering including Section 702 of the Foreign Intelligence Surveillance Act in a Continuing Resolution (CR). On Monday morning, a broad coalition of civil liberties groups – left, right and center – sent a letter to Majority Leader Chuck Schumer urging him and the Senate not to include Section 702 in the CR or any must-pass legislation.
Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, explained why PPSA joined in this effort in a media statement. Goodlatte said: “We’ve seen how short-term extensions have a habit of becoming long-term. Extending Section 702 in the CR risks a clean reauthorization of Section 702 with no reforms. “If that happens, expect the FBI to get back to business as usual. Expect warrantless FBI surveillance of Members of Congress and Americans exercising their First Amendment rights to continue. Including Section 702 in the CR would also cut reform off at the knees. It would short-circuit bipartisan reformers in the House and Senate, including critical legislative efforts by the House Judiciary Committee and by dozens of Senators and House Members who’ve worked in good faith to balance national security with our constitutional rights. “Upending these reform efforts would not only lead to a new wave of abuses under Section 702 or other parts of FISA – it would also enable federal agencies to increasingly surveil Americans by accessing our most sensitive personal data, scraped from apps, and sold to the government by shadowy data brokers. “For all these reasons, it would be a terrible mistake to include Section 702 in a CR or any other must-pass legislation.” Four experts on civil liberties, including PPSA’s general counsel Gene Schaerr, explored the tension between liberty and safety at a Federalist Society discussion on Section 702 of the Foreign Intelligence Surveillance Act on Friday. A newsworthy declaration was made by Beth Williams, board member of the government watchdog, the Privacy and Civil Liberties Oversight Board (PCLOB) about balancing Section 702 reform with national security. Williams called Section 702 a “highly valuable” program that “provides irreplaceable intelligence” that generates two-thirds of the president’s daily intelligence briefing. Williams added that all five PCLOB members, while disagreeing on many points, agreed that: “While Section 702 is not a bulk collections program, we agreed that reforms to the program are in order to fix some problems with its operation, particularly by the FBI and to prevent its possible misuse for political and other improper purposes. This can be done without degrading the value of the program.” This was a notable declaration given that Williams and board member Richard DiZinno had dissented from PCLOB Chair Sharon Bradford Franklin and the board’s majority on the need for warrant requirements and other reforms. Williams’ remarks validated a statement by Chair Franklin that no PCLOB member “has called for the program to lapse and also no board member has called for clean reauthorization of the program." A sharp divergence in world views emerged between the constitutional vision of Gene Schaerr and a dark, dystopian future suggested by former NSA lawyer Stewart Baker. Schaerr kicked off this part of the discussion by asking the Federalist Society audience to conduct a thought experiment by imagining what James Madison would say if we could bring him up back to life and up to speed about the many ways the FBI has to surveil Americans. “He would be horrified,” Schaerr said by the denigration of the Fourth Amendment and the breakdown between congressional and executive powers. Schaerr imagined Madison reminding us that the founders “decided that way we set up this government would be to accept some inefficiencies as the price of freedom.” Baker posited a world in which artificial intelligence enables anyone who wants to develop more lethal toxins and infectious diseases to do so, a world of weapons of mass destruction in the hands of “disgruntled teenagers.” Baker’s reply to Schaerr’s thought experiment: “I don’t think James Madison would come back and say, ‘well, you’re just going to have to live in my world and suffer 21st century consequences.’” Gene Schaerr listed the “multipronged” ways the FBI can surveil Americans – from Section 702 information, to personal, sensitive data scraped by apps and purchased by the FBI and other government agencies from data brokers, to executive orders that allow the government to extract Americans’ texts, emails, and browsing histories from the cloud. Given the pervasive reach of such government surveillance, are the alarming fears of technology and hostile actors reason to give up on the Constitution and live in a surveillance state? This discussion leaves us to decide: Do you agree with Stewart Baker, that we must embrace pervasive surveillance to survive? Or do you agree with Gene Schaerr, who concluded: “We can realign federal government surveillance powers with the founders’ vision of what our government can be.” Watch: Well, that didn’t take long.
Before a bipartisan, bicameral team of senators and representatives could finish a press conference on Capitol Hill to introduce the Government Surveillance Reform Act (GSRA), the White House held a press call to declare President Biden’s intention to veto the bill. The White House press call – a “pre-butt” (as in pre-rebuttal) – told reporters that the warrant requirement for querying U.S. persons was a “red line” that would result in a presidential veto. The White House said that it was taking this stand to make it clear that the bill would undermine U.S. security in unprecedented ways. Yet John Sakellariadis of Politico reported that the unnamed White House official also conceded on the call he and his White House colleagues “hadn’t even read the bill yet.” Sakellariadis seemed surprised by the Biden Administration’s brushoff of a very detailed and thoughtful bill. He had reported that the GSRA “actually includes carve-outs for emergencies, ‘defensive’ cybersecurity queries, emergencies, and consent.” There didn’t seem to be any recognition by the White House that Sens. Ron Wyden and Mike Lee, and Reps. Warren Davidson and Zoe Lofgren, had worked hard to try to address the administration’s legitimate national security concerns. “Joe Biden wants to veto our bipartisan government surveillance reform bill, because apparently illegal spying on American citizens is very important to his administration,” Sen. Lee shot back. “And he hasn’t even read the bill yet!” The White House, acting on bad advice from the intelligence community, has consistently taken a ham-handed approach, brushed aside any talk of compromise, and insisted on a clean reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. That authority, enacted by Congress for foreign surveillance but often used by federal agencies to surveil Americans, expires at the end of this year. That dynamic alone gives reformers the strategic upper hand to demand changes. Worse for the Administration, Members of Congress from both sides of the aisle say they are hearing a lot from constituents who are hopping mad about warrantless surveillance, as well as having their sensitive, personal data purchased by the government from shady commercial data brokers. It should occur to the Biden Administration that against this backdrop of discontent – and with the pending expiration of Section 702 – that the White House is doubling down on a weak hand. This seems like bad politics. It is certainly bad policy. The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability. Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership. At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence. Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process. Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.” The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief: “The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.” This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.” Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.” We stand with X and EFF in urging the Supreme Court to promptly address this alarming development. The Government Surveillance Reform Act (GSRA) Four bipartisan champions of civil liberties – Sen. Ron Wyden (D-OR), Sen. Mike Lee (R-UT), Rep. Warren Davidson (R-OH) and Rep. Zoe Lofgren (D-CA) – today introduced the Government Surveillance Reform Act (GSRA), legislation that restores force to overused Capitol Hill adjectives like “landmark,” “sweeping,” and “comprehensive.”
“The Government Surveillance Reform Act is ambitious in scope, thoughtful in its details, and wide-ranging in its application,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and PPSA’s Senior Policy Advisor. “The GSRA is a once-in-a-generation opportunity for wide-ranging reform.” The GSRA curbs the warrantless surveillance of Americans by federal agencies, while restoring the principles of the Fourth Amendment and the policies that underlie it. The authors of this bill set out to achieve this goal by reforming how the government uses three mechanisms to surveil the American people.
The GSRA will rein in this ballooning surveillance system in many ways.
