Categories
Biden administration Caniglia v. strom Clarence Thomas Constitution Fourth Amendment Intelwars Supreme Court

Supreme Court unanimously sides against Biden admin, further protects Fourth Amendment rights

The United States Supreme Court unanimously ruled Monday that a so-called exception to the Fourth Amendment called “community caretaking” does not permit police officers to enter and search your home without first obtaining a search warrant, even if doing so may be in the public’s interest.

What is the background?

The Supreme Court heard the case — Caniglia v. Strom — upon appeal by Edward Caniglia, a Rhode Island man whose house was searched by warrantless police officers in 2015. During that search, police seized two firearms, which Caniglia recovered only after jumping through numerous bureaucratic hoops.

Caniglia later sued law enforcement, arguing their actions violated his Fourth Amendment right against a warrantless search and seizure.

However, police claimed they acted lawfully under the “community caretaking” exception, which originated from Cady v. Dombrowski, a 1973 Supreme Court case that said police officers can conduct certain “community caretaking functions” if done in a “reasonable” manner. In that case, police officers had seized a gun located in an impounded car without a warrant.

The ruling overturned rulings by the federal district court and First Circuit Court of Appeals.

What did the high court say?

In a 9-0 ruling, the Supreme Court ruled the “community caretaking” exception does not apply to private residences.

“What is reasonable for vehicles is different from what is reasonable for homes. Cady acknowledged as much, and this Court has repeatedly ‘declined to expand the scope of … exceptions to the warrant requirement to permit warrantless entry into the home,'” Justice Clarence Thomas wrote in the majority opinion.

In fact, Thomas specifically rebuked the First Circuit Court of Appeals for extending the exception.

The First Circuit’s “community caretaking” rule, however, goes beyond anything this Court has recognized. The
decision below assumed that respondents lacked a warrant
or consent, and it expressly disclaimed the possibility that
they were reacting to a crime. The court also declined to
consider whether any recognized exigent circumstances
were present because respondents had forfeited the point.

Nor did it find that respondents’ actions were akin to what
a private citizen might have had authority to do if petitioner’s wife had approached a neighbor for assistance instead of the police.
Neither the holding nor logic of Cady justified that approach. True, Cady also involved a warrantless search for
a firearm. But the location of that search was an impounded vehicle—not a home—”‘a constitutional difference'” that the opinion repeatedly stressed. In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car “parked adjacent to the dwelling place of the owner.”

“But this recognition that police officers perform many civic tasks in modern society was just that—a recognition that these tasks exist, and not an open-ended license to perform them anywhere,” Thomas added.

Anything else?

In rejecting the extension of the “community caretaking” exception to the Fourth Amendment, the Supreme Court rejected an argument from the Biden administration, which had urged the court to uphold as legal the violation of Caniglia’s constitutional rights.

An amicus brief filed by Justice Department lawyers said:

The touchstone of the Fourth Amendment is reasonableness. For criminal investigations, this Court has generally incorporated the Warrant Clause into the Fourth Amendment’s overarching reasonableness requirement, but it has not generally done so for searches or seizures objectively premised on justifications other than the investigation of wrongdoing. The ultimate question in this case is therefore not whether the respondent officers’ actions fit within some narrow warrant exception, but instead whether those actions were reasonable. And under all of the circumstances here, they were.

The brief further argued that warrants should not be “presumptively required when a government official’s action is objectively grounded in a non-investigatory public interest, such as health or safety.”

The Justice Department, in fact, was so keen on the Supreme Court not ruling in Caniglia’s favor that they urged the court to uphold the officers’ actions “by concluding that the officers are entitled to qualified immunity” if they rejected the Fourth Amendment argument.

Share
Categories
FISA Fourth Amendment Intelwars national security Online Edition Surveillance

Updating the Fourth Amendment Analysis of U.S. Person Communication Incidentally Collected Under FISA Section 702

Peter G. Machtiger[*]

[Full text of this Article in PDF is available at this link]

Introduction

Following the terrorist attacks of September 11, 2001, the United States government rallied around its national security apparatus to improve its ability to detect and prevent future acts of terrorism. As part of this mission, the Intelligence Community was asked to “identify and target plotters in some of the most remote parts of the world and to anticipate the actions of networks that, by their very nature, cannot be easily penetrated with spies or informants.”[1] Improvements in surveillance technology meant that there were “fewer and fewer technical constraints” on what the government could do.[2] Members of all three branches of government were therefore left to wonder what the government should do.[3] These government actors, in thinking about the proper scope of government surveillance, have assessed many competing factors from information overload and mission creep to trust-in-government and law enforcement legitimacy.[4]

Surveillance involving U.S. persons is the most legally complicated type of surveillance because it requires a difficult balancing of competing factors. Under the Fourth Amendment, U.S. persons have rights against unreasonable government “surveillance.” However, the government also has an important countervailing interest in conducting surveillance, which may implicate U.S. persons, to protect national security. Accommodating expectations of privacy and security involves identifying an equilibrium between “the interest in liberty from government restraint or interference and the interest in public safety, in recognition of the grave threat that terrorism poses to the nation’s security.”[5] The bounds of Executive Branch surveillance in the realm of national security are rarely litigated in open court. Due to Article III case or controversy requirements,[6] federal courts rarely review foreign intelligence surveillance programs. Such review occurs rarely outside of the Foreign Intelligence Surveillance Court (FISC),[7] which has various duties related to the oversight of intelligence surveillance programs, including the authorization of FISA surveillance orders and the review of proposed procedures for targeting non-U.S. persons reasonably believed to be located abroad.[8] The FISC is composed of federal judges appointed by the Chief Justice of the Supreme Court to address foreign intelligence oversight.[9] Occasionally, however, cases have led judges to rule on legal challenges to government surveillance programs that implicate the civil liberties of U.S. persons; such cases provide perspectives that may “challeng[e] that of the national security experts.”[10] One of the most prominent examples of a government surveillance program that has been reviewed in Article III courts is “Section 702” of the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA).[11] Most recently, a Second Circuit panel in United States v. Hasbajrami,[12] held that the introduction by prosecutors of evidence derived from Section 702 created a “case or controversy” sufficient for review of the program in federal court.

The Hasbajrami court—like all previous courts to consider the issue—upheld the constitutionality, as applied, of the warrantless use of incidentally collected U.S. person communications under Section 702.[13] In doing so, the court made only one citation[14] to Carpenter v. United States,[15] which has been called “one of this generation’s most important Fourth Amendment opinions.”[16] Hasbajrami’s connection to Carpenter may not be immediately obvious, for Carpenter established a warrant requirement for law enforcement access to a certain amount of a person’s cell site location information (CSLI).[17] However, Carpenter provides a window into how the Supreme Court thinks about the constitutional implications of bulk data collection. Ignoring Carpenter in deciding Hasbajrami might make sense under a narrow reading of Carpenter, which focuses solely on CSLI, but dicta from Carpenter about applying the Fourth Amendment in the era of modern technology may support a more robust constitutional analysis of incidental collection under Section 702.[18] While Carpenter’s dicta are non-binding, they may provide insight into how the Supreme Court might address other forms of bulk data collection, like the collection in Hasbajrami, in the future.

Both Executive Branch and congressional personnel have flagged the lack of a warrant requirement for incidentally collected U.S. person communication as a cause for concern. President Obama’s Review Group on Intelligence and Communications Technologies recommended that “it should take either a law enforcement or FISA judicial order to query the database. . . . [T]here should at least be a judge involved before there is access to the contents of U.S. person communications.”[19] One draft bill in Congress would have “[r]estrict[ed] law enforcement from using information obtained or derived from warrantless surveillance except when investigating the most serious crimes, like murder.”[20] The Hasbajrami case provides the opportunity for the judiciary to address the issues as a matter of constitutionality.

This piece will proceed in two parts. Part I will describe the factual and legal background of United States v. Hasbajrami and explain some modern developments in Fourth Amendment doctrine, primarily from Carpenter, that are relevant to the issues in Hasbajrami. Part II will look closely at the reasoning of the Hasbajrami court and provide an alternative Fourth Amendment analysis of incidentally collected U.S. person communications under FISA Section 702.

 

I.  Context for This Case-Study: United States v. Hasbajrami

 

            A.  Factual Background

 

In 2011, Agron Hasbajrami, a legal permanent resident located in the United States,[21] communicated via e-mail with an unidentified foreign citizen located abroad “who Hasbajrami believed was associated with a terrorist organization.”[22] Over the course of those communications, Hasbajrami indicated interest in traveling to Pakistan to join the terrorist organization.[23] After intercepting these communications, the Federal Bureau of Investigation’s Joint Terrorism Task Force began investigating Hasbajrami and arrested him on September 6, 2011, as he attempted to board a flight to Turkey out of New York.[24] He was charged with “attempting to provide material support to a terrorist organization, alleging that he intended to travel to the Federally Administered Tribal Area of Pakistan, where he expected to join a terrorist organization, receive training, and ultimately fight ‘against U.S. forces and others in Afghanistan and Pakistan.’”[25]

Hasbajrami pleaded guilty to “attempting to provide material support to terrorists in violation of 18 U.S.C. § 2339A” and was sentenced to 180 months in prison.[26] While serving his sentence, Hasbajrami was informed by the government that some previously disclosed evidence obtained from traditional FISA surveillance was actually “derived from other collection pursuant to [Section 702].”[27] Hasbajrami withdrew his plea and moved to suppress “the fruits of all warrantless FAA surveillance,” including:

 

all evidence and information derived as a result of [Section 702] surveillance; all evidence and information obtained or derived from Title I and Title III FISA collection . . . [that was] itself also derived from other collection pursuant to [Section 702] . . . [and] [a]ny other evidence and information that the Government could not have obtained in this case through an independent source.[28]

 

The district court denied the motion to suppress, and Hasbajrami appealed that decision to the Second Circuit, leading to the opinion discussed here.

 

B.  Legal Background

      1. FISA Section 702

 

The provision at issue here, Section 702, was not part of the original FISA in 1978. The original FISA was passed to address several concerns, including “judicial confusion over the existence, nature and scope of a foreign intelligence exception to the Fourth Amendment’s warrant requirement,” “Congressional concern over perceived Executive Branch abuses of such an exception,” and the “need to provide the Executive Branch with an appropriate means to investigate and counter foreign intelligence threats.”[29]

Section 702 was enacted as part of the FISA Amendments Act of 2008 to provide a new framework for the government to conduct foreign intelligence surveillance of “the communications of non-U.S. persons located abroad.”[30] Section 702 requires the government to submit targeting, minimizing, and querying procedures that will govern the program for approval by the FISC.[31] It does not require the government to specify with particularity the “nature and location” of any surveilled facilities or to “demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power.”[32] Surveillance conducted under Section 702 is jointly authorized by the Attorney General and the Director of National Intelligence and must target non-U.S. persons outside the United States to acquire foreign intelligence information.[33]

The Hasbajrami court looked at Section 702 surveillance as a five-step process: (1) targeting; (2) collection; (3) minimization; (4) retention and storage; and (5) dissemination and querying.[34] Overall, this process of acquiring a communication under Section 702 must be “conducted in a manner consistent with the fourth amendment to the Constitution of the United States.”[35] The surveillance generally involves compelling internet service providers to secretly provide the government with the desired communications.[36]

In 2018, an estimated 164,770 targets were subject to Section 702 surveillance.[37] In previous years, the National Security Agency (NSA) estimated that it annually acquired over 250 million Internet communications pursuant to the program.[38] It is seemingly a useful program for the Intelligence Community, according to career intelligence professionals. Former Acting Director of the CIA Michael Morrell called Section 702 “one of our nation’s most effective programs to protect our national security,”[39] and former FBI Director James Comey called it “essential to the safety of this country.”[40]

Buy-in from the Intelligence Community, like the above statements, is a threshold condition for an intelligence program, but buy-in from the citizens it is meant to protect matters too. Buy-in from regular citizens may even matter more, as public trust in government is essential to our democratic system. For an intelligence program that former intelligence leaders consider effective and essential to be maintained with legitimacy and supported by Americans, it must be scrutinized carefully when it implicates the constitutional interests of U.S. persons.

