Media and civil liberties organizations all had the same reaction to the Privacy and Civil Liberties Oversight Board’s (PCLOB) nearly six years-long, “deep dive” into the legal and policy implications of Executive Order 12333 and NSA’s XKEYSCORE program.
Some said that the public version of the report, released in the spring, reads like a Wikipedia article. Others called it a high-school book report. We suggested that next time PCLOB produce a graphic on “How a Bill Is Made.” Now Travis LeBlanc, a Democrat appointed by President Trump to serve on PCLOB, is going public with his dissatisfaction with his colleagues on the PCLOB board. Central to these concerns is XKEYSCORE, an NSA search engine that lets our government extract a person’s social media activity, browsing history and emails, almost at a click, from global datasets. First revealed by Edward Snowden in 2013, XKEYSCORE operates without any Congressional or judicial oversight. Sen. Richard Burr said on the Senate floor that EO 12333 gives the government the power to do whatever it wants, without oversight and “without guardrails.” At least one program in this category, XKEYSCORE, is exempt from oversight by the Foreign Intelligence Surveillance Court or any other body. Here are some choice quotes from LeBlanc’s 10-page memo, which refers to the board members who approved the report in December.
Le Blanc also referred to the longer classified report compiled by PCLOB.
LeBlanc took PCLOB to task for ignoring the most challenging questions in 21st century surveillance policy, including how to govern artificial intelligence and machine learning that guides autonomous collection of massive datasets. With the rise of artificial intelligence, more and more decisions about policy and privacy are being made by machines. Yet PCLOB had nothing to say about that, or about recent Supreme Court rulings on surveillance of geolocation and cellphone data. He raised other issues avoided by PCLOB, such as the “extent to which a machine analysis of U.S. person information triggers Fourth Amendment scrutiny (as opposed to “human-eyes” review).” Most concerning of all, Le Blanc – the only member of the five-member board to vote against approving the report – said the board majority “failed to adequately investigate or evaluate NSA’s collection activities.” The fact remains that years after the Snowden revelations, what might be the world’s most robust surveillance system (at least outside of China) operates without judicial or Congressional oversight, with scant legal analysis. Sen. Ron Wyden told The Washington Post: “I continue to be concerned that Americans still know far too little about the government’s surveillance activities under EO 12333 and how it threatens their privacy.” In February, PPSA reported that several Supreme Court Justices had, at oral argument in Lange v. California, expressed skepticism on the question of whether the Fourth Amendment always allows the police to enter the home of a fleeing misdemeanant, someone suspected of a minor crime less than a felony. We predicted that the Court would reverse a lower-court decision holding otherwise.
The facts here were straightforward. An officer followed Arthur Lange after noticing him playing loud music and honking his horn. Seconds after the officer turned on his lights, Lange pulled into his garage, failing to notice the police car behind him. As the garage door closed, the officer put his foot under the closing garage door sensor to force the door open again. Once inside, he conducted a sobriety test, which showed that Lange was intoxicated. Lange then moved to suppress the evidence of that test because it was obtained after the officer entered his garage without a warrant. He lost in both lower courts, and the California Court of Appeal held that such entries are always permissible under the Fourth Amendment. In the recent Supreme Court opinion, PPSA’s prediction proved correct. The Court declined to hold that the police have a categorical right to enter the home of a fleeing misdemeanant without a warrant. Instead, citing well-established precedent, the Court held that “when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.” In so holding, the Court recognized that some exigencies, such as the need to “prevent imminent harms of violence, destruction of evidence, or escape from the home,” might still justify a warrantless home entry. But because the lower court had applied a categorical rule – and therefore failed to address whether there were any exigencies here – the Supreme Court remanded the case for the lower court’s consideration under the proper standard. The Court’s opinion cited many of the same common-law precedents that PPSA did in its amicus brief. But as our brief emphasized, this case is more important because of what it says about privacy in this digital age. While the protections for electronic devices and communications remain under development, it is unlikely that courts would give such information sources more protection than the home. Accordingly, if the Court were to create a categorical misdemeanor exigency rule applicable to home entry, that rule would inexorably be extended to warrantless entry into electronic sources of information, posing an even more pernicious and extensive threat to privacy and its Fourth Amendment protections. For example, today’s smartphones and other devices contain information detailing every aspect of a person’s life—messages to family, identifying documents, intimate pictures, personal journals, health information, financial data, and more are likely to be found on a device that the government has the technical ability to search remotely. By making this decision, the Supreme Court not only refined the restrictions on entering garages. The Court also declined to create a new categorical rule that would always allow the police to enter a fleeing misdemeanant’s home. Because homes have always had more Fourth Amendment protections than any other space, such a precedent would have opened a door to warrantless digital snooping into our private lives. We are grateful the Court declined to create such a dangerous precedent. SCOTUS to Consider Mechanism for Government Accountability After FBI Surveillance of MuslimsThe U.S. Supreme Court has agreed to hear a privacy and religious liberty case brought by three California Muslim men, who claim that the FBI and federal government conducted illicit searches and unlawfully discriminated against them on the basis of religion. The government sought to shut down the case by claiming that such alleged behavior was subject to the “state secrets” doctrine, thus preventing any further inquiry into the government’s seeming misconduct.
