Today, Laredo – Tomorrow, Los Angeles and Little Rock? When the U.S. military dispatches a drone to strike a target, it often uses a wireless device detection system that can correlate signals from terrorists’ cellphones and other devices emanating from within a target vehicle. Under such circumstances, calls and other signals from terrorists’ devices lead missiles straight into a target’s car.
As law and order along the U.S. border breaks down, it is not surprising that two Texas jurisdictions – Webb and Val Verde counties – purchased such military-grade wireless detection systems. NOTUS.org reports that law enforcement along the border can detect in-vehicle wireless signals and merge them with systems that track vehicles’ license plates to isolate a given car. This is yet another sign that the U.S. Supreme Court urgently needs to revisit the limits that federal and local law enforcement agencies are placing on the Court’s 2018 Carpenter opinion, which requires a probable cause warrant before officers can use cell tower GPS data to access a suspect’s location history. Agencies have not internalized the basic principles of that ruling. Instead, they’ve rationalized that if they are not specifically accessing historical cell tower data, they are complying with the law. To be fair, parts of the border are beginning to resemble a war zone, with out-of-control illegal immigration organized by criminal cartels. Given the current lawless state of the U.S.-Mexican border, local governments are using Department of Justice grants to purchase systems similar to those used by the U.S. military and CIA. Captain Federico Calderon of the Sheriff’s office of Webb County, which includes the large border city of Laredo, told NOTUS that the county purchased a “very restricted” version. Capt. Calderon said that Webb County is using this technology as a pilot program to scan for signals coming from the empty quarters of ranches where no one should be. Val Verde County did not respond to NOTUS’s questions. The potential for widespread abuse of this technology rivals that of cell-site simulators and data purchases. NOTUS reports “as people walk around with headphones, fitness wearables and other devices, emitting a cloud of radio frequency signals unique to them, their data can be linked to a car, even after they have ditched the car.” Local law enforcement officials want such technology to identify human traffickers and cartel smugglers. It is doubtful, however, that this technology will remain restricted to such narrow purposes. And as with purchased data and cellsite simulators, the introduction of this new militarized technology compromises the privacy of many more people – friends, family, and bystanders. “We are well beyond the idea that people have no privacy in public,” Jennifer Grannick of the American Civil Liberties Union told NOTUS. “Here, they’re installing this mass surveillance system.” With the spread of often violent political protests across the nation, a high level of terror alert from the FBI, and college campuses convulsed by tent cities, there will be no lack of reasons for law enforcement to add one more capability to what is evolving into a national surveillance state. It is reasonable to use technology to control the border. But it is up to Congress and the courts to keep a close eye on the widespread introduction of military wireless device detection systems to track Americans. The risks and benefits of reverse searches are revealed in the capital murder case of Aaron Rayshan Wells. Although a security camera recorded a number of armed men entering a home in Texas where a murder took place, the lower portions of the men’s faces were covered. Wells was identified in this murder investigation by a reverse search enabled by geofencing.
A lower court upheld the geofence in this case as sufficiently narrow. It was near the location of a homicide and was within a precise timeframe on the day of the crime, 2:45-3:10 a.m. But ACLU in a recent amicus brief identifies dangers with this reverse search, even within such strict limits. What are the principles at stake in this practice? Let’s start with the Fourth Amendment, which places hurdles government agents must clear before obtaining a warrant for a search – “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The founders’ tight language was formed by experience. In colonial times, the King’s agents could act on a suspicion of smuggling by ransacking the homes of all the shippers in Boston. Forcing the government to name a place, and a person or thing to be seized and searched, was the founders’ neat solution to outlawing such general warrants altogether. It was an ingenious system, and it worked well until Michael Dimino came along. In 1995, this inventor received a patent for using GPS to locate cellphones. Within a few years, geofencing technology could instantly locate all the people with cellphones within a designated boundary at a specified time. This was a jackpot for law enforcement. If a bank robber was believed to have blended into a crowd, detectives could geofence that area and collect the phone numbers of everyone in that vicinity. Make a request to a telecom service provider, run computer checks on criminals with priors, and voilà, you have your suspect. Thus the technology-enabled practice of conducting a “reverse search” kicked into high gear. Multiple technologies assist in geofenced investigations. One is a “tower dump,” giving law enforcement access to records of all the devices connected to a specified cell tower during a period of time. Wi-Fi is also useful for geofencing. When people connect their smartphones to Wi-Fi networks, they leave an exact log of their physical movements. Our Wi-Fi data also record our online searches, which can detail our health, mental health, and financial issues, as well intimate relationships, and political and religious activities and beliefs. A new avenue for geofencing was created on Monday by President Biden when he signed into a law a new measure that will give the government the ability to tap into data centers. The government can now enlist the secret cooperation of the provider of “any” service with access to communications equipment. This gives the FBI, U.S. intelligence agencies, and potentially local law enforcement a wide, new field with which to conduct reverse searches based on location data. In these ways, modern technology imparts an instant, all-around understanding of hundreds of people in a targeted area, at a level of intimacy that Colonel John André could not have imagined. The only mystery is why criminals persist in carrying their phones with them when they commit crimes. Google was law enforcement’s ultimate go-to in geofencing. Warrants from magistrates authorizing geofence searches allowed the police to obtain personal location data from Google about large numbers of mobile-device users in a given area. Without any further judicial oversight, the breadth of the original warrant was routinely expanded or narrowed in private negotiations between the police and Google. In 2023, Google ended its storage of data that made geofencing possible. Google did this by shifting the storage of location data from its servers to users’ phones. For good measure, Google encrypted this data. But many avenues remain for a reverse search. On one hand, it is amazing that technology can so rapidly identify suspects and potentially solve a crime. On the other, technology also enables dragnet searches that pull in scores of innocent people, and potentially makes their personal lives an open book to investigators. ACLU writes: “As a category, reverse searches are ripe for abuse both because our movements, curiosity, reading, and viewing are central to our autonomy and because the process through which these searches are generally done is flawed … Merely being proximate to criminal activity could make a person the target of a law enforcement investigation – including an intrusive search of their private data – and bring a police officer knocking on their door.” Virginia judge Mary Hannah Lauck in 2022 recognized this danger when she ruled that a geofence in Richmond violated the Fourth Amendment rights of hundreds of people in their apartments, in a senior center, people driving by, and in nearby stores and restaurants. Judge Lauck wrote “it is difficult to overstate the breadth of this warrant” and that an “innocent individual would seemingly have no realistic method to assert his or her privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a ‘right without a remedy.’” ACLU is correct that reverse searches are obvious violations of the plain meaning of the Fourth Amendment. If courts continue to uphold this practice, however, strict limits need to be placed on the kinds of information collected, especially from the many innocent bystanders routinely caught up in geofencing and reverse searches. And any change in the breadth of a warrant should be determined by a judge, not in a secret deal with a tech company. A recent House hearing on the protection of journalistic sources veered into startling territory.