“The GSRA enjoys widespread bipartisan support because it represents the most balanced and comprehensive surveillance reform bill in 45 years,” Goodlatte said. “PPSA joins with a wide-ranging coalition of civil liberties organizations to urge Congress to make the most of this rare opportunity to put guardrails on federal surveillance of Americans. “We commend Senators Wyden and Lee, and Representatives Davidson and Lofgren, for writing such a thorough and precise bill in the protection of the constitutional rights of every American.” Apple Sends Notice of Hack Pegasus – the Israeli-made spyware – continues to proliferate and enable bad actors to persecute journalists, dissidents, opposition politicians, and crime victims around the world.
This spyware transforms a smartphone into the surveillance equivalent of a Swiss Army knife. Pegasus has a “zero-day” capability, able to infiltrate any Apple or Android phone remotely, without requiring the users to fall for a phishing scam or click on some other trick. Once uploaded, Pegasus turns the victim’s camera and microphone into a 24/7 surveillance device, while also hoovering up every bit of data that passes through the device – from location histories to text, email, and phone messages. We’ve written about how Mexican cartels have used Pegasus to track down and murder journalists. We’ve covered the role of Pegasus in the murder of Saudi dissident Adnan Khashoggi, and how an African government used it to spy on an American woman while she was receiving a briefing inside a State Department facility on her father’s abduction. Now fresh evidence from Apple alerts shows how Pegasus continues to be used by governments to spy on political opponents. Journalists have learned that the Israeli-based NSO Group has sold its spyware to at least 10 governments. Two years ago, it was revealed that a government had used Pegasus to surveil Spanish politicians, including the prime minister, as well as regional politicians. Now it is happening in India. On Oct. 31, just in time for Halloween, Apple sent notices to more than 20 prominent journalists, think tank officials, and politicians in opposition to Prime Minster Narenda Modi that hacking attempts had been made on their smartphones. In 2021, The Washington Post and other media organizations investigated a list obtained by Forbidden Stories, a Paris-based non-profit media outlet, tracking down more than 1,000 phone numbers of hundreds of prominent Indians who were set to be surveilled by Pegasus. This plan now seems to have been executed, at least in part. “Spyware technology has been used to clamp down on human rights and stifle freedom of assembly and expression,” said Likhita Banerj of Amnesty International. “In this atmosphere, the reports of prominent journalists and opposition leaders receiving the Apple notifications are particularly concerning in the months leading up to state and national elections.” Yesterday Spain, today India, tomorrow the United States? It is public knowledge that the FBI owns a copy of Pegasus and that a recent high-level government attorney from the intelligence community has signed on to represent the NSO Group. This is all the more reason for Congress to pass serious reforms to Section 702 of the Foreign Intelligence Surveillance Act, to curtail all forms of illicit government surveillance of Americans. PPSA will continue to monitor this story. “Health of Democracy at Stake""The president and the general counsel of PPSA late last night asked the U.S. Court of Appeals for the District of Columbia to reverse a lower court ruling that prohibited Carter Page from suing eight federal officers who played a direct role in his illegal surveillance during the now-infamous “Crossfire Hurricane” investigation. The appeal filed by Erik Jaffe and Gene Schaerr of the Schaerr-Jaffe law firm seeks a private right of action against former FBI Director James Comey, former deputy director Andrew McCabe, and former FBI agent Peter Strzok, former FBI lawyers Lisa Page and Kevin Clinesmith, as well as three others in the FBI and Department of Justice. As described by the Justice Department’s Inspector General’s investigation into the Crossfire Hurricane case, these officials relied on the false Steele report, concocted by an opposition researcher with ties to the political party opposing Trump, in order to portray Page as a Russian agent. The defendants hid from the court the FBI’s internal misgivings about the Steele report, and CIA warnings about its reliability. These untruths were used to support four separate surveillance requests, deceiving the secret Foreign Intelligence Surveillance Act (FISA) court. Clinesmith later pled guilty to a felony false statement charge for doctoring a document from the CIA attesting that Carter Page was an operational contact and asset of the agency to state that Page was “not a source.” The appeal on behalf of Page asks the court to consider errors in the lower district court’s ruling, which dismissed Page’s claims without any discovery. The appeal notes that the plain language of FISA allows an aggrieved person to sue if that victim has suffered from the unlawful abuse of that authority. FISA makes it illegal to use or disclose information obtained by such illicit surveillance. The appeal also rests on the PATRIOT Act, which makes it unlawful for federal officers or employees to use or disclose such information except for lawful purposes. The appeal reads:
“This case is about holding government actors accountable for their plainly illegal conduct of using fraud and deceit to obtain secret search warrants against an innocent citizen. Worse still, such tactics were used against an innocent foreign policy advisor to a disliked presidential campaign in a transparently political effort to derail that campaign.” As a result of official leaks, Carter Page for months was derided in the mass media as a “traitor.” And that, according to attorney Gene Schaerr, was a grave injustice perpetrated by senior FBI officials: “You don’t have to be a fan of Donald Trump to understand that an FBI that uses concocted criminal accusations to try to skew a presidential election is a menace to democracy. Reversal of the lower court’s decision is necessary to restore accountability for the kinds of unlawful surveillance and explicit election interference engaged in by the FBI officials here. These powers should never be used against any candidate – whether establishment or populist, left or right. “Reversal of the lower court is also necessary to restore the nation’s trust in intelligence gathering. It is astounding that the same intelligence community that tells Congress to reauthorize FISA’s Section 702 without reforms also waves away the Carter Page scandal, telling us, ‘nothing to see here, folks.’ If Congress reauthorizes Section 702, it should also reform that surveillance program as well as those that were abused to harm Dr. Page. The health of our democracy is at stake.” When FBI Director Christopher Wray came under heated questioning during his testimony Tuesday before the Senate Homeland Security and Governmental Affairs Committee, he let slip a remark likely to haunt him for the rest of the debate over proposed reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Director Wray said, “With everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack here on our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down.” By “watered down” Wray meant reformers’ proposal requiring the FBI to meet the Fourth Amendment’s requirement to obtain a probable cause warrant before accessing the private communications of Americans taken from Section 702. This authority was enacted by Congress to enable surveillance of foreign terrorists and spies located on foreign soil. There is no reason why Section 702 cannot be used to surveil “a foreign terrorist overseas.” The problem is that this authority has become a prime resource for the FBI and other agencies to warrantlessly review the information of Americans. Sen. Rand Paul (R-KY), Ranking Member on the committee, responded: “You would think we’d be going after foreigners, but we are using the Foreign Intelligence Surveillance Act to go after Americans.” In addition to skepticism from Sen. Paul and others on the committee, Director Wray’s assertions are contradicted by others with experience in FISA. In a recent editorial, Sharon Bradford Franklin, chair of the independent government watchdog group, the Privacy and Civil Liberties Oversight Board (PCLOB), with two other board members in a recent Washington Times editorial, supported requiring a court order or warrant before the government can review Americans’ Section 702 data. The PCLOB members noted that “the FBI has repeatedly violated querying rules to run searches on Americans. This includes impermissible searches for members of Congress, those who protested the murder of George Floyd, preachers, participants in an FBI community relations program, victims who reported crimes …The FBI has failed to get this right for more than a decade. The bureau’s persistent noncompliance over the years dramatically illustrates the need for independent, impartial, and external review. These compliance errors may also undermine the public’s trust in the FBI, raising real questions about its ability to police itself.” In his written testimony, Director Wray also informed the committee that a warrant requirement would amount to a “de facto ban” on U.S. person queries because warrants are so difficult to obtain from a court. Would a warrant requirement necessarily be a “ban” that would “water down” the FBI’s ability to protect Americans? David Aaron, who held several senior legal positions at the Department of Justice’s National Security Division, wrote in Just Security that “requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.” A majority in Congress clearly agree. None other than Senate Judiciary Chairman Dick Durbin (D-IL) has said he will only support Section 702 reauthorization if there are “significant reforms,” including “first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.” Or, as Chair Franklin and her colleagues wrote: “We do not permit the police to break into a home without such court approval, and we should not permit government personnel to access our communications through U.S. person queries without court review. This is Civics 101.” Sen. Paul told Wray: ”I fear that our federal government is still undertaking many of the same tactics that the Church Committee found to be unworthy of democracy.” Perhaps it is the Fourth Amendment that has been watered down. Did IRS Inspect Personal Data of Matt Taibbi and Other Journalists?Matt Taibbi is not everyone’s cup of tea – or shot of tequila. He is a former Rolling Stones reporter, an investigative journalist with gonzo-flavored prose. Taibbi was most recently in the headlines for reporting on government interference, including FBI agents, in secretly advising social media content curation. This was just one of the revelations of the Twitter Files.
