Tag Archive for: surveillance

‘Emerging Collusion’: Experts Warn of Expanding Warrantless Surveillance of Americans

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A panel of experts, including famed author and psychologist Jordan Peterson, warned Congress on Thursday that potential collusion between federal law enforcement agencies and financial and other corporations could lead to unprecedented violations of the constitutional right of American citizens not to have private information handed over without proper warrants.

On Thursday, a hearing of the House Select Subcommittee on the Weaponization of the Federal Government was held to examine how citizens’ private financial data is being surveilled by the federal government. In the wake of incidents like what happened in January when a government agency colluded with banks to uncover gun and religious book purchases of citizens without a warrant, experts are concerned that the U.S. could be headed in the direction of surveillance states such as China.

“If the emerging collusion between government and gigantic corporations continues in the manner it is continuing, there won’t be anything that you do that can’t be used against you and will be used against you in very short order,” Peterson warned. “We are in danger of eliminating the private sphere in its entirety. It’s already happening in places around the world, particularly China. … We have technologies at hand, and it appears both giant corporations and giant governments are utilizing it in every way that they can manage.”

Congressmen like Rep. Warren Davidson (R-Ohio) are also worried about how surveillance laws already in place can potentially be abused by the government for political reasons, as he shared on “Washington Watch with Tony Perkins” Thursday.

“[The] Bank Secrecy Act is supposed to keep us safe,” he explained. “You use [it] to … catch terrorism, money laundering, illicit finance, tax evasion, things like that. So they do have sort of this loophole, though, because they implemented this in 1970, and it essentially circumvents the Fourth Amendment. … [I]f you remember back a couple of years ago, the Biden administration wanted to start surveilling your bank account for $600 of activity a year and share that directly with the IRS. I think what people are seeing now is they already surveil your accounts … with the rules they have in place. The question is, can they use it in court?”

Davidson, who serves on the House Financial Services Committee, went on to observe how other laws such as the Foreign Intelligence Surveillance Act (FISA) and agencies like the Financial Crimes Enforcement Network (FinCEN) were initially enshrined to protect Americans but are now being increasingly used to eavesdrop and spy on Americans without cause.

“[T]he Fourth Amendment’s there on purpose,” he emphasized. “And there’s a reason it’s the Foreign Intelligence Surveillance Act — foreigners aren’t protected by our Constitution the way American citizens are. … [Y]ou’re supposed to have to get a warrant or a subpoena to go after an American.”

Davidson continued, “They can’t just do this blanket [search] like, ‘Well, I don’t know who was in Washington, D.C. on this day. Well, who was here? Who was here?’ And they build the case from that end. They’ll literally say, ‘We’re querying the database,’ which is a synonym for searching. But they’ll say, ‘No, no, no, that’s very different, because once we go to search, we get a search warrant.’ So they’ll query the database, and they build the database. How does the data even get into the database? They do it [in] multiple ways. … [T]he Financial Crimes [Enforcement] Network will direct the banks to, basically, ‘Here’s how you spy on your customers better for us. And if you don’t do a good job, the regulators will come in and shut your bank down.’”

The congressman further shed light on how the FBI surveilled private data without a warrant surrounding the January 6, 2021 riot at the Capitol.

“[T]he whistleblower came forward because he worked in the Boston FBI office, and he said, ‘Hey, what I saw is we were targeting people that happened to be in Washington, D.C. on January 5th, 6th, and 7th,’ and then they started building from there, like who had a financial transaction on this date,” Davidson described. “And if they had financial transactions on this date, what other things did they buy? Did they use transactions in certain stores? And they started highlighting red flags like, ‘Oh, you might have gone to Cabela’s or Bass Pro, you might have purchased anything related to a firearm. You might have purchased religious material, including the Bible.”

Davidson concluded by outlining what congressional actions need to happen in order to help restore Americans’ Fourth Amendment rights against unwarranted searches and seizures.

“[W]e have to change the law fundamentally,” he stressed. “The Bank Secrecy Act is very flawed. … There’s court decisions related to that … [which could] effectively completely nullif[y] the Fourth Amendment right to privacy. … The Judiciary Committee, in a rare set of events, you had Jim Jordan [R-Ohio] and Jerry Nadler [D-N.Y.] agreeing that the government needs to get a warrant. … The intel community, on the other hand, is asking to expand the surveillance on Americans. They want to add Wi-Fi hotspots … to get at more expansive data, to add more things to the database. And those ideas deserve a debate, and they deserve a recorded vote. So we hope Speaker [Mike] Johnson will give us that vote very quickly.”

AUTHOR

Dan Hart

Dan Hart is senior editor at The Washington Stand.

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Celebrate Independence With a Revolution Against the Surveillance State by Ryan Hagemann

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In the decade before 1776, British courts began issuing “writs of assistance” for the general search and seizure of colonists’ documents. The intention was to permit British troops to inspect properties for smuggled goods, but these writs gave officials broad power to enter private homes to search for, and seize, anything and everything that might be considered contraband by the British Empire.

