Unwarranted Newsletter 10/13/2023

7 min readOct 13, 2023

Every week, we provide you with the most relevant privacy and Fourth Amendment related news. To sign up for more RT4 updates, visit our website here.

FISA Section 702: PCLOB Report and More

Myth v. Fact: Is Section 702 Data Intentionally Misused?:

A common assertion made by Section 702 defenders is that the government is neither intentionally nor inadvertently targeting Americans for surveillance. This is patently false. As written in the PCLOB report, the government has openly admitted intentional misuse of Section 702 data. This small piece from PPSA explains more.

Silence on Section 702 surveillance reform was not an option by Sharon Bradford:

The author of this piece, Sharon Bradford, is the chair of the Privacy and Civil Liberties Oversight Board (PCLOB). They recently released a report on FISA Section 702, which included 19 recommendations to address privacy and civil liberties while preserving the statute. One of the most important recommendations include judicial approval for U.S. person queries of 702 data. On this point, the board is split. This has resulted in the release of the “minority view,” a report in which detracting board members explain their disagreement. Nonetheless, there is still substantial ground for agreement amongst the board, and they all call for some degree of reform.

Split privacy board urges big change to Section 702 surveillance law by Devlin Barrett:

The split amongst the PCLOB members on Section 702 revolves around a recommendation that would require intelligence officials to secure judicial review for U.S. person queries. The minority in disagreement claims that a judicial approval system would prove too onerous for intelligence officials, substantially slowing their work to the point that it may be a danger to national security. However, the majority tempered their judicial approval requirement recommendation by stating that exigent circumstances or a U.S. person’s prior consent would waive judicial approval requirements — exactly the kind of situations a timely query without delay would be necessary.

For a general summary of the Section 702 PCLOB report, see…

Government Watchdog Calls Out Dangers in Section 702 Surveillance by J.D. Tuccille:

A Look at the PCLOB Report on Section 702 by Stewart Baker:

Civil Liberties Advocates’ Statement on PCLOB Section 702 Report:

This statement is attributable to Restore The Fourth and other civil liberties groups across the political spectrum. We affirm the PCLOB’s recommendations, however we also call for legislative safeguards on other surveillance powers like Executive Order 12333 (EO 12333). We also advocate for legislative action that closes the data broker loophole, “through which intelligence and law enforcement agencies purchase American’s sensitive location, internet, and other data without any legal processes or accountability.”

Fact Sheet: The Impact of Section 702 on Asian Americans:

Great resource on how Section 702 surveillance is targeted toward individuals based on race and ethnicity.

End unconstitutional mass surveillance, let Section 702 expire by Andrew Napolitano:

The author of this opinion piece is a judge with 50 years of experience in Constitutional law. In this short piece he provides a historical perspective that reads Section 702 as an unjust exception to the Fourth Amendment.

Cop City and Surveilling Dissent

The Cop City Shuffle: FOIA and Protester Surveillance by Cody Bloomfield:

DHS, the FBI, and local police agencies are notorious for compiling dossiers on participants in social justice movements. The 2020 Portland Protests is one such example. The Stop Cop City protesters are currently under intense political surveillance. Records indicate that officials compile reports that track events and social media posts from activists. Activists rely on FOIA requests to unveil this targeted surveillance; however, intelligence and law enforcement officials regularly hide behind exorbitant fees, bureaucratic obfuscation, and outright policy violations to prevent the release of government records.

Major human rights, press freedom groups condemn RICO charges against ‘Cop City’ activists by John Ruch:

We join over 90 other civil liberties, human rights, and environmental organizations in a letter that calls on Attorney General Chris Carr to drop the indictment of 61 Stop Cop City protesters and 2020 racial justice advocates under the Racketeering Influenced and Corrupt Organizations (RICO) Act.

Atlanta Mayor Dismisses Cop City Referendum as “Not an election” by Prem Thakker:

116,000 signatures were submitted in support of a referendum on the police training facility dubbed “Cop City.” Atlanta Mayor Andre Dickens has been a major roadblock in the effort to get Cop City on the ballot. Protesters have also dealt with lengthy legal proceedings, bureaucratic technicalities, and deliberate sabotage. If activists cannot even resort to the proper legal channels to establish a vote on a major development that will impact their community permanently, what are they to do?

