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Earlier this year, President Trump took to Twitter to accuse President Obama of wiretapping Trump Tower, and followed up those claims by requesting an investigation. Former FBI director James Comey later testified that he had "no information" to support Trumps wiretapping claims but not long after, Trump doubled down on his attacks, accusing Susan Rice, former national security adviser to Obama, of illegally seeking and sharing intelligence information about Trumps associates. Though Rice did request to unmask some names in a classified foreign intelligence report that turned out to include Trump campaign and transition team members, she denies any wrongdoing, and theres no evidence that it was done for political reasons (versus legitimate intelligence purposes). Still, the whole saga does raise questions about how the American government can gather personal information about its citizens. There is a good point buried in all that, Neema Singh Guliani, ACLU legislative counsel, tells Teen Vogue . One of the things that is not inaccurate is that it is very easy for the government to get data about Americans.

And once the government has that information, Singh Guliani says, they can use it in various aways against individual Americans like singling out protestors , enforcing immigration laws , and prosecuting domestic crimes without revealing to those Americans how they got the information to begin with. Technically, under the Fourth Amendment , American citizens and resident non-citizens are protected against unreasonable searches and seizures including surveillance without warrants. So then how does the government get around that? Here are the basics on some of the key ways.

Via National Security Surveillance Authorities A few years ago, former NSA contractor Edward Snowden revealed documents detailing the NSAs extensive global surveillance program. And among the millions of communications intercepted by the U.S. government targeting foreigners for national security purposes, The Washington Post later found , nearly half of what they looked at included information marked as that of American citizens or residents. And thats currently allowed, under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the government to target communications of non-U.S. persons outside the U.S. without a court order or warrant (though it does require the approval of a FISA court). Though Section 702 cant legally be used to target Americans, it doesnt entirely prevent incidental collection of Americans' communications. For example, if the government is intercepting a foreign phone call and someone in the U.S. is on the other end of it, thats allowable because the American wasnt the one being targeted, according to the ACLU.

Similarly, Executive Order 12333 allows the government to gather communications and data abroad sans warrant, which it can then share with other government agencies and if Americans information is incidentally caught in the crosshairs, thats OK, too. But it gets hairy when you consider that the government could hold onto that incidental information and potentially use it for purposes, like those stated above, that have nothing to do with national security. I think the average person thinks incidental means accidental, Singh Guliani says. Well, thats actually not true at all. What it actually means is the government fully knows its going to collect the information of Americans and has procedures that allow the government to actually use that information once they collect it. The government is justifying meeting low standards, like not getting an individualized court warrant in some cases because the people theyre surveilling are overseas, when really they know theyre going to collect information about people in the U.S. and they fully intend to use that information.

Theres a chance some of this could change in the very near future, though: Section 702 is set to expire this year, and Congress will have to decide whether or not to reauthorize it. That said, though both President Trump and Vice President Pence have spoken out against government surveillance in the wake of Trumps wiretapping accusations, Trump seemed to oppose surveillance reform while on the campaign trail, as have both attorney general Jeff Sessions and CIA director Mike Pompeo .

At the borders So, those Fourth Amendment rights we mentioned earlier? They dont provide so much protection at the borders of the country. The border search exception means that border officials can search anyone entering the country, including U.S. citizens, without a warrant or even probable cause. Though the Electronic Frontier Foundation (EFF) notes that the exception only applies to routine searches (like of luggage) that dont impact a person's "dignity and privacy," officials argue that digital devices are fair game at the border. The government has taken the position [that they] can search your stuff at the border, Singh Guliani says. That mightve made sense when all you carried was a suitcase, but if youve got your laptop and your phone, thats the equivalent of two truckloads worth of paper.

The issue gets even hairier when you consider that other government agencies outside of U.S. Customs and Border Protection (CBP), which do require warrants to search your devices, can then access the information obtained in the border exception searches and potentially use it for other law enforcement agendas and gathering intelligence, rather than to enforce customs and immigration laws. (The ACLU does offer some tips to protect your information, like storing your sensitive data securely in the cloud and keeping it off of the devices youre traveling with.) Singh Guliani says there have been claims that CBP deliberately conducted searches on behalf of other agencies and that CBP "uses their border authority, even though actually the reason theyre stopping that person is because another federal agency just wants to get around the warrant requirement, she says. You have this idea that government agencies are deliberately taking advantage of these loopholes.

