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  • The FBI is Playing Politics with Your Privacy

    Posted on by Azrael Comment

    A bombshell report from WIRED reveals that two days after the U.S. Congress renewed and expanded the mass-surveillance authority Section 702 of the Foreign Intelligence Surveillance Act, the deputy director of the Federal Bureau of Investigation (FBI), Paul Abbate, sent an email imploring agents to “use” Section 702 to search the communications of Americans collected under this authority “to demonstrate why tools like this are essential” to the FBI’s mission.

    In other words, an agency that has repeatedly abused this exact authority—with 3.4 million warrantless searches of Americans’ communications in 2021 alone, thinks that the answer to its misuse of mass surveillance of Americans is to do more of it, not less. And it signals that the FBI believes it should do more surveillance–not because of any pressing national security threat—but because the FBI has an image problem.

    The American people should feel a fiery volcano of white hot rage over this revelation. During the recent fight over Section 702’s reauthorization, we all had to listen to the FBI and the rest of the Intelligence Community downplay their huge number of Section 702 abuses (but, never fear, they were fixed by drop-down menus!). The government also trotted out every monster of the week in incorrect arguments seeking to undermine the bipartisan push for crucial reforms. Ultimately, after fighting to a draw in the House, Congress bent to the government’s will: it not only failed to reform Section 702, but gave the government authority to use Section 702 in more cases.

    Now, immediately after extracting this expanded power and fighting off sensible reforms, the FBI’s leadership is urging the agency to “continue to look for ways” to make more use of this controversial authority to surveil Americans, albeit with the fig leaf that it must be “legal.” And not because of an identifiable, pressing threat to national security, but to “demonstrate” the importance of domestic law enforcement accessing the pool of data collected via mass surveillance. This is an insult to everyone who cares about accountability, civil liberties, and our ability to have a private conversation online. It also raises the question of whether the FBI is interested in keeping us safe or in merely justifying its own increased powers.

    Section 702 allows the government to conduct surveillance inside the United States by vacuuming up digital communications so long as the surveillance is directed at foreigners currently located outside the United States. Section 702 prohibits the government from intentionally targeting Americans. But, because we live in a globalized world where Americans constantly communicate with people (and services) outside the United States, the government routinely acquires millions of innocent Americans’ communications “incidentally” under Section 702 surveillance. Not only does the government acquire these communications without a probable cause warrant, so long as the government can make out some connection to FISA’s very broad definition of “foreign intelligence,” the government can then conduct warrantless “backdoor searches” of individual Americans’ incidentally collected communications. 702 creates an end run around the Constitution for the FBI and, with the Abbate memo, they are being urged to use it as much as they can.

    The recent reauthorization of Section 702 also expanded this mass surveillance authority still further, expanding in turn the FBI’s ability to exploit it. To start, it substantially increased the scope of entities who the government could require to turn over Americans’ data in mass under Section 702. This provision is written so broadly that it potentially reaches any person or company with “access” to “equipment” on which electronic communications travel or are stored, regardless of whether they are a direct provider, which could include landlords, maintenance people, and many others who routinely have access to your communications.

    The reauthorization of Section 702 also expanded FISA’s already very broad definition of “foreign intelligence” to include counternarcotics: an unacceptable expansion of a national security authority to ordinary crime. Further, it allows the government to use Section 702 powers to vet hopeful immigrants and asylum seekers—a particularly dangerous authority which opens up this or future administrations to deny entry to individuals based on their private communications about politics, religion, sexuality, or gender identity.

    Americans who care about privacy in the United States are essentially fighting a political battle in which the other side gets to make up the rules, the terrain…and even rewrite the laws of gravity if they want to. Politicians can tell us they want to keep people in the U.S. safe without doing anything to prevent that power from being abused, even if they know it will be. It’s about optics, politics, and security theater; not realistic and balanced claims of safety and privacy. The Abbate memo signals that the FBI is going to work hard to create better optics for itself so that it can continue spying in the future.

    Source: The FBI is Playing Politics with Your Privacy | Electronic Frontier Foundation


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  • The FBI’s Lawless Raid on U.S. Private Vaults Shows Why the Founders Created the Fourth Amendment

    Posted on by Azrael Comment

    A squad of FBI and Drug Enforcement Administration agents in March 2021 raided the Beverly Hills location of a company, U.S. Private Vaults, suspected of criminal activity.