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.” Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.” Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists. Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press. “Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.” Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion. “Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said. If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime? Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice. “I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose. “The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.” Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.” This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes. Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists’ sources against being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House last week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities. Like a gourmand gorging at a banquet table, the government’s growing appetite for expanding surveillance is beginning to get a little hard watch. Consider some recent developments.
First, the Senate is voting this week on a bill to reauthorize FISA Section 702 with an amendment that includes what Sen. Ron Wyden calls “one of the most dramatic and terrifying expansions of government surveillance authority in history.” This bill would compel millions of small businesses that merely have “access” to “communications equipment” (like Wi-Fi) to hand over customers’ messages to the government. Little wonder this has been branded the “Everyone’s a Spy” provision. Second, the House will also vote on the Fourth Amendment Is Not For Sale Act, which would curb the practice of the FBI and other federal agencies of purchasing Americans’ most sensitive digital information from data brokers. Third, a House Judiciary Committee investigation also recently found that the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) has been working with banks to conduct warrantless dragnets of large numbers of Americans’ confidential financial information, often using politically charged search terms. In all, 650 companies were connected to the FBI’s web port, covering two-thirds of U.S. GDP and 35 million people. See a pattern here? The government’s hunger to expand surveillance into every realm of American life cannot be filled. Many of these programs – like data purchases and FinCEN surveillance – are based on no law and fall under no Congressional or judicial oversight. Now, thanks to former Attorney General William Barr, we know that the Securities and Exchange Commission (SEC) is also getting in on the act. With no statutory approval, the SEC is taking it upon itself to start a huge database called the Consolidated Audit Trail that will allow 3,000 government employees to track, in real time, the identity of tens of millions of Americans who buy and sell stocks and other securities. “This invites abusive investigatory fishing expeditions, targeting of individuals, and intrusive data mining,” Barr writes in The Wall Street Journal. “Concentrating this sensitive data in a single repository guarantees it inevitably will be hacked, stolen, or misused by bad actors.” Barr mostly dwells on the inappropriateness of government surveillance of millions of people who’ve done nothing suspicious. He adds that “the whole point of the Fourth Amendment is to make the government less efficient by making it jump through hoops when it seeks to delve into private affairs. For an agency to argue that it should be able to avoid these hoops to make investigations easier is to assert that it should be exempt from the Fourth Amendment.” Well stated. This is the same William Barr, however, who also recently took the pages of National Review to persuade his fellow conservatives to support the House Intelligence Committee’s version of FISA reauthorization – which also authorizes many forms of dragnet surveillance. Perhaps it will soon dawn on the supporters of the status quo that the “whole point of the Fourth Amendment” should reach beyond stock trades to include “Everyone’s a Spy,” data purchases and all the other egregious privacy violations of our growing surveillance state. Is it fair to call one amendment to the Reforming Intelligence and Securing America Act (RISAA) the “Everyone’s a Spy” provision? This amendment to RISAA now before the Senate would compel a provider of any service, who has “access” to communications equipment, to quietly cooperate with the NSA in collecting messages.
Because the people who work at most ordinary businesses – from fitness centers to commercial office buildings – have no expertise in parsing data, they would likely just hand over all the messages of their customers to the NSA, including countless messages between Americans. Here’s how Sen. Ron Wyden characterized this measure on the Senate floor: “After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain, and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will and force them to become an agent for Big Brother. “For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night. “This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.” Sen. Wyden is not writing science-fiction. We’ve seen again and again when the FBI and other federal agencies can find a way to expand a loophole – as with backdoor searches of Section 702 data or the data broker loophole – they will do so. Five Maine lobstermen are suing Maine’s Department of Marine Resources after the agency issued regulations requiring electronic tracking of vessels fishing in federal waters. The plaintiffs allege such tracking violates privacy rights, due process, and equal protection under the Constitution. It’s a red-hot, lobster pot controversy with significant implications on the ever-evolving body of law surrounding geolocation tracking and surveillance.
Maine adopted the tracking regulation in December to comply with a requirement issued by the Atlantic States Marine Fisheries Commission, whose overarching policy objective here is to help protect the North Atlantic right whale. This is certainly a noble objective, but it brings with it troubling implications. Maine Department of Marine Resources Commissioner Patrick Keliher makes the argument that because lobstermen work in a “closely regulated industry,” they have “a greatly reduced expectation of privacy.” It’s a common refrain for those seeking to impose new surveillance measures. But as attorney John Vecchione of the New Civil Liberties Alliance once said, “the expansion of closely regulated-industry theory is a huge, huge danger to liberties for everybody.” Indeed, as society, the economy, and ensuing regulations grow, simply having to get a license could subject any business to warrantless inspections. Such an argument could be used to attach trackers to realtors as they move around from house to house, salespersons, contractors, or any other group of mobile professionals. The U.S. District Court for the District of Maine, where the case was filed, might take a page from the Fifth Circuit, which in 2023 struck down a U.S. Department of Commerce requirement that would have forced charter boat owners to install, at their own expense, a “vessel monitoring system” that would continuously transmit their boats’ location, regardless of whether it was being used for commercial or personal purposes. In that case, the court found that it “borders on incredible” that the government claimed it failed to notice personal privacy concerns in public comments to its rule. The court, further, found that discovery of prime fishing spots in the Gulf would constitute a hardship for many charter operators. Similarly, attorneys for the suing lobstermen argue that they “jealously guard the whereabouts and the techniques they use to place their traps. This is directly correlated to their ability to make a living.” It’s not just fishing locations that are at risk, however. The U.S. Supreme Court has repeatedly held that warrantless GPS tracking constitutes an unlawful search. Tracking someone’s movements, it needn’t be emphasized, can reveal quite a lot about their personal and private lives. As the Maine federal court considers these issues, we side unequivocally with the lobstermen. Simply put, there must be a way to balance the privacy interests of fishermen and the policy objective of protecting marine life. Top-down surveillance mandates seem a poor fit. Surveillance is key to fighting crime and catching criminals, but the same system that protects us also endangers the privacy and security of ordinary citizens. It would be naïve to imagine that mass and indiscriminate surveillance will only be used against the “bad guys” – or that we can even all agree on who the “bad guys” are over time.