While American citizens cant be denied entry into the country for refusing to unlock or provide passwords for their devices, that refusal could ultimately mean your device will get seized for weeks (or longer), or you could be detained longer than you otherwise would. If youre not a U.S. citizen, [its] much more complicated, because they can technically deny you entry into the country, so you can be turned around and sent back, Singh Guliani says.

Via electronic communications and devices Even aside from the border exception, the government could theoretically collect information on citizens through electronic devices, largely because the laws that would prevent it are too outdated. Our laws havent been updated to reflect new technologies, Singh Guliani says. So the laws that govern when the government can get your location information from your phone were written before [everyone had cell phones].

Because of that, theres a lot of gray area involved in what information the government can legally collect. For example, last year Singh Guliani testified before the House Committee on Oversight and Government Reform that the Department of Justice's position was that it was OK to collect cell site location information without a warrant and keep it for as long as seven months. And there are a lot of new issues around [for example] when you talk to your Alexa , what standards do they have to meet [to gather that information]?

And then theres the issue of the recent repeal of new FCC rules that would have prevented Internet service providers from seeing and selling consumers browser behavior without explicit consent. Although those measures technically only affect private Internet behavior, Paul Ohm, the faculty director of the Georgetown Center on Privacy and Technology wrote in a Washington Post op-ed that they could inspire the FBI to request information on personal Internet behavior from ISPs, knowing that the providers have the access. And the outdated laws, as they stand, dont specifically prohibit that. (That said, per the op-ed, the FBI would still need a court order to make an ISP hand over website visit and app-use histories and a warrant to get information on content viewed.)

The Email Privacy Act bill, which is pending in the Senate, would address some of these issues and require law enforcement to obtain warrants before accessing electronic content, which could be a major win for privacy advocates.

In the meantime, Singh Guliani says, the best things concerned consumers can do are call their members of Congress and urge the representatives to pass surveillance reforms like the Email Privacy Act, as well as others that come down the pipe; take measures to protect your information; and find out as much as you can (by reading privacy policies or even asking) about how your information is being collected, stored, and shared by ISPs and other Internet services. Not only that, but I also think that consumers should target companies for their advocacy, she says. They should be going to Gmail and Facebook and saying, Look, we want you to be more vocal on surveillance reform. We want you to say that its important...and we want you in the interim to purge our information [and] promise not to turn over information about immigration status to the federal government unless youre served with a court order. These are things that companies can do and that consumers can pressure companies to do.

Related: Senate Votes for Internet Providers to Sell Browsing Data Without Customer Permission

Read more:
How the Government Can Collect Your Personal Information Without a Warrant - TeenVogue.com

U.S. Attorney General Jeff Sessions on June 29, 2017 in Washington, DC. (Win McNamee/Getty)

Attorney General Jeff Sessions' methodical dismantling of the Obama administration's criminal justice policies is rolling forward Wednesday as the Justice Department announces plans to step up efforts to seize property and money suspected of being used in crime or obtained through illegal activity.

Sessions will encourage a return to broader use of a controversial type of asset forfeiture where local officials pull the feds into an investigation in order to ease the process of seizing assets from criminal suspects. Critics complain that the practice reverses the typical presumptions in the legal process by allowing law enforcement to take property without proving a crime occurred.

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In many cases, suspects never challenge the seizure, but are also never convicted or even charged.

Sessions told a district attorneys conference in Minneapolis Monday: With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners."

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Former Attorney General Eric Holder essentially abandoned the forfeiture practice in 2015, amid complaints that it was prone to abuse and encouraged police and sheriff's departments to carry out seizures in order to win more funds to buy equipment and vehicles. Holder allowed a heavily restricted version of the program to resume last year.

The new effort appears intent on returning the forfeiture program to its former glory, although officials emphasized that Sessions is implementing new safeguards that will make it more difficult to conduct seizures of less than $10,000 and will require more information from local officials about the basis for a seizure when no criminal charges were filed.

While other high-profile aspects of the Obama's administration's criminal justice reform drivesuch as shorter sentences for drug convictsreceived a mixed reception on Capitol Hill, the effort to limit asset forfeiture enjoyed enthusiastic support from an ideologically diverse group of lawmakers. The practice has long been a bugaboo for libertarian and conservative activists who view it as a short-cut around the Constitution's requirement that guilt be proven beyond a reasonable doubt.

