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Our bipartisan, public interest organization frequently files Freedom of Information Act (FOIA) requests to learn how the FBI, CIA and other intelligence and law enforcement agencies obtain warrantless access to Americans personal information, in defiance of the Fourth Amendment. It is, to say the least, a target-rich environment.

A government watchdog agency revealed in February that the CIA has been conducting bulk surveillance of Americans in violation of that agencys charter forbidding domestic spying. In March, we learned that a component of the Department of Homeland Security is scooping up Americans personal financial transactions in the form of money transfers.

In both instances, the government acts on the belief that the Fourth Amendment requirement for a probable cause warrant can be sidestepped when it comes to obtaining our personal movements and other sensitive consumer information from our cell phones and digital devices. Government attorneys assert it is legal for their agencies to simply open the government purse and buy our data scraped from apps and social media, no warrant needed. When further challenged, the governments ultimate fallback is a claim that a Reagan-era executive order, known as E.O. 12333, means that it needs no statutory authority to look at whatever it wants.

It wasnt supposed to be like this. Congress created the Freedom of Information Act in 1967 at a time when lawless surveillance of Americans by the FBI and CIA was rampant. It sought to create balance with a tool for Americans to get some clarity about government operations. But even here, the government ignores the plain meaning of the law to do whatever it wants.

For example, our organization has been forced to sue the Department of Justice and FBI to compel them to produce records on potential spying on Congress. We are concerned that members of Congress of both parties who have publicly stated they believe U.S. intelligence agencies have been surveilling them and has unmasked their identities in foreign communications, may have been targeted by our government. We also have been forced to sue over the refusal of six government agencies to respond to a FOIA request seeking information on surveillance of presidential campaign and transition officials.

In both cases, our requests have been stymied by a legal tactic known as a Glomar response.

This judicial doctrine arose from one of this countrys greatest intelligence coups. After a Soviet nuclear ballistic missile submarine sank in the Pacific Ocean in 1968, the U.S. Navy located the wreck at a depth of three miles. With an elaborate cover story and the help of billionaire Howard Hughes, the CIA spent the current value of $1.3 billion to build an ambitious deep-sea platform, Hughes Glomar Explorer, which dropped an enormous claw to the seabed to retrieve a section of the sub.

When journalists followed up on Glomar rumors, the government developed the Glomar response, which holds that certain information vital to national security can be neither confirmed nor denied.

What was once an exceptional tactic to protect heroic intelligence operations has since become a standard ploy to render FOIA meaningless. In the case of potential spying on Congress, some of the documents we seek are correspondence between intelligence agencies and members of Congress who believe theyve been targeted. On what national security basis can the government categorically refuse to search for, and thus withhold, all correspondence with Congress?

In our FOIA concerning spying on campaigns, the government asserts that the very act of searching for documents could jeopardize national security. Opening a file drawer to look for congressional correspondence is not, in fact, analogous to publicly revealing the existence of a super-secret vessel capable of bringing a Soviet nuclear submarine to the surface. Besides, how can the government know which files are classified and involve national security, and which can be released, without looking at them?

When Attorney General Merrick Garland was chief judge of the D.C. Circuit Court, he upheld the principle that official acknowledgement of documents can force their disclosure over an otherwise valid Glomar response. Perhaps courts could further adopt a bright-line rule that would balance national security and the U.S. Constitution. They could hold that an agency is acting in bad faith when it attempts to Glomar documents containing evidence of possible illegal interference in Congress and campaigns.

Judges are the Constitutions last line of defense. The expansion of the Glomar loophole to circumvent FOIA threatens to render a law passed by Congress, and signed by a president, with the approval of the American people who elected them, utterly meaningless. At the very least, the courts should make the agencies look through their files as FOIA clearly demands.

Unless judges respond with some vigor, the trust Americans place in our government will deserve to be lower than a Soviet sub stuck in the Marianas Trench.

Mark Udall was a U.S. senator representing Colorado from 2009 to 2015. Bob Goodlatte represented Virginias 6th District in Congress from 1993 to 2019 and chaired the House Judiciary Committee. Both are senior policy advisers to the Project for Privacy and Surveillance Accountability.