Such concerns come to top of mind with stories, like that of California Gov. Gavin Newsom, who recently announced a plan to combat crime in Oakland by installing 480 high-tech cameras on the city’s busiest roads and freeways to catch criminals. As commendable as that sounds, we have to ask what else it will catch – and what will local and state law enforcement do with all that information? These cameras will capture the make and model of vehicles, as well as read license plates, alerting police if a suspect’s vehicle is spotted. Installed with support from four large corporations with a presence in the Bay Area, it’s a fair bet that these cameras are likely very popular with residents. Oakland has seen skyrocketing rates of crime, with car jackings, thefts, and armed robberies becoming commonplace. The city recently made national news when the iconic In-N-Out burger chain shuttered its first restaurant in Oakland out of concern for its employees. The planned installation of mass surveillance on Oakland’s streets is just the latest story in a national trend. The left-leaning Atlanta Community Press Collective reports that local law enforcement in Atlanta is promoting an electronic surveillance system of people who wear court-ordered electronic monitoring while on parole or awaiting trial. Talitrix, a surveillance company, “uses geofencing and proprietary algorithms to produce a ‘Talitrix score’ that agencies can use to determine whether someone’s behavior on pretrial release or probation should subject them to re-arrest and incarceration.” Talitrix proposes to integrate its technology with that of another surveillance firm, Fusus, which supports Atlanta’s expansive camera network. That network links public video feeds with those from stores, shopping malls, apartment buildings, and homes to combine public and private cameras to give the police constant citywide surveillance. The Atlanta Community Press Collective reports that integration “would combine GPS-enabled digital shackles featuring biometric monitoring capabilities with the growing canopy of Fusus-linked video cameras” across Atlanta. This system would put up to 900 people under constant video, audio, biometric, and GPS surveillance during their pre-trial release, placing them in what Cooper Quinton of the Electronic Frontier Foundation calls “an open-air prison.” Quinton added, “Even if you have not yet been convicted of a crime under this system, you and your family could be subject to constant, targeted video surveillance.” Video surveillance and automated license plate readers combine with local use of cell-site simulators (which follow a cellphone user’s location), facial recognition, aerial video surveillance, “predictive policing,” location tracking, and social media monitoring to create a system of continuous surveillance. Add AI into the mix, and you have all the elements to create a Chinese-style surveillance state. The expansion of surveillance is being done, as we have seen in Oakland, with the admirable intention of curbing runaway crime. Without proper safeguards and limits on how collected data can be used, however, the knitting together of all these data streams makes the potential for Orwellian surveillance all but certain. Our choices come down to tradeoffs between security and freedom. We can limit access to surveillance without a warrant and apply limits on data collection. Otherwise, China shows us the consequences of a complete sacrifice of liberty for security – you get neither as the government becomes the greatest threat to both. To learn what your local government can do with technology check out the Electronic Frontier Foundation’s updated Street Level Surveillance hub. In the meanwhile, we all need to understand that there are tradeoffs between increased safety and reduced privacy. There is a tipping point, which we are approaching, in which the networks that protect us can become the new threat. Forbes reports that federal authorities were granted a court order to require Google to hand over the names, addresses, phone numbers, and user activities of internet surfers who were among the more than 30,000 viewers of a post. The government also obtained access to the IP addresses of people who weren’t logged onto the targeted account but did view its video.
The post in question is suspected of being used to promote the sale of bitcoin for cash, which would be a violation of money-laundering rules. The government likely had good reason to investigate that post. But did it have to track everyone who came into contact with it? This is a prime example of the government’s street-sweeper shotgun approach to surveillance. We saw this when law enforcement in Virginia tracked the location histories of everyone in the vicinity of a robbery. A state judge later found that search meant that everyone in the area, from restaurant patrons to residents of a retirement home, had “effectively been tailed.” We saw the government shotgun approach when the FBI secured the records of everyone in the Washington, D.C., area who used their debit or credit cards to make Bank of America ATM withdrawals between Jan. 5 and Jan. 7, 2021. We also saw it when the FBI, searching for possible foreign influence in a congressional campaign, used FISA Section 702 data – meant to surveil foreign threats on foreign soil – to pull the data of 19,000 political donors. Surfing the web is not inherently suspicious. What we watch online is highly personal, potentially revealing all manner of social, romantic, political, and religious beliefs and activities. The Founders had such dragnet-style searches precisely in mind when they crafted the Fourth Amendment. Simply watching a publicly posted video is not by itself probable cause for search. It should not compromise one’s Fourth Amendment rights. Byron Tau – journalist and author of Means of Control, How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State – discusses the details of his investigative reporting with Liza Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program, and Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability.
Byron explains what he has learned about the shadowy world of government surveillance, including how federal agencies purchase Americans’ most personal and sensitive information from shadowy data brokers. He then asks Liza and Gene about reform proposals now before Congress in the FISA Section 702 debate, and how they would rein in these practices. A federal court has given the go-ahead for a lawsuit filed by Just Futures Law and Edelson PC against Western Union for its involvement in a dragnet surveillance program called the Transaction Record Analysis Center (TRAC).
Since 2022, PPSA has followed revelations on a unit of the Department of Homeland Security that accesses bulk data on Americans’ money wire transfers above $500. TRAC is the central clearinghouse for this warrantless information, recording wire transfers sent or received in Arizona, California, New Mexico, Texas, and Mexico. These personal, financial transactions are then made available to more than 600 law enforcement agencies – almost 150 million records – all without a warrant. Much of what we know about TRAC was unearthed by a joint investigation between ACLU and Sen. Ron Wyden (D-OR). In 2023, Gene Schaerr, PPSA general counsel, said: “This purely illegal program treats the Fourth Amendment as a dish rag.” Now a federal judge in Northern California determined that the plaintiffs in Just Future’s case allege plausible violations of California laws protecting the privacy of sensitive financial records. This is the first time a court has weighed in on the lawfulness of the TRAC program. We eagerly await revelations and a spirited challenge to this secretive program. The TRAC intrusion into Americans’ personal finances is by no means the only way the government spies on the financial activities of millions of innocent Americans. In February, a House investigation revealed that the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) has worked with some of the largest banks and private financial institutions to spy on citizens’ personal transactions. Law enforcement and private financial institutions shared customers’ confidential information through a web portal that connects the federal government to 650 companies that comprise two-thirds of the U.S. domestic product and 35 million employees. TRAC is justified by being ostensibly about the border and the activities of cartels, but it sweeps in the transactions of millions of Americans sending payments from one U.S. state to another. FinCEN set out to track the financial activities of political extremists, but it pulls in the personal information of millions of Americans who have done nothing remotely suspicious. Groups on the left tend to be more concerned about TRAC and groups on the right, led by House Judiciary Chairman Jim Jordan, are concerned about the mass extraction of personal bank account information. The great thing about civil liberties groups today is their ability to look beyond ideological silos and work together as a coalition to protect the rights of all. For that reason, PPSA looks forward to reporting and blasting out what is revealed about TRAC in this case in open court. Any revelations from this case should sink in across both sides of the aisle in Congress, informing the debate over America’s growing surveillance state. The reform coalition on Capitol Hill remains determined to add strong amendments to Section 702 of the Foreign Intelligence Surveillance Act (FISA). But will they get the chance before an April 19th deadline for FISA Section 702’s reauthorization?