Indeed, some Republican lawmakers were among the first to express alarm in advance of Sessions announcement. Rep. Darrell Issa of California noted that many states have taken steps to rein in such seizures, often requiring that they be linked to a criminal conviction, but the federal move amounts to an end-run around those efforts.

This is a troubling decision for the due process protections afforded to us under the Fourth Amendment as well as the growing consensus weve seen nationwide on this issue, Issa said. Ramping up adoptive forfeitures would circumvent much of the progress state legislatures have made to curb forfeiture abuse and expand a loophole thats become a central point of contention nationwide. Criminals shouldnt be able to keep the proceeds of their crime, but innocent Americans shouldnt lose their right to due process, or their private property rights, in order to make that happen."

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While the issue has led to an unusual alliance between liberal Democrats and some staunch conservatives, the forfeiture practice has the enthusiastic backing of many local law enforcement officials, who see it as a vital lifeline for cash-strapped agencies. Those arguments have also found a receptive audience among some in Congress, particularly with those such as Sen. Jeanne Shaheen (D-N.H.) and former Sen. Kelly Ayotte (R-N.H.) who have been pressing for a more aggressive response to the opioid epidemic.

While forfeiture can take place in any kind of criminal investigation, the vast majority of the money and property seized through federal programs has stemmed from drug investigations and Sessions has said he is particularly eager to wield the tool against drug traffickers.

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Sessions to step up drug-war seizures - Politico

The DOJ is in court arguing the use of Stingray devices by the FBI and local cops shouldn't require a warrant. The government's lawyers are fighting a suppression motion by Purvis Ellis, charged with racketeering and the attempted murder of a police officer.

The events of the case happened in 2013, two years before the DOJ instructed federal agents to seek warrants when deploying Stingrays. For this investigation, the Oakland PD used a pen register order, as was the style at the time. (And perhaps still is. Despite the DOJ's internal instructions, warrant requirements are all but nonexistent when it comes to local law enforcement agencies' use of cell tower spoofers.)

As Cyrus Farivar points out, the PD's Stingray couldn't locate Ellis, so it brought in the FBI. All without warrants and all without informing the defense about the additional Stingray deployment.

Ellis was located in an East Oakland apartment several hours after a January 2013 shooting with the help of two stingrays. Prosecutors initially insisted that only one stingray was used, but, as was revealed last summer, that turned out not to be the case. The Oakland Police Department's own stingray was seemingly insufficient, so officers then called in the FBI, both times without a warrant.

The defendant is arguing the multiple warrantless Stingray deployments violated the Fourth Amendment. Considering the devices coax a location signal out of phones by aping cell towers, this differentiates Stingrays from more passive collections -- like the pen register the government didn't actually use.

The government, quite obviously, is arguing otherwise. It points out in its opposition motion [PDF] that it has all the warrant exceptions on its side:

Four gang members ambushed a young man in broad daylight, shooting him through the forehead from close range. The next day, those same men jumped, pistol-whipped and shot a police officer investigating the prior days shooting. The suspects then fled, armed with their own arsenal, as well as with the guns they had just stolen from the officer. Police surrounded the apartment complex where the men were thought to be hiding. Finding them quickly was essential. By shooting two people in a 27-hour period, the suspects including the defendant Purvis Ellis had just demonstrated an ability and willingness to kill others. So, when officers used a cell site simulator (CSS) to find Ellis, they were entirely justified by the exigent circumstances presented, rightly believing him to be armed and dangerous.

The defendants motion to suppress is meritless. The courts have not definitively decided whether use of a CSS constitutes a search triggering Fourth Amendment protections. But it largely does not matter here, since exigent circumstances amply supported a warrantless use of the device.

[...]

Other exceptions to the warrant requirement also cut against suppressing evidence. For instance, the officers acted in good faith reliance on established law the pen register statute, Supreme Court precedent, even the FBI policy at the time. Those laws and policies, combined with the dearth of binding case law on the CSS, all justified using the device without a warrant. In addition, the officers would have inevitably discovered everything they ultimately did, even had they never used the CSS. After all, they had the building surrounded by dozens of officers and SWAT team members hours before the CSS was even deployed.

It's a long list of counterarguments, most of which have some validity in this particular case. (That, of course, doesn't stop the government from using the same arguments in cases where its assertions of good faith, exigency, etc. are far more questionable. But that's how lawyering works on both sides.)

