Despite the Constitution’s Fourth Amendment, which prohibits warrantless government searches, U.S. agencies are proving to be ever more intrusive in their routine surveillance of Americans’ speech and activities.
Often working in collaboration with private companies and banks, agencies like the FBI have been misusing laws against foreign terrorism to vacuum up and sift through the private data of millions of Americans without a warrant or any evidence of a crime.
As Congress now debates reauthorizing relevant sections of the Foreign Intelligence Surveillance Act (FISA) that are set to expire this year, the libertarian Cato Institute held a four-day conference last week, which featured calls for major legal reforms by conservative and liberal speakers alike.
“The violations that we’ve seen have not just been epic in scale, but they’ve also been persistent, over and over again,” Jake Laperruque, a deputy director at the Center for Democracy and Technology, told attendees.
“To put a human scale on this, what we’re talking about is not just random typos or wrong clicks; we’re looking at things like pulling up batches of thousands of political donors in one go, without any suspicion of wrongdoing,” Laperruque said. “We’ve had reports of journalists, political commentators, a domestic political party; these compliance violations are the most worrisome type of politically focused surveillance.”
In 2001, Congress passed the PATRIOT Act as a means to combat foreign terrorism after the Sept. 11 attacks. In 2008, Congress added an amendment to FISA, Section 702, which authorized warrantless surveillance of non-U.S. persons located outside the country. This amendment, which critics say is the source of much of the abuse, is scheduled to “sunset” on Dec. 31.
Evidence of Abuse
Congressional debates about whether to renew Section 702 are coming amid numerous reports that the FBI and other federal intelligence agencies have abused the surveillance authority granted to them by this law. Critics say there is mounting evidence that federal agencies have been using laws, which were intended to target foreign terrorists, to conduct extensive, long-term domestic spying campaigns on U.S. citizens.
“To prevent Section 702 from being used as an end run around [Fourth Amendment] protections, Congress did two things: It required the government to minimize the collection, sharing and retention of Americans’ personal information … and it required the government to certify to the FISA court on an annual basis that it is not using Section 702 to try to access the communications of particular known Americans,” Elizabeth Goitein, a senior director at New York University’s Brennan Center for Justice, told conference attendees.
“What has become abundantly clear over the last 15 years is that these protections are not working,” Goitein said. “All agencies that receive Section 702 data have procedures in place, approved by the FISA court, that allow them to run electronic searches … for the purpose of finding and retrieving the phone calls, text messages and emails of Americans.”
A report by the Brennan Center for Justice states that “since 2006, the National Security Agency (NSA) has been secretly collecting the phone records of millions of Americans from some of the largest telecommunications providers in the United States, via a series of regularly renewed requests by the Federal Bureau of Investigation (FBI).”
In addition, the report states that “over the past six years, the NSA has obtained unprecedented access to the data processed by nine leading U.S. internet companies. This was facilitated by a computer network named PRISM. The companies involved include Google, Facebook, Skype, and Apple.”
Rise of Data Brokers
Speaking to attendees of the Cato Institute conference, Nathan Wessler, a director at the American Civil Liberties Union (ACLU), detailed “the rise of data brokers” that assemble enormous databases of photo IDs that they then sell to law enforcement for profit.
“Many companies are selling face recognition algorithms to government and private industry buyers,” Wessler said. “That might be state driver’s license photos, arrest photos, federal passport photos.
“And then there’s another company, ClearView AI, which has been scouring the internet for billions of photos,” he said. “The last I heard, they had a database of 30 billion photos of people from social media, from employer websites, from local newspapers, and anywhere else on the internet where there’s a photo that might be attached to a name, building giant databases of face prints extracted from those photos, and selling that to police departments and other law enforcement around the country.”
This, Wessler said, “presents a truly unprecedented ability for the government to instantaneously identify anyone in any situation and then take action without usually any kind of court oversight, and often in tremendous secrecy.”
“We have legacy photo data sets of almost all of us,” said Clare Garvie, counsel at the National Association of Criminal Defense Lawyers. “As a practical matter, most of us are in numerous of these, and they’ve been almost instantaneously turned into biometric data sets.”
According to Garvie, the collection of these biometric data sets by law enforcement started around 2001, and has been expanding ever since.
“That really happened without any notice to the public, any sort of negotiation or discussion about enrollment,” she said. “Its adoption has predated by almost 20 years any sort of public discussion about regulation, control, etc.”
This data collection comes at a time when the Transportation Security Administration (TSA) is expanding the use of facial recognition software at airports. It is also coming at a time when, in the wake of numerous scandals, an increasing number of Americans are losing trust in the FBI and the Department of Justice. According to polls in 2021 and 2022, about half of all Americans have an unfavorable opinion of the FBI.
On May 12, Special Counsel John Durham released his report regarding the FBI investigation of alleged Russian collusion, which ultimately proved to be a hoax, in Donald Trump’s 2016 presidential campaign. Durham found that throughout an investigation that was “predicated on unvetted hearsay information,” senior leaders at the FBI violated their own rules and applied a double standard in how they treated Trump compared with his Democrat opponent, Hillary Clinton.
“What Durham found is that apparently no one in the FBI or the National Security Division at DOJ thought it would be a good idea to go to NSA and CIA and ask them, ‘Hey, do you have anything that would corroborate this?’” said Patrick Eddington, a senior fellow at the Cato Institute. “And when you’re talking about an investigation that targeted the campaign of a presidential candidate, if they were that sloppy there, then how much more sloppy are they being with folks that don’t have the kind of power and influence that Donald Trump does, or that Hillary Clinton does?”
