Tag: warrantless surveillance

Feds Can Film Your Front Porch for 68 Days Without a Warrant, Says Court

Law enforcement in Kansas recorded the front of a man’s home for 68 days straight, 15 hours a day, and obtained evidence to prove him guilty on 16 charges. The officers did not have a search warrant, using a camera on a pole positioned across the street to capture Bruce Hay’s home. A federal court ruled on Tuesday that it was fine for law enforcement to do so, in what’s potentially a major reduction in privacy law.

“Mr. Hay had no reasonable expectation of privacy in a view of the front of his house,” said the U.S. Tenth Circuit Court of Appeals in its decision on U.S. vs Hay. “As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.”

Hay, an Army veteran, was found guilty of lying about his disability status to collect benefits from the Department of Veteran Affairs (VA). However, the concerning part of this case stems from how VA officers collected evidence against Hay. The veteran appealed his case, arguing that the months-long surveillance of his home crossed a line. However, the federal court ruled that law enforcement can videotape the outside of your home, partially because of how prominent video cameras have become in society.

The federal court’s decision says that video cameras have become “ubiquitous,” and have therefore diminished our expectations of privacy. Police officers wear body cameras now, cellphones have cameras, and many doorbells record your porch. The court isn’t wrong that cameras are everywhere.

Keep reading

Proposition E Would Make It Easier for Police To Surveil San Francisco

On March 5, San Franciscans will have the opportunity to vote on a ballot measure that would decide whether or not to make them into guinea pigs for surveillance experiments by the San Francisco Police Department (SFPD).

Proposition E purports to streamline the SFPD, with sections on community engagement, recordkeeping, and the department’s vehicle pursuit and use of force policies. But its portion on department use of surveillance technology is troubling.

Under an existing ordinance passed in 2019, the SFPD may only use “surveillance technologies”—like surveillance cameras, automatic license plate readers, or cell site simulators—that have been approved by the San Francisco Board of Supervisors, the city and county legislative body. The process requires that the SFPD, like any other city or county agency, submit a policy to the board for approval before using any new technology. The 2019 ordinance also banned the use of facial recognition technology.

But Prop E adds a clause stipulating that the SFPD “may acquire and/or use a Surveillance Technology so long as it submits a Surveillance Technology Policy to the Board of Supervisors for approval by ordinance within one year of the use or acquisition, and may continue to use that Surveillance Technology after the end of that year unless the Board adopts an ordinance that disapproves the Policy.”

In other words, the SFPD could roll out an unapproved method of surveillance, and it would have free rein to operate within the city for up to a year before ever having to ask city officials for permission. And until the city passes a statute that specifically forbids it—that is, forbidding a technology that is by that point already in use—then the SFPD can keep using it indefinitely.

“Let’s say the SFPD decides they want to buy a bunch of data on people’s geolocation from data brokers—they could do that,” says Saira Hussain, a staff attorney at the Electronic Frontier Foundation (EFF). “They could use drones that are flying at all times above the city. They could use the robot dogs that were piloted at the border. These are all surveillance technologies that the police doesn’t necessarily have right now, and they could acquire it and use it, effectively without any sort of accountability, under this proposition.”

If those scenarios sound implausible, it’s worth noting that they’ve already happened: As Hussain notes, the Department of Homeland Security recently tested robot dogs to help patrol the U.S./Mexico border. And in 2012, the Los Angeles County Sheriff’s Department enlisted civilian aircraft to fly over Compton and surveil the entire area.

Not to mention, federal agencies already routinely purchase people’s cell phone geolocation information and internet metadata without a warrant.

Keep reading

Did the Leak of Alleged Russia National Security Threat Kill The Bill To Reform Warrantless Surveillance?

The contentious US surveillance program’s reauthorization faced a major setback over the last week. The United States House Intelligence Committee (HPSCI) played a pivotal role in derailing the process, leading to a stalemate that hindered any progress before Congress’s focus shifts to the impending government shutdown in March.

Negotiations between opposing House committees unraveled on Wednesday when HPSCI members, instead of participating in a key meeting, chose to derail a pre-agreed plan for a “compromise” bill. This development came as a blow to months of efforts aimed at renewing Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial intelligence tool that has, despite promises not to, has allowed the warrantless surveillance of US citizens.

