Restore The Fourth

Opposing unconstitutional mass government surveillance

  • Restore the Fourth, 18 Allies Ask Congress To Investigate FBI Monitoring

    The essence of the Fourth Amendment is that the government should leave you and your stuff alone, unless they can satisfy a judge that they

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  • How the 2020 Presidential candidates stack up on the surveillance state

    Today, Restore The Fourth launches its voter guide for the 2020 Democratic primaries. Mass state surveillance is less about who’s in the Oval Office and

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  • NSA Reform Blocked By Schiff, Pelosi. Again.

    Do you ever get the feeling that the hearts of some folks preaching #Resistance aren’t really in it, when it comes to the NSA ?

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  • RT4 Files Amicus Brief in Micah Jessop Case

    In September 2013, police seized hundreds of thousands of dollars from businessmen Micah Jessop and Brittan Ashjian, on suspicions they were running an illegal gambling

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  • Carpenter v. US: SCOTUS Theories of the 4th Amendment

    The Supreme Court ruling in Carpenter has huge implications for law enforcement in the digital age

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NSA Reform Blocked By Schiff, Pelosi. Again.

Do you ever get the feeling that the hearts of some folks preaching #Resistance aren’t really in it, when it comes to the NSA ?

Last Tuesday night two senior Democrats, Speaker Nancy Pelosi and Intelligence Committee Chair Adam Schiff, blocked bipartisan efforts to restrict NSA surveillance for the second time in three years. Seems they’re not troubled about the massive illegality of the NSA’s data collection in itself, about the “FBI backdoor loophole“, “parallel construction“, or any of the heinous practices of Trump’s NSA. Maybe they’re just marking time in the hope that it’ll be Biden’s NSA soon, and all will once more be well. Maybe they really believe, as legislators who were in Congress in 2001, that these powers are permanently appropriate to an executive in the now almost two-decade-old War on Terror.

What happened this week was this: Rep. Justin Amash (R-MI), a long-time foe of NSA over-collection, teamed up with the equally passionate Zoe Lofgren (D-CA), to offer an amendment to an appropriations bill that would have prohibited reverse targeting. That’s when NSA targets a foreign national (who may have links to terrorism, or simply may know something of use to the intelligence services), knowing that the foreign national has contacts in the US whose communications they would like to rummage through. Ordinarily, the Fourth Amendment would apply, and they would need a warrant based on probable cause of involvement in a crime before seizing the communications of a US citizen.* But for intelligence purposes, the NSA can seize the communications of a targeted foreign national, and their contacts, and their contacts’ contacts (so-called “2-hop collection”). With this practice, NSA evades warrant requirements and seizes the communications of a US national and anyone that US national communicates with, down to their local pizza joint. Then, the FBI is allowed to search those communications for evidence of domestic crimes. They can do this, under current statute, so long as the sole purpose of the targeting is not to obtain the US citizen’s communications, which is a pretty easy bar to meet. The Amash-Lofgren amendment would have changed this to a “substantial purpose“, making it a much wider prohibition.

Then look what happens. Pelosi (rated D on our scorecard) and Schiff (rated F on our scorecard) swing into action, and Schiff circulates a “Dear Colleague” letter, describing the Amash-Lofgren amendment as follows:

“Makes significant policy changes to collection activities under section 702 of the Foreign Intelligence Surveillance Act (FISA) meant to make it more difficult for the National Security Agency (NSA) to acquire internet communications of a foreign intelligence target in communication with someone in the United States. Although the NSA already does not reverse target U.S. persons, the amendment includes a new test for the certification of acquisition that may make FISA collection impracticable.”

Got that? NSA is not in fact reverse-targeting (perish the thought!), but nevertheless, actually prohibiting reverse-targeting would be such a “significant policy change” that it “may make FISA collection [collection under the Foreign Intelligence Surveillance Act] impracticable.” Friends, it looks like we have a Schrodinger’s Amendment here, that can be magically completely ineffectual and completely disastrous at the same exact time.

Now, there were roughly an oodle of amendments to this appropriations bill. There were only two minutes allocated to discuss it. And for the 2019 intake of Congressmembers, this was the first time they ever had an opportunity to vote on this issue. Some of the more prominent new Congressmembers – Alexandria Ocasio-Cortez, Rashida Tlaib, Ilhan Omar and Ayanna Pressley – had already spoken up about the dangers of surveillance, are well informed about it, and voted for the amendment. But for many, the first they had heard about it may have been this scaremongering language from Schiff. Nadler, who assumed the chairmanship of House Judiciary after a contest with Lofgren, and who has often spoken up for civil liberties, stayed mum. It’s hard as a new-minted Congressmember to make trouble for yourself with the Speaker, the Majority Leader, and the chair of a significant committee all at once, and the result was that many new Members joined them in voting the amendment down. Had House Democrats this time been as willing to vote against mass surveillance as they were when they were in the minority in 2017, the amendment would have passed. Schiff’s memo led to more Democrats voting against it than Republicans, including 46 out of 66 Democratic freshmen. The final vote was 175 Yeas to 253 Nays.