 

      1. Incidental Collection of U.S. Person Communications

 

“Incidental collection” occurs when a “target”––a non-U.S. person located abroad–– communicates with a U.S. person and that entire communication is acquired by an intelligence agency conducting surveillance.[41] The information communicated by the U.S. person is said to be “incidentally collected.”[42] As long as there are U.S. persons communicating with non-U.S. persons located abroad, the possibility of incidental collection is inevitable.[43] The inevitability is why it is important to look at how the government handles incidentally collected communications.[44]

According to investigative reporting, in one cache of communications intercepted by the NSA, only about 10% of identified accounts belonged to intended surveillance targets while about half of the incidentally collected accounts belonged to U.S. persons.[45] This high volume of incidental collection occurs because of the way internet communications are collected; for example, if a surveillance target enters an online chat room, the identities of all of the other participants and all of the chat room communications are collected, regardless of the subject matter.[46] After communications are intercepted, NSA analysts review the information to determine whether each communication involves a target and is “reasonably believed to contain foreign intelligence information or evidence of a crime.”[47] Communications meeting that criteria are retained and potentially disseminated to other agencies, while communications that do not meet that criteria are destroyed unless they otherwise meet an enumerated exception.[48]

Retained communications are maintained in databases that may later be searched to display either the content of the communications or noncontent metadata. In 2018, there were an estimated 9,637 search terms “concerning a known U.S. person used to retrieve the unminimized contents of communications obtained under Section 702,” and an estimated 14,374 queries “of unminimized noncontent information” obtained under Section 702 concerning known U.S. persons.[49] A U.S. person’s identity may be disseminated “unminimized” ––i.e., not redacted–– if it is “necessary to understand the foreign intelligence information or assess its importance,” meaning that the U.S. person may be involved in a crime or their identity might shed light on a potential threat to “the safety of any person or organization.”[50]

As part of the FISA Amendments Reauthorization Act of 2017, which occurred after the surveillance and arrest of Hasbajrami, Congress statutorily mandated that the FBI obtain a court order when seeking to access the contents of communications “retrieved pursuant to a query made using a United States person query term that was not designed to find and extract foreign intelligence information.”[51] This provided a statutory limitation to querying in cases unrelated to national security, but the statute does not affect the constitutional analysis in this case.

 

      1. Use of Incidentally Collected Communications in Criminal Prosecutions

 

Generally, there is no requirement to give notice to persons whose communications are incidentally collected pursuant to Section 702. Thus, courts rarely have the opportunity to provide meaningful oversight. However, the government is required by statute to give notice to the “aggrieved person” if it “intends to enter into evidence or otherwise use or disclose . . . any information obtained or derived from an electronic surveillance” in a court proceeding.[52]

Despite this requirement, no criminal defendant received notice of Section 702 surveillance until 2013, when New York Times reporting revealed that the Justice Department had “misrepresented” its notice policy to the Supreme Court in Clapper v. Amnesty International.[53] Following this revelation, the Justice Department gave notice of Section 702 surveillance in five criminal cases between October 2013 and April 2014, including in Hasbajrami.[54] The Justice Department has not provided any notices since making those five disclosures. This lack of notice might mean a shift in how the Justice Department interprets “derived from”; for example, as one commentator has theorized, the Justice Department might consider evidence to be “derived from” Section 702 surveillance “only when it has expressly relied on Section 702 information in a later court filing.”[55] This would allow the Justice Department to evade the notice requirement even if the expressly cited evidence that is used would not have been obtained without the original Section 702 surveillance.[56]

If the Justice Department has indeed altered its interpretation of the statute to evade the notice requirement, Hasbajrami may be the last case in which a federal court reviews the Fourth Amendment implications of the incidental collection of U.S. person communications under Section 702.

 

C.  Modern Developments in Fourth Amendment Doctrine

 

Fourth Amendment doctrine has continually developed to try to address the implications of modern technology unfathomable to the Framers of the Constitution. The most recent example of this is the Carpenter case, which has been called “one of this generation’s most important Fourth Amendment opinions” because it thoroughly analyzes how the Framers’ intentions map on to the modern technological capabilities for massive data collection.[57]

The procedure at issue in Carpenter, by which the government could obtain historical location data collected by telecommunications companies, was authorized under the Stored Communications Act. The Supreme Court found that it was “not a permissible mechanism for accessing historical cell-site records” and held that the government was required to obtain a warrant for that information.[58] The Court made this determination by considering the following factors: the “deeply revealing nature of CSLI”; its “depth, breadth, and comprehensive reach”; and the “inescapable and automatic nature of its collection.”[59] Carpenter could be read narrowly to apply only to the CSLI that was at issue in the case. However, the case could also plausibly be read to hold that “even if congressionally authorized, any process short of obtaining a warrant—and thus any level of suspicion less than probable cause—would be unconstitutional.”[60]

It is worth examining the incidental collection of U.S. person communications under Section 702 through the lens of Carpenter, the Supreme Court’s most recent guidance on the constitutional implications of modern data collection. The issues in each case are somewhat analogous: Section 702 surveillance is authorized by statute, like the CSLI acquisition in Carpenter, and allows vast quantities of historical data to be retained in databases, which is an aspect of CSLI acquisition that concerned the Carpenter court.[61] When the Ninth Circuit examined incidental collection under Section 702, the court called its “vast, not de minimis” volume the “most troubling aspect” of the incidental collection and noted that “[t]his quantity distinguishes § 702 collection from Title III and traditional FISA interceptions.”[62]

 

* * *

 

If the Justice Department has altered its interpretation of the notice requirement for evidence derived from Section 702, then the Second Circuit cited Carpenter only once in what is potentially the last opportunity for a Fourth Amendment analysis of incidental collection under Section 702.[63] The following is an alternative analysis that the court could have undertaken had it fully embraced the underlying principles revealed by Carpenter’s dicta.

 

II.  Alternative Analysis of

United States v. Hasbajrami

 

The court reviewed the Hasbajrami case as an “as-applied challenge to the constitutionality of warrantless collection and review of his communications under Section 702.”[64] The court determined that “the incidental collection in this case, and the government’s use of the information thus collected, was lawful,” but did not conclude as to the reasonableness of any querying involved in the case and remanded to the district court for further fact-finding on that issue.[65]

In finding the use of the incidentally collected information lawful, the Second Circuit explicitly adopted a similar approach to the Ninth Circuit—first, deciding that “a warrant is not required for such collection” and, second, deciding that “the incidental collection of Hasbajrami’s e-mails was reasonable.”[66] The court’s analysis on both of these issues seems to follow the pre-Carpenter reasoning of other courts, which reached those conclusions based on a combination of only partially applicable case law concerning the extraterritorial application of the Fourth Amendment and the “incidental overhear” doctrine. This seems less convincing in a post-Carpenter world, where the Supreme Court has indicated that judges should consider how modern technology meshes with the intentions of the founders, especially as to the warrant requirement. The Hasbajrami court’s strongest analysis occurs in its section separately considering querying, although it is unclear why the court treats querying so much differently than collection. These issues will now be addressed in turn.

 

A.  Warrant Requirement

 

The warrant requirement in criminal law derives from the Fourth Amendment’s warrant clause which states “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.”[67] In the ordinary criminal context, the Supreme Court has found the Fourth Amendment’s warrant clause to require three elements: (1) “warrants must be issued by neutral, disinterested magistrates”; (2) “those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense”; (3) “warrants must particularly describe the things to be seized, as well as the place to be searched.”[68] The Supreme Court has found warrantless searches “per se unreasonable under the Fourth Amendment” unless they fall within “a few specifically established and well-delineated exceptions.”[69] However, the Supreme Court has been reluctant to explicitly extend these same requirements to cases involving national security.[70]

The Hasbajrami court determined that a warrant was not required in this instance for two reasons. First, the court noted that “the Fourth Amendment does not apply extraterritorially to the surveillance of persons abroad, including United States citizens.”[71] Next, the court relied on the “incidental overhear” doctrine, according to which an additional warrant is not required when, “in the course of executing a warrant or engaging in other lawful search activities, [officers] come upon evidence of other criminal activity outside the scope of the warrant or the rationale justifying the search, or the participation of individuals not the subject of the initial warrant or search.”[72] Neither argument is particularly convincing in the context of Section 702 incidental collection because both doctrines arose out of specific sets of facts not analogous to the facts in this case.

 

      1. Extraterritoriality

Supreme Court precedent makes clear that the Fourth Amendment warrant requirement does not apply extraterritorially to searches of non-U.S. persons. However, that rule is only pertinent to the Fourth Amendment analysis of incidental collection insofar as it legitimizes the surveillance of non-U.S. person intelligence targets located outside the United States.[73]

In addition to the aforementioned traditional extraterritoriality principle from United States v. Verdugo-Urquidez, the Hasbajrami court cited Second Circuit precedent that telephone surveillance conducted extraterritorially, even of U.S. persons, does not require a warrant.[74] As the court acknowledged, Section 702 surveillance, by its nature, only occurs within the territory of the United States.[75] The court addressed this point by citing Katz for the proposition that the location of the surveillance is not important, and thus “a foreign national resident abroad, does not acquire . . . [a Fourth Amendment-protected privacy interest] by reason of the physical location of the intercepting device.”[76]

Assuming this logic to be sound, this section on extraterritoriality only establishes that the Section 702 surveillance of foreign persons located outside the United States is lawful, which is relevant only because it sets up the next section on the incidental overhear doctrine. This section, on its own, does nothing to address the Fourth Amendment-protected privacy interest of Hasbajrami, who at the time of surveillance was a U.S. person located in the United States and whose communications were collected in the United States. The fact that the surveillance target did not have Fourth Amendment rights does not mean that Hasbajrami’s Fourth Amendment rights correspondingly disappear.[77]

 

      1. Incidental Overhear Doctrine

 

The court applied the incidental overhear doctrine to its finding that the collection of the target’s communications falls outside the warrant requirement and holds that the warrantless incidental collection and use of Hasbajrami’s communications are similarly lawful. But, the incidental overhear doctrine does not seem exactly appropriate in the context of Section 702 collection because: (1) the source cases involve Title III wiretaps with warrants and (2) traditional wiretaps are fundamentally different than Section 702 collection in terms of the factors identified in Carpenter.