This deadlock in Congress has left the intelligence community in disarray and pushed security advocates to defend surveillance practices, despite their acknowledged susceptibility to misuse.

Key insiders reveal that HPSCI leaders reneged on a privately negotiated deal after lengthy discussions. As reported by Wired, these sources, who requested anonymity, indicated that the collapse of the deal was due to an amendment proposal. This amendment aimed to stop the government from buying information from US companies without a warrant, focusing particularly on cell phone location data often used for tracking individuals.

HPSCI Chair Mike Turner was at the center of this upheaval. He skipped a critical hearing that took place on Wednesday, where lawmakers were to set the voting rules. His absence, coupled with HPSCI’s failure to file necessary amendments, signaled a lack of commitment to the process. Concurrently, Turner was reportedly involved in private discussions with House Speaker Mike Johnson, threatening to torpedo the bill he had previously endorsed.

Keep reading

Are The Feds Buying Gun Data On Private Citizens Without A Warrant? 

The Biden Administration has shown time and time again how they weaponize federal law enforcement agencies against gun owners.

A recent report by the Inspector General of the Department of Homeland Security highlighted how several DHS component agencies, including the Secret Service, bought Americans’ phone location data without a court order.

Several other agencies, including the IRS, FBI, and the Defense Intelligence Agency, also admitted to using data brokers to sidestep American’s Fourth Amendment rights.

Under normal circumstances, a Judge would need to issue a warrant to collect this kind of data, but in this case, private companies act as a middleman between your data and the government by scraping anywhere that personal data is publicly available. Government lawyers have decided that the Fourth Amendment does not apply to Americans’ personal data — if the government buys it from data brokers.

Using the same quasi-legal methods used to obtain phone location data, federal law enforcement agencies may have already targeted gun owners by purchasing email lists and data sets that contain location, name, and other personal information from data brokers.

Several sites promote their extensive list of “Shooting Fanatics,” “Concealed carry licensed gun owners,” and even “New York City Gun Owners”! These lists are perfect targets for an administration focused on attacking the individual right to keep and bear arms.

With these lists, the Biden Administration’s law enforcement agencies could purchase and misuse the personal information of millions of gun owners without a single warrant or court order.

Keep reading

NSA secretly buying Americans’ data without a warrant

The National Security Agency has secretly been buying Americans’ internet records and using them for spying purposes without obtaining a warrant, a senior senator revealed Thursday.

Sen. Ron Wyden, Oregon Democrat, said the practice had been a “legal gray area,” with data brokers quietly obtaining and reselling the internet “metadata” without the users’ consent. He said the NSA has been trying to keep the whole thing under wraps.

In a letter to Director of National Intelligence Avril Haines, the senator said the government needs a “wake-up call,” and he called for new rules limiting purchases only to data that Americans have consented to be sold.

He also asked for Ms. Haines to take an inventory of what the government already has and toss out any information that doesn’t meet the standard of consent.

“The U.S. government should not be funding and legitimizing a shady industry whose flagrant violations of Americans’ privacy are not just unethical, but illegal,” he said.

He released a letter from Army General Paul M. Nakasone, director of the NSA, detailing and justifying the agency’s actions.

Gen. Nakasone said it acquires what it calls “commercially available information” but said the acquisitions are limited. They don’t include location data from phones “known to be used in the United States,” and they don’t buy or use location data from automobiles in the U.S.

They do buy “non-content” data “where one side of the communication is a U.S. Internet Protocol address and the other is located abroad.”

The general said that information was critical for “the U.S. Defense Industrial Base.”

“NSA understands and greatly values the congressional and public trust it has been granted to carry out its critical foreign intelligence and cybersecurity missions on behalf of the American people,” Gen. Nakasone wrote.

In a separate letter, Under Secretary of Defense Ronald S. Moultrie defended the legality.

“I am not aware of any requirement in U.S. law or judicial opinion … that DoD obtain a court order in order to acquire, access or use information, such as CAI, that is equally available for purchase to foreign adversaries, U.S. companies and private persons as it is to the U.S. government,” he wrote.