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We can neither confirm nor deny were spying on Congress - The Hill

I know Im not stupid, but did you watch Mattea Roach on Jeopardy? I was spell-bound while she immediately hit her buzzer with the correct answer to many more questions than I can imagine ever having learned about. There she was, immediately recalling the name of a teeny island that I never heard of, dates of events so old they predate our ancestors ancestors. From the air, she easily pulled names of third and fourth cousins of the ninth reigning queen of a country thats been extinct for several lifetimes. How in the world did she do it?

I know our brains are supposed to have been the first computers, but come on! It doesnt mean we dont forget things. It doesnt mean we all can analyze formulas and recall everything weve ever learned for the rest of our lives. Contestants like Mattea have fascinated me from the first time I realized how few questions I can answer on Jeopardy while it is childs-play to them.

I would love to talk to the parents of these wonder-women and -men. How did they raise such smart people? Did they have implants inserted in their children at birth? Did they constantly play music as they raised their children? Ive read that music stimulates the young brain, especially while they sleep. There may be truth to that, as my granddaughters mother played soft music every night while Cadence slept and believe me, she is one smart cookie. My parents, on the other hand, liked a quiet house, so musical notes rarely bounced off our walls. When I became aware of the Beatles, back in the 60s, I got a record player, built a collection of 33 1/3s, and played music in my room with the door closed, but I think it was too late for me. So, here I am, not the brightest light bulb in my husbands garage, but I get by.

Getting by would not be acceptable to people like Mattea. To excel beyond supposed human capabilities is more her speed. Is there a limit to how much information a human being can retain forever? Ive read that the only reason animals dont outsmart us is because our brain to body ratio is greater than those of whales, elephants, all animals for that matter.

YET, on the other hand, what do brainiacs do with all that knowledge reverberating within their skull? Is there really a need to know everything? Is one lifetime enough to put all that knowledge to good use? Too bad people cant share their intelligence with the rest of us lesser souls. Im sure Mattea could give me one-third of her intelligence and never miss it. But what a difference it would make to me. What would you with, say, five times more intelligence and memory capability than you have now? Invent a cure for cancer? Figure out how to get to the end of the wild blue yonder? Look beyond yourself to the needs of others and instantly know what they need and how to supply it? Maybe not only present our opinions, but instantly present facts (real facts, not made-up ones) on which we base our opinions?

On the other hand, does the world really need us all to know everything at the drop of a question? There are places for us sitting on the lower rungs. Maybe high intelligence doesnt equal patience, empathy, and generosity. Now, Im not suggesting high intelligence equals lack of humanity that certainly would be outweighed by caring people in the medical field, teaching, and yes, even in politics. What Im saying is, arent our needs fulfilled by moms and dads, manual laborers, helpful neighbors, leaders of faith just as important as our highly successful scientists, archeologists, law interpreters?

Well, Ive talked myself into it. Now I can watch Mattea as she casually recalls the fourth amendment to Estonias constitution and not be jealous. She has her role in life, and I have mine. Whos to say her role is more important than mine, or yours? I guess the bottom line is to do our best, whatever that might be. Never harm, only love, share, and assist.

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Is there really a point to knowing everything? | North State Voices - Oroville Mercury-Register

Using Samuel Alitos logic in proposing to strike down the right to an abortion, other rights that you take for granted could also be eliminated. The argument is that if something is not mentioned in the Constitution, that right is based only on the majority opinion of the Supreme Court. Thus, if the Roe vs. Wade decision was wrong, the current court could reverse that decision.

This opens to door to removing other presumed rights. For example, the Constitution does not give you the right to own an AR-15. The Second Amendment only gives you the right to keep and bear arms and says nothing about private ownership. The Swiss government used to require all men of a certain age to keep their military weapon at home while not on deployment or in training. The Constitutions language does not say it allows for private ownership just to keep and bear arms for a well regulated militia. The only thing that allows you to own firearms is the interpretation by the Supreme Court, which we now see can change.

How about your right to privacy? The Fourth Amendment only protects you from unreasonable searches and seizures but says nothing about privacy. A state could sue to make all medical, educational, and employment records public. If the Supreme Court agrees that the Constitution does not address these, it could rule that all records can be made public.

How about the right to travel between states? There is nothing in the Constitution that gives you that right. Thus, if a state wants to restrict entry or charge you $100 to enter the state, the Supreme Court could use the logic applied to Roe vs. Wade to allow a state to do that.