The Hasbajrami court primarily cited United States v. Donovan,[78] as establishing the incidental overhear doctrine, which, as the court understands it, provides that:

 

law enforcement agents do not need to obtain a separate warrant to collect conversations of persons as to whom probable cause did not previously exist with individuals whose oral or wire communications are being collected through a lawful wiretap or bug, where those conversations on their face contain evidence of criminal activity.[79]

 

The idea underpinning the incidental overhear doctrine started prior to Donovan in United States v. Kahn.[80] In both Kahn and Donovan, defendants opposed the use of their communications collected pursuant to Title III wiretap orders because they had not been named in the orders.[81] The holding of Kahn, echoed in Donovan, was that “(1) Title III does not require that a wiretap order name every person whose conversations will be the target of interception, and (2) the Fourth Amendment’s particularity requirement is satisfied by specifying the facilities to be surveilled and the conversations to be seized.”[82] In other words, the warrant obtained by the government identifying the phone lines to be surveilled and subject matter to be discussed was sufficient under the Fourth Amendment to collect the defendants’ communications, even though they were not specifically named.[83] These cases cannot be directly applied to Section 702 collection because they involved warrants and “[a] section 702 collection order is obviously not a warrant.”[84] The Hasbajrami court would rebut this point by reading the incidental overhear cases only to require that the initial surveillance be “lawful” whether by “a warrant, a FISC order, or some other exception to the warrant requirement.”[85] It seems like a large leap to read Fourth Amendment case law involving warrants to apply equally to a case about warrantless surveillance given the sanctity of the warrant requirement.[86] However, it is the same leap the Ninth Circuit made in Mohamud. To support the proposition, both courts only cite the district court opinion from Hasbajrami.[87] Deriving an exception to the warrant requirement this way also seems to be a far cry from the “jealously and carefully drawn” exceptions described by the Supreme Court.[88] The Supreme Court has emphasized the Fourth Amendment importance of a “neutral and detached magistrate.”[89] The surveillance in both Donovan and Kahn involved such a magistrate as part of the Title III wiretap process, while the surveillance in Hasbajrami did not. Thus, the link between the incidental overhear doctrine and the Section 702 collection in Hasbajrami is not as strong as the Hasbajrami court suggests.

When examined through the lens of the Carpenter factors — the “deeply revealing nature” of the information; its “depth, breadth, and comprehensive reach”; and the “inescapable and automatic nature of its collection”[90] –– Section 702 collection also seems fundamentally different from Title III wiretaps. The Hasbajrami court seemed to consider this only in its analysis of querying,[91] perhaps thinking of Section 702 collection as contemporaneous in the same way as wiretaps. However, Section 702 collection appears to have much more in common with Section 702 querying than it does with Title III wiretaps in terms of its comprehensive reach and the inescapable nature of its collection. In 2018, a total of 2,937 wiretaps were reported between federal and state judges.[92] Compare that to the 164,770 Section 702 targets in the same year,[93] encompassing hundreds of millions of internet communications.[94] This amount of collection would have been unfathomable even at the time of Donovan and Kahn, let alone in the eighteenth century. As the Supreme Court reiterated in Carpenter: “As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”[95] In conducting this analysis for CSLI, Chief Justice Roberts noted:

 

Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so for any extended period of time was difficult and costly and therefore rarely undertaken . . . . For that reason, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.[96]

 

A similar pre-digital analogy for incidental collection under Section 702 might include having spies surveilling foreign targets overseas at an impossible scale, who are able to open every single piece of mail received by their targets, make copies, and send those copies back to the United States, potentially to prosecute U.S. persons. In this way, Carpenter is all about asking “whether a prior limit on government power has been lifted.”[97] When comparing Section 702 collection to Title III wiretaps, the answer to that question is undoubtedly “yes,” which inspires further doubt as to the appropriateness of applying cases like Donovan to the situation in Hasbajrami.

* * *

            In sum, Hasbajrami, a U.S. person whose communications were intercepted within the United States without a warrant, could be criminally prosecuted based on those communications because of the combination of two doctrines that fail to amount to an enumerated exception to the warrant requirement. It is worth noting that the Second Circuit staked its entire reasoning on the combination of extraterritoriality and the incidental overhear doctrine, rather than on a foreign intelligence or national security exception to the warrant requirement. Other courts looking at incidental collection under Section 702 have also avoided relying on a foreign intelligence or national security exception.[98] Whether or not such an exception would be more convincing than the reasoning chosen here,[99] the common denominator in Fourth Amendment cases is a reasonableness analysis.

 

B.  Reasonableness

 

Having determined that the warrant requirement does not apply, the Hasbajrami court conducted a reasonableness analysis, examining “the totality of the circumstances to balance . . . the degree to which [the government’s action] intrudes upon an individual’s privacy and . . . the degree to which it is needed for the promotion of legitimate government interests.”[100] However, the court did not reckon with the fact that the Supreme Court considers warrantless searches of U.S. persons within the U.S. per se unreasonable under the Fourth Amendment, except for a few clearly delineated exceptions.[101]

The court began by acknowledging that Hasbajrami, as a U.S. person, has a reasonable expectation of privacy in the content of his e-mails, even when communicating with someone overseas.[102] This is in line with Carpenter, in which “all nine justices signed onto opinions that declare that the police need a warrant to read the content of email messages.”[103]

Notably, the court did not invoke the third-party doctrine to find some kind of diminished expectation of privacy, a mistake that other federal courts in other circuits looking at incidental collection under Section 702 have made.[104] Those courts that invoked the third-party doctrine have simultaneously considered e-mails to have full Fourth Amendment protections because they are like letters and no Fourth Amendment protections because of the third-party doctrine. The considerations average out to some diminished expectation of privacy in what Professor Orin Kerr calls “the Fourth Amendment as quantum physics.”[105] By avoiding the third-party doctrine trap and simply acknowledging that e-mails are like letters, the reasoning of the Hasbajrami court maintains greater legitimacy.

The court then described the government interest in preventing “[t]he recruitment of persons inside the United States or the placement of agents here to carry out terrorist attacks” as one “of particular importance.”[106] Due to their presence on U.S. soil, the U.S. person might even pose a greater immediate threat than the foreign intelligence target with whom they are communicating. However, it is also worth remembering that Section 702 surveillance does not require any showing that the target poses some threat to the United States, just that the target is a non-U.S. person located outside the United States and that “foreign intelligence information” is reasonably expected to be acquired.[107] With such a broad targeting standard, it is equally likely that the surveillance will acquire the communications of U.S. journalists, lawyers, and ordinary citizens who are in contact with non-U.S. persons overseas. These groups are certainly entitled to Fourth Amendment protections.[108]

The court found, under the totality of the circumstances, that “the incidental collection of communications between targets foreigners abroad and United States persons . . . is thus reasonable” and that dissemination of those communications to law enforcement is reasonable when the communications raise “reasonable grounds to believe that a crime is being committed or planned in the United States.”[109] Other courts have come to the same conclusion.[110]

Preventing crime is certainly a legitimate government interest, but one that the Framers anticipated when they enacted the Fourth Amendment and included a warrant requirement. Even in the context of domestic security threats in which all of the suspected dangerous individuals are located on U.S. soil, the Supreme Court has emphasized that “[t]he warrant clause of the Fourth Amendment is not dead language . . . It is not an inconvenience to be somehow weighed against the claims of police efficiency.”[111] It is not obvious that this calculus should change simply because one of the suspected co-conspirators is located overseas and can thus be surveilled outside of the Fourth Amendment framework.

Perhaps a more reasonable process would involve requiring a warrant for law enforcement to access the contents of incidentally collected U.S. person communications under Section 702. This could function the same way at both the collection and querying stages: if electronic communications between a U.S. person and a non-U.S. person are intercepted by intelligence professionals and contain evidence of a potential crime, the intelligence professionals could disseminate only the identity of the U.S. person to law enforcement. Law enforcement officials would then need to make a probable cause showing to a judge and obtain a warrant to access the contents of the communications. A judicial determination that this is a constitutional requirement—rather than relying on a statutory fix—would follow in the footsteps of Carpenter and provide greater respect for the Fourth Amendment interests of U.S. persons, without unduly burdening the government’s law enforcement interest.

 

C.  Querying

 

The Hasbajrami court considered the querying of previously collected Section 702 analysis separately, which is something other courts have not done.[112] In doing so, the court expressed some concern about the breadth, comprehensive reach, and automatic nature of Section 702, noting that “the program begins to look more like a dragnet, and a query more like a general warrant.”[113] The court remanded to the district court for more fact-finding on the issue of querying, but seemed to seriously consider that querying should receive greater Fourth Amendment protection than it currently does.[114]

The court is right to suspect that querying needs greater Fourth Amendment protection, but it should also apply this logic to the collection stage of Section 702. The communications being queried are the same communications being reviewed at the collection stage and the broad, comprehensive, and automatic nature of the acquisition should be considered throughout.[115] In short, the court seemed to identify a meaningful gap between the nature of querying and collection where it should not.

 

* * *

 

While the court’s reasoning related to the warrant requirement is unconvincing, there are seeds for hope in the section of the opinion about querying. If the full Second Circuit eventually takes this case en banc, other members of the court might pick up the concerns in the section on querying and decide to apply the logic of that section to the entire collection process, similar to the analysis laid out in this piece. Requiring a warrant before law enforcement can access the contents of incidentally collected U.S. person communications for the purposes of criminal investigation would provide the most reasonable framework under the Fourth Amendment.

 

Conclusion

 

Hasbajrami provides an opportunity for the judiciary to undertake a constitutional review of incidental collection under Section 702, potentially for the last time.[116] By re-hashing arguments made by other courts writing about incidental collection before Carpenter, the Second Circuit fails to reckon with the privacy-protective guidance from the Supreme Court in Carpenter. In doing so, the court not only allows the government to access U.S. person communications without a warrant in this instance, but also signals to the Executive Branch that the judiciary will not stand in the way of mass surveillance programs as long as they are conducted in the name of national security. “Courts regularly deal with the most difficult issues of our society”[117]—this is undoubtedly a difficult issue, but a thorough and convincing analysis is necessary to maintain the legitimacy of both the program and the courts. As Hasbajrami continues to make its way through the federal courts, judges have an opportunity to engage in an analysis that protects the Fourth Amendment rights of U.S. persons in a world of increasing data collection and surveillance. A judicial decision protecting U.S. persons from warrantless surveillance would send a strong signal to an Executive Branch seeking to push the boundaries of intelligence surveillance of U.S. persons.[118]

Recommended Citation
Peter G. Machtiger, Updating the Fourth Amendment Analysis of U.S. Person Communications Incidentally Collected Under FISA Section 702, Harv. Nat’l Sec. J. Online (Feb. 7, 2021), https://harvardnsj.org/wp-content/uploads/sites/13/2021/02/Machtiger_Fourth-Amendment-Under-FISA-702.pdf


[*] A.B., Harvard College, 2014; J.D. Candidate, New York University School of Law, Class of 2021.