It appears the government would rather the court didn't make a determination as to whether Stingray deployments are Fourth Amendment searches. The government lets the court know what it doesn't need to do to resolve this issue in the DOJ's favor:

Whether use of a cell site simulator constitutes a search for Fourth Amendment purposes is not necessarily a question this Court needs to answer, since even if it were a search, it was amply justified under the circumstances. That said, the law supports concluding that the device in this case did not affect a search.

The following argument, however, is particularly disingenuous. The defendant argued the warrant was invalid because officers didn't let the judge know they'd be deploying a Stingray device when it got its pen register order approved. The DOJ says this shouldn't matter, as it can find very little pre-2013 evidence suggesting these devices were mentioned in previous court documents.

Since the CSS technology was still relatively new in 2013, there were simply no binding cases to direct agents and officers to disregard Smith v. Maryland and get a warrant. According to the governments research, only a few federal pre-2013 cases referenced cell site simulator, digital analyzer, triggerfish, or stingray in a relevant context. (The government found no such cases in California courts.)

Well, of course this search came up empty. For years, the FBI swore law enforcement agencies to secrecy if they acquired Stingrays, telling them to dismiss cases rather than have defendants, judges, or even some prosecutors discuss the tech in open court. The lack of DOJ search results means the NDAs the FBI forced everyone to sign worked.

By no means was CSS technology "relatively new" in 2013. Documentation of Stingray devices can be found dating back to 2006 and use of pre-Stingray "digital analyzers" dates back more than 20 years. There wasn't much courtroom discussion because the FBI actively prevented it from happening. And the DOJ knows this, as its "research" likely turned up things like this 2012 NDA on DOJ letterhead telling a New York sheriff's office to STFU about its new toy.

With no discussion, there are no binding cases. That's how the FBI wanted it. And it pays off years down the road by making it easier for the DOJ to prevail in a suppression argument without setting precedent it may find inhibiting another half-decade down the road.

See original here:
DOJ Tells Court There No Need To Establish A Warrant Requirement For Stingray Devices - Techdirt

ACLUA Somali familyimmigrants who are now legally citizens of the United Statesare suing several federal agencies over what appears to have been a particularly rough border detention and search. Their treatment, they say, stems from the government's secretive, unaccountable watchlists.

They family is being represented by the American Civil Liberties Union (ACLU), which has spent years fighting to force a system of due process on the various watchlists that agencies use (and share among each other). Thanks to these lists, hundreds of thousands of people are subjected to increased and intrusive searches when traveling.

The lawsuit attacks two significant and well-established problems with these watchlists. One: Even though these lists supposedly exist to keep an eye on suspected terrorists, they contain hundreds of thousands of names of people with no known ties to terrorist organizations. Two: The system is handled secretly, with almost no oversight or due process. People who end up on the list often cannot find out why or even get the government to acknowledge that they're on a list; their only option is to ask to be taken off the list and hope it happens.

The plaintiffs are the Wilwal-Abdigani family, who in March 2015 traveled from their home near Minneapolis to visit relatives in Canada. According to the lawsuit, they had little trouble passing into Canada but were warned that that the father, Abdisalam Wilwal, had a notation on his records that might result in some additional questions when he attempted to return home.

That proved to be an understatement. According to the lawsuit, when the family tried to return to the United States, border agents confronted them at gunpoint and detained them for hours. The lawsuit says that the border patrol asked Wilwal if the travelers were Muslims and accused him of involvement in terrorism. They handcuffed Wilwal and left him alone in a room for hours without even questioning him. He ended up fainting, and they had to call in paramedics. They eventually questioned him for 45 minutes, though he was detained for more than 10 hours.

The other members of the family were detained separately and were not allowed to leave either. At one point the mother, Sagal Abdegani, realized the agents had neglected to take the cellphone away from one of her children and she managed to call 911 to try to get outside help. An agent snatched the phone away from her. According the lawsuit, border patrol agents also took the couple's 14-year-old son into a separate room and demanded he take off his clothes for a strip search. He refused to comply.

The family was released much later in the day and was allowed to return home. They know now that Wilwal's name is in a federal watchlist database, but they don't know why. They've petitioned the feds to have Wilwal's name removed, but per the federal government's processes, the Department of Homeland Security declined to confirm or deny whether Wilwal is actually watchlisted or whether they removed him from the list. The lawsuit notes, "At no point in the process can an individual appear in person before a neutral decision maker to challenge placement on the watchlist or its consequences."