House Works to Extend Section 702
On March 22, the House Intelligence Committee established a bipartisan working group to assess under what conditions Section 702 should be extended. Simultaneously, pressure to kill the provision is coming from people on both the left and the right who are concerned with a pattern of civil rights violations by federal agencies.
“Many Americans have rightfully lost faith in the FBI and the FISA process,” Rep. Darin LaHood (R-Ill.) stated at the time. Citing abuses in the Durham report, he said, “this incident, along with other outlined abuses, must be a wake-up call.”
While Section 702 was designed to combat foreign terrorism, the FBI has been accused of using it for purely domestic reasons, including to track down Americans who participated in the U.S. Capitol breach on Jan. 6, 2021. And this effort is alleged to be part of a pattern of FBI surveillance of American citizens, including most recently charges that the FBI has targeted parents who protest school curricula and Catholics who oppose abortion rights.
In a March 24, 2022, letter to FBI Director Christopher Wray, Rep. Jim Jordan (R-Ohio) and Rep. Mike Turner (R-Ohio) cited a report by the Director of National Intelligence (ODNI) that “from December 2020 through November 2021, the FBI conducted 3.3 million U.S. person inquiries against its Section 702 holdings. This was a substantial increase from the number of U.S. person queries the FBI conducted from December 2019 to November 2020, which was approximately 1.3 million.”
“These are long, ongoing programs that do not involve war in the traditional sense of the word,” said Bob Goodlatte, a former U.S. Representative and Chairman of the House Judiciary Committee. “They are done in such a way that Americans’ rights under the Fourth Amendment are violated constantly, all day, every day.”
“The FBI routinely conducts these queries at the ‘assessment’ stage of its investigations, which is before the Bureau has a reasonable factual basis to suspect criminal activity, let alone probable cause and a warrant,” Goitein said. “The FBI conducted around 200,000 backdoor searches in 2022 alone, so that’s more than 500 warrantless search of Americans’ communications every day.
“The NSA and CIA also conduct thousands of backdoor searches every year,” she continued. “When you look at these numbers, it becomes clear that what was supposed to be a solely foreign focused authority has in fact become a very powerful domestic spying tool.”
The ODNI report also cited an FBI bulk inquiry of 19,000 donors to a congressional campaign. In addition to the FBI’s alleged collaborating with tech and telecom companies to collect data on Americans, there have been allegations of collaboration with banks, as well.
Following an FBI “whistleblower” report that “Bank of America (BoA) provided the FBI—voluntarily and without any legal process—with a list of individuals who had made transactions in the Washington, D.C., metropolitan area with a BoA credit or debit card between January 5 and January 7, 2021,” Jordan and Rep. Thomas Massie (R-Ky.) wrote on June 12 to JPMorgan Chase, Citigroup, Truist Financial Corp., Wells Fargo, and U.S. Bank, demanding information regarding whether they had acted in similar fashion.
‘In the Government’s Crosshairs’
“If you go back and you actually look at the historical record, an awful lot of groups, either ethnically, religiously, politically, have wound up in the government’s crosshairs, and it’s a completely consistent pattern,” Eddington said. “That’s what, to me, speaks to the larger problem that we’re dealing with here.”
“What was fascinating and terrifying was to go through records from the World War I era and to see just exactly how victimized German Americans were, and I’m talking about lynchings, I’m talking about murders,” Eddington said. “The focus on Arab and Muslim Americans easily goes back to the Palestinian rights era.”
“Some of the worst surveillance abuses in recent history have all been done under this idea of defensive surveillance” against foreign enemies, Laperruque said, citing cases like Martin Luther King being monitored because the civil rights and anti-war movements allegedly represented security threats during the Vietnam War. “It’s proven to be some of the most vulnerable types of surveillance to abuse.”
Brett Holmgren, assistant secretary of state, said on May 30 that, while he found the abuses of Section 702 “disturbing,” the program should continue. Holmgren, who oversees the State Department’s Bureau of Intelligence and Research (INR), said the national security and diplomatic uses of 702 were essential and downplayed the abuses.
“Today, INR and the State Department that we serve, is at risk of losing access to one of the most important streams of intelligence on which we rely … Section 702 of the Foreign Intelligence Surveillance Act,” Holmgren said.
Goodlatte said that Section 702 can be reformed in a bipartisan way to prevent many of the current violations from recurring.
“This is a tremendous opportunity because of the heightened awareness on both sides of the aisle in Congress of these abuses,” Goodlatte said. “Congress can act in a very bipartisan way, and I think is disposed to act in a very bipartisan way.”
“Section 702, on one level, is an incredibly technical and complicated bill, and I think the government uses that to its advantage,” Goitein said. “But if we get lost in a conversation about technical details, we’re missing the big picture.
“What Section 702 is being used for right now is not complicated at all; it’s being used for warrantless access to Americans’ communications,” she continued. “That is the principle we need to hold on to, that surveillance in this country, surveillance of Americans, should be pursuant to a warrant, and there should be robust mechanisms in place to ensure accountability and oversight.
“I think as long as we keep our eye on those big principles and don’t get lost in the legal weeds, we’re going to end up with a pretty good outcome,” she said.
“We cannot have a regime where the people doing the watching are also watching themselves for abuse and misconduct,” Laperruque said. “I do think that 702 can be reformed, but we need to remove it from this realm of self-policing … and actually have items like a warrant rule, where if the FBI or NSA or CIA wants to conduct a query to pull up Americans’ communications, it has to get a court order first.”