There are several possible scenarios as this deadline closes. One of them might be a vote on the newly introduced “Reforming Intelligence and Securing America” (RISA) Act. This bill is a good-faith effort to represent the narrow band of changes that the pro-reform House Judiciary Committee and the status quo-minded House Permanent Select Committee on Intelligence could agree upon. But is it enough? RISA is deeply lacking because it leaves out two key reforms.
The bill does include a role for amici curiae, specialists in civil liberties who would act as advisors to the secret FISA court. RISA, however, would limit the issues these advisors could address, well short of the intent of the Senate when it voted 77-19 in 2020 to approve the robust amici provisions of the Lee-Leahy amendment. For all these reasons, reformers should see RISA as a floor, not as a ceiling, as the Section 702 showdown approaches. The best solution to the current impasse is to stop denying Members of Congress the opportunity for a straight up-or-down vote on reform amendments. Our general counsel, Gene Schaerr, explains in the Washington Examiner how the Biden administration's recent executive order to protect personal data from government abuse falls short. Hint: It excludes our very own government's abuse of our personal data.
Ken Blackwell, former ambassador and mayor of Cincinnati, has a conservative resume second to none. He is now a senior fellow of the Family Research Council and chairman of the Conservative Action Project, which organizes elected conservative leaders to act in unison on common goals. So when Blackwell writes an open letter in Breitbart to Speaker Mike Johnson warning him not to try to reauthorize FISA Section 702 in a spending bill – which would terminate all debate about reforms to this surveillance authority – you can be sure that Blackwell was heard.
“The number of FISA searches has skyrocketed with literally hundreds of thousands of warrantless searches per year – many of which involve Americans,” Blackwell wrote. “Even one abuse of a citizen’s constitutional rights must not be tolerated. When that number climbs into the thousands, Congress must step in.” What makes Blackwell’s appeal to Speaker Johnson unique is he went beyond including the reform efforts from conservative stalwarts such as House Judiciary Committee Chairman Jim Jordan and Rep. Andy Biggs of the Freedom Caucus. Blackwell also cited the support from the committee’s Ranking Member, Rep. Jerry Nadler, and Rep. Pramila Jayapal, who heads the House Progressive Caucus. Blackwell wrote: “Liberal groups like the ACLU support reforming FISA, joining forces with conservatives civil rights groups. This reflects a consensus almost unseen on so many other important issues of our day. Speaker Johnson needs to take note of that as he faces pressure from some in the intelligence community and their overseers in Congress, who are calling for reauthorizing this controversial law without major reforms and putting that reauthorization in one of the spending bills that will work its way through Congress this month.” That is sound advice for all Congressional leaders on Section 702, whichever side of the aisle they are on. In December, members of this left-right coalition joined together to pass reform measures out of the House Judiciary Committee by an overwhelming margin of 35 to 2. This reform coalition is wide-ranging, its commitment is deep, and it is not going to allow a legislative maneuver to deny Members their right to a debate. U.S. Treasury and FBI Targeted Americans for Political BeliefsThe House Judiciary Committee and its Select Subcommittee on the Weaponization of the Federal Government issued a report on Wednesday revealing secretive efforts between federal agencies and U.S. private financial institutions that “show a pattern of financial surveillance aimed at millions of Americans who hold conservative viewpoints or simply express their Second Amendment rights.”
At the heart of this conspiracy is the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) and the FBI, which oversaw secret investigations with the help of the largest U.S. banks and financial institutions. They did not lack for resources. Law enforcement and private financial institutions shared customers’ confidential information through a web portal that connects the federal government to 650 companies that comprise two-thirds of the U.S. domestic product and 35 million employees. This dragnet investigation grew out of the aftermath of the Jan. 6 riot in the U.S. Capitol, but it quickly widened to target the financial transactions of anyone suspiciously MAGA or conservative. Last year we reported on how the Bank of America volunteered the personal information of any customer who used an ATM card in the Washington, D.C., area around the time of the riot. In this newly revealed effort, the FBI asked financial services companies to sweep their database to look for digital transactions with keywords like “MAGA” and “Trump.” FinCEN also advised companies how to use Merchant Category Codes (MCC) to search through transactions to detect potential “extremists.” Keywords attached to suspicious transactions included recreational stores Cabela’s, Bass Pro Shop, and Dick’s Sporting Goods. The committee observed: “Americans doing nothing other than shopping or exercising their Second Amendment rights were being tracked by financial institutions and federal law enforcement.” FinCEN also targeted conservative organizations like the Alliance Defending Freedom or the Eagle Forum for being demonized by a left-leaning organization, the Institute for Strategic Dialogue in London, as “hate groups.” The committee report added: “FinCEN’s incursion into the crowdfunding space represents a trend in the wrong direction and a threat to American civil liberties.” One doesn’t have to condone the breaching of the Capitol and attacks on Capitol police to see the threat of a dragnet approach that lacked even a nod to the concept of individualized probable cause. What was done by the federal government to millions of ordinary American conservatives could also be done to millions of liberals for using terms like “racial justice” in the aftermath of the riots that occurred after the murder of George Floyd. These dragnets are general warrants, exactly the kind of sweeping, indiscriminate violations of privacy that prompted this nation’s founders to enact the Fourth Amendment. If government agencies cannot satisfy the low hurdle of probable cause in an application for a warrant, they are apt to be making things up or employing scare tactics. If left uncorrected, financial dragnets like these will support a default rule in which every citizen is automatically a suspect, especially if the government doesn’t like your politics. The growth of the surveillance state in Washington, D.C., is coinciding with a renewed determination by federal agencies to expose journalists’ notes and sources. Recent events show how our Fourth Amendment right against unreasonable searches and seizures and our First Amendment right of a free press are inextricable and mutually reinforcing – that if you degrade one of these rights, you threaten both of them.