Here’s footage of Pelosi and Schiff back in 2017, during the debate on passage of the USA RIGHTS Act, which was introduced as an amendment to an underlying, damaging intelligence bill that eventually passed. The USA RIGHTS Act would have prohibited reverse targeting and systematically reined in the intelligence community. In this debate, rather than argue for the Act’s adoption, first Schiff argued for temporary withdrawal of the underlying intelligence bill, which eventually passed; when that failed, Pelosi, rather than arguing for the Act’s adoption, helped defeat it by introducing a new and toothless amendment that gave Democrats cover to oppose it.

Here at Restore The Fourth, we have tracked votes from 2012 on these issues very closely. We have seen opposition to mass government surveillance grow slowly in Congress in both parties, as the problems with it have become more grave and more public. Pelosi and Schiff are increasingly out of touch with the average position of their caucus on this issue. Fortunately, pro-privacy candidates are well represented in the presidential race, with Sanders, Warren, Gabbard and Booker all posting A+ voting records; but it’s Congress that has the power to constrain what the NSA and FBI are doing with legislation, and they’re just. not. doing. it.

* The Fourth Amendment isn’t actually limited to US citizens, but for the purposes of this discussion, we’re assuming that the foreign national targeted doesn’t already have what are called “substantial voluntary connections” to the US that would permit US courts to recognize their Fourth Amendment rights.

Alex Marthews is National Chair of Restore the Fourth. You can follow him on Twitter @rebelcinder.

Stay updated on the fight for the Fourth Amendment. Follow us on Twitter @Restore_the4th.

Act Now: Urge Lawmakers to End Mass Collection of Phone Records

Privacy defenders in the Senate and House have introduced a bill to rein in NSA surveillance. Today, we’re urging you to contact your lawmakers to get them to cosponsor the Ending Mass Collection of Americans’ Phone Records Act (S. 936H.R. 1942).

Edward Snowden revealed in 2013 that the NSA was collecting the call detail records (“CDRs”) for every single call originating or ending in the US, using an authority passed after 9/11 called Section 215 of the PATRIOT Act. CDRs include when the call was made, where the sender and recipient are, who it was to, and how long it lasted. As EFF points out, if they know you made a call to a suicide hotline at 1am, the NSA doesn’t really need the content of the call to intrude on your life. The NSA were collecting these records under “warrants” that made a mockery of the Fourth Amendment, that required ongoing production by phone carriers of all call metadata relating to every US user, renewing automatically every 90 days. They have never shown that any counter-terrorism effort was ever helped by collecting all US-US CDRs.

Vast as it is, the CDR program is not all that is authorized under Section 215, and is only a tiny corner of what the NSA is doing. As best as we can tell, data from this program, which relates only to US-US communications, is accessed only when the NSA needs to “back-fill” information it can’t get under more permissive authorities related to US-foreign communications (FAA Section 702) or foreign-foreign communications (EO 12,333), which both collect exabytes’ worth more data.

Back in 2015, in response to the Snowden revelations, Congress updated its Section 215 authorities, in the USA FREEDOM Act. This Act included new transparency measures, and required phone metadata to be stored by the phone companies and queried in smaller chunks by the NSA. However, the NSA has struggled to adapt to these new requirements. They have not complied with requests from Congress or the public to release information about how much metadata, on how many people, this program collected. They revealed earlier this year that they had still been collecting millions of records under this program that they weren’t legally authorized to obtain, and were having to purge their systems. Rather than deal with the hassle of fixing it, it seems as if NSA has stopped using the CDR program, are now ready to declare an end to it (under this authority), and intend to get most of what they need under their other, more permissive authorities.

This is a familiar game of surveillance whack-a-mole. NSA have snooped on us all, pretended to Congress that it was to prevent terrorism, lied about the scope of their surveillance, and lied about how important it was. They are not a trustworthy partner. Merely letting them declare an “end” to the program is not enough. They must be barred by statute from trying anything like this again, and the mass surveillance they’re still doing under other authorities must also end.

Make it end by urging lawmakers to cosponsor the Ending Mass Collection of Americans’ Phone Records Act.

Alex Marthews is National Chair of Restore the Fourth. You can follow him on Twitter @rebelcinder.

Stay updated on the fight for the Fourth Amendment. Follow us on Twitter @Restore_the4th.