    Over several days, agents wearing masks photographed evidence, seized jewels, gold bullion, and coins, and confiscated some contraband (mostly drugs) from 1,400 safe-deposit boxes rented by an array of people, including a retired doctor, a saxophone player, a retired floor contractor, and at least two attorneys. 

    The grand total seized by the FBI was $86 million in cold cash, as well as Rolex and Cartier watches, rare coins, and more silver and gold than even Yukon Cornelius could imagine.

    U.S. Private Vaults, which was headquartered in Nevada, pleaded guilty to charges of money laundering and conspiracy the following year. (No one went to prison, and the company is no longer in business.) But it turns out U.S. Private Vaults wasn’t the only party that broke the law. 

    Last month, the U.S. 9th Circuit Court of Appeals ruled that the bureau violated the constitutional rights of safe-deposit box holders whose property was seized without probable cause, something the warrant explicitly prohibited.

    To understand just how far the FBI overstepped its authority, it’s worth examining the case of Don Mellein, a retired civil servant from California. 

    Mellein was one of hundreds of people who had a safe-deposit box at U.S. Private Vaults, where he kept hundreds of thousands of dollars of coins for safekeeping. 

    When the FBI raided U.S. Private Vaults, it didn’t just search Mellein’s safe-deposit box. It seized his coins, something the FBI had explicitly said it wouldn’t do when it requested a warrant to raid U.S. Private Vaults (more on that in a minute).

    Numerous other plaintiffs such as Mellein had their property taken simply because they were unlucky enough to have entrusted it to a company that was involved in some degree of criminal activity.

    That the FBI had the chutzpah to ignore the judge’s warrant, which explicitly “d[id] not authorize a criminal search or seizure of box contents,” did not sit well with the court. 

    Judges called the seizures “egregious” and “outrageous” during oral arguments, comparing them to the Revolutionary War practices of the British, who would search and seize the property of colonials without probable cause.

    “It was those very abuses of power,” the 9th Circuit Court noted, “that led to adoption of the Fourth Amendment in the first place.”

    The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but it’s something for which the FBI agents had little regard.

    Indeed, depositions from FBI agents suggest that “forfeiting” the property of safe-deposit box holders — some would call it “stealing” — was the FBI’s plan from the very beginning. 

    Excerpts of those depositions, which can be read at the Los Angeles Times and Reason, make it clear that the FBI had been planning a massive asset forfeiture operation months prior to filing its affidavit with U.S. Magistrate Judge Steve Kim.

    They also reveal that the FBI had been planning all along to seize the contents of all safe-deposit boxes, so long as they contained at least $5,000 (the minimum established by the Justice Department’s Asset Forfeiture Policy Manual). Testimony makes it clear the FBI was not particularly concerned whether these people were actually criminals, or that the agent who submitted the affidavit had assured Kim that the property rights of customers would be respected.

    We only know all of this because a judge denied a request from the U.S. attorney’s office — surprise, surprise — to block disclosure of those depositions, laying “bare the government’s deception,” in the words of the Los Angeles Times reporter Michael Finnegan. 

    To call the FBI’s actions deceptive is an understatement. 

    Finnegan’s reporting shows FBI agents and U.S. attorneys behaving in almost mafialike fashion, demanding bank records, tax returns, and sworn statements from safe-deposit box holders and their family members — just to get their own money back!

    When you read how a U.S. attorney asked a glassmaker’s lawyer how much his client was willing to pay the feds to give him his money back, you realize the 9th Circuit was not engaging in hyperbole. The FBI’s raid is not dissimilar to the “writs of assistance” that permitted Red Coats “to break open doors, Chests, Trunks, and other Packages” to find contraband or “stolen” items, a practice despised by the Colonials. 

    “It is a power that places the liberty of every man in the hands of every petty officer,” the 18th century statesman James Otis said in a famous speech against the writs, which led to the eventual adoption of the Fourth Amendment. 

    The question now is: Who will be held accountable for the FBI’s lawless, shameless raid?

    This article first appeared in The Washington Examiner.


    Jon Miltimore

    Jonathan Miltimore is the Editor at Large of FEE.org at FEE.

    This article was originally published on FEE.org. Read the original article.