In 2006, the FBI sent a confidential informant to infiltrate a mosque. The informant spent over a year collecting names, phone numbers, emails and other information, as well as planting listening devices. Lawyers for the three plaintiffs are challenging a domestic FBI surveillance program that, according to their own informant, targeted members of this community based on their dedication to their religion. The FBI argued that it couldn’t defend itself against the religious claims of the lawsuit because to do so would involve sharing state secrets. So the FBI asked a lower federal court to dismiss the case. That judge agreed and went a step further, dismissing the religion claim and nearly every other claim as well. The Ninth Circuit Court of Appeals rejected the state secrets argument and ruled that the plaintiffs’ claims should be analyzed under procedures for viewing and protecting sensitive information set out in the Foreign Intelligence Surveillance Act (FISA). Now the Supreme Court will examine the logic of this argument: Does Section 1806(f) of FISA displace the state secrets privilege? This would authorize a court to potentially consider the merits of a lawsuit that challenges the lawfulness of government surveillance by actually examining the previously privileged evidence, but in secret. FISA outlines such discovery procedures in a variety of circumstances, though the parties vehemently disagree whether such circumstances include a civil rights lawsuit brought by the targets of surveillance. If the procedures do apply here, they would include inspections of materials in chambers by a judge with suitable clearance, who would then decide whether it is possible for plaintiffs with substantial claims to argue their case while protecting the secrecy of government information if there is indeed a legitimate security interest. But would that be a win for civil liberties, or just a reshuffling of the government’s secrecy deck? There’s a need to protect government secrecy, but how do we ensure that the government isn’t covering up bad-faith actions of the executive branch by using “classification” of documents as a weapon of mass defense, hiding the facts of a case behind either the state secrets precedent or in the FISA court? The government has a long and documented history of using secrecy to hide abuses dating as far back as 1953, in a Supreme Court case U.S. vs Reynolds, about an Air Force bomber crash that was later shown to be due to government negligence; in the infamous Pentagon Papers case, where the government sought to suppress publication of a questionably classified report that revealed the government’s concealment and deliberate deceptions surrounding the Vietnam War; and as recently as the 2020 fiasco of the FBI’s investigation of Trump campaign volunteer, Carter Page (which included one forged document and 17 serious errors of omission and commission). Should we consider it an outrage if the FBI directed a confidential informant to plant bugs in a mosque, targeting Americans based on their religion? Yes, unless there is evidence in this case that explains the FBI’s actions. The point is, we have no way of knowing for sure as long as the FBI is never required to defend itself on the substance rather than cover the entire case with a blanket of secrecy. The late Christopher Hitchens said that the essence of tyranny is not iron law; it is capricious law. But there are ways to defend against it. Whether FISA as currently written allows a way around the state secrets doctrine is something the Supreme Court will have to decide. But if it doesn’t, there needs to be some other mechanism to hold government accountable for bad behavior even when the government acts under the banner of national security. PPSA supports strong reforms of FISA and other federal surveillance programs with recommendations that include more openness in the FISA court by publishing opinions and allowing outside, independent civil liberties experts as amici to advise on civil liberties. Secret courts and secret programs should not be evaluated in secret by the same people who run them. Nor should we allow government institutions to hold our freedoms hostage behind an iron curtain of secrecy. Under the FBI’s claim of privilege and the district court’s ruling, we had slid further down that slippery slope. Will we slide again, this time faster and further down? Or will the Supreme Court or Congress put on the brakes with a ruling in favor of FISA or with an amendment fixing the problem – and affirm our system of checks and balances? We’ll find out some time next year. ProPublica’s report on the private tax information of the 25 richest Americans is undoubtedly based on the leaking of their returns by someone within the IRS, or someone who has access to IRS databases.
Is this a legitimate exercise of conscience by a whistleblower, or a dangerous violation of privacy by a government insider? PPSA comes down on the side of “dangerous violation.” Here’s why. Much outrage has been generated by ProPublica’s report that in some years several of these high net-worth individuals avoided paying income taxes. A close reading shows that the wealthiest of the wealthy pay little in “income” taxes because they earn their money from capital gains, which are taxed differently. Knowing what the wealthy pay – or don’t pay – is a legitimate topic of debate. Having anonymized information about their payments informs that debate. Telling us that Elon Musk – in a given year – paid no income taxes should concern every civil libertarian. Charles C.W. Cooke neatly summarizes what is at stake: “Oh, who cares?” you might ask. “The victims are billionaires!” And indeed, they are. But I care. For a start, they’re American citizens, and they’re entitled to the same rights — and protected by the same laws — as everyone else. Their privacy does not matter less than mine just because they’re richer than I am. Besides, even if one wants to be entirely amoral about it, one should consider that if their information can be spilled onto the Internet, anyone’s can. And, if you were in their shoes, you’d probably care a lot more than they do. A government that is this reckless or sinister with the information of men who are lawyered to the eyeballs is unlikely to worry too much about being reckless or sinister with your information. The revelation of privacy lapses at the IRS comes at a time when the Supreme Court is considering whether the state of California can constitutionally demand disclosure of donor information listed on IRS Schedule B – despite the fact that California has handled that very information with grotesque security lapses. While California assures us that it now takes privacy more seriously, it has no protections comparable to IRS protections for tax information. And even those IRS protections were not enough to stop the most recent leak. Lest we fall into the trap that government is benign, responsible, and not to be feared when in possession of highly sensitive private information, the latest revelation of a leaky IRS is a timely reminder that such trust is often unwarranted. Late Thursday, news broke that the Department of Justice (DOJ) under the prior Administration accessed metadata belonging to members of the House Intelligence Committee, their aides and family members, including a minor.
The New York Times, which broke this story, called DOJ’s move an “extraordinary step of subpoenaing communications metadata from Members of Congress – a nearly unheard-of move outside corruption investigations.” But was it? Or is it the first glint from an iceberg’s tip? In December, 2020, PPSA anticipated this issue by filing a Freedom of Information Act request seeking records from NSA and five other departments and agencies on the possible surveillance of 48 current and former Members of Congress, including House Intelligence Committee Chairman Adam Schiff and then-Sen. Kamala Harris. After NSA rejected this FOIA request, PPSA appealed the agency’s decision. The agency reversed its position pledging to process the records request, though the agency is now past the statutory deadline to produce responsive records. In May, PPSA filed another FOIA request asking DOJ to produce records on how the department might be modifying, implementing or replacing two key memos establishing safeguards against the political misuse of federal investigations. PPSA had previously asked the department to make permanent rules requiring heightened scrutiny when federal officials, candidates and staff are targeted for surveillance. Meanwhile, a PPSA lawsuit to compel agency responses remains pending. “As soon as we get information from NSA regarding the potential surveillance of Members of Congress, we’ll report that,” said Gene Schaerr, general counsel of PPSA. “And we are doubling down on our call for DOJ to make permanent rules regarding the investigation of federal officials and candidates. “The First Amendment implications of investigations of Members of Congress are obvious,” Schaerr said. “Intelligence agencies under both Republican and Democratic administrations have shown a capacity to play fast-and-loose with surveillance. It is time to clean that up.” Do you have a right to use your smartphone to record police officers in the course of their public duties? Yes – in the jurisdictions of the First, Third, Fifth, Seventh, Ninth and Eleventh Circuit Courts of Appeal. But don’t try it in Colorado, Kansas, New Mexico, Oklahoma, Wyoming or Utah, where the Tenth Circuit Court protects police officers who knowingly violate a right upheld by their own department policy and training.