In May, the FBI raided the home of journalist Tim Burke, seizing his computer, hard drives, and cellphone, after he reported on embarrassing outtakes of a Fox News interview. It turns out these outtakes had already been posted online. Warrants were obtained, but on what credible allegation of probable cause? Or consider CBS News senior correspondent Catherine Herridge who was laid off, then days later ordered by a federal judge to reveal the identity of a confidential source she used for a series of 2017 stories published while she worked at Fox News. Shortly afterwards, Herridge was held in contempt for refusing to divulge that source. This raises the question that when CBS had earlier terminated Herridge and seized her files, would network executives have been willing to put their freedom on the line as Herridge has done? In response to public outcry, CBS relented and handed Herridge’s notes back to her. But local journalists cannot count on generating the national attention and sympathy that a celebrity journalist can. Now add to this vulnerability the reality that every American who is online – whether a national correspondent or a college student – has his or her sensitive and personal information sold to more than a dozen federal agencies by data brokers, a $250 billion industry that markets our data in the shadows. The sellers of our privacy compile nearly limitless data dossiers that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” Data brokers have established a sophisticated system to aggregate data from nearly every platform and device that records personal information to develop detailed profiles on individuals. To fill in the blanks, they also sweep up information from public records. So if you have a smartphone, apps, or search online, your life is already an open book to the government. In this way, state and federal intelligence and law enforcement agencies can use the data broker loophole to obtain information about Americans that they would otherwise need a warrant, court order, or subpoena to obtain. Now imagine what might happen as these two trends converge – a government hungry to expose journalists’ sources, but one that also has access to a journalist’s location history, as well as everyone they have called, texted, and emailed. It is hardly paranoid, then, to worry that when a prosecutor tries to compel a journalist to give up a source through legal means, purchased data may have already given the government a road map on what to seek. The combined threat to privacy from pervasive surveillance and prosecutors seeking journalists’ notes is serious and growing. This is why PPSA supports legislation to protect journalistic privacy and close the data broker loophole. The Protect Reporters from Exploitive State Spying, or PRESS Act, would grant a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such “shield laws” have been put into place in 49 states. The PRESS Act, which passed the House in January with unanimous, bipartisan support, would bring the federal government in line with the states. Likewise, the Fourth Amendment Is Not For Sale Act would close the data broker loophole and require the government to obtain a warrant before it can seize our personal information, as required by the Fourth Amendment of the U.S. Constitution. The House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee with strong bipartisan support in July. The Judiciary Committee also reported out a strong data broker loophole closure as part of the Protect Liberty Act in December. Now, it’s up to Congress to include these protection and reform measures in the reauthorization of Section 702. PPSA urges lawmakers to pass measures to protect privacy and a free press. They will rise or fall together. In the last century, the surveillance state was held back by the fact that there could never be enough people to watch everybody. Whether Orwell’s fictional telescreens or the East German Stasi’s apparatus of civilian informants, there could simply never be enough watchers to follow every dissident, while having even more people to put all the watcher’s information together (although the Stasi’s elaborate filing system came as close as humanly possible to omniscience).
Now, of course, AI can do the donkey work. It can decide when a face, or a voice, a word, or a movement, is significant and flag it for a human intelligence officer. AI can weave data from a thousand sources – cell-site simulators, drones, CCTV, purchased digital data, and more – and thereby transform data into information, and information into actionable intelligence. The human and institutional groundwork is already in place to feed AI with intelligence from local, national, and global sources in more than 80 “fusion centers” around the country. These are sites where the National Counterterrorism Center coordinate intelligence from the 17 federal intelligence agencies with local and state law enforcement. FBI, NSA, and Department of Homeland Security intelligence networks get mixed in with intelligence from the locals. If you’ve ever reported something suspicious to the “if you see something, say something” ads, a fusion center is where your report goes. With terrorists and foreign threats ever present, it makes sense to share intelligence between agencies, both national and local. But absent clear laws and constitutional limits, we are also building the basics of a full-fledged surveillance state. With no warrant requirements currently in place for federal agencies to inspect Americans’ purchased digital data, there is nothing to stop the fusion of global, national, and local intelligence from a thousand sources into one ever-watchful eye. Step by step, day by day, new technologies, commercial entities and government agencies add new sources and capabilities to this ever-present surveillance. The latest thread in this weave comes from Axon, the maker of Tasers and body cameras for police. Axon has just acquired Fusus, which grants access to the camera networks of shopping centers, hospitals, residential communities, houses of worship, schools, and urban environments for more than 250 police “real-time crime centers.” Weave that data with fusion centers, and voilà, you are living in a Panopticon – a realm where you are always seen and always heard. To make surveillance even more thorough, Axon’s body cameras are being sold to healthcare and retail facilities to be worn by employees. Be nice to your nurse. Such daily progress in the surveillance state provides all the more reason for the U.S. House in its debate over the reauthorization of FISA Section 702 to include a warrant requirement before the government can freely swim in this ocean of data – our personal information – without restraint. Just in time for the Section 702 debate, Emile Ayoub and Elizabeth Goitein of the Brennan Center for Justice have written a concise and easy to understand primer on what the data broker loophole is about, why it is so important, and what Congress can do about it.
These authors note that in this age of “surveillance capitalism” – with a $250 billion market for commercial online data – brokers are compiling “exhaustive dossiers” that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” This happens because data brokers “pay app developers to install code that siphons users’ data, including location information. They use cookies or other web trackers to capture online activity. They scrape from information public-facing sites, including social media platforms, often in violation of those platforms’ terms of service. They also collect information from public records and purchase data from a wide range of companies that collect and maintain personal information, including app developers, internet service providers, car manufacturers, advertisers, utility companies, supermarkets, and other data brokers.” Armed with all this information, data brokers can easily “reidentify” individuals from supposedly “anonymized” data. This information is then sold to the FBI, IRS, the Drug Enforcement Administration, the Department of Defense, the Department of Homeland Security, and state and local law enforcement. Ayoub and Goitein examine how government lawyers employ legal sophistry to evade a U.S. Supreme Court ruling against the collection of location data, as well as the plain meaning of the U.S. Constitution, to access Americans’ most personal and sensitive information without a warrant. They describe the merits of the Fourth Amendment Is Not For Sale Act, and how it would shut down “illegitimately obtained information” from companies that scrape photos and data from social media platforms. The latter point is most important. Reformers in the House are working hard to amend FISA Section 702 with provisions from the Fourth Amendment Is Not For Sale Act, to require the government to obtain warrants before inspecting our commercially acquired data. While the push is on to require warrants for Americans’ data picked up along with international surveillance, the job will be decidedly incomplete if the government can get around the warrant requirement by simply buying our data. Ayoub and Goitein conclude that Congress must “prohibit government agencies from sidestepping the Fourth Amendment.” Read this paper and go here to call your House Member and let them know that you demand warrants before the government can access our sensitive, personal information. The word from Capitol Hill is that Speaker Mike Johnson is scheduling a likely House vote on the reauthorization of FISA’s Section 702 this week. We are told that proponents and opponents of surveillance reform will each have an opportunity to vote on amendments to this statute.
