Questions to Put to Your Candidates on Surveillance

​As the November election approaches, this is an ideal time to ask candidates for federal – and, in some cases, state and local – office what they will do to prevent new technologies from being woven together to create the infrastructure for an American surveillance state.
 
Automated license-plate readers record where we drive, revealing our personal, political, and religious associations and activities.
 
Section 702 can “incidentally” collect Americans’ international communications, enabling government agents to use our identifying information to search for those messages.
 
Data brokers assemble revealing dossiers from location, financial, health, and internet data – and sell them to a dozen federal agencies, ranging from the FBI to the IRS.
 
And an expanded definition of “electronic communication service provider” obligates a broad range of businesses and even houses of worship to secretly spy on their customers and congregants.
 
These systems operate under different legal authorities. But together, they raise a fundamental question: Can the government reconstruct a person’s movements, communications, associations, and private life without first obtaining a warrant, as required by the U.S. Constitution?
 
Here are some pointed questions about these surveillance practices to put to candidates at town halls, campaign appearances, debates, and in constituent emails.
 
Flock Safety and other Automated License-Plate Readers (ALPRs)
 
ALPRs capture license plates and visual characteristics of passing vehicles, creating searchable records of their drivers’ movements. This gives the government the ability to create a dossier of Americans’ private movements – whom we visit, where we organize politically, conduct journalism, worship, or meet business or personal associates.
 
Ask:
 

• Should police need a warrant to search historical Automated License Plate Reader records showing where an American has traveled?

 

• How long should ALPR data be retained when it is not connected to any suspected crime? (Flock Safety suggests seven days.)

 

• Should police be permitted to give federal agencies access to locally collected driving records? If so, under what circumstances?

 

• Will you require public disclosure of every agency, private company, and fusion center that can access your community’s ALPR data?

 

• Should every search be logged and independently audited? When an officer supplies a frivolous or false justification, what should the consequences be?

 

• Do you support legislation preventing ALPR data from being used to monitor lawful political protests, religious services, or other constitutionally protected activities?

 
Warrantless Section 702 Searches
 
Section 702 authorizes surveillance targeting foreign intelligence targets abroad. Americans’ international communications can nevertheless be collected, after which agencies may search the resulting databases using Americans’ names, email addresses, or other identifiers.
 
Ask:
 

• Should the FBI and other agencies obtain a probable cause warrant before searching Section 702 data for an American’s communications?

 

• If you oppose a warrant requirement, what standard would you impose, and why should it be lower than the standard for searching an American’s email account directly?

 

• Should Americans who are prosecuted with evidence derived from Section 702 surveillance be told how that evidence was obtained so they can challenge it in court?

 

• Will you insist that significant opinions of the secret Foreign Intelligence Surveillance Court be released publicly, with necessary national security redactions?

 
The “Make Everyone a Spy” Provision
 
Two years ago, Congress expanded the category of organizations that can be compelled to assist the NSA’s international surveillance. Critics warn that this broadened “electronic communication service provider” definition requires commercial landlords, businesses, and churches that offer access to communications equipment, like Wi-Fi, to spy on their customers and congregants for the government.
 
Ask:
 

• Will you support narrowing the definition so ordinary businesses, commercial landlords, and churches cannot be forced into spying on their customers and congregants?

 

• Should a private organization that receives such a surveillance directive be allowed to challenge it before an independent court?

 

• Should Congress require regular public reporting on how often this authority is used and what categories of entities receive these surveillance directives?

 
Government Purchases From Data Brokers
 
Federal agencies purchase commercially available information from companies that collect and resell personal data. This exposes Americans’ most personal information – what we search for online, the websites we visit, and with whom we communicate – to a dozen federal agencies, which can then review that data without a warrant.
 
Ask:
 

• Should an agency be allowed to buy information it would need a warrant to obtain directly from a cellphone provider, bank, or technology company?

 

• Will you support a warrant requirement for government purchases of Americans’ location, communications, internet, financial, and health-related data?

 

• Will you require every federal agency to disclose which brokers it uses, what information it buys, how much it spends, and how the information is searched and shared?

 
Put these questions to your candidates. Check their grades on surveillance and privacy from their floor votes from the previous session of Congress on our PPSA Scorecard. And don’t hesitate to convey your questions and views to Members of Congress – Representatives here and Senators here – by email.

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