Such general warrants were among the many complaints the colonists levied against the crown and played no small part in the American Revolution.

This Independence Day, it would behoove us all, as Americans, to reflect on the motivations for the colonists’ revolt against Britain. In a 2013 piece at the Huffington Post, Radley Balko spoke on the core meaning of the Fourth of July:

Independence Day isn’t for celebrating the American government and whoever happens to be currently running it, but for celebrating the principles that make America unique.

And in fact, celebrating the principles that [animated] the American founding often means celebrating the figures who have defended those principles in spite of the government.

The list of modern Americans who have stood as stalwart guardians of the principles of liberty is regrettably short. More concerning, however, is what has happened in the years since 9/11, as fear and paranoia over terrorism gripped the American electorate and absconded with many of the basic liberties that the founding generation fought and died to uphold. America just isn’t what it used to be.

But the tides of unrestrained surveillance seem to be receding.

A few weeks ago, thanks to a vibrant and broad coalition of civil libertarians, grassroots organizations, and cross-aisle partners, America finally took the first step in reining in the secret surveillance state that Edward Snowden revealed to us almost two years ago to the day. The USA FREEDOM Act, for all its flaws, stands as the most significant piece of surveillance reform legislation since 1978 and signals Congress’s willingness to work on surveillance reform.

While there is much to do in preparing for upcoming battles over government surveillance, a look back at recent events can help shed light on how we as libertarians can best move forward.

Not surprisingly, the debate left some dissatisfied that the reforms did not go far enough, while others considered anything short of a full USA PATRIOT Act reauthorization to be an unacceptable compromise.

Filled with riotous rhetorical broadsides, the debate featured civil libertarians supporting reform against civil libertarians backing a complete, uncompromising end to the surveillance state, pitting Republican hawks against centrists and Democrats, and Sen. Rand Paul against pretty much everyone.

In a story of strange political bedfellows, Sen. Paul joined hawks such as Sen. John McCain and Sen. Richard Burr in voting against the USA FREEDOM Act. While Paul criticized components of the bill for not going far enough (all criticisms being perfectly fair and true), the political reality was such that this bill, however imperfect, was by far the best chance for reform in the near term.

As Cato’s Julian Sanchez noted prior to its passage: “While ‘Sunset the Patriot Act’ makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent — and includes an array of overlapping authorities that will limit the effect of an expiration.”

In other words, the limitations of USA FREEDOM would actually be more effective than simply letting a two or three provisions of the USA PATRIOT Act (temporarily) expire.

The heroes of this debate were a broad coalition of civil-society groups, technology firms, and nonprofits dedicated to moving the ball forward on reform, no matter how small the gain.

However, even as some are celebrating this small but important victory, there are troubled waters ahead for privacy advocates and civil libertarians. The upcoming Senate vote on the Cybersecurity and Information Sharing Act (CISA) is the next battle in the ongoing war against the surveillance apparatus. If passed, it would be one step forward, two steps back for the small victories privacy advocates have won over the past month.

I’ve written quite a bit on the issues that many civil libertarian organizations have with CISA, which is little more than a surveillance Trojan Horse containing a host of “information-sharing” provisions that would allow intelligence agencies to acquire information from private firms and use it to prosecute Americans for garden-variety crimes unrelated to cybersecurity, due process be damned.

A broad coalition of organizations has once more come together, this time to oppose CISA, to continue the battle against expanding the surveillance state.

In public policy, the Overton window refers to the spectrum of policy prescriptions and ideas that the public views as tolerable: the political viability of any idea depends not on the personal preferences of politicians, but on whether it falls within the range of publicly acceptable options.

That is why a willingness to compromise is so vital in public-policy discussions. Marginal reforms should be seen as victories in the slow but consistent effort to rein in the excesses of our Orwellian security order.

USA FREEDOM is far from ideal, and the expiration of provisions of the PATRIOT Act, such as Section 215, will not stop government surveillance in its tracks. The government can still use National Security Letters (NSL), and Section 702 of the FISA Amendments Act can still be creatively interpreted by the intelligence community to justify continued mass surveillance, to say nothing of Executive Order 12333, which covers surveillance conducted outside of the United States.

Nonetheless, the new law is an important first step towards tearing down the most onerous provisions of the PATRIOT Act in a piecemeal fashion. This may seem a daunting and less-than-ideal approach for many libertarians, but the alternative is merely symbolic gesticulation.

So where do we go from here?

Libertarians need to start working with nontraditional allies to support, on an issue-by-issue basis, real, practical reforms to the surveillance state. If we do not, we cannot hope to be effective and valuable partners to those individuals and organizations working tirelessly in support of the same values and freedoms that we all hold dear.

We must also recognize that there are limitations to compromise, and we should never forsake our core principles in favor of political expediency. But, on the margins, we can make significant contributions to civil liberties, especially in the ongoing surveillance reform debate. Recognizing the reality of what is achievable in the current political landscape is necessary for identifying and taking advantage of the available opportunities for restoring liberty.