That data dump, released by X CEO Elon Musk, show considerable interaction between the federal government and social media companies’ curation of ideological content. Whether this was “jawboning” or “coercion” on the part of the government will be at the heart of an upcoming U.S. Supreme Court case, Murthy v. Missouri. This is an intensely political case, one that pits the Biden Administration, which insists it has every right to alert social media companies about misinformation, against Republicans, who see it as secret censorship. A new report from the House Judiciary Committee raises the question why the IRS sent an agent to make an unannounced field visit to the home of journalist Matt Taibbi. That visit just happened to occur on the same day Taibbi was testifying before Congress about purported secret government abuse to dial back or exclude content from social media. The Weaponization of the Federal Government subcommittee found that the IRS had taken the unusual step of opening a case against Taibbi on Christmas Eve, a Saturday, just weeks after Matt Taibbi began reporting on the Twitter Files. In the four-and-one-half years between when the IRS alleges it last tried to contact Taibbi about his taxes and the day it conducted an unannounced field visit, neither he nor his accountant received notice from the IRS about an issue with his tax returns. As it turned out, the journalist owed no money to the IRS, but the IRS did owe him a refund. As a result of this and similar incidents, IRS chief Danny Werfel repealed the agency’s policy of allowing agents to make unannounced field visits to taxpayers’ home. In today’s social media-saturated world, the appearance of an IRS agent acting as a government “heavy” to pressure a journalist – if that is what indeed happened – is a tactic guaranteed to backfire. The greater danger is how the IRS could misuse its immense surveillance power for its own ends or those of one political master or another. The IRS, like many other federal agencies, purchases Americans’ personal data scraped from our apps and sold to it by third-party data brokers – a major focus in reforms that civil libertarians want to add to FISA’s Section 702. The IRS could have easily accessed Taibbi’s personal location history, as well as his communications from emails to texts, all without a warrant. A good follow up question for Congress might be to ask the IRS if it used purchased data to snoop on Taibbi or other journalists. The IRS does not need probable cause to investigate us. It doesn’t need a warrant to send someone to our home, to order us to conduct an expensive and time-consuming audit, or to look into our most personal and sensitive information taken right out of our smartphones. Congress should demand to know if the IRS or any other government agency has been accessing the personal data of journalists investigating the administration. Is the Executive Branch Targeting Oversight Committees? PPSA continues to press a Freedom of Information Act (FOIA) request seeking documents that would shed light on the extent to which the executive branch is spying on Members of Congress. We are asking the government for production of documents on “unmasking” and other forms of government surveillance of 48 current and former House and Senate Members on committees that oversee the intelligence community.
Now the court and Congress have fresh reason to give the issue of executive branch spying on Congress and its oversight committees renewed attention. Jason Foster, the former chief investigative counsel for Sen. Chuck Grassley – the Ranking Member of the Senate Judiciary Committee – recently learned that he is among numerous staffers, Democrats as well as Republicans, who had their personal phone and email records searched by the Department of Justice in 2017. A FOIA request filed by the nonprofit Empower Oversight, founded by Foster, seeks documents concerning the government’s reasons for compelling Google to reveal the names, addresses, local and long-distance telephone records, text message logs and other information about the accounts of congressional attorneys who worked for committees that oversee DOJ. The government’s subpoena also compelled the release of records indicating with whom each user was communicating. The Empower Oversight FOIA notes: “This raises serious public interest questions about the basis of such intrusion into the personal communications of attorneys advising congressional committees conducting oversight of the Department. Constitutional separation of powers and privilege issues raised by the Speech or Debate Clause of (U.S. Const. art I. § 6) and attorney-client communications of those targeted with these subpoenas should have triggered requirements for enhanced procedural protections and approvals.” As The Wall Street Journal noted in an editorial, these subpoenas coincided with leaks of classified information concerning a wiretapped phone call between incoming Trump national security adviser Michael Flynn and the Russian ambassador. This leak was investigated by the Senate Judiciary Committee. Many now wonder if DOJ’s dragnet of personal information of congressional staffers was an attempt at misdirection, perhaps a fishing expedition to find someone else to blame. Empower Oversight’s FOIA states: “If the only reason the Justice Department targeted the communications of these congressional attorneys was their access to classified information that was later published by the media, it raises the question of whether the Department also subpoenaed the personal phone and email records of every Executive Branch official who had access to the same information.” The Empower Oversight FOIA concludes about this surveillance of Congressional staff: “It begs the question whether DOJ was equally zealous in seeking the communications records of its own employees with access to any leaked document.” Sen. Grassley, who aggressively pursues government surveillance overreach, will likely want to follow up on these questions. In the meantime, PPSA petitions the D.C. Circuit Court for an en banc hearing on the possible unmasking and other surveillance of some of the elected bosses of these congressional attorneys. Case Involves “Unmasking” and “Upstreaming” of 48 Members of Congress Earlier this week, PPSA asked the D.C. Circuit court to require federal agencies to follow FOIA’s most basic requirement: conduct a search for records. Although that should be simple enough, agencies have been excusing themselves of that obligation at an alarming rate, and PPSA has asked the court to rein in this practice.