[1] Remarks on United States Signals Intelligence and Electronic Surveillance Programs, 2014 Daily Comp. Pres. Doc. 2 (Jan. 17, 2014), https://www.govinfo.gov/content/pkg/DCPD-201400030/pdf/DCPD-201400030.pdf [ https://perma.cc/QWH4-P8P5].

[2] Id.

[3] See id.

[4] See Stephen J. Schulhofer, Rethinking the Patriot Act: Keeping America Safe and Free 27 (2005).

[5] Richard A. Posner, Not A Suicide Pact: The Constitution in a Time of National Emergency 31 (2006).

[6] See U.S. Const. art. III, § 2, cl. 1.

[7] See 50 U.S.C. § 1803.

[8] See David Kris & J. Douglas Wilson, Nat’l Security Investigations & Prosecutions § 5.2 (3d ed. 2019).

[9] See id. at § 5.1.

[10] Posner, supra note 5, at 5.

[11] Section 702 of the FISA Amendments Act, Pub. L. No. 110-261, 122 Stat. 2436 (codified at 50 U.S.C. § 1881a); see United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016); United States v. Mohammad, 339 F. Supp. 3d 724 (N.D. Ohio 2018); United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015).

[12] 945 F.3d 641 (2d Cir. 2019).

[13] See id. at 661.

[14] See id. at 672.

[15] 138 S. Ct. 2206 (2018).

[16] Alan Z. Rozenshtein, Fourth Amendment Reasonableness After Carpenter, 128 Yale L.J. Forum 943, 943 (Apr. 1, 2019), (first citing Orin S. Kerr, Implementing Carpenter, in The Digital Fourth Amendment (forthcoming) (manuscript at 1), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257 [https://perma.cc/FTZ4-ZANU]; then citing Susan Freiwald & Stephen Wm. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. L. Rev. 205, 206 (2018); and then citing Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357 (2019)).

[17] Carpenter, 138 S. Ct. at 2222.

[18] See id. at 2214.

[19] Peter Swire & Richard Clarke, Reform Section 702 to Maintain Fourth Amendment Principles, Lawfare (Oct. 19, 2017, 2:02 PM), https://www.lawfareblog.com/reform-section-702-maintain-fourth-amendment-principles [https://perma.cc/WF4Q-EYMK]; see also Geoffrey Stone & Michael Morrell, The One Change We Need to Surveillance Law, Wash. Post. (Oct. 9, 2017), https://www.washingtonpost.com/opinions/the-one-change-we-need-to-surveillance-law/2017/10/09/53a40df0-a9ea-11e7-850e-2bdd1236be5d_story.html [https://perma.cc/R6SN-4C6K] (arguing “[t]he government should no longer be permitted to search the data collected under Section 702 without a warrant when seeking information about U.S. citizens and legal permanent residents.”).

[20] Charlie Savage, Fight Brews Over Push to Shield Americans in Warrantless Surveillance, N.Y. Times (May 6, 2017), https://www.nytimes.com/2017/05/06/us/politics/congress-surveillance-nsa-privacy.html [https://perma.cc/75U8-Q9NM].

[21] See Hasbajrami, 945 F.3d at 658.

[22] Id. at 647.

[23] See id.

[24] See id. at 645.

[25] Id.

[26] Id.

[27] Id. at 648.

[28] Id. at 648–49.

[29] United States v. Rosen, 447 F. Supp. 2d 538, 542–43 (E.D. Va. 2006).

[30] United States v. Mohamud, 843 F.3d at 437.

[31] See id.

[32] Id. (citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1144 (2013)).

[33] See 50 U.S.C. § 1881a(a).

[34] See Hasbajrami, 945 F.3d at  651–58.

[35] 50 U.S.C. § 1881a(b)(6).

[36] See Hasbajrami, 945 F.3d at 651 (citing 50 U.S.C. § 1881a(i)(1)(A)).

[37] See Off. of the Dir. of Nat’l Intel., Statistical Transparency Report Regarding the Use of National Security Authorities 13 (2019), https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY2018.pdf [https://perma.cc/8HPD-TJJ4].

[38] See [Case Title Redacted], 2011 WL 10945618, at *9 (FISA Ct. Oct. 3, 2011).

[39] Stone & Morrell, supra note 19.

[40] Savage, supra note 20.

[41] Hasbajrami, 945 F.3d at 654.

[42] Id.

[43] See Robert Chesney, Unmasking: A Primer on the Issues, Rules, and Possible Reforms, Lawfare (Apr. 6, 2017, 1:58 PM), https://www.lawfareblog.com/unmasking-primer-issues-rules-and-possible-reforms [https://perma.cc/XDZ6-PTWR].

[44] See id.

[45] See Barton Gellman, Julie Tate & Ashkan Soltani, In NSA-Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are, Wash. Post. (July 5, 2014), https://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-4b1b969b6322_story.html [https://perma.cc/3HSA-J9MX].

[46] See id.

[47] Hasbajrami, 945 F.3d at 656  (citing Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended § 3(b)(4) (2011), https://www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20in%20Connection%20with%20FISA%20SECT%20702.pdf. [https://perma.cc/J3H3-47JJ].

[48] See id.

[49] Off. of the Dir. of Nat’l Intel., supra note 37, at 14–15.

[50] Chesney, supra note 43 (quoting Nat’l Sec. Agency et al., United States Signal Intelligence Directive SP0018: (U) Legal Compliance and U.S. Persons Minimization Procedures para. 7.2.c (Jan. 15, 2011), https://www.dni.gov/files/documents/1118/CLEANEDFinal%20USSID%20SP0018.pdf [https://perma.cc/ZLY4-VMHP].

[51] Hasbajrami, 945 F.3d at 658 (citing 50 U.S.C. § 1881a(f)(2)(A)).

[52] 50 U.S.C. § 1806(c).

[53] Patrick C. Toomey, Why Aren’t Criminal Defendants Getting Notice of Section 702 Surveillance—Again?, Just Sec. (Dec. 11, 2015), https://www.justsecurity.org/28256/arent-criminal-defendants-notice-section-702-surveillance-again / [https://perma.cc/QY32-5T6A].

[54] See id.

[55] Id.

[56] See id. This interpretation of the notice requirement may be unlawful according to the reasoning of United States v. Moalin, 973 F.3d 977 (9th Cir. 2020), a recent case about FISA’s now-expired telephony metadata program. According to the Ninth Circuit in Moalin, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use information obtained or derived from surveillance conducted under FISA or the FISA Amendments Act. 973 F.3d at 1000–01; see also Orin Kerr, Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices?, Lawfare (Sept. 9, 2020, 7:01 AM), https://www.lawfareblog.com/did-ninth-circuit-create-new-fourth-amendment-notice-requirement-surveillance-practices [https://perma.cc/LQ2R-2QHY].

[57] Rozenshtein, supra note 16, at 943.

[58] Carpenter, 138 S. Ct. at 2221.

[59] Id. at 2223.

[60] Rozenshtein, supra note 16, at 944.

[61] See Carpenter, 138 S. Ct. at 2218 (“[T]he Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention policies of the wireless carriers . . . .”).

[62] Mohamud, 843 F.3d at 440.

[63] See Hasbajrami, 945 F.3d at 672 (2d Cir. 2019).

[64] Id. at 660.

[65] Id. at 661.

[66] Id. at 662.

[67] U.S. Const. amend. IV.

[68] In re Sealed Case, 310 F.3d 717, 738 (FISA Ct. Rev. 2002) (citing Dalia v. United States, 441 U.S. 238, 255 (1979)).

[69] Katz v. United States, 389 U.S. 347, 357 (1967); see also Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (“[I]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”).

[70] Katz, 389 U.S. at 358 n.23 (“Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”); see also Carpenter, 138 S. Ct. at 2220 (“[O]ur opinion does not consider other collection techniques involving foreign affairs or national security.”).

[71] Hasbajrami, 945 F.3d at 662.

[72] Id.

[73] See id. (citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)).

[74] Id. at 663 (citing In re Terrorist Bombings, 552 F.3d 157, 171 (2d Cir. 2008)).

[75] See id. at 664.

[76] Id. at 665. Accepting this proposition that the location of the surveillance is not important, it is not totally clear why then the U.S. citizen in In re Terrorist Bombings lost the protection of the warrant requirement because he was overseas. See 552 F.3d 157.

[77] See Mohamud, 843 F.3d at 441 (assuming that the defendant “had a Fourth Amendment right in the incidentally collected communications” (citing Orin S. Kerr, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 285, 313–14 (2015) (“Communicating with a person who lacks Fourth Amendment rights should not waive the rights of the person who has those rights. The Fourth Amendment should continue to fully protect the U.S. person who communicates with those lacking Fourth Amendment rights.”); also citing Privacy & Civil Liberties Oversight Bd. (“PCLOB”), Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 94 (July 2, 2014) (“The government has acknowledged that the Fourth Amendment rights of U.S. persons are affected when their communications are acquired under Section 702 incidentally or otherwise[.]”))).

[78] 429 U.S. 413 (1977).

[79] Hasbajrami, 945 F.3d at 663.

[80] United States v. Kahn, 415 U.S. 143 (1974).

[81] See Elizabeth Goitein, Another Bite Out of Katz: Foreign Intelligence Surveillance and the “Incidental Overhear” Doctrine, 55 Am. Crim. L. Rev. 105, 115 (2018), https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2018/04/55-1-Another-Bite-out-of-Katz-Foreign-Intelligence-Surveillance-and-the-%E2%80%9CIncidental-Overhear%E2%80%9D-Doctrine.pdf [https://perma.cc/88P7-CGZU].

[82] Id. at 122.

[83] Id.

[84] Orin Kerr, The Surprisingly Weak Reasoning of Mohamud, Lawfare (Dec. 23, 2016, 7:30 AM), https://www.lawfareblog.com/surprisingly-weak-reasoning-mohamud [https://perma.cc/DN5G-EPNQ].

[85] Hasbajrami, 945 F.3d at 665.

[86] See Katz, 389 U.S. at 357 (calling searches without warrants “per se unreasonable” outside “a few specifically established and well-delineated exceptions”).

[87] See Mohamud, 843 F.3d at 440-41 (“[W]hen surveillance is lawful in the first place—whether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.”) (citing United States v. Hasbajrami, No. 11-CR-623 (JG), 2016 WL 1029500, at *9, (E.D.N.Y. Mar. 8, 2016)).

[88] Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).

[89] Johnson v. United States, 333 U.S. 10, 14 (1948).

[90] Carpenter, 138 S. Ct. at 2223.

[91] See United States v. Hasbajrami, 945 F.3d at 672.

[92] See U.S. Cts., Wiretap Report 2018, https://www.uscourts.gov/statistics-reports/wiretap-report-2018 [https://perma.cc/23W6-Q86A] (last updated Dec. 31, 2018).

[93] See Off. of the Dir. of Nat’l Intel., supra note 37, at 13.

[94] See [Case Title Redacted], 2011 WL 10945618, at *9.

[95] Carpenter, 138 S. Ct. at 2214 (citing Kyllo v. United States, 533 U.S. 27, 34 (2001)).

[96] Id. at 2217.