We have a choice in the upcoming surveillance-reform fights: We can be positive contributors to a legacy of liberty for future generations, or we can continue to fancy ourselves armchair philosophers, ignoring public-policy realities and taking comfort in the echo chamber that never challenges our worldview.

Given political realities, marginal reforms constitute the fastest path forward. The American people are owed their civil liberties; hence, we must fight to move, however incrementally, towards a freer, more civil society.


Ryan Hagemann

Ryan Hagemann is a civil liberties policy analyst at the Niskanen Center.

RELATED ARTICLE: Cyber Security: Where are we now and where are we headed?

Court: NSA’s Mass Surveillance Is Illegal: The 2nd Circuit strikes down bulk collection of U.S. phone records by JULIAN SANCHEZ

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In a ruling certain to profoundly shape the ongoing debate over surveillance reform in Congress, the US Court of Appeals for the Second Circuit today held that the National Security Agency’s indiscriminate collection of Americans’ telephone calling records exceeds the legal authority granted by the Patriot Act’s controversial section 215, which is set to expire at the end of this month.

Legislation to reform and constrain that authority, the USA Freedom Act, has drawn broad bipartisan support, but Senate Majority Leader Mitch McConnell has stubbornly pressed ahead with a bill to reauthorize §215 without any changes. But the Second Circuit ruling gives even defenders of the NSA program powerful reasons to support reform.

McConnell and other reform opponents have consistently insisted, in defiance of overwhelming evidence, that the NSA program is an essential tool in the fight against terrorism, and that any reform would hinder efforts to keep Americans safe — a claim rejected even by the leaders of the intelligence community. (Talk about being more Catholic than the Pope!) . . .

A few notable points from the ruling itself: Echoing the reasoning of the Privacy and Civil Liberties Oversight Board’s extremely thorough report on §215, the Second Circuit rejected the tortured legal logic underpinning both the NSA telephone program and a now-defunct program that gathered international Internet metadata in bulk.

The government had persuaded the Foreign Intelligence Surveillance Court to interpret an authority to get records “relevant to an authorized investigation” as permitting collection of entire vast databases of information, the overwhelming majority of which are clearly not relevant to any investigation, on the premise that this allows NSA to later search for specific records that arerelevant.

As the court noted, this not only defies common sense, but it is wildly inconsistent with the way the standard of “relevance” — which governs subpoenas and court orders used in routine criminal investigations — has been interpreted for decades.

If every American’s phone records are “relevant” to counterterrorism investigations, after all, why wouldn’t those and other records be similarly “relevant” to investigations aiming to ferret out narcotics traffickers or fraudsters or tax cheats?

Past cases invoked by the government, in which courts have blessed relatively broad subpoenas under a standard of “relevance” only underscore how unprecedented the NSA’s interpretation of that standard truly is — since even the broadest such subpoenas fall dramatically short of the indiscriminate, indefinite hoovering the agency is now engaged in.

The court also quickly dispatched arguments that the plaintiffs here lacked standing to challenge the NSA program.

In general, parties seeking to challenge government action must demonstrate they’ve been harmed in some concrete way — which presents a significant hurdle when the government operates behind a thick veil of secrecy. Since documents disclosed to press by Edward Snowden — and the government’s own subsequent admissions — leave little question that the plaintiffs’ phone records are indeed being obtained, however, there’s no need for a further showing that those records were subsequently reviewed or used against the plaintiffs.

That’s critical because advocates of broad surveillance powers have often sought to argue that the mere collection of information, even on a massive scale, does not raise privacy concerns — and the focus should instead be on whether the information is used appropriately.

The court here makes plain that the unauthorized collection of data — placing it in the control and discretion of the government — is itself a privacy harm.

Finally, the court repudiated the Foreign Intelligence Surveillance Court’s strained use of the doctrine of legislative ratification to bless the NSA program.

Under this theory — reasonable enough in most cases — when courts have interpreted some statutory language in a particular way, legislatures are presumed to incorporate that interpretation when they use similar language in subsequent laws.

The FISC reasoned that Congress had therefore effectively “ratified” the NSA telephone program, and the sweeping legal theory behind it, by repeatedly reauthorizing §215.

But as the court pointed out — somewhat more diplomatically — it’s absurd to apply that doctrine to surveillance programs and legal interpretations that were (until the Snowden leaks) secret, even from many members of Congress, let alone the general public.

While the court didn’t reach the crucial question of whether the program violates the Fourth Amendment, the ruling gives civil libertarians good reason to hope that a massive and egregious violation of every American’s privacy will finally come to an end.

Julian Sanchez

Julian Sanchez is a Senior Fellow at the Cato Institute, studying technology, privacy, and civil liberties, with a focus on national security and intelligence surveillance. Julian Sanchez is a Senior Fellow at the Cato Institute, where a version of this post first appeared.