Internet Age-Restriction and Privacy

Is Your State’s Child Safety Law Unconstitutional? Try Comprehensive Data Privacy Instead by Mario Trujillo and Adam Schwartz:

Laws that restrict online content behind age verification requirements never survive under First Amendment scrutiny. The better alternative is comprehensive privacy legislation, which survives First Amendment scrutiny: “They regulate the commercial processing of personal data. Second, they do not impermissibly restrict the truthful publication of matters of public concern. And finally, the government’s interest and law’s purpose is to protect data privacy; expand the free expression that privacy enables; and protect the security of data against insider threats, hacks, and eventual government surveillance.”

The Kids Won’t Be Alright: The Looming Threat of Child Surveillance Laws by S.T.O.P.:

A comprehensive report from the Surveillance Technology Oversight Project (S.T.O.P.) on legislation that age-restricts online content. This research comes at a crucial time — NY is currently considering S3281, what some call the “NY Surveillance Act,” a bill that imposes steep penalties any time an internet company “should know that its product is accessible to and used by children.” Age-gating internet bills often possess language too broad to be reasonably enforceable without extreme privacy and free speech violations.

DHS Surveillance

ICE, CBP, Secret Service All Illegally Used Smartphone Location Data by Joseph Cox:

“For years, U.S. government agencies have been buying access to location data through commercial vendors, a practice which critics say skirts the Fourth Amendment requirement of a warrant. During that time, the agencies have typically refused to publicly explain the legal basis on which they based their purchase and use of the data. Now, the report shows that three of the main customers of commercial location data broke the law while doing so and didn’t have any supervisory review to ensure proper use of the technology. The report also recommends that ICE stop all use of such data until it obtains necessary approvals, a request that ICE has refused.”

Police Surveillance

The Maker of ShotSpotter Is Buying the World’s Most Infamous Predictive Policing Tech by Dell Cameron:

SoundThinking, the company behind ShotSpotter, is acquiring parts of Geolitica, formerly known as PredPol. We should be worried about the consolidation of big police tech companies: “A major concern with the consolidation of cop tech is the lack of oversight over how new technology gets added to existing contracts. We have this new technology that gets adopted by a department, then these even sketchier technologies get added on as options without any real debate or oversight.” In sum, our guiding question should be: To what extent should we cede control over public safety to private tech companies?

Court Tells Cop They Need More Than ‘It’s a Vehicle’ and “Guy looked nervous’ To Engage in Warrantless Searches by Tim Cushing:

In U.S. v. Randolph Bourgoin, a Maine court argued in favor of the defendant’s Fourth Amendment rights: “The upshot of all this is that warrantless searches of automobiles do not survive constitutional rigor on the close-enough-is-good-enough model. That the suspected criminal activity occurred in the neighborhood of an automobile does not, standing alone, supply the connective tissue necessary to dispense with the warrant requirement to search all the automobiles in the neighborhood.”

EdTech: Safety or Surveillance for Children?

Off Task: EdTech Threats to Student Privacy and Equity in the Age of AI by CDT:

A report from The Center for Democracy and Technology (CDT) on educational data and technology (edtech): “The research focuses on student privacy concerns and schools’ capacity to address them; emerging uses of AI-driven technology such as predictive analytics; and deep dives into content filtering and blocking, student activity monitoring, and generative AI, encompassing both well-established and emerging technology.” Content blocking and filtering presents a host of problems — it bars students from accessing important information, blocks students from accessing content related to LGBTQI+ and racial issues and leads to unfair and unjust disciplinary actions disproportionately targeted at students from minority groups.

A new report from the ACLU on the edtech surveillance industry: “While buying these EdTech Surveillance products may make school districts feel safer, the reality is they do not keep students safe. In fact, student surveillance is not only ineffective as a safety measure, but it often harms students in the process and precludes schools from implementing more proven interventions.”