[97] Orin S. Kerr, Implementing Carpenter, in The Digital Fourth Amendment (forthcoming) (manuscript at 8), https://papers.ssrn.com/abstract_id=3301257 [https://perma.cc/ARK7-JYSW].

[98] See Mohamud, 843 F.3d at 441 n.25 (“Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any ‘foreign intelligence exception.’”); see also Muhtorov, 187 F. Supp. 3d at 1253–54) (“I find the special need/foreign intelligence exception argument somewhat academic and limiting, because the standard ultimately is one of reasonableness.”).

[99] See Privacy & Civil Liberties Oversight Bd., supra note 77, at 90 n.411 (distinguishing Section 702 from caselaw recognizing a foreign intelligence exception, but ultimately not taking a position on the existence or scope of such an exception).

[100] Hasbajrami, 945 F.3d at 666.

[101] See Carpenter, 138 S. Ct. at 2221 (“[I]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”).

[102] See Hasbajrami, 945 F.3d at 666.

[103] Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357, 398 (Spring 2019) (citing Carpenter, 138 S. Ct. at 2222; id. at 2230 (Kennedy, J., dissenting); id. at 2269 (Gorsuch, J., dissenting)).

[104] See Mohamud, 843 F.3d at 442; Mohammad, 339 F. Supp. 3d at 752; Muhtorov, 187 F. Supp. 3d at 1255.

[105] Kerr, supra note 84.

[106] Hasbajrami, 945 F.3d at 666–67.

[107] 50 U.S.C. § 1881a(a).

[108] United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 314 (1972) (“Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.”).

[109] Hasbajrami, 945 F.3d at 667.

[110] See United States v. Mohamud, 843 F.3d 420, 443 (9th Cir. 2016); Mohammad, 339 F. Supp. 3d at 753.

[111] Keith, 407 U.S. at 315.

[112] See Muhtorov, 187 F. Supp. 3d at 1256; see also United States v. Mohamud, No. 3:10-cr-475-KI-1, 2014 WL 2866749, at *26 (D. Or. June 24, 2014).

[113] Hasbajrami, 945 F.3d at 670–71.

[114] See id. at 672.

[115] See id. at 669–73 (comparing querying to collection and citing the Carpenter factors).

[116] See Toomey, supra note 53.

[117] U.S. Dist. Court (Keith), 407 U.S. at 320.

[118] See Steve Vladeck & Benjamin Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments, Lawfare (July 20, 2020), https://www.lawfareblog.com/dhs-authorizes-domestic-surveillance-protect-statues-and-monuments [https://perma.cc/AYH3-USPT].

 

Share
Categories
Fourth Amendment Intelwars privacy Surveillance

No Expectation of Privacy? Are You Sure About That?

A lot of people just parrot things they hear without really thinking about it. If they did carefully consider what they were saying, they probably wouldn’t say it. This is particularly true when it comes to mass, warrantless surveillance.

The Lexington Police Department covertly uses two cameras that can be hidden in streetlights and one that is disguised as a utility box. Coupled with the fact that documents released by the LPD during legal proceedings reveal lax policies that could be interpreted to allow surveillance virtually any place at any time, I find the use of these cameras troubling.

But I’ve been told I have no basis to oppose the use of these cameras because, “You have no expectation of privacy in a public place.”

This is true in a technical, legal sense. But just because something is legal doesn’t make it just or ethical. And legality has virtually no bearing on how we live our lives.

And when you really did deep, most people don’t really believe this nonsense.

Based on the “expectation of privacy” doctrine, you can stand on the sidewalk in front of my house and take pictures of my daughter playing in the yard all day every day. You can even take pictures of my wife getting dressed through the window if she forgets to pull the curtains closed. Now, I may not have any legal expectation of privacy in my front yard or through my open blinds, but in the real world, I damn sure expect my daughter to be able to play in the yard and my wife to be able to get dressed free from your video-voyeurism.

And I think most reasonable people have the same expectation. It may not be a valid legal expectation, but it is certainly a reasonable human expectation.

The legal notion of “no expectation of privacy” in public is really meant to apply to incidental observation. I can’t come after you for taking a photo of a bird in my yard even if you happen to capture my daughter in the frame. I can’t demand police arrest you if you happen to glance up and see my wife through an uncovered window. I can’t get angry if I start dancing in a public park and you film me and stick it on YouTube.

But even from a legal standpoint, you can’t spy on me. At some point, your behavior crosses the line from incidental observation to stalking. I’m pretty sure if you saw me standing on the street taking pictures of your kids for hours on end, my insistence that you have “no expectation of privacy” would fall on deaf ears.

Government surveillance is more akin to stalking than incidental observation. If a cop positions a camera in such a way as to capture everything that happens in your yard, that’s a little creepy. It may be legal, but that doesn’t make it right.

In fact, government is held to a higher standard than everyday folks. The Fourth Amendment and privacy protections in every state constitution make this clear. For instance, Section 10 of the Kentucky State Constitution declares:

“The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

If government agents are going to watch me, they should have probable cause and get a warrant. Otherwise, they should leave me alone.

The issue of privacy was one of the flashpoints that led to the American War for Independence.

Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.

Electronic surveillance is the 21st-century version of writs of assistance. They allow police to go on fishing expeditions and watch our every move. They empower law enforcement to track us, document us and monitor us until they find a reason to come after us.

George Orwell’s 1984 was meant to warn us about ubiquitous government surveillance, not serve as an instruction manual.

I’ve written before about the negative impacts of surveillance on society and this odd mantra of “if you have nothing to hide you have nothing to fear.” I encourage you to review that article if you’re still not convinced.

People who roll out arguments like “you have no expectation of privacy” or “if you have nothing to hide you have nothing to fear” are really telling me they simply don’t believe the government would ever target them with surveillance. This mostly comes from conservatives who value law and order. But you should ask yourself a question: who is going to get targeted by surveillance when the government decides it wants to enforce a mask mandate? Or arrest people for attending a church service? Or when they come after a certain kind of gun? You are only one policy-shift away from having the digital crosshairs on your back.

Never forget, the power you give government over others — it also has over you.

Share
Categories
ALPR Cell Site Simulator Facial Recognition Fourth Amendment Intelwars privacy State Bills stingray Surveillance

Status Report: Nullifying the National Surveillance State

In 2014, the Tenth Amendment Center dove headfirst in the fight against unconstitutional federal surveillance when it spearheaded efforts to turn off the water at the NSA facility in Bluffdale, Utah, and cut off other critical state and local services to other NSA facilities.

We haven’t turned off the water in Utah — yet. But we did win some victories. In 2014, California Gov. Jerry Brown signed SB828 into law, laying the foundation for the state to turn off water, electricity and other resources to any federal agency engaged in mass warrantless surveillance. In 2018, Michigan built on this foundation with the passage of HB4430. The new law prohibits the state and its political subdivisions from assisting, participating with, or providing “material support or resources, to a federal agency to enable it to collect, or to facilitate in the collection or use of a person’s electronic data,” without a warrant or under a few other carefully defined exceptions. 

Although NSA spying remains the most high-profile warrantless surveillance program, the federal government has created a national surveillance network that extends well beyond the operation of this single agency. In fact, state and local law enforcement have become vital cogs in the national surveillance state. 

State, local and federal governments work together to conduct surveillance in many ways. As a result, efforts to protect privacy at the state and local level have a significant spillover effect to the national level.

While continuing efforts to cut off resources to NSA facilities in recent years, we also focused on other state-federal surveillance partnerships that feed into the national spy-state.

ALPR/License Plate Tracking

As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency (DEA), tracks the location of millions of vehicles through data provided by Automatic Licence Plate Readers (ALPRs) operated on a state and local level. They’ve engaged in this for nearly 10 years, all without a warrant, or even public notice of the policy.

Currently, six states have placed significant restrictions on the use of ALPRs. Activists are expected to push several states to consider similar restrictions in the next legislative session.

Facial Recognition and Biometric Surveillance

Facial recognition is the newest frontier in the national surveillance state. Over the last few years, the federal government has spearheaded a drive to expand the use of this invasive technology. At the same time, some state and local governments have aggressively pushed back.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of laws banning or restricting the use of facial recognition eliminates one avenue for gathering biometric data. Simply put, data that doesn’t exist cannot be entered into federal databases.

In 2019, California enacted a law that prohibits a law enforcement agency or law enforcement official from installing, activating, or using any biometric surveillance system in connection with an officer camera or data collected by an officer camera. This includes body-worn and handheld devices. This new law had a significant impact. After its enactment, San Diego shut down one of the largest facial recognition programs in the country in order to comply with the law.

Washington state passed a bill that would require a warrant for ongoing and realtime facial recognition surveillance. The bill doesn’t completely ban the use of facial recognition and there is some concern about how police will interpret the statute, but it takes a good first step toward addressing the issue.

New York passed a bill that would place a moratorium on the use of facial recognition in schools. At the time of this report, it is awaiting Gov. Cuomo’s signature.

There have also been a large number of local facial recognition bans implemented in the last year, particularly in California and Massachusetts.

Stingrays and Electronic Data Collection

Cell site simulators, more commonly called “stingrays,” are portable devices used for cell phone surveillance and location tracking. They essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the cell tower, allowing law enforcement to sweep up all communications content within range of that tower. The stingray will also locate and track any person in possession of a phone or other electronic device that tries to connect to the tower.

In 2019, New Mexico barred warrantless stingray spying in its Electronic Communications Privacy Act. The law requires police to obtain a warrant or wiretap order before deploying a stingray device, unless they have the explicit permission of the owner or authorized possessor of the device, or if the device is lost or stolen.

In the 2020 session, New Mexico expanded protections under that 2019 law by limiting the retention and use of incidentally-collected data.

Also in 2020, the Maryland legislature passed a bill to ban warrantless stingray spying by adding provisions to existing statutes limiting warrantless location tracking through electronic devices. The bill addresses the use of cell-site simulators, requiring police to get a court order based on probable cause before deploying a stingray device. The bill also bars police from using a stingray to obtain communication content and spells out explicit criteria law enforcement must meet in order to justify such an order.

Two other states also expanded their restrictions on warrantless government access to electronic data last year.

Utah passed a bill expanding its electronic data protection by barring law enforcement agencies from accessing electronic information or data transmitted to a “remote computing service” without a warrant based on probable cause in most situations. In effect, it prohibits police from accessing information uploaded into the “cloud” without a warrant. The state previously prohibited both the use of stingrays and accessing data on a device without a warrant. 

Illinois also expanded its protection of electronic data in 2019. Under the old law, police were required to get a court order based on probable cause before obtaining a person’s current or future location information using a stingray or other means. The new law removes the words “current or future” from the statute. In effect, the law now includes historical location information under the court order requirement. 

This is an overview of the most recent moves to limit surveillance and chip away at the ever-growing national surveillance state. To get more details on state efforts to undermine government spying, along with other unconstitutional federal actions and programs, make sure you read our latest State of the Nullification Movement report. You can download it for free HERE.

Share
Categories
Detroit Facial Recognition Fourth Amendment Intelwars privacy Surveillance

Detroit Police Chief Admits Facial Recognition Rarely Provides an Accurate Match

DETROIT, Mich. (July 22, 2020) – During a public meeting last month, Detroit Police Chief James Craig admitted that the city’s facial recognition technology rarely provides a direct match and misidentifies people the vast majority of the time.