Since 1995, courts have increasingly upheld the rights of Americans to film police officers, as long as they are not interfering with the officers’ official duties. Many police officers were just fine with being recorded for now-cancelled television shows such as Cops or Live PD, but when a private citizen is the one behind the camera, some still take a different view. Had the courts not intervened, the extinguishing of George Floyd’s life would likely have never been judged a crime. Enter the Tenth Circuit Court of Appeals in Denver, which shines a light on one of the greatest paradoxes in American jurisprudence – the self-negating logic in some federal courts. In 2014, Denver police knowingly prevented a man from recording an arrest before performing an illegal search of his electronic tablet. The word “knowingly” is used here because the City of Denver made sure its officers knew citizens had a right to record the public actions of police officers, and the officers involved in the illegal search had received such training the year before. As recounted in grand detail by the Cato Institute’s Jay Schweikert, because no judge on the Tenth Circuit Court had made a specific ruling that knowingly violating a citizen’s First Amendment rights in this context is illegal, the court punted. In Frasier v. Evans, the Tenth believed it was left with no choice but to rule that that there was no “clearly established” right to record videos of police, and that the officers involved were entitled to qualified immunity that shields them from any further civil action. Similar logic led Florida’s Fourth District Court of Appeal in May to uphold the arrest of a mother recording her son’s arrest. Thus, the Tenth Circuit follows the same logic that kept Yossarian flying in Joseph Heller’s Catch-22. The pretzel-twisted logic of the court assures that there can never be a successful challenge to the police because there has never been a successful challenge to the police. Got it? Even the most established of rights mean little if a federal court refuses to take action against police officers who violate those rights with impunity. Left unchecked, the threat of illegal search and seizure could cause Americans in some parts of the country to think twice before pushing the record button. This is especially true where the only legal recourse one can hope for is a federal court ruling seven years later that the police were wrong – in violation of their own policy and training – but there’s nothing to be done about it. It is time for the Supreme Court to establish that constitutional rights that exist in some parts of the country also exist in the others. Ruling Demonstrates Need for Other Checks on Government MisconductAre the police breaking the law when, using their official credentials, they access a database for an illicit purpose? This week, in a 6-3 decision, the Supreme Court said no.
In 1986, in response to rising cybercrime, Congress passed the Computer Fraud and Abuse Act (CFAA) to impose criminal punishment on anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” Nathan Van Buren, while a Georgia police sergeant, ran afoul of the CFAA when he conducted a license-plate search on a law enforcement database in exchange for a bribe. Because his department’s policy authorized him to access the database only for law enforcement purposes, Van Buren was convicted for “exceed[ing his] authorized access” and sentenced to 18 months’ imprisonment. Van Buren appealed to the Eleventh Circuit, arguing that CFAA only applies to those who obtain information to which their authorized access did not extend. The Eleventh Circuit disagreed, adopting a broader view of the statute under which someone exceeds authorized access when that person intentionally accesses information within the scope of one’s credentials, but for an inappropriate reason. Justice Barrett, writing for the majority, rejected that broader view as contrary to the language of the statute. Interpreting the CFAA definition of “authorized access” as creating a simple “gates-up-or-down” inquiry, she concluded that the statutory language imposed criminal liability only when a person accessed a computer system—or areas within that system—beyond what their official credentials would allow. Because Van Buren’s license-plate search violated his departmental policy but was performed with valid credentials, he did not exceed his authorized access under the CFAA. Justice Barret’s opinion warned that a broader reading of the CFAA could have the effect of “criminaliz[ing] every violation of a computer-use policy”—potentially subjecting “millions of otherwise law-abiding citizens” to criminal punishment for relatively harmless acts like sending personal emails or checking the news on a work computer. Nevertheless, the Court’s ruling has the effect of immunizing bad-faith government actors who abuse their official computer- and database-access. The Supreme Court’s decision highlights a critical need for other enforcement tools to check government misconduct. While PPSA recognizes both the legal and policy reasons underlying the Court’s decision, Van Buren removes the threat of criminal prosecution as a deterrent to government computer-search abuses. If the CFAA’s broad criminal liability is too sweeping a tool to prevent the ever-present danger of government overreach, then clearly a more appropriate mechanism is needed. New legislation, perhaps targeted just to official government misconduct, could avoid overcriminalization while giving official-use policies some needed teeth. Do Fourth Amendment rights against unreasonable searches and seizures apply at the border? Or is the border zone of airports and other ports of entry a kind of legal no-man’s land?
These questions arise from two growing trends at the border. One is the announced rollout of facial recognition technology and other biometric surveillance by Customs and Border Patrol of every non-citizen who arrives at a U.S. airport – a practice the Transportation Security Administration is experimenting with for U.S. citizens. The other is the existing practice of accessing the contents of returning citizens’ cellphones, laptops and other electronic devices. Your Passcode, Please Regarding the latter trend, Americans are learning that our personal information is not protected by the Fourth Amendment at the border. In 2017, Sidd Bikkannavar, an employee of NASA’s Jet Propulsion Laboratory, was returning to George W. Bush Intercontinental Airport in Houston when he was detained by Customs and Border Patrol agents. He was told he could not leave until he gave CBP agents his access PIN to his phone. Bikkannavar was deeply concerned because the phone in his possession belonged to NASA – a claim validated by a JPL barcode on the back. The device contained information that JPL was adamant not be copied or shared. CBP insists that it cannot compel someone to unlock their phone, but many like Bikkannavar report that the alternative is to live in the airport. Such searches can be done with a surface examination of the contents – such as an eyeball scan of the files on a computer’s desktop screen. They can also be “forensic” examinations, in which a thumbdrive is plugged into device in order to perform a deep scan of its contents. In an ACLU petition with the Electronic Frontier Foundation, now before the U.S. Supreme Court (Merchant v. Mayorkas), 11 U.S. citizens are suing over having their electronic devices examined at the border without a warrant or reasonable suspicion. Plaintiffs include a military veteran, journalists, an artist and a business owner, as well as Sidd Bikkannavar. Several of them are Muslims and people of color. In an earlier version of this case, a federal district court had ruled that a reasonable suspicion was needed to manually or forensically examine a device. The U.S. Court of Appeals for the First Circuit overturned that ruling. But lower courts have held that forensic searches of electronic devices require reasonable suspicion of a crime. Will the Supreme Court resolve these contradictions? Your Face on File CBP is also proposing to collect and store facial surveillance of non-citizens at every point of entry into the United States. TSA is conducting tests with volunteers for this technology at Washington’s Reagan National Airport, including U.S. citizens. The stated intent is to shorten lines. Despite this technology’s convenience, however, facial recognition has the sinister aspect of subjecting people to continuing surveillance. Targets can be tracked by hidden security cameras or covertly operated cellphones without their knowledge, much less permission. ACLU writes: “Once government acquires a person’s faceprint, it creates a risk of a unique and unprecedented form of persistent surveillance, one that allows the government to identify and track people without their knowledge.” Given the high false-positive rate of facial recognition technology for people of color – witness the ordeal of Robert Williams of Detroit, who was arrested after a false positive – and the fact that DHS plans to hold individual’s facial data for 75 years, it is easy see how this technology could lead to abuses. It is also easy to imagine how TSA’s experiment could lead to the use of this technology to surveil U.S. citizens and create a database of American faces. All of these issues point to the need for clarity: Does the Fourth Amendment apply at the border or not? The U.S. Supreme Court has ruled that “the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior.” But different how? The arrival of powerful and intrusive technology should persuade the Supreme Court to at least consider where to draw the lines. Lawsuit Concerns Secretive Powers of Executive Order 12333The Project for Privacy and Surveillance Accountability filed suit today against the Privacy and Civil Liberties Oversight Board that will be a major test case of whether laws governing Freedom of Information Act requests must be obeyed. It also seeks to reveal the extent to which the Board has performed – or not performed – its watchdog role over non-statutory surveillance authorities conducted in secret.
