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.