It is hard to overstate how important this upcoming vote is for our privacy and the protection of a free society under the law. The outcome may embed warrant requirements in this authority, or it may greatly expand the surveillance powers of the government over the American people. Section 702 enables the U.S. intelligence community to continue to keep a watchful eye on spies, terrorists, and other foreign threats to the American homeland. Every reasonable person wants that, which is why Congress enacted this authority to allow the government to surveil foreign threats in foreign lands. Section 702 authority was never intended to become what it has become: a way to conduct massive domestic surveillance of the American people. Government agencies – with the FBI in the lead – have used this powerful, invasive authority to exploit a backdoor search loophole for millions of warrantless searches of Americans’ data in recent years. In 2021, the secret Foreign Intelligence Surveillance Court revealed that such backdoor searches are used by the FBI to pursue purely domestic crimes. Since then, declassified court opinions and compliance reports reveal that the FBI used Section 702 to examine the data of a House Member, a U.S. Senator, a state judge, journalists, political commentators, 19,000 donors to a political campaign, and to conduct baseless searches of protesters on both the left and the right. NSA agents have used it to investigate prospective and possible romantic partners on dating apps. Any reauthorization of Section 702 must include warrants – with reasonable exceptions for emergency circumstances – before the data of Americans collected under Section 702 or any other search can be queried, as required by the U.S. Constitution. This warrant requirement must include the searching of commercially acquired information, as well as data from Americans’ communications incidentally caught up in the global communications net of Section 702. The FBI, IRS, Department of Homeland Security, the Pentagon, and other agencies routinely buy Americans’ most personal, sensitive information, scraped from our apps and sold to the government by data brokers. This practice is not authorized by any statute, or subject to any judicial review. Including a warrant requirement for commercially acquired information as well as Section 702 data is critical, otherwise the closing of the backdoor search loophole will merely be replaced by the data broker loophole. If the House declines to impose warrants for domestic surveillance, expect many politically targeted groups to have their privacy and constitutional rights compromised. We cannot miss the best chance we’ll have in a generation to protect the Constitution and what remains of Americans’ privacy. Copy and paste the message below and click here to find your U.S. Representative and deliver it: “Please stand up for my privacy and the Fourth Amendment to the U.S. Constitution: Vote to reform FISA’s Section 702 with warrant requirements, both for Section 702 data and for our sensitive, personal information sold to government agencies by data brokers.” We recently celebrated the decision by Amazon to require police to present a warrant before going through the “Request for Assistance” tool to seek video footage from the neighborhood networks of Ring cameras owners. We touted this is as a significant victory for privacy.
And it is – it effectively neutralized more than 2,300 agreements Amazon had with local police and fire departments to help them obtain private security footage – but it wasn’t quite as big a deal as we first thought. Thanks to reporting from Baylee Bates of KCEN News in Temple, Texas, Amazon’s change is prompting a big yawn from police. Why? A spokeswoman for the Temple Police Department told Bates that officers had found greater success in requests for video footage by making door-to-door contacts. “We have found throughout the years of gathering the security footage that going to residents, business owners, that face-to-face interaction with people has been way more successful for us,” said Megan Price of the Temple PD. A spokesman for the Bell County Sheriff’s Department told Bates that Amazon’s policy change “doesn’t stop us from going individual-to-individual and talking, the way we prefer to do it anyway.” Since the introduction of Ring, customers have for the most part complied with police requests for videos. If someone set fire to a car in our neighborhood, or burgled a house across the street, we would do the same. But the eagerness of most people to grant police access to surveillance video is concerning, as more neighborhoods become “ringed” with surveillance. Three years ago, a Washington Post story quoted a mother in California telling her seven-year-old son, “Every time you ride your bike down this block, there are probably 50 cameras that watch you going past. If you make a bad choice, those cameras will catch you.” We wrote at the time that George Orwell never imagined millions of Ring cameras – and millions of users willing to hand over video when asked. The threat to privacy from neighborhood surveillance is as much about audio recordings as it is video. Sen. Edward Markey (D-MA) assessed the risk of a surveillance network in every neighborhood in a letter to Amazon in 2022: “This surveillance system threatens the public in ways that go far beyond abstract privacy invasion: individuals may use Ring devices’ audio recordings to facilitate blackmail, stalking, and other damaging practices. As Ring products capture significant amounts of audio on private and public property adjacent to dwellings with Ring doorbells – including recordings of conversations that people reasonably expect to be private – the public’s right to assemble, move, and converse without being tracked is at risk.” At least you can always step inside, away from the microphones and the cameras, settle into your chair, and let Alexa take over your surveillance. Cato Institute Senior Fellow Patrick Eddington filed a Freedom of Information Act request against the Department of Defense this week asking two questions.
First, what was the scope and duration of Pentagon aerial surveillance deployed over domestic protesters in the last year of the Trump Administration? Second, why is the Biden Administration shielding those records from the public? In the world of civil liberties critics of the American surveillance state, Patrick Eddington has the pedigree of highly credentialed practitioner. From 1988 to 1996, Eddington was a military imagery analyst at the CIA’s National Photographic Interpretation Center, where he was officially recognized many times for his work. He’s the real deal. So is former Rep. Adam Kinzinger (R-IL), who knows what he’s talking about when it comes to surveillance aircraft. Kinzinger flew the RC-26 surveillance aircraft in Iraq, which had a complement of sensors that records people and objects with video, in both visible and infrared frequencies. Eddington reports that from 2020 to 2021, the Pentagon used RC-26B turboprop planes to surveil American protesters. Many of these aircraft have been deployed widely across the country, from Alabama to Washington State. Kinzinger has written that the RC-26 “could fly fast and low, capturing the signals from thousands of cellphones … With the right coordination, the target could be reached in minutes, not hours.” The Air Force Inspector General reports that the digital data packages Kinzinger referred to were removed for the RC-26s deployed for domestic use. Even so, the sensor package of this fleet still represents an astonishing surveillance capability of Americans on the ground. Writing in The Orange County Register, Eddington asks if the Biden Administration’s stonewalling means it reserves the right to use the fleet against pro-Trump protesters? Or for a new Trump Administration in tracking anti-Trump protesters? Or for some future president against any political enemy? Behind the intense rancor in American partisan politics, at least one aspiration unites administrations of both parties – an intent to surveil. PPSA will report on further developments. Wired reports that police in northern California asked Parabon NanoLabs to run a DNA sample from a cold case murder scene to identify the culprit. Police have often run DNA against the vast database of genealogical tests, cracking cold cases like the Golden State Killer, who murdered at least 13 people.