“PCLOB is tasked with oversight of U.S. intelligence agencies, to protect against the possibility of abuse of civil liberties,” said Gene Schaerr, PPSA general counsel. “It is supposed to be our watchdog against such encroachments. The need for this lawsuit demonstrates, in fact, that PCLOB is more like a lazy pooch sleeping at the feet of its masters. “We will demonstrate to the court that the Board is ignoring the law,” he said. PPSA’s filing builds on a FOIA request from Patrick Eddington of the CATO Institute asking for records in April, 2019, from the Board concerning reports, and correspondence with agencies, about Executive Order 12333. Sen. Richard Burr, former chair of the Senate Select Committee on Intelligence, alarmed civil libertarians everywhere when he took to the Senate floor to declare that under 12333 authority, the executive branch can do whatever it wants, without “guardrails” or statutory authority for mass surveillance. The Board confirmed to Eddington that it completed at least one “deep dive report” under Executive Order 12333 concerning at least one federal agency, but withheld that report. It refused to release any records regarding agency refusals to provide information requested by the Board. In a follow on letter to the Board, PPSA concluded: “It appears from these responses that the Board has censored itself at the direction of the very agency subject to its oversight.” PPSA filed its own FOIA request on Sept. 16, 2020, asking PCLOB to produce records mentioning the Eddington request or any denial or other responses to it. PPSA also doubled down on requests for information about 12333. “We gave the Board far more than the maximum thirty business days from our FOIA request,” Schaerr said. “It is time to turn to the courts to determine if the laws governing FOIA requests must be respected by PCLOB, or if the law can be effectively ignored.” “The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public – and it is also unconstitutional,” write three seasoned civil liberties experts in today’s New York Times.
The op-ed, signed by David Cole, legal director of the American Civil Liberties Union, Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, and former Solicitor General Theodore Olson, supports an ACLU petition to the U.S. Supreme Court to consider the Foreign Intelligence Surveillance Court’s secret opinions. They recount some useful history. That court authorized the government to collect records on most phone calls made or received in the United States, detailing who called whom, when, and for how long – all without any suspicion of illegal activity. In another opinion, the court upheld the government’s practice of scanning Americans’ emails for intelligence purposes as those communications enter and leave the country. More recently, it permitted the FBI to fish for information about Americans in huge databases of international emails, online messages and web chats obtained without probable cause. Four days ago, PPSA filed an amicus brief in support of the ACLU petition. PPSA asked the Court to consider the following question: “How can the American people learn of, debate, and cast informed votes relating to what the Executive Branch—or, for that matter FISC [the ‘secret surveillance court’] —is doing in their names if the government refuses to disclose that information?” In today’s op-ed, the authors note that the “surveillance court’s suggestion that it is not subject to the usual constraints of the First Amendment – and, indeed, that it lacks authority even to consider the First Amendment question – has only engendered suspicion of the court, and of the surveillance the court approves.” For all these reasons, PPSA will continue to vigorously support ACLU’s petition. PPSA today filed a brief asking the U.S. Supreme Court to consider a petition to require the federal government’s secret surveillance court to release its opinions to the public. In April, the American Civil Liberties Union filed that petition asking the Supreme Court to review the constitutionality of the secret operations of the Foreign Intelligence Surveillance Court (FISC) and the superior Foreign Intelligence Surveillance Court of Review (FISCR). FISC opinions, the brief notes, “rarely see daylight” – a stark exception to the access the public has to other judicial proceedings and rulings. PPSA asks the Supreme Court to consider whether the First Amendment provides a qualified public right of access to significant opinions of FISC. The brief also asks the Court to allow FISCR to consider an appeal from the denial of such a motion. How can the American people learn of, debate, and cast informed votes relating to what the Executive Branch—or, for that matter, FISC or FISCR—is doing in their names if the government refuses to disclose that information? “How can the American people learn of, debate, and cast informed votes relating to what the Executive Branch—or, for that matter, FISC or FISCR—is doing in their names if the government refuses to disclose that information?” PPSA asked the Court. The brief notes abuses by administrations of both parties have been long kept from public view by the secretive nature of ex parte FISC and FISCR proceedings.
“It is impossible to know how many misrepresentations like those in the Carter Page applications have allowed the government to circumvent the Fourth Amendment’s warrant requirement and surveil particular United States citizens, even without probable cause.”
“For the public to selectively learn of limited examples of secret wrongdoing only long after the fact … undermines constitutional checks and balances by making such disclosure a further tool of the Executive in power at any given moment.”
