Surveillance

Rep Ted Lieu (D-CA) is a naturalized American citizen, having emigrated from Taiwan as a young child. Earlier in Sept, under a new proposed policy, the Department of Homeland Security said it will begin collecting public social media information about immigrants—possibly also green card holders and naturalized citizens—and include them as part of their so-called "Alien File."

Because of this ambiguity, Rep Lieu—who is very active on Twitter—has a basic question in a Sept 29 letter for Acting DHS Secretary Elaine Duke: "Does your proposed rule apply to me?" Rep Lieu, who said he has lived in the United States for over four decades and who holds the rank of colonel in the United States Air Force Reserves, also raised concerns that if enacted, the rule will be ineffective. Why does he think this? Because DHS’ own inspector general report found in February 2017 that previous "social media screening" pilot programs "lack criteria for measuring performance to ensure they meet their objectives."

[Commentary] Section 702 of the Foreign Intelligence Surveillance Act illustrates the value of sunsets. Its termination date is December 31, 2017, unless reauthorized by Congress. Experience since its enactment by in 2008 shows that section 702 has created a hole in the Fourth Amendment’s protection of privacy big enough to house the Pentagon.

Chairman of the House Judiciary Committee, Robert Goodlatte (R-VA), has an opportunity to become the James Otis of digital privacy by sponsoring legislation to cure section 702’s constitutional defects revealed by experience by requiring judicial warrants based on probable cause to justify invading the communications privacy of Americans.

[Bruce Fein is a constitutional scholar]

Seven-in-ten U.S. adults say it is at least somewhat likely that their own phone calls and emails are being monitored by the government, including 37% who believe that this type of surveillance is “very likely,” according to a Pew Research Center survey conducted in February. Just 13% of the public say it is “not at all likely” that the government is monitoring their communications. These views are prevalent across a number of different demographic groups, but there are some differences based on age, gender and education.

The Department of Homeland Security has moved to collect social media information on all immigrants, including permanent residents and naturalized citizens. A new rule published in the Federal Register the week of Sept 18 calls to include "social media handles and aliases, associated identifiable information and search results" in the department's immigrant files. The new rule could also affect US citizens who communicate with immigrants on social media by making their conversations the subject of government surveillance.

Homeland Security's inspector general published a report earlier in 2016 concluding that DHS pilot programs for using social media to screen immigration applicants "lack criteria for measuring performance to ensure they meet their objectives." "Although the pilots include some objectives, such as determining the effectiveness of an automated search tool and assessing data collection and dissemination procedures, it is not clear DHS is measuring and evaluating the pilots’ results to determine how well they are performing against set criteria," the report reads.

US investigators wiretapped former Trump campaign chairman Paul Manafort under secret court orders before and after the election, apparently, an extraordinary step involving a high-ranking campaign official now at the center of the Russia meddling probe. The government snooping continued into early 2017, including a period when Manafort was known to talk to President Donald Trump. Some of the intelligence collected includes communications that sparked concerns among investigators that Manafort had encouraged the Russians to help with the campaign, according to three sources familiar with the investigation. Two of these sources, however, cautioned that the evidence is not conclusive. Special counsel Robert Mueller's team, which is leading the investigation into Russia's involvement in the election, has been provided details of these communications.

This spring, the government announced a change to the way the National Security Agency collects information targeting foreigners, using the telecom backbone in what it calls "upstream" collection. Whereas for 10 years, the agency had sucked up communications mentioning a target's selector—say, collecting all e-mails sent to someone in this country that include Osama bin Laden's phone number in the body of the e-mail—in April it stopped doing so domestically (though it will still do tons of it in collection overseas). Not long after the announcement, the government released documents explaining why it had dropped this kind of collection, which it calls "about" collection. Those documents amounted to a confession that the NSA failed to follow rules the Foreign Intelligence Surveillance Court put in place in 2011 to ensure upstream collection complied with the Fourth Amendment.

