Headlines in recent weeks serve as reminders that the long-standing problem of government surveillance of civil society has not gone away. Instead it is growing into a threat to the privacy of communications of civil society groups that work across borders, advocate on the issues of the day or defend human rights. There is reason to be concerned and pay attention.
Still Spying: The Enduring Problem of FBI First Amendment Abuse, a report released by Defending Rights and Dissent on Oct. 22, chronicles FBI surveillance of political activity for the last decade, provides useful historical background and makes concrete recommendations to protect Constitutional rights. As Intercept reporter Glenn Greenwald observed the day the report was released, the FBI has used “its mandate to protect national security to target scores of individuals posing no threat but opposing government policies and practices.” A good number of those individuals are associated with civil society groups. The report also points out the diversion of national security resources to this political surveillance, through of Joint Terrorism Task Forces, collaborations between the FBI, local law enforcement and federal agencies such as the Department of Homeland Security.
It’s not only advocacy groups that can be impacted by this collection of communications and data. Organizations that operate across borders, whether operating humanitarian, development, educational or other programs, may have communications with staff, allies and others based outside the U.S. collected and stored. The PATRIOT Act’s Section 702 gives the government sweeping powers to collect the information of foreigners without a warrant, so that U.S. parties involved in those communications are also affected. The FBI uses these databases for warrantless searches.
In mid-October the Office of the Director of National Intelligence released opinions of the Foreign Intelligence Surveillance Court that found the FBI’s procedures for handling information on Americans violated the Foreign Intelligence Surveillance Act and the Fourth Amendment. But according to Elizabeth Goitein’s analysis in Just Security, the remedy is insufficient to address the problem.
Meanwhile, civil society staff and volunteers traveling across the U.S. border may have their electronic devices searched. According to a press release from Senators Leahy (D-VT) and Daines (R-MT), “Government searches of electronic devices at border crossings have nearly quadrupled since 2015, rising to 33,295 last year.” The two Senators have introduced legislation that would require the government “to have reasonable suspicion or probably cause to search or seize Americans’ electronic devices at the border.”
A report from the Surveillance Oversight Technology Project (STOP), Searches Without Borders, documents this problem and includes tips on how civil society actors can protect their devices. I will take their advice and protect my phone before my next trip!