PPSA is asking the Court to require FISC and FISCR to publicize their decisions – subject to necessary redactions – just like any other court under Article III of the U.S. Constitution. In the USA Freedom Act of 2015, Congress authorized qualified experts to examine the civil liberties issues in significant cases before the secret court. Despite ruling on many high-profile cases with civil liberties implications, FISC rarely appoints such an amicus. Calling this law “the veneer of adversity,” PPSA’s brief notes that the FISC appointed only two such amici in 2020, despite hundreds of government applications. For all these reasons, and more spelled out in the brief, PPSA asks the Court to rule in favor ACLU’s petition. vIn January, Avril Haines was challenged by Sen. Ron Wyden (D-OR) during a hearing before the U.S. Senate Select Committee on Intelligence to consider her nomination to serve as Director of National Intelligence. Sen. Wyden asked: “If you are confirmed, would you agree to inform Americans about any circumstances in which the intelligence community purchases their data and the legal basis for doing so?” Ms. Haines replied: “I would seek to try to publicize essentially a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under.” She further promised to provide “transparency so people have an understanding of the guidelines under which the intelligence community operates.” Ms. Haines received 84 Senate votes for her confirmation, with an endorsement from Sen. Wyden. She has now been director of national intelligence for four months. At the time, the Project for Privacy and Surveillance Accountability applauded the new director’s promise of transparency. With that in mind, on Monday PPSA filed a Freedom of Information Act (FOIA) request seeking all agency records addressing Director Haines’ exchange with Sen. Wyden, as well as all agency records – prepared as part of Haines’ promised disclosures – describing the intelligence community’s purchases of Americans’ private data and the legal basis and guidelines for doing so. PPSA’s Freedom of Information Act request seeks all agency records regarding Director Haines’ exchange with Sen. Wyden, as well as all agency records—prepared as part of Haines’ promised disclosures—describing the intelligence community’s purchases of Americans’ private data, and the legal basis and guidelines for doing so. Director Haines’ promise of candor and transparency was widely seen as a refreshing departure from the oracular pronouncements of some in the intelligence community. PPSA hopes Director Haines sees this FOIA request as an opportunity to make good on those promises. When it comes to warrants, should your house be treated the same as your car?
In Cady v. Dombrowski (1973), the Supreme Court held that the warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. As PPSA reported in January, the Supreme Court agreed to hear Caniglia v. Strom, a case in which the police entered the home of a Rhode Island man without a warrant to seize his firearms. That man, Edward Caniglia, came to the police’s attention after his wife reported that, during an argument, Caniglia had placed an unloaded gun on the dining room table and asked her to shoot him “and get it over with.” The next day, during a welfare check prompted by a call from Mrs. Caniglia, police encountered Mr. Caniglia on his porch. They persuaded him to agree to a psychiatric evaluation, on the condition that they not enter his home and confiscate his firearms. But while Caniglia was having his evaluation, the police—despite their promise not to—confiscated his firearms. Caniglia sued, claiming that the police violated the Fourth Amendment when they entered his home and seized his firearms. The First Circuit disagreed. It reasoned that the same logic that allowed the police in Cady to search a car extended to private homes. At oral argument, several Justices hinted that they were skeptical of the First Circuit’s holding. “[I]f there’s any one principle of the Fourth Amendment,” Justice Kagan said, it is that “the home is special” and that “the automobile is distinctly not.” In January, PPSA filed an amicus brief upholding Fourth Amendment rights against the expansion of the community caretaking exception. In Monday’s opinion, it became clear that the other Justices agreed with Justice Kagan’s review of the Court’s Fourth Amendment cases. The opinion, written by Justice Clarence Thomas, dispensed with the First Circuit’s reasoning in only four pages. “[W]hat is reasonable for vehicles,” the Court declared, “is different from what is reasonable for homes.” And Cady itself, the Court noted, expressly recognized a distinction between a vehicle already under police control and a vehicle “parked adjacent to the dwelling place of the owner.” PPSA regards this ruling as a major victory for the privacy of all Americans. It would have best if the Court had more firmly rooted its opinion in the original public meaning of the Fourth Amendment rather than precedent. But the Court’s opinion did cite Florida v. Jardines (2013), which held that the “very core” of the Fourth Amendment’s guarantee is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” A letter from Sen. Ron Wyden (D-OR) to Defense Secretary Lloyd Austin reveals that our government appears to be taking a warrantless and free-wheeling approach to purchasing Americans’ private data.
At first glance, this might come as an unexpected turn against the jurisprudential tide. In 2018, the U.S. Supreme Court held that the government needs a warrant to access the location history of an American taken from communications between cell phones and a cell tower. A reasonable interpretation of this case, Carpenter, should have prompted government lawyers to question any warrantless access to Americans’ electronic data. Like a flippant teenager, government lawyers – when presented with such a new restriction by the courts – take it as a sign that everything else must be permissible. You told me not to ride my bike in traffic. You never said anything about not smoking a cigarette. In his letter, Sen. Wyden wrote that the Defense Intelligence Agency “recently informed my office that they have adopted the position that the Fourth Amendment, and the Supreme Court’s holding in the Carpenter case, do not apply to data about Americans that government buys, and only apply to data that the government acquires via compulsion.” Sen. Wyden has long investigated the “shady, unregulated” sale of Americans’ personal information by data brokers to government agencies. He, along with Republican Sens. Rand Paul, Mike Lee, Steve Daines and several Democratic senators, recently introduced The Fourth Amendment Is Not for Sale Act, which would restrict the ability of the government to buy our personal information from data brokers without a warrant. Now Sen. Wyden is pressing the Department of Defense to answer questions about the legal analysis behind its theory, its scope of buying and using Americans’ data without a court order, and what the department knows – or doesn’t know – about the identities and citizenship of individuals whose data is being acquired. The Oregon senator is also drilling down to ask if the DoD is collecting information from internet connected cars and from metadata, such as Domain Name System records. The latter could expose an individual’s internet browsing history. As we await answers, civil liberties advocates have more reason than ever to get behind The Fourth Amendment Is Not For Sale Act. Op-ed: Data brokers are selling our digital profiles to the government — a tactic that must stop5/5/2021