There was a stink, at the time, accusing the Obama Administration of using Section 702 of FISA—which only permits the government to target foreigners—of using it to spy on Americans for five years. Those accusations were, technically, true (the NSA attributed such spying to technical failures, not legal ones). But the truth is far more troubling. In fact, from 2004 to 2016, the NSA was always engaging in collection the FISC would go on to deem unauthorized. For 12 years, under both the Bush and Obama Administrations, the NSA was collecting information that, if retained, would break the law. But under the current presiding judge, overseeing the plans of the Trump Administration, NSA will be allowed to keep such data, a change from her three predecessors.

Imagine you've been detained at customs, waiting to cross the border. Or maybe you've been pulled over for a traffic violation. An officer waves your cellphone at you. “Look at this. Is this yours?” he asks. Before you can respond, a tiny infrared sensor in the phone has scanned your face. Matching those readings against the copy of your face that is stored in its archive, the phone concludes that its owner is trying to unlock it. The device lowers its defenses, surrendering its contents in moments to the law enforcement officer holding your phone. “You have to work pretty hard to get me to put my fingerprint on a reader,” said Chris Calabrese, vice president for policy at the Center for Democracy and Technology. “You have to work less hard to put a phone in front of somebody's face.”

The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) sued the federal government in hopes of curbing the wide-ranging ability of federal agents to search and seize the smartphones and computers of travelers — including US citizens — as they arrive on American soil but have not yet formally entered the country.

The practice, which remains rare but has grown more frequent in recent years, allows agents in border zones such as the arrivals areas of international airports to sidestep the Supreme Court’s landmark Riley decision in 2014 requiring that law enforcement officers get search warrants before examining the contents of digital devices.That ruling grew from the long-running contention by civil rights groups that modern digital devices carry such massive amounts of data and such sensitive records — including photographs, location data, e-mails, videos and Web browsing histories — that they should be afforded full Fourth Amendment protections against searches and seizures without warrants.

Sept 13's suit demands stricter legal standards for device searches in border areas. They argue that relatively lax rules established for searching luggage or goods bought in duty-free shops should not apply to modern smartphones, tablets and laptop computers routinely carried across borders. The suit says that the number of such searches — conducted by Customs and Border Protection agents, sometimes with the assistance of Immigration and Customs Enforcement — has grown sharply in recent years and is on track to hit about 30,000 in the current fiscal year. That remains a tiny fraction of the several hundred million travelers who enter the nation every year.

Since 2011, Silicon Valley-based software firm Palantir has helped the Los Angeles Police Department analyze data, ranging from license plates photos, to rap sheets, traffic tickets, listings of foreclosed properties and more. The company, which also works with government agencies such as the CIA and FBI, is quietly transforming how police operate. Palantir doesn't reveal how many clients are using its tools, but police departments in both California and New York have previously worked with the company. Sarah Brayne, a sociology professor at the University of Texas in Austin, conducted more than 100 interviews of officers and civilian employees. What follows are six of Bayne's most striking findings:
1. Surveillance today is unprecedented
2. Citizens without police contact can be tracked
3. Sharing data helps cops do their jobs
4. Not all officers love the new surveillance tools
5. Big data has a role in inequality
6. Laws haven't kept up with technology

[Commentary] European law allows the transfer of personal data to non-European countries only if they “ensure an adequate level of protection.” The U.S.-EU Safe Harbor framework was believed to provide such adequate safeguards, but, in its October 2015 decision in Maximillian Schrems v. Data Protection Commissioner, the Court of Justice of the European Union invalidated the framework. In the background were Edward Snowden’s revelations about the prevalence of access to private communications data by the U.S. government, particularly the NSA....

In the next few years, the debate will continue to rage. As the U.K. breaks ranks with its EU partners, its laws too could be deemed “inadequate.” In fact, while not subject to the jurisdiction of the European Commission, national security regimes of European Member States are drawing wide criticism for being overly lenient, cryptic and opaque. To perhaps avoid widely divergent opinion on the relative beauty or ugliness of U.S. surveillance law, this collection will help inform the conversation and ground it in solid facts.

[Omer Tene is Vice President of Research and Education at the International Association of Privacy Professionals. He is an Affiliate Scholar at the Stanford Center for Internet and Society and a Senior Fellow at the Future of Privacy Forum. ]