The family is claiming violations of their Fourth Amendment rights, claiming unconstitutional searches and seizures as well as excessive force. They're also claiming violations of their Fifth Amendment rights to due process, because of the way these federal lists are managed and because of the barriers to clearing Wilwal's name.

For the Fourth Amendment claims, unfortunately, the courts have historically given federal officials very wide latitude to engage in warrantless searches with very little justification at the country's borders. But some important court rulings bolster's Wilwal due process complaint, and the ACLU knows itbecause they're involved with some of those suits as well.

These lawsuits involve the federal no-fly list, a subset of these terror watchlists. People on the no-fly list are denied the right to board aircraft under a secretive, opaque system much like the one described in this lawsuit. In 2014 a federal judge ordered the Department of Justice to develop a system where people can determine whether they are actually on the no-fly list and a mechanism for correcting mistaken inclusion on the list. One woman turned out to have been added to the no-fly list by accident (somebody checked the wrong box); she had to fight the government for years to be removed. She only found out about the mistake as a result of the lawsuit.

Read the family's lawsuit here. Read the mother's own account of the border search here.

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Secret Government Watchlist Sweeps Up an American Family, and Now They're Suing - Reason (blog)

Congress is getting ready to debate reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, set to expire at the end of the year. Liberty-minded voters and lawmakers should support reform of this provision, to insure that the federal government's power is kept in check.

Both the Republican and Democratic parties have abused warrantless surveillance authorities when in power, to sweep up communications of American citizens in a way that violates the Fourth Amendment to the U.S. Constitution.

Section 702 passed in 2008, when Democrats controlled both the House and the Senate. The original bill was supported strongly by former Speaker Nancy Pelosi. With Republicans in control of Congress and the White House, they now have the power to reform the same surveillance overreach they have previously criticized.

The fight has become an internal struggle between the old establishment guard of the Republican Party and newer, more liberty-minded members who are concerned about privacy and government overreach. The future of the Republican Party includes support for privacy and Fourth Amendment rights. Therefore, the leadership in the House, where this bill is expected to start, should be responsive to the members who are leaders of the privacy movement. Rep. Bob Goodlatte, R-Va., has voiced support for Section 702 reform, and hopefully will lead the charge to bring together divergent elements of the Republican Party, to support a common sense compromise on the bill.

The Bush administration engaged in widespread warrantless wiretapping without any congressional authorization. Likewise, the Obama adminisration used Section 702 to engage in similarly unconstitutional practices.

The provision has been used in a way that violates the Constitution and does not enhance national security. A Washington Post analyzed documents released by Edward Snowden and reported on July 5, 2014 that, "Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency" under Section 702. The Washington Post reviewed 160,000 intercepted email and instant messaging conversations and reported on widespread monitoring of Americans' data that should have required a warrant based on probable cause for the government to collect. This massive data collection is a problem unto itself because the government amasses a giant database of information that they keep.

These abuses are evidence enough that Section 702 needs to be reformed or allowed to expire.

Congress must insist on closing the so-called backdoor search loophole. This loophole allows the government to target Americans under Section 702, under the pretense that they are really targeting foreign nationals. The FBI routinely performs these types of searches, even in cases where they lack the evidence necessary even to open a formal investigation.

There are currently no prohibitions on the use of this information in prosecutions against Americans for alleged offenses unrelated to terrorism. That Section 702 can be used to wiretap Americans without a warrant, and in investigations that have nothing to do with terrorism, demonstrates the amount of mission creep that this anti-terrorism provision has permitted.

Another critical reform that should be imposed on the program would be to limit the scope of Section 702 to only allow targets to be foreign powers or agents, and exclude individuals who are not associated with terrorism and may merely be businessmen or journalists. Furthermore, the upstream surveillance program that has been used to search emails and text messaging on a massive scale should be ended.

Real transparency and oversight of FISA programs needs to be part of any compromise, and any retained data needs to be purged on a regular basis. Finally, private citizens need to have a way to challenge unconstitutional surveillance in court if they believe their rights have been violated.

The law has been implemented in a way that violates the Bill of Rights. This should lead constitutional conservatives in the Senate to filibuster any reauthorization that does not include substantial reform.

Brian Darling is former Senior Communications Director and Counsel for Sen. Rand Paul (R-Ky.). He can be followed on Twitter: @BrianHDarling.

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FISA reform is needed, and conservatives should lead the way - Washington Examiner