By BOB GOODLATTE AND MARK UDALL Published on CHICAGO TRIBUNE MAY 05, 2021 AT 12:06 PM -- In the back of our minds, we know the “free” social media platforms and cellphone apps we use are not truly free. We always pay a cost in privacy. When your Facebook account shows you an ad for pet food or home exercise equipment, it is drawing on a highly detailed portrait assembled from your clicks and choices. Throughout our day, sensitive data points that include our location, our browsing history and demographic details are captured to update a precise digital portrait of our interests, beliefs, actions and movements. This information is then shared with hundreds of bidders in a digital auction. This “real-time bidding” takes place in a few milliseconds in order to match you with an ad that you might click. But the journey does not end there. Companies use your “bidstream” data to create a digital dossier that can predict your behaviors by mapping your past actions, which can then be sold by data brokers to hedge funds, marketers and political campaigns. Some of these brokers also sell your personal information to the government, which amounts to a treasure trove of personal information for intelligence agencies and law enforcement to scan without having to bother with the pesky Fourth Amendment requirement for a probable cause warrant. The U.S. Constitution requires the government to obtain such a warrant from a court before searching or seizing our “effects.” By tapping into Uncle Sam’s checkbook, however, the Defense Intelligence Agency, the Department of Homeland Security, the IRS and likely other agencies are sidestepping this basic requirement to obtain warrantless access to billions of digital “effects” on millions of Americans. The government is even purchasing access to billions of photos, downloaded in bulk by a data broker from Facebook, LinkedIn, Twitter and YouTube. According to media reports, our images are being illicitly scraped in violation of the terms of service of these popular social media platforms. No one in Congress today has been more diligent in tracking and attempting to curb such excesses of government violations of Americans’ privacy than Sen. Ron Wyden, D-Oregon. He recently introduced landmark privacy legislation, the Fourth Amendment Is Not for Sale Act, that would close major loopholes in the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act that the government is exploiting to simply buy our most sensitive and personal data. Under current law, the government cannot compel tech and phone companies to disclose our information without a court order. Why should data brokers be treated any differently? Under Wyden’s proposal, the government would have to get a court order to force data brokers to disclose our information. The Wyden bill, also supported by Republican Sens. Rand Paul, Mike Lee and Steve Daines, as well as Senate Majority Leader Chuck Schumer, stops law enforcement and intelligence agencies from buying data on people in the United States and Americans abroad if that information is derived from hacking, deception, or a violation of a contract, privacy policy or terms of service — as is happening now with scraped images. This legislation extends existing privacy laws to data cables and cell towers, so the government can’t do a “workaround” through infrastructure. It closes loopholes that permit the intelligence agencies to buy or otherwise acquire metadata about Americans’ international calls, texts and emails to family and friends abroad, and obtain records about their web browsing of foreign websites — the kind of disclosures that would normally require a court order. The Wyden bill also takes away the ability of the attorney general to grant civil immunity to companies that assist with surveillance that is not required or permitted by statute. This is one of the most effective proposals Wyden offers. If data providers, whether tech firms, telecoms or data brokers, know that legal liability comes with obeying an illegal order, it is unlikely any will comply. Don’t expect surveillance hawks to cheer this legislation, but they have no real reason to oppose it. If Wyden’s measure passes, U.S. law enforcement and intelligence agencies will still have powerful legal tools at their fingertips with which to follow leads that can catch terrorists, spies and dangerous criminals. They will just have to follow the rules. The alternative is to let the practice of checkbook surveillance grow in scale and scope. If this subterranean subversion of our Constitution continues, the United States will be taking a long step toward granting our government the sort of omniscience over Americans that the People’s Republic of China enjoys over its people. While the intentions of many in the agencies and law enforcement are commendable, recent events suggest that our most admired institutions can be corrupted by political pressure and partisan bias. It is time for policymakers to either respect the Fourth Amendment or publicly admit, as Hamlet said, it’s a custom more honored in the breach. Bob Goodlatte is a former congressman from Virginia, the former chairman of the House Judiciary Committee, and now senior policy adviser with the Project for Privacy and Surveillance Accountability. Mark Udall is a former senator from Colorado who served on the Senate Select Committee on Intelligence. TAKE ACTION: Contact your US Senators and your representative(s). Request support for the 4th Amendment is not for Sale Act (Wyden Bill) to protect your data and privacy now!
The Project for Privacy and Surveillance Accountability filed a Freedom of Information Act (FOIA) request with the U.S. Department of Justice asking for records on how the department may be modifying, interpreting or replacing two key memos establishing safeguards against political misuse of federal investigations. “In these contentious times, wouldn’t it be refreshing if one administration endorsed the policies of a previous administration to extend legal protections to people in both parties?” said Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability. “The Biden Administration could do this by making permanent Justice Department rules intended to keep politics out of federal investigations. We hope our FOIA request will spur the administration to take this positive action, assuming they haven’t already.” Last August, then-Attorney General William Barr reacted with memos establishing new rules after the fiasco of the FBI’s investigation of Trump campaign volunteer, Carter Page. This investigation had included the submission of a forged document in sworn testimony before the Foreign Intelligence Surveillance Court. A report from the Department of Justice inspector general documented 17 serious errors of omission and commission made in that investigation. The inspector general followed up with another report examining a sampling of 29 other, unrelated FISA applications involving U.S. citizens, finding errors in each one. Among the many safeguards in Barr’s new policies were requirements regarding the investigation of a federal elected official, candidate and staff. One such requirement would be a “defensive briefing” of the target, unless the FBI Director determines in writing that such a briefing would not be appropriate. The attorney general would also have to approve surveillance applications for Americans in these categories. In these contentious times, wouldn’t it be refreshing if one administration endorsed the policies of a previous administration to extend legal protections to people in both parties? PPSA’s FOIA asks the Department of Justice for all records supplementing, modifying, interpreting or replacing the memos. It also asks for records for preparations to comply with a required assessment of the implementation of the new rule. Barr wrote that the “American people must have confidence that the United States Government will collect and use this information in a manner that protects the civil liberties of all Americans, avoids interference in the political process, and complies with the Constitution and the laws of the United States.” Schaerr noted: “If anything, the need to rebuild confidence in the integrity of the government is even greater than it was a year ago. Trust is at an all-time low. Republicans are still smarting from the Carter Page investigation predicated on an opposition research document. Democrats, for their part, voice public concern about the potential for unequal law enforcement. Both parties are making allegations about elections. Putting a Democratic imprimatur on these policies would be reassuring to Americans of all stripes.” The Project for Privacy and Surveillance Accountability today filed a lawsuit against six federal agencies to compel them to reveal records mentioning the handling of policies governing classification decisions under Executive Order 13526.