PPSA’s request this week for an en banc hearing follows up on a FOIA request PPSA submitted in 2020 to six agencies – the Department of Justice and the FBI, the Office of the Director of National Intelligence, the National Security Agency, the Central Intelligence Agency, and the Department of State. PPSA sought records from these agencies about the possible surveillance of 48 Members of Congress who serve or served on intelligence oversight committees. The request specifically concerns two intelligence practices under the Foreign Intelligence Surveillance Act (FISA). One such practice is “unmasking,” which results in the naming of Americans caught up in foreign surveillance in U.S. intelligence summaries. The other practice is “upstreaming,” the use of a person’s name as a search term in a database. Targets include prominent current and former House and Senate Members, including Sen. Marco Rubio, Rep. Mike Turner, Rep. Adam Schiff, as well as now-Vice President Kamala Harris and former Secretary of State Mike Pompeo. “Their silence speaks volumes,” Gene Schaerr, PPSA general counsel said at the time. “They clearly do not want to answer our requests.” Last year, the district court invoked the judicially created Glomar doctrine, which allows agencies to neither confirm nor deny the existence of records relating to matters critical to national security. In doing so, the district court relied on the D.C. Circuit’s expansion of the Glomar doctrine in Wolf v. CIA (2007) and Electronic Privacy Information Center (EPIC) v. NSA (2012), which allows agencies to refuse to confirm or deny the existence of records without even searching first to determine if any records might exist. In both instances, the federal court allowed the government to skip the search requirement in the text of the Freedom of Information Act. PPSA is now petitioning the court to reconsider this ruling with an en banc hearing with the court. “FOIA’s plain text requires federal agencies to search for responsive records before determining what information they may properly withhold, even in the Glomar context,” PPSA declares. “Wolf and EPIC are untenable in the face of intervening Supreme Court precedent, and they clash with at least three other circuits that, even in Glomar cases, reject deviating from the demands of FOIA’s plain text.” In short, PPSA is alerting this federal court how far it has strayed from precedent and the law. Glomar began as a judicial solution to protect the most sensitive secrets of the nation. In the original case, Glomar protected secrets involving the CIA’s raising of a sunken Soviet nuclear submarine. It has since been expanded to prevent the searching of records; an inherently absurd proposition given that agencies cannot even make a Glomar determination without looking. And Glomar is now reflexively used to plainly defy FOIA, a law that mandates searches. PPSA will report on the court’s response. Maxon v. Long Lake Township If someone sets a tall ladder against your fence, and leans out into your yard to take photographs, would that be a trespass? A court would surely affirm common sense and say that’s a trespass – even if the offender is merely leaning into the space over your property, touching nothing.
What if a nosy neighbor hoisted a Go-Pro on a long camera stick over your fence? Again, that would be a trespass. But what if you drew a line from the core of the Earth, through your backyard, to a point in outer space 280 miles above the planet? Is all that aerial space above your backyard protected? This is important because the “trespass test” is essential to how courts determine if government surveillance should or should not require a probable cause warrant to inspect a citizen’s property. Such questions emerge from the comments of an Associate Justice of the Michigan Supreme Court during oral argument last week in Long Lake Township v. Maxon. This case centers around whether local government should have obtained a probable cause warrant to send a drone to surveil a five-acre estate for the civil offense of collecting prohibited scrap. Is a drone more like the nosy neighbor or more like the camera on an airplane, or – given advances in technology – the sensors of a Google Earth satellite? The counsel for the township told the court: “Google has a tool where you can even draw, if you want to know whether it’s 50 feet from this house to this barn, or 100 feet from this house to this barn. You do that right on the Google satellite imagery. And so given the reality of the world we live in, how can there be a reasonable expectation of privacy in aerial observations of property?” The government’s argument seems to be that technology is so advanced that privacy is dead. And if privacy is dead, then should we scrap the Fourth Amendment as a quaint relic of the Eighteenth Century? Maxon’s counsel held fast to the idea that Google Earth cannot yet perform the kind of invasive, sensory-rich surveillance that a drone can do. He also noted that drones, limited by the FAA to fly under 400 feet, are necessarily low altitude. One Justice reacted to the assertion that if Google Earth could map a backyard as closely and intimately as a drone, that would be a search. “Technology is rapidly changing,” the Justice responded. “I don’t think it is hard to predict that eventually Google Earth will have that capacity.” U.S. Supreme Court case law has held that ordinary photographs from fixed wing aircraft flying into publicly navigable airspace, or from helicopters, do not violate the Fourth Amendment and thus do not require a warrant. Not so, however, for more advanced technology. For example, the Baltimore Police Department flew a plane with military technology developed for occupied Baghdad to take pervasive snapshots of Baltimoreans and their movements across 30-square miles. This technology is extraordinarily robust, able to record and track the movement of thousands of individuals and cars across a whole day. A federal court recognized that such super-sharp, comprehensive imagery necessarily invokes constitutional issues. An ACLU lawsuit against this war-zone surveillance of Americans resulted in the Fourth Circuit Court of Appeals finding the practice to be unconstitutional. Last week’s Michigan oral argument will likely be seen as another great step forward in the debate over aerial surveillance. At first, the discussion centered around altitude – as if the 400-foot limit of a drone made its closeness (like the nosy neighbor) the decisive factor. But the exchange points to the conclusion that the truly decisive factor is not altitude, but the level of intrusiveness of a given technology. How much information can a drone equipped with facial recognition, heat sensing, and other superhuman sensory capabilities glean from an overflight? Enough, we say, to qualify as a trespass requiring a probable cause warrant. In fact, such drones could gather even more information than an individual physically inspecting a property. Given that the U.S. military and the CIA already use satellite imagery to identify and follow individuals, it is not a stretch to say that Google Earth or something like it will soon have an ability to pierce the privacy of any domicile or anyone who walks outside. But that does not make such an invasion reasonable or destroy legitimate expectations of privacy. And if such a degree of intrusion into someone’s privacy – whether from a plane equipped with war-zone surveillance technology, or a Google Earth camera with slightly futuristic capabilities – then that, too, would constitute a trespass by Google requiring a probable cause warrant. The law already distinguishes between the incidental path of a passenger airplane and a deep search, like that of the Baltimore police aircraft. The same principle should apply to intrusive private conduct. A watcher who is at a sufficient altitude above an actual physical presence could still be considered a trespasser of sorts when peering into someone’s backyard at a level of detail impossible for a passenger on an ordinary overflight. That evolving technology allows intrusive invasions over greater distances does not negate any “reasonable expectations of privacy” by citizens – it just illustrates growing violations of those expectations. The Michigan court seemed to be alert to these dangers. Chief Justice Elizabeth T. Clement referred to the reasoning in PPSA’s amicus brief asking if the Supreme Court reversed itself to ultimately uphold the “exclusionary rule” discounting evidence that violates the Fourth Amendment. However Maxon is decided, this case will likely be remembered for logically leading to the idea that in aerial surveillance the Fourth Amendment is invoked by the degree of intrusion, not mere altitude. California Gov. Gavin Newsom signed into law SB 362 – also known as the Delete Act – establishing even more robust online privacy protections in a state already at the vanguard of digital rights.