But what Parabon NanoLabs did for the police in this case was something entirely different. The company produced a 3D rendering of a “predicted face” based on the genetic instructions encoded in the sample’s DNA. The police then ran it against facial recognition software to look for a match. Scientists are skeptical that this is an effective tool given that Parabon’s methods have not been peer-reviewed. Even the company’s director of bioinformatics, Ellen Greytak, told Wired that such face predictions are closer in accuracy to a witness description rather than the exact replica of a face. With the DNA being merely suggestive – Greytak jokes that “my phenotyping can tell you if your suspect has blue eyes, but my genealogist can tell you the guy’s address” – the potential for false positives is enormous. Police multiply that risk when they run a predicted face through the vast database of facial recognition technology (FRT) algorithms, technology that itself is far from perfect. Despite cautionary language from technology producers and instructions from police departments, many detectives persist in mistakenly believing that FRT returns matches. Instead, it produces possible candidate matches arranged in the order of a “similarity score.” FRT is also better with some types of faces than others. It is up to 100 times more likely to misidentify Asian and Black people than white men. The American Civil Liberties Union, in a thorough 35-page comment to the federal government on FRT, biometric technologies, and predictive algorithms, noted that defects in FRT are likely to multiply when police take a low-quality image and try to brighten it, or reduce pixelation, or otherwise enhance the image. We can only imagine the Frankenstein effect of mating a predicted face with FRT. As PPSA previously reported, rights are violated when police take a facial match not as a clue, but as evidence. This is what happened when Porcha Woodruff, a 32-year-old Black woman and nursing student in Detroit, was arrested on her doorstep while her children cried. Eight months pregnant, she was told by police that she had committed recent carjackings and robberies – even though the woman committing the crimes in the images was not visibly pregnant. Woodruff went into contractions while still in jail. In another case, local police executed a warrant by arresting a Georgia man at his home for a crime committed in Louisiana, even though the arrestee had never set foot in Louisiana. The only explanation for such arrests is sheer laziness, stupidity, or both on the part of the police. As ACLU documents, facial recognition forms warn detectives that a match “should only be considered an investigative lead. Further investigation is needed to confirm a match through other investigative corroborated information and/or evidence. INVESTIGATIVE LEAD, NOT PROBABLE CAUSE TO MAKE AN ARREST.” In the arrests made in Detroit and Georgia, police had not performed any of the rudimentary investigative steps that would have immediately revealed that the person they were investigating was innocent. Carjacking and violent robberies are not typically undertaken by women on the verge of giving birth. The potential for replicating error in the courtroom would be multiplied by showing a predicted face to an eyewitness. If a witness is shown a predicted face, that could easily influence the witness’s memory when presented with a line-up. We understand that an investigation might benefit from knowing that DNA reveals that a perp has blue eyes, allowing investigators to rule out all brown- and green-eyed suspects. But a predicted face should not be enough to search through a database of innocent people. In fact, any searches of facial recognition databases should require a warrant. As technology continues to push the boundaries, states need to develop clear procedural guidelines and warrant requirements that protect constituents’ constitutional rights. Late last year, Sen. Ron Wyden (D-OR) put a hold on the appointment of Lt. Gen. Timothy Haugh to replace outgoing National Security Agency director Gen. Paul Nakasone. Late Thursday, Sen. Wyden’s pressure campaign yielded a stark result – a frank admission from Gen. Nakasone that, as long suspected, the NSA purchases Americans’ sensitive, personal online activities from commercial data brokers.
The NSA admitted it buys netflow data, which records connections between computers and servers. Even without the revelation of messages’ contents, such tracking can be extremely personal. A Stanford University study of telephone metadata showed that a person’s calls and texts can reveal connections to sensitive life issues, from Alcoholics Anonymous to abortion clinics, gun stores, mental and health issues including sexually transmitted disease clinics, and connections to faith organizations. Gen. Nakasone’s letter to Sen. Wyden states that NSA works to minimize the collection of such information. He writes that NSA does not buy location information from phones inside the United States, or purchase the voluminous information collected by our increasingly data-hungry automobiles. It would be a mistake, however, to interpret NSA’s internal restrictions too broadly. While NSA is generally the source for signals intelligence for the other agencies, the FBI, IRS, and the Department of Homeland Security are known to make their own data purchases. In 2020, PPSA reported on the Pentagon purchasing data from Muslim dating and prayer apps. In 2021, Sen. Wyden revealed that the Defense Intelligence Agency was purchasing Americans’ location data from our smartphones without a warrant. How much data, and what kinds of data, are purchased by the FBI is not clear. Sen. Wyden did succeed in a hearing last March in prompting FBI Director Christopher Wray to admit that the FBI had, in some period in the recent past, purchased location data from Americans’ smartphones without a warrant. Despite a U.S. Supreme Court opinion, Carpenter (2018), which held that the U.S. Constitution requires a warrant for the government to compel telecom companies to turn over Americans’ location data, federal agencies maintain that the Carpenter standard does not curb their ability to purchase commercially available digital information. In a press statement, Sen. Wyden hammers home the point that a recent Federal Trade Commission order bans X-Mode Social, a data broker, and its successor company, from selling Americans’ location data to government contractors. Another data broker, InMarket Media, must notify customers before it can sell their precise location data to the government. We now have to ask: was Wednesday’s revelation that the Biden Administration is drafting rules to prevent the sale of Americans’ data to hostile foreign governments an attempt by the administration to partly get ahead of a breaking story? For Americans concerned about privacy, the stakes are high. “Geolocation data can reveal not just where a person lives and whom they spend time with but also, for example, which medical treatments they seek and where they worship,” FTC Chair Lina Khan said in a statement. “The FTC’s action against X-Mode makes clear that businesses do not have free license to market and sell Americans’ sensitive location data. By securing a first-ever ban on the use and sale of sensitive location data, the FTC is continuing its critical work to protect Americans from intrusive data brokers and unchecked corporate surveillance.” As Sen. Wyden’s persistent digging reveals more details about government data purchases, Members of Congress are finding all the more reason to pass the Protect Liberty Act, which enforces the Constitution’s Fourth Amendment warrant requirement when the government inspects Americans’ purchased data. This should also put Members of the Senate and House Intelligence Committees on the spot. They should explain to their colleagues and constituents why they’ve done nothing about government purchases of Americans’ data – and why their bills include exactly nothing to protect Americans’ privacy under the Fourth Amendment. More to come … No sooner did the Protect Liberty and End Warrantless Surveillance Act pass the House Judiciary Committee with overwhelming bipartisan support than the intelligence community began to circulate what Winston Churchill in 1906 politely called “terminological inexactitudes.”