More likely the so-called conservatives who brought the lawsuit on Roe vs. Wade will go after your right to enter a mixed-race marriage or marriage for same sex couples. The right to use contraception services and products would also be subject to the whim of five justices. The Constitution does not address these rights any more than it addresses Roe vs. Wade.

Let your imagination run free to think of all the rights you think you have that are not explicitly covered by the Constitution or its amendments. Public education, libraries, and healthcare are among the things not mentioned in the Constitution and would be fair game for revocation or elimination.

The other part of the argument against abortion rights is that until 1973 there was no support for a constitutional right for access to an abortion. That logic might mean that women will again need to get a mans permission to get a credit card, which was the case before 1973. Not allowed until after 1973 was the protection for a woman not to get fired if she got pregnant or to sue for sexual harassment in the workplace. All rights that women and men have won since the founding of the country would be subject to cancelation.

Apparently, Alito thinks that anything after the 1600s does not qualify as being deeply rooted in the nations history and traditions as he quotes a British jurist who executed witches and advocated for executing children as young as 14. That same jurist considered women to be the property of either their father or husband. Women who were independent of a man (e.g., widows) were considered with suspicion and occasionally accused and prosecuted for practicing witchcraft.

The Roe vs. Wade decision is based, in part, on the fact that in the first trimester the fetus is essentially an extension of the womans body and upon which it is dependent for its existence. The Alito position makes the woman subservient to the fetus based on a religious position, not facts based on biology. If this religious position dictates judicial decisions, other religious positions could be imposed on all citizens. The Supreme Courts conservative majority seems intent on exercising its activist agenda to take the country back to a darker place.

(Dr. Norm Hoffman is a semi-retiredclinical psychologist living in Waynesville.This email address is being protected from spambots. You need JavaScript enabled to view it..)

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If Roe v. Wade goes, then what is next - Smoky Mountain News

Dear Chairman Scott and Ranking Member Foxx:

The U.S. Chamber of Commerce opposes H.R. 7701, the Wage Theft Prevention and Wage Recovery Act, which would hinder employees from receiving their due compensation and inhibit the use of arbitration procedures that have been shown to be highly efficient and cost effective.

While sounding benign and well meaning, the provisions on requiring pay disclosures and paystubs are redundant with rights covered under state law. Adding federal requirements would add complexity and confusion without actually improving worker protections.

Similarly, increasing the financial consequences for violations makes a great headline, but the actual impact on low-wage workers will not be to their advantage. Employers faced with such massive damages and penalties will most likely choose to challenge the citations and allegations and pursue a litigation approach. Payment of back wages would be delayed by years. The plaintiff's bar will collect more fees, but low-wage workers may see scant returns or nothing at all. The proposed increases also are inflexible with no room for discretion based on the size of business or the type of violation.

The ultimate goal of this bill is to promote expensive class action litigation that does little to help businesses and employees by precluding the enforcement of predispute arbitration clauses. Such litigation serves principally to benefit the attorneys who file class action lawsuits. Arbitration is a fair, effective, and less expensive means of resolving disputes compared to going to court. Empirical studies demonstrate that employees in arbitration do just as well, or in many circumstances, considerably better, than in court. For example, recent studies have found that employees in arbitration prevail three times more often, win more money, and resolve their claims must faster than in litigation.[1] Studies have also shown that class action settlements frequently provide only a pittance or many times, nothing at all to class members while millions of dollars are paid to their attorneys.[2]

Finally, the bills Grant Program would deputize advocates to help conduct investigations. This would eradicate the long tradition of employers voluntarily cooperating with agency investigations, producing documents, and welcoming investigators into their worksites. If the Department of Labor brings along unions and advocates, employers would likely stop cooperating and insist on search warrants and document subpoenas, in accordance with the Fourth Amendment. Again, more complexity, longer investigations, and more litigation will harm low-wage workers by delaying payment of wages.

The Chamber urges the Committee not to approve the Wage Theft Prevention and Wage Recovery Act.