The Delete Act’s most noteworthy provision establishes a “one-stop-shop” for data removal – essentially an “off-switch” for consumers to request the scrubbing of all their collected online data. The Delete Act requires the creation of this single-point, no-cost deletion mechanism by Jan. 1, 2026. All registered data brokers, in turn, will have to access that website every 45 days to address consumer requests and remove collected data when asked to do so. Under prior law, consumers found it difficult to communicate with around 500 data brokers doing business in California. The Delete Act will require data brokers to register with the California Privacy Protection Agency (CPPA). It creates a “do not track” list similar to the National Do Not Call Registry. And it enshrines new transparency requirements for brokers, who must now disclose the collection of sensitive information such as precise geolocation data, reproductive health care data, and personal data collected from minors. This landmark legislation follows on the heels of the California Consumer Privacy Act and the California Privacy Rights Act, which together form the backbone of one of the most protective digital rights regimes in the world. Yet data collection in California has continued unabated in recent years despite these protections, due in large part to the difficulties in opting out. Consumers find there are simply too many players scraping public records, social media profiles and online transactions. These players create digital profiles from our most sensitive personal information and sell it to corporations, advertisers, governments, and law enforcement agencies for the purposes of analyzing, predicting and even shaping our behavior. In this regard, the Delete Act’s one-stop mechanism empowers consumers to take control of their data and free themselves from online manipulation (not to mention government’s warrantless snooping, a flagrant Fourth Amendment violation). We applaud the California Legislature, sponsor Sen. Josh Becker and Gov. Newsom for taking a bold step in the direction of consumer privacy. We have to note, however, that California is often criticized for its sweeping, at times inartful approach to business regulation. The Delete Act faces similar concerns. Some critics call it a “sledgehammer approach” with unpredictable ramifications for businesses and consumers. According to one poll, more than 80 percent of California’s residents support the Delete Act. If all those millions opt-out, it’s a game-changer for the way online business is conducted in the epicenter of tech culture and innovation. Small businesses may find it particularly difficult to acquire new customers, while non-profits could have a tougher time finding donors. The new law authorizes CPPA to fine-tune the rules to make it practical. In the meantime, California deserves applause for enhancing digital privacy. It’s a watershed moment, and rest assured other states – and nations – will be watching closely as this new paradigm takes shape in the coming years. The debate over reform and reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a contentious one between champions of civil liberties and those of the intelligence community. Op-eds, podcasts, and blogs are being volleyed by both sides like projectiles in a furious medieval battle.
Defenders of the status quo insist that a “clean” reauthorization of Section 702 is vital to protect the homeland from foreign threats, especially after the horror that befell Israel. Civil liberties groups complain that this authority, designed by Congress to enable the surveillance of foreigners on foreign soil, is routinely used by the FBI to access Americans’ personal data without a warrant – often for purely domestic criminal investigations. Though each side of this debate has deep bipartisan roots, the debate itself is as polarized as Washington politics. It is refreshing, then, to read a piece by David Aaron in Just Security, who had day-to-day experience in FISA operations in several senior legal positions at the Department of Justice’s National Security Division. Aaron doesn’t dig in for one side or another but makes a good faith effort to try to find common ground between the need to protect national security and the need to live by the U.S. Constitution. First, Aaron asserts, it is “imperative to reauthorize Section 702” because it is a “fast and efficient way to obtain important national security information in a manner that complies with the Constitution.” We disagree with that last clause when it comes to warrantless examination of Americans’ data. But civil libertarians should recognize that expiration of Section 702 entails the risk that the FBI and intelligence community could resume warrantless surveillance outside of any legal authority, which they have done in the past. To his credit, Aaron recognizes the growing practice of “reverse targeting” or routine checks of U.S. person information of American data incidentally swept up by Section 702. He writes: “This all happened as storage capacity and search capability continued their exponential expansion.” Aaron then agrees that the time has come for a warrant requirement when the government seeks to examine Americans’ data derived from Section 702. He writes: “It is essential for Americans to have confidence in their government and particularly in their law enforcement and intelligence agencies’ commitment to protecting Americans’ rights. Particularly given the skepticism that currently pervades American society, requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.” [i] Aaron notes that warrants take time and that FISA search warrants can be onerous to draft. He writes that every FISA application must be approved by a senior official in the Justice Department, up to the Attorney General, and must be certified by the director of the FBI or the head of an intelligence agency. Keeping a senior official in the loop is good for quality control for warrants because “no one wants to bring a substandard or under-investigated application to a high-level official.” Such criminal warrants would be much more likely to be unsealed, allowing criminal defendants and their attorneys to scrutinize the government’s affidavits and warrants in court. On the Hill, reformers are also hearing constructive ideas from some in the government on how federal agencies might continue to conduct “defensive” searches to protect possible victims of criminal or state-sponsored cyberattacks without violating the Fourth Amendment. Proposals range from notice to the targeted company or individual, to a whitelist of those who agree in advance to such surveillance. In the months ahead, there will be give and take in the reform of Section 702. It is heartening to see some with intelligence community backgrounds back away from their opening stance of all or nothing and recognize a need to address the deep skepticism of the American people about government surveillance. [i] Italics added Long Lake Township v. Maxon In a brief before the Michigan Supreme Court, PPSA alerted the court to the danger of intimate searches of home and residents by relatively inexpensive drones now on the market.
Commercially available drones have thermal cameras that can penetrate beyond what is visible to the naked eye. They can be equipped with animal herd tracking algorithms that can enhance the surveillance of people. Drones can swarm and loiter, providing round-the-clock surveillance. They can carry lightweight, cell-site simulators that prompt the mobile phones of people inside the targeted home to give up data that reveals deeply personal information. Furthermore, PPSA’s brief states that drones “can see around walls, see in the dark, track people by heat signatures, and recognize and track specific people by their face.” These are some of the ramifications of a case now before the Michigan Supreme Court. This case began when Long Lake Township in Michigan, suspecting that Todd and Heather Maxon had violated an agreement not to add to a scrap pile of old cars on their five-acre estate, hired a private drone photography business to investigate. No warrant was issued for this surveillance. Michigan’s top court is now reviewing the ruling by a lower court that found that while warrantless drone surveillance of a residence violated the Fourth Amendment, the evidence should not be excluded from this civil case. PPSA argues that this lack of exclusion of tainted evidence threatens to open a Pandora’s box of pervasive surveillance that could pierce the privacy of virtually anyone inside any structure. PPSA cites ample precedent for the exclusion of the Maxon evidence. In Carpenter v. United States (2018), the U.S. Supreme Court made it clear that the Fourth Amendment applies to digital technologies. In that case, the Court excluded location information derived without a warrant from mobile phones. In Kyllo v. United States (2001), the Court found that the use of thermal images – which reveals the heat signature emanating from inside a home – requires a warrant. Compare Kyllo’s comparatively mild surveillance to the “stereo-camera” configuration of many commercially available drones that enable reconstruction of 3D images from 2D cameras. Such surveillance goes well beyond Kyllo, in which police simply used heat radiating from the external surface of the house to detect marijuana cultivation. “Ready-made drone packages, specifically designed for thermal surveillance flights, with the ability to create 3-dimensional maps from their footage, can be had for around $6,000,” PPSA informed the court. “For less than $10,000, police can obtain a specialized drone with superhuman sensory abilities and better maneuverability than a multi-million-dollar helicopter or plane,” PPSA told the court. Drone’s warrantless extraction of personal information far exceeds the Carpenter warrant requirement. PPSA’s filing addresses an error by the lower court. The Michigan Court of Appeals recognized that the Township had violated the Fourth Amendment in its use of drones. That court nonetheless found that the exclusionary rule did not apply in Maxon. PPSA declared: “The Exclusionary Rule is a judicially crafted remedy that gives teeth to the Fourth Amendment by excluding illegally obtained evidence when the privacy value of enforcing Constitutional rights outweighs social harm from excluding evidence.” PPSA concluded: “If the Fourth Amendment is to have any real meaning in this context, evidence obtained by illegal drone surveillance must be subject to exclusion.” The Michigan Supreme Court is hearing oral argument on this case this week. PPSA will follow the outcome of this important, precedent-setting case. The Colorado Supreme Court issued a 5-2 ruling that leaves an urgent privacy question wreathed in a cloud of ambiguity. As a result, Americans must worry that merely being in the same location as someone who might have done an internet search for suspicious material could end up with their own search data being examined by the police.