Detroit paid $1 million for the facial recognition software developed by DataWorks Plus back in 2017. Craig admitted that the system is appallingly inaccurate.

“If we would use the software only [to identify subjects], we would not solve the case 95-97 percent of the time. That’s if we relied totally on the software, which would be against our current policy … If we were just to use the technology by itself, to identify someone, I would say 96 percent of the time it would misidentify.”

This dovetails with other evidence revealing the inaccuracy of facial recognition technology, especially when it comes to identifying non-whites. During a test run by the ACLU of Northern California, facial recognition misidentified 26 members of the California legislature as people in a database of arrest photos.

DataWorks GM Todd Pastorini compared the system to automated fingerprint ID systems that pull up dozens or even hundreds of potential matches. He told Motherboard the system “doesn’t bring back a single candidate.”

“It’s hundreds. They are weighted just like a fingerprint system based on the probe [and what’s in the database].”

As Motherboard pointed out, this means cops are ultimately making the decision to question and investigate people based on what the software returns and a detective’s judgment.

“This means that people who may have had nothing to do with a crime are ultimately questioned and investigated by police. In Detroit, this means, almost exclusively, Black people.”

According to data released by the Detroit Police Department, officers used the facial recognition system 70 times through the first six months of the year. Of the 70 photos fed into the system, 68 were of black people. The race of the individuals in the other two photos were classified as “unidentified”

Of the 70 photos, 31 were pulled from social media accounts and 18 were captured by security cameras.

Detroit’s facial recognition system works with the vast network of cameras known as Project Green Light. The surveillance network utilizes thousands of government and private cameras throughout the city. The cameras are installed at schools, parks, apartment buildings, immigration centers, gas stations, churches, hotels, fast-food restaurants, and even in places such as addiction treatment centers and abortion clinics.

The program was implemented in 2016 and was generally popular due to the promise that it would deter and help solve crime. As the New York Times pointed out, the system is anything but covert. A flashing green light marks the location of every camera linked into a network that feeds directly into the Detroit Police Department’s downtown headquarters.

Detroit’s facial recognition system came under fire last year when Mayor Mike Duggan implied that the Detroit Police Department wasn’t using the technology in order to muddy the waters as information about the controversial program became public. As it turns out, he was using clever wordplay. After all, why would the city spend $1 million for a system it had no intention of using?

In fact, Duggan never claimed the police department wasn’t using facial recognition at all. He just said it wasn’t using it on “live stream video.”

In other words, police aren’t running facial recognition in real-time. But they are using the technology on still images plucked from reams of footage collected by cameras all around the city. As Urban Institute’s Justice Policy Center senior policy analyst Daniel Lawrence told the Detriot Free Press, this is a difference without any real distinction.

“In all my experience with facial recognition, the way the process and programming works is that it takes a still image from the video. I’m not knowledgeable of any facial recognition software that’s taking real video. It’s taking a still from a video.”

The issues with facial recognition technology go far beyond their inaccuracy. Even if the technology improves, it still poses a significant privacy threat.

A NATIONAL FACIAL RECOGNITION SYSTEM

recent report revealed that the federal government has turned state drivers’ license photos into a giant facial recognition database, putting virtually every driver in America in a perpetual electronic police lineup. The revelations generated widespread outrage, but this story isn’t new. The federal government has been developing a massive, nationwide facial recognition system for years.

The FBI rolled out a nationwide facial-recognition program in the fall of 2014, with the goal of building a giant biometric database with pictures provided by the states and corporate friends.

In 2016, the Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.

“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”

With facial recognition technology, police and other government officials have the capability to track individuals in real-time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed written interest in buying it.

In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

Reports that the Berkeley Police Department in cooperation with a federal fusion center deployed cameras equipped to surveil a “free speech” rally and Antifa counterprotests provided the first solid link between the federal government and local authorities in facial recognition surveillance.

Share
Categories
Facial Recognition Fourth Amendment ICE Intelwars privacy Surveillance

ICE Facial Recognition Reveals Interplay Between Federal, State, Local and Private Surveillance

When it comes to the rapidly growing national surveillance state, federal agencies such as the NSA and FBI get most of the attention. But in fact, state and local law enforcement agencies, and increasingly private third-parties, make federal surveillance possible. A careful look at  Immigration and Customs Enforcement (ICE) facial recognition surveillance reveals just how intertwined federal, state, local and third-party spying has become.

I’ve been arguing for years that the federal government encourages and funds surveillance technology at the state and local levels across the U.S., thereby gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself.

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

The feds created the infrastructure supporting the national surveillance state, and they supply a lot of the funding, but state and local law enforcement agencies do the grunt-work. And increasingly, private companies are stepping in to fill the gaps.

ICE reveals how this system functions in the real world.

Like most law enforcement agencies, ICE has waded into the world of facial recognition. But as an article published by Nextgov explains “rather than build its own database and biometric apps, the agency opts to use third-party services from the private sector, state and local law enforcement and other federal agencies.”

An ICE division known as Homeland Security Investigations (HSI) conducts all of the agency’s facial recognition services. According to the Nextgov report, third parties including other government agencies and private vendors do all of the actual work.

According to a privacy impact assessment (PIA) issued May 13 and released publicly last week, HSI agents either send photos to the facial recognition service through encrypted email or upload through a third-party website. At no point does HSI manage any facial recognition software or image databases.

The report lists a number of facial recognition “service providers” used by ICE.

  • State and local law enforcement
  • Regional and Subject Matter-Specific Intelligence Fusion Centers
  • Federal Agencies — This includes a number of databases starting with DHS’s Automated Biometric Identification System, or IDENT. This is currently on track to be replaced by the cloud-based Homeland Advanced Recognition Technology, or HART, system. ICE investigators also have access to the State Department’s Consular Consolidated Database allowing it to check images against passport photos. It can tap into the FBI’s Next Generation Identification System (NGI), a massive database that stores photos on more than 38 million convicted criminals. And finally, ICE can access the Defense Department’s Automated Biometric Identity System (ABIS). This is primarily used in support of military operations and could soon be connected directly to the IDENT/HART system, according to the PIA.
  • Commercial Vendors – primarily for open-source collections of publicly available images. Some vendors have also developed facial recognition software that HSI agents can use. In such cases, after an agent uploads an image to the application, the vendor is required to “delete the image immediately upon creation of a face template.” The PIA notes that, “While HSI cannot directly control the means or methods of a vendor’s data collection efforts, if HSI discovers that an FRS violates the privacy settings of an open-source system, HSI will discontinue using that vendor’s FRS.”

All of these existing databases allow ICE to run a facial recognition program without investing in facial recognition technology or expending the manpower to gather the data.

The Nextgov report focuses on ICE and facial recognition surveillance, but federal agencies almost certainly utilize the same strategy to facilitate other kinds of surveillance. It can tap into databases containing location data, cell phone information, license plate data, drone surveillance data and more without having to actually operate stingray devices, ALPRs, or drones. State and local cops gather the data and then dump it into these massive databases that every law enforcement agency in the country can access – including the feds.

The federal government continues to build out a national surveillance state, partnering with state, local and private entities to create a tangled web that becomes increasingly difficult to untangle. This is why it’s critical to limit the use of surveillance technology and data sharing at the state and local levels. Every limit on surveillance in a county or city takes a small bite out of the system. Data that is never gathered can’t be shared.

Share
Categories
ALPR Fourth Amendment Fusion Centers Intelwars License Plate Tracking NCRIC privacy Surveillance

Document Unmasks Fusion Center’s Participation in License Plate Surveillance

A document pulled from the BlueLeaks trove reveals the Northern California Regional Intelligence Center (NCRIC) collects automatic license plate reader (ALPR) information and stores it for up to a year, making it accessible to government agencies across the country.

The Tenth Amendment Center has long suspected that fusion centers serve as surveillance data collection hubs. The NCRIC document confirms this and additionally reveals that the center owns surveillance technology it makes available to law enforcement agencies in its region.

NCRIC is one of 78 fusion centers across the United States. Although states own and operate their fusion centers, the U.S. Department of Homeland Security facilitates and coordinates their activities. According to the DHS website, “The National Network of Fusion Centers is the hub of much of the two-way intelligence and information flow between the federal government and our State, Local, Tribal and Territorial (SLTT) and private sector partners. The fusion centers represent a shared commitment between the federal government and the state and local governments who own and operate them.”

The Tenth Amendment Center obtained NCRIC’s ALPR policy through a search of the BlueLeaks database. Distributed Denial of Secrets (DDoSecrets) published a 269-gigabyte collection of police department data that includes emails, memos, videos, audio files and law enforcement documents. In a tweet, DDoSecrets said the trove includes “ten years of data from over 200 police departments, fusion centers and other law enforcement training and support resources,”. The searchable database contains over 1 million files.

The NCRIC document confirms that fusion centers serve as a hub for surveillance data, operating as a collection point for information flowing in from various agencies and making it accessible nationwide through the national fusion center network. It also reveals that NCRIC owns ALPR technology of its own.

The NCRIC document specifically outlines the fusion center’s policy on ALPRs. This technology can scan, capture and record thousands of license plates every minute and store them in massive databases, along with date, time and location information. ALPRs empowers law enforcement to track the location of millions of everyday people through pictures of their license plates without a warrant. Police generally configure ALPRs to store the photograph, the license plate number, and the date, time, and location of a vehicle’s license plate, which is bad enough. But according to records obtained by the ACLU via a Freedom of Information Act request, these systems also capture photographs of drivers and their passengers.

According to the NCRIC document:

“To support authorized law enforcement and public safety purposes of local, state, federal, and tribal public safety agencies, the NCRIC utilizes Automated License Plate Reader (ALPR) technology, and supporting software, to gather and analyze ALPR data to enable the rapid identification and location of vehicles of legitimate interest to law enforcement. ALPR units are attached to law enforcement vehicles or deployed at fixed locations, where they collect license plate information from vehicles on public roadways and public property.”

NCRIC policy allows ALPR data collected by its own ALPR units or shared from partner agencies to be retained for up to one year. Data can be retained longer if “a reasonable suspicion has been established that the vehicle identified by the ALPR read is connected to criminal activities.” The one-year retention policy also applies to data “obtained with license plate information not appearing on hotlists, and with no immediate reasonable connection to criminal activity.”

In other words, NCRIC can store license plate information on people not even suspected of a crime for up to one year. If law enforcement determines that a vehicle is “linked to a criminal investigation,” NCRIC can store its license plate data for up to five years.

According to its policy, “The NCRIC may disseminate ALPR data to any governmental entity with an authorized law enforcement or public safety purpose for access to such data.” [Emphasis added] This includes any state, local or federal law enforcement agency in the United States.

As we’ve reported for years, the feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

The NCRIC ALPR policy proves that fusion centers serve as surveillance collection and dissemination hubs, effectively providing a framework for an integrated national surveillance network. It also surprisingly reveals that fusion centers actively participate in surveillance by providing technology to local law enforcement agencies.