Sincerely,

Neil L. Bradley

Executive Vice President, Chief Policy Officer,

and Head of Strategic Advocacy

U.S. Chamber of Commerce

cc: Members of the House Committee on Education and Labor

[1] See Fairer, Faster, Better III: An Empirical Assessment of Consumer and Employment Arbitration (March 2022) available at https://instituteforlegalreform.com/research/update-an-empirical-assessment-of-consumer-employment-cases-in-arbitration-litigation/.

[2] See Do Class Actions Benefit Class Members? An Empirical Analysis of Class Actions (Dec. 11, 2013) available at https://www.mayerbrown.com/files/uploads/documents/pdfs/2013/december/doclassactionsbenefitclassmembers.pdf.

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U.S. Chamber Letter on H.R. 7701, the Wage Theft Prevention and Wage Recovery Act - uschamber.com

from the maybe-don't-gather-all-this-data-in-the-first-place? dept

Googles market share and capacity to gather billions of data points has made it the most popular target for so-called warrants that seem to elude both particularity requirements and the Supreme Courts decision in the Carpenter case.

To be a reasonable search, law enforcement is supposed to be able to show the information it seeks can be found where they say it is and be relevant to the investigation. Reverse warrants warrants in which law enforcement seeks location data and other info from everyone in a certain area at a certain time only satisfy one of these requirements. If courts are persuaded the only thing that needs to be shown is the likelihood Google has this data, then the warrants are good.

If the warrants need to show the data sought pertains to criminal suspects, the warrants should obviously fail. Rather than showing probable cause to search for data related to suspects, reverse warrants turn everyone in the area into a potential suspect and allows law enforcement to work backwards from the data dump to identify people it feels might be involved in the crime being investigated.

Recently, a Virginia court blocked a reverse warrant served to Google in a robbery case, saying it was unconstitutionally vague. This decision remains an outlier, though, and use of reverse warrants continues to increase exponentially with each passing year.

In a legal brief filed in the case, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. Google now reports that geofence warrants make up more than 25% of all the warrants Google receives in the U.S., the judge wrote in her ruling.

Some belated pushback has begun, courtesy of the state of New York. Theres more pushback on the way, this time via the companies targeted by geofence/reverse warrants and so-called keyword warrants, which demand information on internet users who have searched for certain terms. Google is the primary recipient of these warrants as well.

The Reform Government Surveillance group composed of a dozen tech companies, including Google, Apple, Twitter, and Meta has issued this statement in support of the New York bill.

Reform Government Surveillance supports the adoption of New York Assembly Bill A84A, theReverse Location Search Prohibition Act, which would prohibit the use of reverse location and reverse keyword searches.

This bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity or used a certain search term.

The EFF correctly points out the danger of these warrants, whose use has exploded over the last half-decade.

These reverse warrants have serious implications for civil liberties. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. It also means that with one document, companies would be compelled to turn over identifying information on every phone that appeared in the vicinity of a protest,as happened in Kenosha, Wisconsin during a protest against police violence. And, as EFF has argued in amicus briefs, it violates the Fourth Amendment because it results in an overbroad fishing-expedition against unspecified targets, the majority of whom have no connection to any crime.

These are problematic. But so are the data-harvesting efforts of tech companies. Americans are generally leery of the always-on tracking and data collection these companies engage in. They become significantly more worried when they discover just how easily the government can access this massive amount of data.

Tech companies are right to oppose government surveillance overreach. But they also need to be a lot more honest with their users, informing them in plain English about whats being collected, when its being collected, how long its retained, and what the aggregate collection can reveal about their activities and social connections.

They also should do more to assure third party app developers arent abusing permissions to collect even more data government agencies can obtain without a warrant. And they should give users easy ways to opt out of collections and ensure users are well informed about potential usability downsides of opting out so they can grant truly informed consent to service providers.

Making noise about government surveillance doesnt excuse the bad habits of tech companies. While its good to see them stand up against government overreach, they should probably take this opportunity to engage in a bit of introspection to see if theyre not just making the situation worse by hoovering up every bit of data possible, putting it only a questionable piece of legal paperwork away from the governments all-seeing eyes.

Filed Under: 4th amendment, location data, privacy, reverse warrants, surveillanceCompanies: apple, google, meta, twitter

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Tech Companies Oppose 'Reverse Warrants,' Say Surveillance Of User Location Data Should Be Limited To Tech Companies - Techdirt