So-called “reverse warrants” are a powerful new type of search warrant enabled by the collection of Americans’ private data. Reverse warrants allow the police to sift through the search histories of thousands of people. They come in two types: geofence warrants, which allow police to identify people whose devices were in a certain area at a certain time, and reverse keyword warrants, which allow police to identify who searched certain keywords, phrases, or addresses online. These warrants and their underlying technologies allow police to track any person and search through their data. Instead of developing suspicions about a person based on factual evidence and then applying for a warrant to search that specific person – as required by the Fourth Amendment – reverse warrants involve looking through the search history or location history of many innocent people in the hopes of finding a suspect. Reverse warrants exist in legal limbo. There is little precedent or written law that govern this new form of data analysis. Accordingly, some courts have treated reverse warrants as they would any standard warrant. Seymour v. Colorado is the first case to address the constitutionality of reverse warrants. This case springs from a particularly heinous crime – an arson that killed a family of five. Two months later, the Denver Police Department obtained a reverse keyword warrant. As a result of the warrant, Google was forced to hand over the data of eight people, five of whom had Colorado-based IP addresses that had searched for the location of the arson in a two-week period before the crime. Three suspects were eventually charged. One of them, Gavin Seymour, sued to suppress evidence obtained by the warrant on constitutional grounds. The court held that “Seymour has a constitutionally protected privacy interest in his Google search history,” and that “Seymour’s Google search history implicates his right to freedom of expression.” The court also found that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn’t be suppressed under the exclusionary rule. Thus the court acknowledged the serious constitutional issues at play and still treated the reverse warrant as if it was just an ordinary search. The court stated that “the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective.” Yet, somehow, it was still admissible evidence. Five innocent people had their data searched. Another five innocent people were murdered in a fire. There is a lot at stake in this case, and a lot to unpack. Does a search of Google search histories by a given address satisfy the Constitution’s requirement for a particularized search? Can probable cause be asserted when the identity of the suspect is unknown? Could digital bystanders have evidence used against them from a search result unrelated to this particular crime? Perhaps this case will advance to the U.S. Supreme Court, which could take this opportunity to articulate boundaries and rules for future searches. We’ve seen, however, a time lag in the Court’s addressing of new technologies. Congress should consider taking measures to protect privacy in reverse warrants before the Supreme Court is forced to weigh in. The Congressional debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) has mostly centered around the outrage of federal agencies using an authority meant for the surveillance of foreigners on foreign soil to warrantlessly collect the communications of hundreds of thousands of Americans every year.
But the Section 702 debate highlights an even greater outrage that needs to be addressed – the routine practice by federal agencies to purchase and access the private data of Americans scraped from our apps and devices without a warrant. While federal data purchases are not part of Section 702, history suggests that any reforms made to Section 702 to curtail the surveillance on Americans in the pool of “incidentally” collected communications will be futile if we don’t close this other loophole. Our data, freely collected and reviewed at will by the government, can be more personal than a diary – detailing our medical concerns, romantic lives, our daily movements, whom we associate with, our politics and religious beliefs. The Wall Street Journal shined a much-needed light on this practice. It reported on the relationship between U.S. government agencies and the shadowy world of data-broker middlemen who peddle our most sensitive personal information. The Journal reported that India-based Near Intelligence has been “surreptitiously obtaining data from numerous advertising exchanges” and selling this data to the NSA, Joint Special Operations Command, the Department of Defense, and U.S. Air Force Cyber Ops. The Journal accessed a memo from Jay Angelo, Near Intelligence general counsel and chief privacy officer, to CEO Anil Mathews about three privacy problems. First, Angelo wrote that Near Intelligence sells “geolocation data for which we do not have consent to do so.” Second, he wrote the company sells or shares “device ID data for which we do not have consent to do so.” And, finally, Angelo wrote, the company violates the privacy laws of Europe by selling Europeans’ data outside of Europe. Customers include agencies of the U.S. federal government, which “gets our illegal EU data twice per day.” It is unclear the extent to which this company sells Americans’ data, though it seems likely that the privacy of Americans is implicated given that the company boasts of having access to data from a billion devices. Near Intelligence is just one actor in this shadowy world of merchants of personal data. Congress should require government agencies to obtain a probable cause warrant to examine the private data of Americans, whether collected under Section 702 or through data purchases. Shameless Opportunism...The intelligence community is now spinning the media that the barbarous invasion of Israel and mass murder of its citizens by Hamas should prompt Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act without any meaningful changes or reforms.
Before listening to the intelligence community’s spin, Congress should first ask why given this powerful Section 702 authority and all the technology in the hands of the NSA, did U.S. intelligence miss the scale and scope of Hamas’ intentions? While U.S. intelligence detected rising activity in Gaza, it did not detect the threat that resulted in the killing of more than 1,400 Israelis and at least 30 Americans. Instead of explaining this abject intelligence shortfall, some in the intelligence community are defaming champions of Section 702 reform on Capitol Hill as opposing surveillance of Hamas. This weak attempt to deflect from an abject failure makes no sense. It is, at best, an especially callous perversion of Rahm Emanuel’s aphorism that one should “never let a good crisis go to waste.” Carrie Cordero, a CNN legal and national security analyst, and former counsel at the Office of the Director of National Intelligence, writes: “Hamas, Hezbollah and their state-sponsor, Iran, are wholly appropriate intelligence targets, and Section 702 authority should not be degraded while threats from these actors have escalated to the degree of starting a new war in the Middle East.” In just a few words, Cordero portrays the many House and Senate Members in both parties who are pushing to add warrants for Americans to the reauthorization of Section 702 as being willing to “degrade” an authority that counters some of the worst regimes in the world. This broadside obfuscates the purpose of Section 702 and how it is being misused by our government to spy on the American people. Congress designed Section 702 to create a legal authority for U.S. intelligence agencies to spy on foreigners located abroad for national security purposes. It is, as Cordero notes, a tool especially designed for counterterrorism. No reform on the table would restrict U.S. intelligence from using Section 702 to surveil Hamas, Hezbollah, Iran, Russia, China, North Korea, or the devil himself. So how, then, could reforms to Section 702 “degrade” this important and useful authority? There can be only one meaning to this phrase. Somehow, protecting the rights of American citizens against intrusive and unconstitutional spying would “degrade” Section 702. Civil liberties groups and their champions on the Hill are concerned that this authority, meant to surveil foreign threats on foreign soil for national security, has been used by the FBI to spy on a Member of the U.S. House, a Member of the U.S. Senate, 19,000 donors to a congressional campaign, community leaders, and protest groups both left and right. The FBI also uses Section 702 to warrantlessly access the communications of Americans to obtain a backdoor route to prosecuting them for ordinary crimes, such as bribery and healthcare fraud – far beyond the intention of Congress in passing Section 702. In the hands of the FBI, Section 702 has turned the Fourth Amendment requirement for a probable cause warrant for American citizens into vaporware. Fixing this would do nothing to degrade the ability of the CIA to follow Hamas and Hezbollah, or to restrain the FBI from obtaining a warrant to surveil an American who is in communication with dangerous actors. That they now want to use their failure as an excuse to violate the civil liberties of law-abiding U.S. citizens – by the hundreds of thousands each year – speaks to shameless opportunism, masking incompetence and authoritarian tendencies. The titles slapped on government reports are often meant to downplay or obfuscate. Not so the title of a report from the Inspector General of the Department of Homeland Security – CBP, ICE, and Secret Service Did Not Adhere to Privacy Policies or Develop Sufficient Policies Before Procuring and Using Commercial Telemetry Data.