President Obama issued this executive order in 2009, saying he was attempting to curb the breakneck growth of classified documents in the federal government by requiring agencies to create internal procedures to challenge improper classification decisions. In the president’s words, the agencies “must not withhold information for self-serving reasons or simply to avoid embarrassment.” “Think us naïve, but PPSA thought at the very least we could discover how agencies responded to the president,” said Gene Schaerr, PPSA general counsel. “We want to ask if the agencies have done anything to comply with President Obama’s executive order.” On Sept. 28, 2020, PPSA sent a Freedom of Information request to the six agencies asking for all records mentioning two sections of EO 13526 that limit classification decisions, covering a date range from Dec. 29. 2009 to Sept. 25, 2020. The FOIA requests went to the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, the Central Intelligence Agency, the Department of State and the National Archives and Records Administration. “The FBI did reply that the request did not have sufficient detail, though it is hard to imagine how the request could have been more detailed,” Schaerr said. “The State Department similarly denied the request, saying that PPSA’s filing did not reasonably describe the records sought. The CIA and ODNI agreed to search for records, but haven’t actually disclosed anything yet.” The Freedom of Information Act gives government agencies a maximum of thirty business days to comply with the request. All of these agencies well exceeded their time limit allowed under law. “With none of the six agencies giving a substantive or credible reply, we’re filing a lawsuit in the U.S. District Court for the District of Columbia to compel their disclosure,” Schaerr said. “We’ll report any significant responses or developments in court.” On Monday afternoon, the presiding judge of the Foreign Intelligence Surveillance Court (FISC), Judge James E. Boasberg, revealed new instances of warrantless use of National Security Agency data by the FBI, including the improper search of information about Americans in emails.
The government is allowed under Section 702 of the FISA Amendment Act to access phone calls and internet communications of noncitizens abroad with an American. The FBI can use this raw intelligence without a warrant, but only for national security investigations. Judge Boasberg’s report shows that while the FBI properly used some of this warrantless surveillance information to identify potential domestic terrorists, it ran over 40 improper queries for run-of-the-mill criminal investigations relating to health-care fraud, bribery, and other crimes by citizens posing no threat to national security and fully protected by the Fourth Amendment. “It has proven almost impossible for the FBI to resist the temptation to use powerful technology to gather warrantless evidence in purely criminal matters, not national security,” said Gene Schaerr, PPSA general counsel. In September, the judge revealed that an FBI field office used 124 improper queries of warrantless surveillance information, including background checks on community leaders in a law enforcement-sponsored “Citizens Academy,” and people providing office repairs. As with last year’s revelations, the most recent batch of warrantless queries happened before the FBI pledged to do better with improvements in training and procedural safeguards. While issuing the report, Judge Boasberg approved the NSA program for another year. He ruled that “the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.” “It’s an open question whether the FBI has been caught red handed or flat footed,” Schaerr said. “The FISC must keep close tabs on this program over the next year. Congress should consider adding statutory sanctions for using warrantless surveillance for ordinary, domestic law enforcement.” The Project for Privacy and Surveillance Accountability joined almost 70 civil liberties groups urging Homeland Security Secretary Alejandro Mayorkas to order his agencies to discontinue – or at least clarify – their use of Clearview AI facial recognition software.
Clearview AI boasts that it has the largest database of facial images, more than 3 billion in all. Many of these are scraped from popular social media platforms in violation of those platforms’ terms of service. “With one picture secretly taken with a cellphone or surveillance camera, a government agent without a warrant might access your religious and political beliefs, your home address and phone number, your work history and employer, pictures of your family, you name it,” said Erik Jaffe, president of PPSA. “With a snap, a government snoop can know everything about you. “While many groups who signed this letter are concerned about how Clearview AI might be used, or misused, by a specific government agency, our concern goes further,” Jaffe said. “We signed this letter because we believe it is an important shot across the bow to warn Washington of technology that enables Panopticon levels of surveillance normally reserved for regimes that routinely repress political freedom. “We hope this letter sparks the debate that is needed on how to restrain and govern the worrisome power of this technology,” Jaffe said. The Project for Privacy and Surveillance Accountability plans to file an amicus brief supporting an effort by the American Civil Liberties Union to require the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR) to make their opinions public.
PPSA blogged about this issue last September and remains deeply concerned by the fact that the courts have interpreted their jurisdiction so narrowly that they have largely insulated themselves from any accountability. “A secret court issuing secret opinions shaping the scope of secret government surveillance is inherently offensive to the Constitution,” said Gene Schaerr, PPSA’s general counsel. “If it is true that FISC and FISCR lack jurisdiction to even consider constitutional challenges, then the public will never know what the government is doing in its name. Kudos to the ACLU for taking the lead on asking the Supreme Court to take a definitive stand. PPSA is proud to join with our peers in the civil liberties community to support this effort.” Ted Olson, who was head of the Justice Department Office of Legal Counsel under President Reagan, oversaw the practices of the National Security Agency. He is now leading the team asking the Supreme Court to allow the American public to learn about government surveillance. “While some disclosures are allowed, it is the executive branch that decides what we can and cannot know,” Schaerr said. “There is no conceivable justification for judicial secrecy under our Constitution. We hope the Supreme Court takes this case, because if it does, the Justices will surely side with the Constitution.” Schaerr also noted that this case highlights the need for passage of the Lee-Leahy amendment to the Foreign Intelligence Surveillance Act, which would require the FISA court to include an independent expert in any case with significant constitutional implications. Co-sponsored by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT), the Lee-Leahy amendment passed the Senate with 77 votes last year. In September, 2020, PPSA filed a Freedom of Information Act (FOIA) request with the CIA, FBI, NSA, ODNI, Department of Justice, State Department, and National Archives and Records Administration. We asked them to simply reveal any references to Executive Order 13526 in their records since its adoption in 2009.