Share
Categories
biometric data Facial Recognition Fourth Amendment Intelwars privacy Surveillance

America Ranks as Fourth-Worst Abuser of Biometric Privacy in the World

Does anyone really believe America is still the land of the free?

Since 9/11, DHS, the FBI, the CIA, and countless other alphabet soup agencies have turned the United States into a public surveillance monstrosity. In 19 years, one terrorist attack has done what no one else could have dreamed of: turn America’s freedoms into a distant memory.

Abusing citizen’s rights and privacy used to be the hallmark of dictatorships and police states like the CCCP or North Korea.

A recent study conducted by Comparitech, rated 50 countries from best to worst at protecting citizen’s biometric data. The study found that America is one of the world’s worst abusers of citizens’ biometric privacy.

“While China topping the list perhaps doesn’t come as too much of a surprise, residents of (and travelers to) other countries may be surprised and concerned at the extent of biometric information that is being collected on them and what is happening to it afterward.”

This really should not come as a surprise, because earlier this year Comparitech revealed that American and Chinese cities lead the world in spying on their citizens. Last week, I wrote an article explaining how 2019 would go down as the year that facial recognition and corporate surveillance became commonplace in America.

Comparitech’s recent study on biometric privacy compared how 50 countries collect and use data to identify innocent people:

  • Many countries collect travelers’ biometric data, often through visas or biometric checks at airports
  • Every country we studied is using biometrics for bank accounts, e.g. fingerprints to access online app data and/or to confirm identities within the banks themselves
  • Despite many countries recognizing biometric data as sensitive, increased biometric use is widely accepted
  • Facial recognition CCTV is being implemented in a large number of countries, or at least being tested
  • EU countries scored better overall than non-EU countries due to GDPR regulations protecting the use of biometrics in the workplace (to some extent)

Comparitech warns, “these 5 countries show a concerning lack of regard for the privacy of people’s biometric data.” That’s right, the “land of the free” has become the land of the surveilled and tracked.

How can that be you ask?

According to Comparitech, the United States scores highly in most areas due to:

  • Having biometrics in passports, ID cards, and bank accounts.
  • Having a biometric voting system (optical scan equipment used in a large number of states).
  • Not having a specific law to protect citizens’ biometrics. While there is a handful of state laws that protect state residents’ biometrics (as can be seen in our state privacy study), this does leave many US citizens’ biometrics exposed as there is no federal law in place.
  • Implementing the widespread use of facial recognition cameras with law enforcement pushing for further use in the identification of criminals. For example, the FBI and ICE have recently been criticized due to their use of facial recognition technology to scan drivers’ license photos without gaining the citizens’ consent beforehand. Equally, some city-level bans have been put in place with San Francisco (CA), Oakland (CA), Berkeley (CA), and Somerville (MA) banning government use of facial recognition technology.
  • The growing use of biometrics in the workplace. Many companies use employees’ biometrics for certain actions, e.g. using a fingerprint to gain access to a work computer. Again, some state laws offer a little more protection but this still leaves many employees’ biometrics exposed.
  • Fingerprints being required for most American visas and everyone’s fingerprints being collected upon entry to the country.

Curiously, Comparitech failed to elaborate on DHS’s national Real-ID program which forces everyone to provide biometric information to drive or fly in America. If they had included Real-ID in their study it is my opinion that America would be second only to China in abusing citizen’s biometric privacy.

The other countries listed in the top ten worst abusers of citizens biometric privacy rights, India, South Africa, Brazil, Nigeria, and Argentina are all countries one might expect to be in or near the top but a neighbor to America’s north is also one of the worst, Canada.

As I mentioned earlier, the Western world has used 9/11 as an excuse to abuse citizen’s privacy rights and sadly, Canada is no exception.

That countries like Canada and the United States, once bastion’s of a free society, are now near mirror-images of surveillance states, like ChinaMalaysiaPakistanIndia, the Philippines and Taiwan is horrifying.

The Carnegie Endowment For Peace’s, AI Global Surveillance (AIGS) Index warned, that AI surveillance is being used by 176 countries to track individuals.

 “As the spread of AI surveillance continues unabated. Its use by repressive regimes to engineer crackdowns against targeted populations has already sounded alarm bells.”

And hopefully, that is what you will take away from this story: our government increasingly uses biometrics and AI surveillance to track everyone.

Share
Categories
4th amendment Court Cases Fourth Amendment Intelwars Katz v. United States Originalism Technology

Originalism, the Fourth Amendment, and New Technology

One of the important issues for originalism is whether it can be applied to new circumstances that were not envisioned at the time of the original Constitution. Perhaps this issue is encountered most often when considering the application of the Fourth Amendment to new technology. In this essay and my next, I explain how these issues can be resolved in theory and as applied to two specific cases: Riley v. California (the search of cell phones when a person is arrested) and Kyllo v U.S. (the use of heat sensors to determine the temperature inside a home—as a means of discovering whether illegal pot is being grown there).

The Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But difficult issues arise as to how this Amendment, which was written in a horse-and-buggy world, should be applied to cell phones and other modern technology.

Under the modern interpretation of the Fourth Amendment, which does not apply the original meaning, these issues are largely avoided. In the 1967 case of Katz v. United States, the Supreme Court began the development of a nonoriginalist approach to the Amendment. In that case, the government placed a device on the outside of a phone booth which amplified the sound inside, allowing the government to hear the contents of a call. The Court held the use of the device was a search and Justice Harlan’s concurrence provided the test for this approach. Under that test, the government undertakes a Fourth Amendment search whenever it engages in an activity that interferes with the reasonable expectations of privacy of an individual. Because Harlan believed the individual had a reasonable expectation of privacy during his phone conversation inside the enclosed phone booth, the government had undertaken a Fourth Amendment search.

This test has allowed the Court to address modern technology that was not anticipated by the Framers of the Bill of Rights. The Court simply asks whether an individual had a reasonable expectation of privacy. But this advantage of the test has been purchased at a great cost, since the test is largely a blank check for the Court, which can freely determine based on its own beliefs whether an individual had a reasonable expectation of privacy when engaging in some activity.

The Katz reasonable expectations of privacy test is also problematic, because it does not accord with the Fourth Amendment’s original meaning. As the Court’s two strongest originalists—Justices Thomas and Gorsuch—recently said in the case of U.S. v. Carpenter, the test is inconsistent in various ways with the original meaning. Perhaps most importantly, the test asks whether something is a search based on whether there is a reasonable expectation of privacy as to the matter. By contrast, the Fourth Amendment applies to searches (defined independently of their reasonableness) of persons, houses, papers and effects, and then only bars such searches if they are unreasonable.

In the Riley and Kyllo cases, the Supreme Court applied the Katz test and was able to reach sensible results. But because the Court employed the Katz test rather than the original meaning, one might wonder whether the original meaning could really be applied to this new technology.

To answer this question, let me start by discussing what I believe the Fourth Amendment’s original meaning is. Then, in my next essay, I will discuss how that might be applied in these two cases.

While Katz defines a search as any interference with the reasonable expectations of privacy of a person, the original meaning is different. As Justice Thomas’s dissent in Carpenter indicated, the original meaning of search seems to be the ordinary meaning at the time of “looking over or through” or “examining by inspection.” And the original meaning only covers searches of “persons, houses, papers, and effects.” But a key provision of the text is that it prohibits “unreasonable searches.” What does that mean? Many people have assumed that this language left the concept of reasonableness unclear and therefore amounts to a delegation to future judges.

But while the text—in the abstract—might seem like it could have that meaning, Laura Donahue has persuasively argued that an “unreasonable search” is a search that conflicts with the “reason of the common law.” In other words, searches that violate the common law rules for searches at the time of the Fourth Amendment are unreasonable searches. Thus, the Fourth Amendment incorporated the common law rules at the time and it did so with the language of “unreasonable searches.”

While this insight is extremely helpful, outstanding questions still remain. One question is whether this simply means that the Fourth Amendment adopts a constitutional common law approach, where the Court can decide what violates the Constitution based on evolving values over time. If that is the case, the Katz approach might not seem so problematic.

But that is not how the Fourth Amendment is properly interpreted. While the Fourth Amendment constitutionalizes the common law right, that does not mean it allows the Court to determine the content of this right by freely applying the common law method. If that were the case, the content of the right might change if there were a change in values or practices. The Amendment would then have constitutionalized a possibly evolving right. Instead, the Fourth Amendment adopts what the common law right was at the time of the Fourth Amendment and constitutionalizes that. The Amendment freezes the right as of the time of the Fourth Amendment.

If the Amendment were not interpreted as freezing the right, it would have a peculiar result. It would not assure the people that the right would protect them as strongly as it traditionally did under common law. Moreover, it would allow the Court extremely ample discretion. Traditional common law rights could be changed by ordinary statutes. But if the Fourth Amendment were not understood as freezing the right, a constitutional amendment would be required to change the common law as developed by the Supreme Court.

While interpreting the Amendment to freeze the right avoids these peculiar results, this still leaves an important question: What happens if there is uncertainty about the content of the right? For example, what if there were conflicting precedents or there were matters that were not addressed by the existing precedents? Here one must figure out what the common law right was as to these matters.

To determine the content of the common law right in such unclear cases, one must put oneself in the position of a common law judge at the time. Thus, one must engage in common law reasoning by considering court precedents, societal practices, and values of the people. That, after all, is how one determines the content of a common law right.

But to ensure that one is actually determining the content of the frozen common law right (rather than updating that common law right to take into account modern values), the interpreter must decide the case based on the precedents, practices, and values at the time of the Amendment. For example, if new values emerged 50 years after the Constitution was enacted, those values would not be legitimately considered by the interpreter when determining the content of the common law right.

This approach could be used to decide cases involving new technology. Since such technology did not exist at the time of the Constitution, the historical common law right did not specifically address it. In some cases, though, the new technology would seem to be unambiguously covered by the right. But in other cases, it might not. In these latter cases, determining the content of the right would require the use of common law reasoning. It would require the judge to determine how a common law judge at the time would have decided the case, given the values and circumstances at the time. This decision procedure is a way of determining the content of a frozen common law right when the content of that right is unclear.

In the case of modern technology, it might seem artificial to imagine how judges at the time of the Constitution would decide the case as applied to, for example cell phones. But as I argue in my next essay, there need not be anything problematic about this decision. While there may be hard cases, there will also be easy cases, as with any area of the law.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

Share
Categories
FBI Fourth Amendment Intelwars NSA privacy Surveillance

All the Bad Stuff You’ve Heard About NSA Spying Confirmed

Recently declassified court documents confirmed all of our worst suspicions about NSA spying.

Many people view NSA spying as relatively harmless. They argue it doesn’t violate the Fourth Amendment because the agency doesn’t even look at most of the information it collects.

This is a fallacious argument. Virtually nobody would sit by and let federal agents come into their home, make photocopies of all their personal papers and then store them away with the promise of “we won’t look at them without a warrant.” Sweeping up and storing electronic data is no different.

Even if you buy these silly legal gymnastics, by storing phone calls, emails, location information, and web searches belonging to millions of Americans, the NSA facilitates unconstitutional, warrantless surveillance.