The title may be lengthy, but it describes the alarming extent of lawless surveillance by federal agencies. For years, these three agencies freely accessed Americans’ location histories and other data collected from mobile device applications and sold by third-party data vendors to the government. The Department of Homeland Security Privacy Office itself “did not follow or enforce its own privacy policies and guidance.” The report notes that DHS itself has no department-wide policy regarding privacy. This negligence allowed DHS agencies to break the law and do so without any supervisory review. The law in this case is the E-Government Act of 2002, in which Congress mandated that agencies conduct a Privacy Impact Assessment (PIA) that requires the government to spell out what information it is collecting, why it is collecting it, how that information will be used, stored, and shared. The law also requires agencies to describe how this information will be protected from unauthorized use or disclosure, and how long it will be retained. Instead, CBP, ICE, and the Secret Service helped themselves to location data harvested from apps installed on Americans’ smartphones. One CBP official felt sufficiently comfortable with this technology to use it to track his coworkers’ daily movements, for what purpose only HR knows. Why might have DHS leaned away from adhering to the law? Nate Wessler, deputy project director of ACLU’s Speech, Privacy and Technology project told 404 Media that if the agencies had performed the required Privacy Impact Assessments “they could have reached only one reasonable conclusion: the privacy impact is extreme.” The unclassified DHS report is a thunderclap of candid accounting of government agencies bending or breaking the law. It follows the unsparing analysis of the Crossfire Hurricane investigation by the 2019 Department of Justice Inspector General and PCLOB’s recent analysis of Section 702 of the Foreign Intelligence Surveillance Act, advocating for greater judicial oversight of that program’s use of Americans’ communication “incidentally” caught up in surveillance of foreign targets. The DHS report should especially be read in the light of a surprisingly frank report released by the Office of the Director of National Intelligence that commercially acquired data can be used to follow protestors, degrade First Amendment expression, and “facilitate blackmail, stalking, harassment, and public shaming.” The DHS report is just one more reason why Congress should take the pending reauthorization of Section 702 as a once-in-a-generation opportunity for reform. Congress should require federal agencies to obtain a probable cause warrant before examining Americans’ communications and data, whether obtained from Section 702 or through data purchases. Myths vs. Facts: Has the FBI Fixed What Is Wrong with Section 702 with Internal Procedures?10/10/2023
Intelligence Community MYTH: The FBI has new minimization procedures that have dramatically reduced the numbers of U.S. person queries in the Section 702 database and the potential for violations. No fixes in the law are needed.
FACT: Even FBI Director Christopher Wray’s brag that refinements in internal procedures have reduced the number of warrantless searches for Americans’ communications to approximately 204,000 queries of Americans’ personal communications per year is alarming. The number of people who have been victimized by these civil rights violations is equal to the population of many medium-sized U.S. cities. As Sen. Mike Lee says, “That number should be zero. Every ‘non-compliant’ search violates an American’s constitutional rights.” Jonathan Turley of the George Washington University Law School dismissed the FBI’s recent boasts about the reduced number of improper queries into Americans’ private information, likening that boast to “a bank robber saying we’re hitting smaller banks.” The many broken promises of the FBI should leave the bureau with little room for a “trust me” clean reauthorization of Section 702. Consider the government’s long history of abuses. In just the last few years, in violation of its own rules:
Other actions outside Section 702, such as the wide-ranging politically motivated investigation of “radical traditional Catholics,” further reveal an FBI appetite for playing politics. Nobody in their right mind should want the FBI to have warrantless access to their private sensitive personal communications and data. Congress passed a mandate in 2021 that will require all new cars sold later in this decade to have a built-in drunk driver detection system. This law, well-intentioned as it may be, is fraught with enormous risks to the privacy of any American who drives a car.
The vague goal this mandate sets out is: If your car thinks you’re overserved, your car won’t start. Or perhaps it will pull over and call the police. It is not clear, exactly, how this technology will work. In any event, this law promises to make every car a patrol car, with you inside it. Rep. Thomas Massie (R-KY), a long-time defender of civil liberties, is not having it. He is proposing an amendment to the Transportation, Housing and Urban Development (yes, the Washington acronym here is THUD) appropriations bill to safeguard Americans’ constitutional right to privacy by forbidding federal expenditures to implement this ill-conceived mandate. PPSA is proud to support this amendment and we stand together with other supporters, including FreedomWorks and the Due Process Institute. While aggressive action to curb impaired driving is appropriate, the privacy issues raised by Rep. Massie about the mandate for this “advanced drunk driving and impaired driving prevention technology” are impossible to ignore. They are ultimately of great consequence to the future of our country. First, consider that this technology will monitor the driving performance of millions of Americans who don’t drink and drive, potentially keeping many of them from operating their vehicles. While many states allow for court-mandated ignition interlock devices for people convicted of DUIs (requiring people under such an order to clear a self-administered breathalyzer test before their cars will start), these state restrictions are far more reasonably tailored than the broader and more intrusive federal mandate. Crucially, they make the necessary distinction between the irresponsible few who are under a court order, and the responsible many who are not. Additionally, the state regulations do not passively monitor drivers’ performance. What do the responsible many have to lose under the federal mandate? The driver detection mandate could violate your privacy and constitutional rights on a massive scale. Consider: Absent a breathalyzer, this technology might well – like some commercial delivery operators already do – use a camera and AI to passively monitor your body movements for signs of impairment. Moreover, would your video data be stored? And if it is stored, would camera data follow you and any passengers in the car – perhaps with a sound recording of anything that you might say to each other? (After all, analyzing voice data could be used by AI to look for the possible slurring of your words.) And if this video and/or voice data is stored, would these videos then be part of the enormous stream of data that federal agencies – from the IRS, to the FBI, to the DHS – now routinely purchase and access without a warrant? (This brings to mind an old joke: An FBI agent walks into a bar. The bartender says, “I’ve got a joke for you.” The agent replies, “heard it!”) Video analytics technology, like facial recognition software, is hardly foolproof. Would this yet-to-be-developed device read people with disabilities as being intoxicated? Would perfectly sober people register false positives and not be able to drive? Rep. Massie’s amendment would provide a much-needed sobriety check on the government’s foolhardy leap into mandating this technology. PPSA strongly urges Congress to pass the Massie amendment and protect the privacy and constitutional rights of millions of Americans. An FBI raid on the home of a Tampa-based journalist, and the seizure of his computer, hard drives, cellphone and all they contain, is raising questions about the fidelity of the Department of Justice to a year-old revision to its News Media Policy announced by Attorney General Merrick Garland. Under that policy, the Department is forbidden from using compulsory legal processes to obtain the newsgathering records of journalists, except in extreme circumstances.