Mr. Wyden, though, says the legal landscape may have just changed.

Keep reading

The NDAA’s ‘Warrantless Backdoor Surveillance’ of Americans Gets Approved by the Senate

In a last-minute rush to sanction spending before the end of the year, the Senate enacted a $886 billion defense spending proposal Wednesday, sponsored by President Joe Biden, that includes financing for Ukraine, yearly pay hikes for personnel, and most controversially, a reauthorization of the the National Defense Authorization Act

The NDAA funds Pentagon objectives such as training and equipment. The Act was approved by a bipartisan majority of 87-13 in the Senate. For the last 61 years in a row, Congress has advanced the must-pass defense budget measure.

“At a time of huge trouble for global security, doing the defense authorization bill is more important than ever,” Senate Majority Leader Chuck Schumer, D-N.Y., said on the Senate floor Wednesday. “Passing the NDAA enables us to hold the line against Russia, stand firm against the Chinese Communist Party and ensure America’s defense remain state of the art at all times.”

The package now moves to the House, where some conservative Republicans have vowed to derail it after legislators removed disputed elements that would have changed the Pentagon’s abortion policy and provide certain so-called “transgender” medical procedures.

The NDAA approved by the Senate is a compromise version of the budget package passed by the House earlier this year. The House version includes elements aimed at the Pentagon’s transgender health care regulations, as well as an amendment to repeal a Pentagon policy that reimburses out-of-state travel for service members who have abortions.

Keep reading

House Proposal Would Expand Federal Warrantless Spying Authority

The House of Representatives could vote this week on a bill to greatly expand federal digital surveillance powers—potentially broadening both the scope of electronic communications to be scooped up and giving law enforcement more opportunities to access that data.

Edward Snowden, who exposed parts of this same federal surveillance apparatus in 2013, called the new proposal “the biggest encroachment on your privacy rights since the Patriot Act” in a post on X (formerly Twitter). Civil libertarian groups have roundly criticized the bill and are encouraging lawmakers to vote against it.

That bill, the FISA Reform and Reauthorization Act of 2023, is one of two measures aiming to make changes to Section 702 of the Foreign Intelligence Surveillance Act (FISA) that could be brought to the House floor on Tuesday. Section 702, created after 9/11, allows federal intelligence agencies to vacuum up communications between Americans and foreigners. Under some circumstances, law enforcement is allowed to query the Section 702 database, which includes an unknown amount of “incidental” data pulled from Americans’ online communications with foreigners.

Section 702 is set to expire at the end of the year, and recent revelations about how the FBI has misused the spying program have raised hopes that Congress might rein in the program.

Despite its name, however, the FISA Reform and Reauthorization Act appears to expand, not reform, the program.

One portion of the bill “vastly expands the universe of U.S. businesses that can be conscripted to aid the government in conducting surveillance,” Elizabeth Goitein, director of the national security program at the Brennan Center, a liberal think tank, posted on X.

Currently, the federal government can compel only businesses that have direct access to digital communications—telecom providers, internet service providers, and the like—to turn over that data to the Section 702 database. Under the terms of the House proposal, however, any business or entity that has access to telecom or internet equipment could be forced to participate in the federal government’s digital spying regime.

“Hotels, libraries, coffee shops, and other places that offer wifi to their customers could be forced to serve as surrogate spies,” writes Goitein.

That change would “effectively overrule” a recent decision from the Foreign Intelligence Surveillance Court (FISC), the secret court that reviews America’s spying programs, write Steve Lane and Marc Zwillinger, two lawyers with experience arguing before the FISC.

“The new definition,” Lane and Zwillinger argued in a post on a legal blog connected to Zwillinger’s law firm, “could give the government warrantless access to any communication system in America through which any one-side-foreign communication could be found.”

The FISA Reform and Reauthorization Act would also expand how the government uses its Section 702 database.

Specifically, the bill would add a new provision to authorize Section 702 investigations as part of the process of “vetting of all non-United States persons who are being processed for travel to the United States.”

