Surveillance

The Republican-controlled House Intelligence Committee asked US spy agencies late in 2016 to reveal the names of US individuals or organizations contained in classified intelligence on Russia’s meddling in the 2016 election, engaging in the same practice that President Donald Trump has accused the Obama Administration of abusing, current and former officials said. The chairman of the committee, Rep Devin Nunes (R-CA), has since cast the practice of “unmasking” of US individuals and organizations mentioned in classified reports as an abuse of surveillance powers by the outgoing Obama Administration.

President Trump has argued that investigators should focus their attention on former officials leaking names from intelligence reports, rather than whether the Kremlin coordinated its activities with the Trump campaign, an allegation he has denied. “The big story is the ‘unmasking and surveillance’ of people that took place during the Obama administration,” Trump tweeted June 1.

As a long-time political activist, Malkia Cyril knows how smartphones helped fuel Black Lives Matter protests with outraged tweets and viral video. But now Cyril is having second thoughts about her iPhone. Is it a friend or a foe?

For all of the power of smartphones as organizing tools, the many streams of data they emit also are a boon to police wielding high-tech surveillance gear, allowing them to potentially track movements and communications that activists such as Cyril would rather keep private. Such worries are driving a nationwide push by Cyril and other activists to train members of their movement in the tactics of digital defense — something they say is crucial with an aggressive new president who has displayed little sympathy for their causes.

Facebook, Google, Microsoft and a host of tech companies asked Congress to reform a government surveillance program that allows the National Security Agency to collect emails and other digital communications of foreigners outside the United States.

The requests came in the form of a letter to House Judiciary Chairman Bob Goodlatte (R-VA), who is overseeing the debate in the House of Representatives to reauthorize a program, known as Section 702, which will expire at the end of the year without action by Capitol Hill. In their note, the tech companies asked lawmakers for a number of changes to the law particularly to ensure that Americans’ data isn’t swept up in the fray. Meanwhile, they endorsed the need for new transparency measures, including the ability to share with their customers more information about the government surveillance requests they receive. Signing the note are companies like Airbnb, Amazon, Cisco, Dropbox, Facebook, Google, LinkedIn, Lyft, Microsoft and Uber. Absent, however, is Apple.

[Commentary] When the government engages in prospective cell-site surveillance, it obtains a court order requiring a cell provider to provide the phone’s location at that moment in “real time.” That contrasts with collection of historical cell-site records, when the government obtains a court order requiring the provider to hand over stored records retained by a cell provider in the ordinary course of business from some time in the past. Although every circuit court and state supreme court to rule on historical cell-site collection has concluded it is not a search, the Florida Supreme Court ruled in Tracey v. Florida that prospective cell-site surveillance is a search. Importantly, Tracey went out of its way to say that it was ruling only on prospective surveillance and not on historical collection. On May 22, the U.S. Court of Appeals for the Fifth Circuit ruled in United States v. Wallace that the reasoning of its precedents on historical collection applies equally to prospective cell-site surveillance. In Wallace, the Texas Department of Safety had a warrant out for the arrest of a gang member. The police knew the suspect’s cell phone number, so they obtained what the opinion calls a “Ping Order” authorizing the police to determine the locations of cell site towers being accessed by a number.

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]