And a recently-declassified 138-page opinion by U.S. District Court Judge James E. Boasberg confirmed just that. It revealed that the FBI regularly accessed millions of Americans’ data that was unconstitutionally gathered and stored by the federal spy agency. The government is accessing this information. It is not obtaining warrants. And this does violate the Fourth Amendment.

ACLU staff attorney Patrick Toomey told The Intercept that the FBI used the information for “fishing expeditions.”

“These opinions reveal devastating problems with the FBI’s backdoor searches, which often resembled fishing expeditions through Americans’ personal emails and online messages. But the court did not go nearly far enough to fix those abuses. The Constitution requires FBI agents to get a warrant before they go combing through our sensitive communications.”

Documents leaked by Edward Snowden revealed the existence of warrantless dragnet surveillance programs run by the NSA. The court ruling centered around spying “authorized” under Sec. 702 of the Foreign Service Intelligence Act (FISA). Under this provision, the government can collect data on Americans who are communicating with non-U.S. citizens without a warrant.

As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.”

A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.

The Electronic Frontier Foundation explained the scope of FISA surveillance on Americans.

Section 702 allows the government to collect and store the communications of foreign intelligence targets outside of the U.S if a significant purpose is to collect “foreign intelligence” information.  Although the law contains some protections—for example, a prohibition on knowingly collecting communications between two U.S. citizens on U.S. soil—we have learned that the program actually does sweep up billions of communications involving people not explicitly targeted, including Americans. For example, a 2014 report by the Washington Post that reviewed of a “large cache of intercepted conversations” provided by Edward Snowden revealed that 9 out of 10 account holders “were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.”

Congress renewed Sec 702 in 2018 with some minor reforms. But before approving a six-year extension, the House voted to kill an amendment that would have more significantly overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.

Then Congress had another opportunity to significantly rein in surveillance under Sec. 702 earlier this summer, but it voted down an amendment to an appropriations bill that would have effectively prohibited the warrantless collection of data from Americans.

According to the recently declassified court documents, the FBI was the agency most often accessing NSA data about “U.S. persons,” defined as any U.S. citizen or foreign national legally in the United States. The Intercept detailed the extent of the FBI’s data-mining.

Queries of this data are known as “backdoor searches.” In 2017, the FBI ran approximately 3.1 million searches related to U.S. persons, compared to 7,500 combined searches by the CIA and NSA during the same year. Many of the FBI’s searches were not legally justified because they did not involve a predicated criminal investigation or other proper justification for the search, as required by law, according to Boasberg’s FISA court.

The FBI often accesses NSA data using an investigative tool known as an “assessment.” The power was created after 9/11 and allows the agency to investigate anyone on evidence as flimsy as an anonymous tip. As The Intercept explained, “Because assessments are de facto national security inquiries, the FBI has viewed this as authority to search mass surveillance data for Americans’ communications.”

The court ruling also revealed evidence of “parallel construction.” Using this secretive process, police build cases on illegally obtained, warrantless data collected by the NSA and other federal agencies without anybody ever knowing. Once investigators have built a secret case on warrantless data, they obtain warrants bases on the illegally gathered information and create a parallel case with the illusion of constitutional legitimacy.

Former NSA technical director William Binney called parallel construction “the most threatening situation to our constitutional republic since the Civil War.”

As The Intercept explained, “Boasberg noted an example that fits this pattern as an inappropriate use of FISA data. On November 11, 2017, the FBI conducted a search of mass surveillance data on “a potential recipient of a FISA order.” In other words, the FBI was able to mine mass surveillance data to find out what evidence agents would discover if they went ahead and requested the FISA order.”

Congress will never rein in warrantless surveillance. It has had ample opportunity. In fact, Congress has had over 40 years to address these privacy issues. In 1975, Sen. Frank Church warned us about the surveillance state, saying it created the potential for ‘total tyranny.” That was before widespread public access to the Internet, before cellphones and before the proliferation of email.

Today, the technological capacity of the NSA and other federal agencies exceeds anything Church imagined. And yet 40 years later, Congress hasn’t done anything to rein in the surveillance. It never will. That’s why it’s up to states to take action. For more information on how, click HERE.

Share
Categories
Big Brother Fourth Amendment Intelwars John Dickinson Orwell privacy Surveillance

Surveillance: You’d Better Chose Wisely

I’ve often joked that George Orwell’s novel 1984 was meant to be a warning, not an instruction manual. And yet every day the U.S. marches closer and closer to making Orwell’s dystopian nightmare a reality.

Nobody wants this. So, why is it happening? Because way too many people do want the intermediate steps that necessarily lead to Orwell’s vision.

In the opening chapter of the book, Orwell drops the reader into a fully functioning, all-encompassing surveillance state. He hints at the path society took leading up to the omnipresent gaze of Big Brother, but the reader doesn’t experience the slow erosion of privacy and the gradual expansion of government power that eventually developed into the society we experience in 1984.

Consider this: at some point in the past, Orwell’s fictional world would have probably looked a lot like ours. Big Brother wasn’t watching every citizen’s every move. There weren’t cameras on every corner and microphones in every building. It wasn’t like the people of that society woke up one day and found Big Brother peering into their living rooms. Step-by-step, over time, society and the government evolved into the totalitarian surveillance state we experience in the novel.

Are we on a similar path right here in the good ol’ US of A?

I’ve never heard anybody say they would like to live in an absolute surveillance state like the one described by Orwell. Nobody reads the book and says, “That’s the kind of future I want!” Readers generally recoil in horror at the prospect of ever-present government eavesdropping and totalitarian control over their every utterance and even their thoughts.

The problem is that a lot of people are perfectly fine with the incremental steps that eventually lead to that point.

They want ICE to use facial recognition technology to “ferret out illegal immigrants.” They want the NSA to vacuum up cellphone calls and emails to “protect them from the terrorists.” They want police to use stingray devices to track down “dangerous criminals and drug dealers.”

After all, “If you have nothing to hide, you have nothing to fear.”

Do you want to know how we get to an Orwellian surveillance state? This is exactly how we get to an Orwellian surveillance state.

One step at a time. One new surveillance technology at a time. One small violation of the Fourth Amendment at a time.

Eventually, you end up with Big Brother in your living room. When you get to that point, it’s too late.

You may think, I don’t want Big Brother. I just want the government to protect me. Well, I doubt the people living in Orwell’s fictional world wanted Big Brother either. But they got Big Brother. When you start walking down a path, you’re eventually going to get to the destination.

It’s nonsensical to claim you don’t want an all-encompassing surveillance state while simultaneously supporting the policies that eventually lead to an all-encompassing surveillance state.

The Fourth Amendment was intended to serve as a line in the sand that the federal government must not cross, no matter what. But when we allow politicians to put even one toe across that line, it will almost certainly lead to bigger violations of your rights down the road.

Writing as “A Farmer in Pennsylvania” in the years leading up to the American Revolution, John Dickinson warned about the gradual, step-by-step encroachment of government power.

“All artful rulers, who strive to extend their power beyond its just limits, endeavor to give to their attempts as much semblance of legality as possible. Those who succeed them may venture to go a little further; for each new encroachment will be strengthened by a former. ‘That which is now supported by examples, growing old, will become an example itself,’ and thus support fresh usurpations.”

The BIll of Rights in general and the Fourth Amendment specifically, were intended to prevent fear-driven infringements of your basic right to privacy during a crisis. It doesn’t allow for exceptions and it doesn’t care whether or not you have something to hide. When you erase that line, it’s gone forever.

So, are you going to support the policies that will lead us to an Orwellian surveillance state? Or are you going to oppose the Orwellian surveillance state? You can’t have it both ways.

You’d better chose wisely.

Share
Categories
artificial intelligence Fourth Amendment Intelwars privacy spying Surveillance

A Nightmarish Army of Unblinking Spies

The surveillance state constantly expands. That thing that seems like no big deal today can suddenly become a big deal as technology evolves.

Take the proliferation of surveillance cameras. We’ve come to accept electronic eyes recording our every move like a normal part of life. Most of the time we hardly even notice the cameras. At some level, we may realize we’re being recorded, but we figure nobody will ever actually watch the footage. Even with cameras everywhere, we feel relatively safe in our anonymity.

But how would you feel if you knew somebody was monitoring every camera pointed in your direction 24/7. Scrutinizing your every move. Judging your every action. Noting whom you associate with and scouring your facial expressions for signs of suspicious behavior?

We’re rapidly getting to that place.

Of course, we’re not talking about human “somebodies.” We’re talking about artificial intelligence – “AI agents” capable of scouring video footage every second of every day and flagging “suspicious” behavior.

The ACLU recently released a report on the rapidly growing use of “video analytics” as a surveillance tool. As the ACLU puts it, AI has the potential to turn every-day surveillance cameras into a “nightmarish army of unblinking watchers.”

What we found is that the capabilities that computer scientists are pursuing, if applied to surveillance and marketing, would create a world of frighteningly perceptive and insightful computer watchers monitoring our lives. Cameras that collect and store video just in case it is needed are being transformed into devices that can actively watch us, often in real-time. It is as if a great surveillance machine has been growing up around us, but largely dumb and inert — and is now, in a meaningful sense, “waking up.”

According to the report, police and government intelligence agencies have used AI to develop “anomaly detection” algorithms that can pick up on “unusual,” “abnormal,” “deviant,” or “atypical” and flag such individuals for further scrutiny. As the ACLU reports, this could have far-reaching ramifications and brings with it tremendous potential for abuse.

Think about some of the implications of such techniques, especially when combined with other technologies like face recognition. For example, it’s not hard to imagine some future corrupt mayor saying to an aide, “Here’s a list of enemies of my administration. Have the cameras send us all instances of these people kissing another person, and the IDs of who they’re kissing.” Government and companies could use AI agents to track who is “suspicious” based on such things as clothing, posture, unusual characteristics or behavior, and emotions. People who stand out in some way and attract the attention of such ever-vigilant cameras could find themselves hassled, interrogated, expelled from stores, or worse.

AI also raises concerns about accuracy. We’ve already heard about problems with facial recognition systems misidentifying people – particularly minorities. As the ACLU puts it, “Many or most of these [AI] technologies will be somewhere between unreliable and utterly bogus.”

The interconnectedness of the U.S. surveillance state magnifies danger and the threat to your privacy these systems pose. If a local camera happens to flag you, you will almost certainly end up in national databases accessible by police and government officials across the U.S. Federal, state and local law enforcement agencies can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

George Orwell’s Big Brother would drool over the all-encompassing surveillance system quietly under construction in the United States. Cameras equipped with facial recognition technology. monitored by “AI agents,” and linked to federal, state and local databases can track your every move just by pointing a camera at your face. It effectively turns each of us into a suspect standing in a perpetual lineup.

Police operate these camera systems with little oversight and oftentimes in complete secrecy.

With their rapid proliferation, the potential for abuse and the threat to basic privacy rights posed by camera surveillance, state and local governments need to make oversight and placing limits on law enforcement use of facial recognition a top priority. At the least, law enforcement agencies should be required to get local government approval in a public meeting before obtaining facial recognition technology. The TAC’s Local Ordinance to Limit Surveillance Technology covers this.

Share