The Protect Liberty Act is a balanced bill that respects the needs of national security while adding a warrant requirement whenever a federal agency inspects the data or communications of an American, as required by the Fourth Amendment. This did not stop defenders of the intelligence community from claiming late last year that Section 702 reforms would harm the ability of the U.S. government to fight fentanyl. This is remarkable, given that the government hasn’t cited a single instance in which warrantless searches of Americans’ communications proved useful in combating the fentanyl trade. Nothing in the bill would stop surveillance of factories in China or cartels in Mexico. If an American does become a suspect in this trafficking, the government can and should seek a probable cause warrant, as is routinely done in domestic law enforcement cases. No sooner did we bat that one away than we heard about fresh terminological inexactitudes. Here are two of the latest bits of disinformation being circulated on Capitol Hill about the Protect Liberty Act. Intelligence Community Myth: Members of Congress are being told that under the Protect Liberty Act, the FBI would be forced to seek warrants from district court judges, who might or might not have security clearances, in order to perform U.S. person queries. Fact: The Protect Liberty Act allows the FBI to conduct U.S. person queries if it has either a warrant from a regular federal court or a probable cause order from the FISA Court, where judges have high-level security clearances. The FBI will determine which type of court order is appropriate in each case. Intelligence Community Myth: Members are being told that under the Protect Liberty Act, terrorists can insulate themselves from surveillance by including a U.S. person in a conversation or email thread. Fact: Under the Protect Liberty Act, the FBI can collect any and all communications of a foreign target, including their communications with U.S. persons. Nothing in the bill prevents an FBI agent from reviewing U.S. person information the agent encounters in the course of reviewing the foreign target’s communications. In other words, if an FBI agent is reading a foreign target’s emails and comes across an email to or from a U.S. person, the FBI agent does not need a warrant to read that email. The bill’s warrant requirement applies in one circumstance only: when an FBI agent runs a query designed to retrieve a U.S. person’s communications or other Fourth Amendment-protected information. That is as it should be under the U.S. Constitution. As we face the renewed debate over Section 702 – which must be reauthorized in the next few months – expect the parade of untruths to continue. As they do, PPSA will be here to call them out. CVS, Kroger, and Rite Aid Hand Over Americans’ Prescriptions Records to Police Upon Request1/17/2024
Three of the largest pharmaceutical chains – CVS Health, Kroger, and Rite Aid – routinely hand over the prescription and medical records of Americans to police and government agencies upon request, no warrant required.
“Americans' prescription records are among the most private information the government can obtain about a person,” Sen. Ron Wyden (D-OR), and Reps. Pramila Jayapal (D-WA) and Sara Jacobs (D-CA) wrote in a letter to HHS Secretary Xavier Becerra revealing the results of a congressional investigation into this practice. “They can reveal extremely personal and sensitive details about a person’s life, including prescriptions for birth control, depression or anxiety medications, or other private medical conditions.” The Washington Post reports that because the chains often share records across all locations, a pharmacy in one state can access a person’s medical history from states with more restrictive laws. Five pharmacies – Amazon, Cigna, Optum Rx, Walmart, and Walgreens Boots Alliance – require demands for pharmacy records by law enforcement to be reviewed by legal professionals. One of them, Amazon, informs consumers of the request unless hit with a gag order. All the major pharmacies will release customer records, however, if they are merely given a subpoena issued by a government agency rather than a warrant issued by a judge. This could be changed by corporate policy. Sen. Wyden and Reps. Jayapal and Jacobs urge pharmacies to insist on a warrant rather than comply with a request or a subpoena. Most Americans are familiar with the strict privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) from filling out forms in the doctor’s office. Most will surely be surprised how HIPAA, as strict as it is for physicians and hospitals, is wide open for warrantless inspection by the government. This privacy vulnerability is just one more example of the generous access government agencies have to almost all of our information. Intelligence and law enforcement agencies can know just about everything about us through purchases of our most sensitive and personal information reaped by our apps and sold to the government by data brokers. As privacy champions in Congress press HHS to revise its HIPAA regulations to protect Americans’ medical data from warrantless inspection, Congress should also close all the loopholes by passing the Protect Liberty and End Warrantless Surveillance Act. A letter of protest sent by the lawyers of Rabbi Levi Illulian in August alleged that city officials of Beverly Hills, California, had investigated their client’s home for hosting religious gatherings for his family, neighbors, and friends. Worse, the city used increasingly invasive means, including surveilling people visiting the rabbi’s home, and flying a surveillance drone over his property.
A “notice of violation” from the city specifically threatened Illulian with civil and criminal proceedings for “religious activity” at his home. The notice further prohibited all religious activity at Illulian’s home with non-residents. With support from First Liberty Institute, the rabbi’s lawyers sent another letter detailing an egregious use of city resources to launch a “full-scale investigation against Rabbi Illulian” in which “city personnel engaged in multiple stakeouts of the home over many hours, effectively maintaining a governmental presence outside Rabbi Illulian’s home.” The rabbi’s Orthodox Jewish friends and family who visited his home had also received parking citations. The rabbi began to receive visits from the police for noise disturbances, such as on Halloween when other houses on the street were sources of noise as well. Police even threatened to charge Rabbi Illulian with a misdemeanor, confiscate his music equipment, and cite a visiting musician for violating the city’s noise ordinance, despite the obvious double-standard. First Liberty was active in publicizing the city’s actions. In the face of bad publicity about this aggressive enforcement, the city withdrew its violation notice late last year. That the city of Beverly Hills would blatantly monitor and harass a household over Shabbat prayers and religious holidays, particularly at a time of rising antisemitism, is made all the worse by sophisticated forms of surveillance aimed at the free exercise of religion. So city officials managed to abuse the Fourth Amendment to impinge on the First Amendment. This case is reminiscent of the surveillance of a church, Calvary Chapel San Jose, by Santa Clara, California, county officials, over its Covid-19 policies. Is there something about religious observances that attracts the ire of some local officials? Whatever their reasons, this story is the latest example of the need for local officials who are better acquainted with the Constitution. |
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