This order prohibits classification of material in order to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.” It also obligates each agency to create internal procedures to challenge improper classification decisions. While the CIA and ODNI stated that they had begun their searches pursuant to our FOIA request, the FBI and State Department have rejected identical requests, claiming they were “too vague.” This is despite the fact that our requests are bolstered by federal precedent compelling agency responses to FOIA requests for all documents mentioning specific search terms. As reviewing courts have explained, such requests for simple keyword searches leave "virtually no guesswork" about what documents will be responsive to the request. Every American knows the simple “CTRL F” function on our computer keyboards to search for keywords. The FBI and State Department nevertheless maintain our request to be too “vague” to manage such a simple search. The inconsistency is striking when compared with the other agencies that did not plead “vagueness.” As of now, both the FBI and the State Department have rejected our appeals, exhausting possible administrative remedies and freeing PPSA to enforce those agencies’ statutory disclosure duties in federal court. Concerns continue to mount over the quantity of classified materials and the possible circumvention of federal law. So troubling was this trend that even as far back as 1989, former Solicitor General for Richard Nixon, Erwin Griswold, who argued the Pentagon Papers case on behalf of the government, wrote: “[I]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.” More recently, a 2011 report to the President by the Information Security Oversight Office, as required by EO 13526, showed that even after the order’s passage, derivative classification activity continued to skyrocket, quadrupling in four recent years. Like a bad housekeeper sweeping dirt under the rug, the bureaucracy seems to be latching on to derivative classification as the place to evade accountability. PPSA will continue to fight for transparency and accountability in government surveillance. Congress relies on the Privacy and Civil Liberties Oversight Board (known by the inelegant acronym, PCLOB), an independent, bipartisan agency that conducts oversight of U.S. intelligence, to ensure that federal efforts to deter threats to the United States are balanced with Americans’ constitutional rights. Six years ago, PCLOB set out to examine the implications of Executive Order 12333 on privacy and civil liberties. They finally released their report on the afternoon of Good Friday, 2021. Perhaps they judged that a good time to avoid getting any attention whatsoever. EO 12333 was an executive order issued by President Reagan in 1981 to organize the government’s collection, analysis, and use of foreign intelligence and counterintelligence. This intelligence comes from human sources, by interception of communications, by cameras and other sensors on satellites and aerial systems, and through relationships with intelligence services of other government. Sen. Richard Burr, former chair of the Senate Intelligence Committee, alarmed the civil liberties community when he said 12333 allows the executive branch to do whatever it wants, without “guardrails” or statutory authority for mass surveillance. PPSA and many other civil liberties organizations were eagerly waiting for the completion of this study to see if any powers from this non-statutory order were being used to replace the legal authorities from Section 215 of the Patriot Act, which expired a year ago. After six years of asking questions and rummaging through classified material – in the words of the board, “deep dive reviews” of classified information – PCLOB has produced … a high school term paper. As term papers go, it is well organized and thorough in its description of how 12333 organizes intelligence. It has sections on “History” and “Contents of EO 12333.” It does offer a gentle recommendation that the agencies should accelerate their reviews of policies and constitutional requirements in light of the pace of technological change. One can almost sense their racing hearts as they dared to put themselves right on the line with that one. Other than that, there is no mention of how 12333 might be filling in for Section 215 or much of anything else. It tells us it examined NSA XKEYSCORE on global internet surveillance, but doesn’t offer any useful insights into this program. There are no criticisms of any substance, no revelations or serious recommendations. What you do get is a source on 12333 that reads like Wikipedia. PCLOB also helpfully assures us that at every turn, the intelligence agencies have procedures for the collection and use of information concerning U.S. persons in accordance with guidelines approved by the Attorney General. That’s it. That’s what six years of investigation by PCLOB gets you. Perhaps for its next assignment, PCLOB might spend the next six years producing a graphic on “How a Bill Is Made.” Congress should quit pretending that it can rely on PCLOB, whose chairman and four part-time board members must be confirmed by the Senate. PCLOB has not even bothered to pretend it is about oversight. PPSA urges you to contact your House representative and senators and demand they conduct hearings into the dependability of PCLOB, as well as to ask about the legal authorities under which the government is now conducting surveillance. Late last week, the Supreme Court issued an opinion in Torres v. Madrid. This case considered whether a Fourth Amendment seizure occurs when a police officer shoots someone, even if that person “temporarily eludes capture” after being shot. Citing common-law history and its own precedents, the Court answered that a Fourth Amendment seizure does, in fact, occur.
This case is an important win for all Americans. The Fourth Amendment’s text promises the “right of the people to be secure in their persons.” In resolving the question before it, the Court took the opportunity to highlight how the “essence” of the Fourth Amendment’s promise is the “privacy and security of individuals.” The Fourth Amendment, it reasoned, protects against “arbitrary invasion by government officials” by securing the same “degree of privacy against government that existed” at the Founding. In so doing, the Fourth Amendment “preserves personal security with respect to methods of apprehension old and new.” As PPSA argued in briefs we filed earlier this year in Lange v. California and in Caniglia v. Strom, we agree with the Court about how the Fourth Amendment secures individual privacy. Both Lange and Caniglia are still pending before the Court, and both cases ask important questions about when the government can enter a person’s home. We expect opinions in those cases in June, and we will report back once we have them. For now, we can optimistically look to the Court’s invocation of privacy’s importance in Torres as a sign of how it will resolve Lange and Caniglia. PPSA today filed a Freedom of Information Act (FOIA) request for FBI records related to a government admission that at least one Foreign Intelligence Surveillance Act (FISA) Court order involved the collection of web browsing data of an identified U.S. web page.
PPSA first got involved in this issue after Charlie Savage of The New York Times reported on a Nov. 25 letter from John Ratcliffe, former director of National Intelligence, to Sen. Ron Wyden (D-OR), correcting an earlier letter denying that any of the 61 orders issued by the FISA court in the past year involved tracking web browsing. In his revision, Ratcliffe said that one of the orders did involve collection of visits from foreign IP addresses to a U.S. web page. At the time of the report of the correction, we noted that as usual with the surveillance bureaucracy, we are left with more questions than answers. Did the FBI collect web browsing data before that time? With the expiration of Section 215, is the FBI collecting web browsing data now under a different authority? With an agency tracking visits from foreign IP addresses to a U.S. website, how does it treat the incidental collection of data on U.S. persons that would inevitably be revealed during such tracking? With these questions in mind, PPSA is asking for all FBI records mentioning or responding to the correspondence between Sen. Wyden and Richard Grenell and John Ratcliffe, both former heads of the Office of the Director of National Intelligence. “Our request is targeted and highly specific,” said Gene Schaerr, general counsel of PPSA. “Given the high level of this correspondence, there is no reason why the FBI should not be able to produce these documents. We hope that when they do, it will shed light on why the government felt the need to undertake warrantless surveillance of web browsing in the United States.” PPSA will report the FBI’s response as soon as it is delivered. |
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