Now a wide spectrum of press freedom and civil liberties organizations, including PPSA, are asking the Department of Justice to provide transparency about this FBI raid in May. The FBI executed its search warrant at the home of journalist Tim Burke, which he shares with his wife, Tampa city councilwoman Lynn Hurtak. The credibility of this extreme action is highly questionable, leaving the Department to explain how this ransacking of a journalist’s home and seizure of his devices differs from the now-widely ridiculed police raid on a newspaper in rural Kansas. As Congress debates the reauthorization and reform of Section 702 of the Foreign Intelligence Surveillance Act (FISA), Members should keep in mind an instructive example from a local government that shows just how personal mass surveillance abuse can be.
During the pre-vaccine, early Covid era, Calvary Chapel San Jose in Santa Clara County, California, continued to hold regular worship services with hundreds of unmasked congregants, in defiance of official shelter-in-place orders. The county reacted by seeking north of $1 million dollars in fines against the non-denominational church, an action now wending its way through court. Not content to fine the church, or warn congregants, Santa Clara County mounted a large surveillance campaign that managed to compromise both the Fourth Amendment rights of the congregants against unreasonable searches and seizures, while also compromising their First Amendment right to the free exercise of religion. Some of the spying was physical, with county agents making 44 visits to Calvary Chapel in 2020 and 2021. Agents also parked a surveillance car in the parking lot of a nearby church, until they were asked to leave. The county then turned to invasive and warrantless geofencing, using Safegraph software to track local citizens’ cellphones on church premises, following churchgoers as they went to the sanctuary room, nursery, the prayer room, even to the bathroom. In a federal lawsuit against the county, the church’s complaint noted that location data reveals more than a target’s physical movements. It also shows “a person’s pattern of life. These tools provide a story about where and with whom people socialize, visit, worship, and much more.” Data scientists tested just how anonymous geolocation data really is. Researchers at Imperial College London developed a machine learning model that was able to correctly re-identify 99.98 percent of Americans in any anonymized dataset using just 15 characteristics including age, gender, and marital status. In another study that investigated smartphone location data, researchers were able to uniquely identify 95 percent of the individuals in a dataset with just four spatio-temporal points. It is hard, then, to say the church exaggerates when it informs the court in its filing that “this is not just un-American; it is downright Orwellian.” This surveillance was apparently done not to investigate a crime, which requires the government to obtain a warrant, limited in time and scope. It was done to give the county data information it could weaponize against the church in its ongoing lawsuit for violating public health orders. Whatever one thinks of the church’s defiance of the county’s orders, the warrantless use of geolocation surveillance against hundreds of local residents is an example of how reckless government at all levels can be with widely available technology. “There are all kinds of concerns with geofencing when you talk about your First Amendment rights like freedom of expression or freedom of religion,” Mike Katz-Lacade of the Center for Human Rights and Privacy told The San Jose Mercury News. “You could conceivably use it to see who goes to a mosque – or discriminate against certain religious groups or minorities.” These same geolocation tools are widely available to federal intelligence and law enforcement agencies, which can either deploy them or simply buy the underlying data of our location tracked by our phones and apps. Thus, this local story is one of national significance. It is something to keep in mind in debating needed changes to Section 702, the authority Congress designed for foreign surveillance but which the FBI uses routinely to conduct criminal investigations of Americans. Former Director of National Intelligence John Ratcliffe appeared on the Kevin Roberts Show, a Heritage Foundation podcast, to discuss the myriad challenges posed by the creeping corruption of America’s intelligence network. In particular, Ratcliffe highlighted problems associated with Section 702 of the Foreign Intelligence Surveillance Act.
That intelligence agencies routinely abuse Section 702 is an open secret these days, but that should make it no less noteworthy when a former Director of National Intelligence validates it. Prior to taking the nation’s top post in intelligence, Ratcliffe served as a Republican Congressman from Texas. Rep. Ratcliffe sat on the intelligence oversight committee, where he routinely interacted with intelligence agencies he’d later oversee. Contrasting these two perspectives, Ratcliffe exposed how much the intelligence agencies shield information from Congressional oversight. “Congress has an oversight role over the intelligence community,” Ratcliffe said. “It wasn’t until I became the Director of National Intelligence and walked in and said ‘show me the intelligence that we have that says there’s Russian collusion, show me the intelligence that says that there’s support that [Covid] was a natural development from zoonotic transmission.’ The fact is the intelligence didn’t show that. As an elected official for the American people with oversight, I wasn’t getting the truth. I literally had to become the Director of National Intelligence to get the truth…” Regarding Section 702, Ratcliffe noted that while “it does make America safer when used appropriately,” the policy needs firm guardrails to prevent abuse. “The problem is what we have seen, particularly in the Obama administration and now carrying forward into the Biden administration, and it occurred even during the Trump administration through these embedded partisans … was to turn that important tool inward on American citizens and even members of Congress.” But Ratcliffe doesn’t think guardrails are enough. Regarding agency culture, Ratcliffe said, “I’m hesitant to now just say it’s a few bad apples, because it’s been a problem for so long that, if you talk about it that way, people think it’s a small problem. And it’s not. It’s become a cultural problem.” Beginning with the Obama Administration, partisans have been embedded “at the highest mid-and-senior level management within these institutions…” With respect to solutions, Ratcliffe said “it’s going to require those major structural reforms…” Whatever your political leanings, such statements from a former Director of National Intelligence should be deeply worrying. PPSA is pleased former Director Ratcliffe is calling for serious reforms to Section 702. As Ratcliffe says, both Democrats and Republicans have contributed to the sorry state of the intelligence community, and it is up to concerned Americans to right the ship. Intelligence Community MYTH: Warrantless access to Americans’ data is vital to defending people and companies against cyberattacks and ransomware. Otherwise, we’d be wide-open to cyberattacks from Russia and China.
FACT: Most cybersecurity experts disagree with the government’s argument. The Washington Post conducted a survey of “a group of high-level digital security experts from across government, the private sector and security research community.”
There is no “defensive” exception to the Fourth Amendment. The fact that the government claims to be doing something for our own good does not make it constitutional, nor does it mitigate the privacy intrusion or risk of abuse. If government agents want to access our private communications for our own good, they should simply ask our permission. Without that permission, they should get a probable cause warrant to spy on Americans’ communications. |
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