“This new authority proposes to give immigration services the ability to audit entire communication histories before deciding whether an immigrant can enter the country,” writes India McKinney, director of federal affairs for the Electronic Freedom Foundation (EFF), which opposes the bill. “This is a particularly problematic situation that could cost someone entrance to the United States based on, for instance, their own or a friend’s political opinions—as happened to a Palestinian Harvard student when his social media account was reviewed when coming to the U.S. to start his semester.”

Again, that provision of the bill seems to directly overrule the FISC, which has repeatedly struck down attempts by federal officials to expand Section 702 surveillance to include greater scrutiny of immigrants, McKinney notes.

Keep reading

Congress Prepares To Reauthorize a Warrantless Domestic Spying Program the FBI Abused

Congress is gearing up for a potential showdown over the expected reauthorization of a warrantless domestic spying program that’s been misused by the FBI and widely criticized by civil libertarians.

That surveillance program—authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA)—was created after 9/11 with the intention of tracking foreign spies and potential terrorists. But it has predictably morphed into a way for law enforcement agencies to get a warrantless peek at Americans’ phone records, emails, and other electronic communications—the FBI ran more than 3.3 million queries through the Section 702 database in 2021, according to an annual transparency report.

With the program set to expire at the end of this year, Congress has a rare opportunity to reform Section 702 by, at the very least, prohibiting law enforcement from using it to snoop on Americans. So far, that doesn’t seem to be happening.

The Senate voted Thursday to advance the annual National Defense Authorization Act (NDAA), and the 3,000-page bill contains a “clean” reauthorization of Section 702, according to Sen. Mike Lee (R–Utah), a longtime critic of the surveillance program.

“After all we’ve learned about the FBI in recent years, the fact that some members of Congress are still willing to reauthorize FISA 702 without reforms—not even a warrant requirement for “backdoor” surveillance of Americans—makes me wonder if they’re illiterate,” Lee posted to X (formerly Twitter) on Thursday.

Lee says he intends to vote against the NDAA when it comes to the Senate floor for a final vote. He likely won’t be the only Republican to do so, but rolling the Section 702 reauthorization into the larger military spending bill means it will be difficult to prevent its passage.

Instead, the fight will be over the language that gets added to the NDAA. While the Senate is moving forward will full reauthorization, there are competing proposals drafted in the House.

The House Judiciary Committee approved a bill on Wednesday to reauthorize Section 702 with the added requirement that the FBI and other intelligence agencies obtain a warrant before using the program to obtain information about Americans.

“The overwhelming, bipartisan vote in favor of this legislation confirms a mutual interest in protecting our Fourth Amendment privacy rights from rogue intelligence actors,” Rep. Andy Biggs (R–Ariz.), chairman of the House subcommittee on federal surveillance issues, said in a statement. “Any effort to stall consideration or pass a clean extension of the current FISA authorities is a punishment of the American people.”

However, the House Intelligence Committee passed its own version of a Section 702 reauthorization on Thursday. That bill would only require that the FBI establish probable cause before searching the Section 702 database for information about Americans, Roll Call reported.

Keep reading

No Warrant, No Problem

In 1928, the late Supreme Court Justice Louis D. Brandeis characterized the values underlying the Fourth Amendment to the U.S. Constitution as embracing the uniquely American right, and the right most valued by civilized persons, which he called the right to be let alone. Today we call it the right to privacy. He also warned that the greatest dangers to privacy lurk in the slow and insidious encroachments upon it by zealots in the government.

Last week, the Biden administration’s director of National Intelligence caused me to recall Justice Brandeis’ warnings when she revealed that the 16 federal spying agencies that she nominally supervises have begun to do indirectly what the Constitution prohibits them from doing directly.

Since they cannot obtain search warrants from a judge to surveil targets without first demonstrating under oath probable cause of crime by the persons whose surveillance they seek, these zealots in the government are purchasing private data about every American adult from the corporations and entities to which we all have unwittingly surrendered it.

This constitutes computer hacking – and it is as criminal as if federal agents had directly broken into the computers of those about whom and from whom they desire personal data.

Can the government do indirectly what the Constitution prohibits it from doing directly? In a word: NO.

Here is the backstory.

Keep reading