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  • Trump’s FBI Pick Has a Troubling History on Digital Liberties

    Posted on by Azrael 1 Comment

    President Donald Trump’s pick to lead the FBI, Christopher Wray, will begin his confirmation process next week, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.

    Defense of the USA PATRIOT Act

    During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act—including Section 215, which would later provide the basis for the bulk collection of Americans’ telephone metadata.

    When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215’s business records provision had never been used. Wray insisted that was a sign of restraint: “We try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.” In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its report on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was already collecting much of that data—without statutory authorization.

    Granted, Wray didn’t have all of the information about that secretive wiretapping program until 2004, which we’ll get into below. Still, his insistence that Section 215 was just an effort to bring counterterrorism powers in line with ordinary criminal authorities reflected a concerning lack of skepticism about the risk of abuse. The same holds for his defense of a range of other PATRIOT Act provisions: “sneak and peek” warrants that allow law enforcement to search first and serve notice later; a reduced bar for obtaining a FISA warrant that one district court later found inconsistent with the Fourth Amendment; and a vaguely worded expansion of the kind of Internet data, some of it potentially very sensitive, that can be collected with a pen/trap order.

    Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray’s confirmation process, lawmakers should press him on his insistence that the Act “helped preserve and protect liberty and freedom, not erode them.”

    Outstanding Questions about STELLARWIND

    President Bush’s sweeping constellation of warrantless surveillance programs, codenamed STELLARWIND, played a key role in the mythos that surrounded the last two FBI Directors. Wray was reputedly one of the senior Justice Department officials ready to resign if then-Deputy Attorney General James Comey chose to do so over STELLARWIND’s legality—though Wray himself wasn’t aware of its existence at the time. Wray has since praised then-FBI Director Bob Mueller’s willingness to challenge President Bush over those surveillance programs, telling WIRED, “I think that the great thing about [people with] strong moral compasses is that they don’t have to hand-wring. When they’re uncomfortable, they know what they have to do.”

    But when Wray was confronted with a constitutional concern about those intelligence efforts, his response, as reflected in a 2009 inspector general report, seems to have been underwhelming. Wray was read into STELLARWIND in 2004 to address concerns that the government—in working to preserve the spying program’s secrecy—was failing to disclose potentially exculpatory material to which criminal defendants were entitled under the Constitution. As the Justice Department’s Inspector General later found, “[T]he Department made little effort to understand and comply with its discovery obligations with Stellar Wind-derived information for the first several years of the program.” What legal analysis had been conducted was, the IG would later write, “factually flawed and inadequate.”

    Wray and another attorney in the Justice Department’s Criminal Division were tasked with reviewing it. But beyond ordering the other attorney to write a memo of his own, it’s not clear Wray took any action to remedy the problem. While the memo recommended further research, there seems to have been no follow up. Four years after Wray left the Justice Department, its Inspector General would write that efforts to comply with the Constitution and other legal responsibilities “are not complete and do not fully ensure that the government has met its discovery obligations.”

    Before he’s given the top job at the country’s law enforcement agency, Wray should have to square his praise for officials willing to challenge unconstitutional surveillance with his apparent inaction on a constitutional question about the rights of defendants swept up in spying programs.

    Aggressive Copyright Prosecutions

    As Assistant Attorney General for the Criminal Division, Wray also oversaw and touted the Justice Department’s aggressive prosecutions for intellectual property infringement, some of them alarmingly trivial. In 2004, for instance, Wray named a guilty plea from a defendant who shared a pre-release copy of “The Hulk” in a chat room as one of the most significant intellectual property prosecutions of the year. That emphasis seems disproportionate, to say the least. As Senator Leahy put it in the same Judiciary Committee hearing, “That movie sank like a rock at the box office. Within a couple of weeks, they probably could not have given away the copies.” Still, the impact on the defendant was very real—including six months’ home confinement.

    In a climate in which copyright law is increasingly abused to chill and deter speech online, Wray’s past comments are cause for concern. Lawmakers should press him to commit to reasonable enforcement and respect for free expression protections.

    An Obligation to Explain—and Reconsider

    If confirmed, Christopher Wray will lead an agency with vast power to intrude on fundamental digital liberties. During his last tour in government service, he expressed views that should concern everyday Internet users. During this upcoming confirmation process, we expect lawmakers to review Wray’s record, and we hope he will disavow some of his more dangerous views on the government surveillance activities that we know to violate our core civil liberties.

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