The Cato Institute

Walling Off Liberty

President Trump’s immigration policies violate the Constitution and stand in opposition to both federalism and individual liberty…

During his campaign, Donald Trump vowed to aggressively ramp up immigration enforcement by implementing “extreme vetting,” building a wall along the southern border, cracking down on so-called “sanctuary cities,” and creating a “deportation force.” President Trump and his allies took steps to implement some of these proposals shortly after his inauguration. There are ample reasons for concern over how such efforts will impact America’s law enforcement agencies and Americans’ civil liberties.

In order to be effective, the president’s proposals require the federal government to gather more information about American citizens. Border Patrol will increase its presence both at the border and at interior checkpoints, inconveniencing Americans and foreigners alike. Immigration law enforcement officials will exploit the lack of privacy protections at the border, leading to citizens being pressured into providing authorities with access to their electronic devices. The federal government will increase surveillance and explore new tools, such as facial-recognition drones. Federal immigration officials will expand databases and include biometric information on both visitors and American citizens.

Trump’s pledge to crack down on sanctuary cities runs afoul of the Tenth Amendment, while proposals to expand the class of removable aliens and deputize state and local law police officers threaten to undermine effective policing.

Although the president could take steps to reverse many of the damaging features of his immigration policy, such a reversal is unlikely. However, policymakers can mitigate the risks of the immigration agenda by strengthening legal protections on the border and limiting federal involvement in state and local policing.

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Facebook’s Cambridge Analytica Problem

As anyone who’s uploaded an ill-advised photo from a college party knows, Facebook is where your old mistakes come back to haunt you years later. That turns out to hold just as true for the company itself — a fact executives at the behemoth social network have been discovering to their chagrin, amid international furor over the political strategy firm Cambridge Analytica’s illicit access to a vast trove of Facebook user data.

Facebook’s mistake, in this case, was a classic case of taking a good idea too far. The idea was that the company’s massive map of users’ social connections could be put to innovative uses if that data were opened up to outside developers — allowing all sorts of third-party apps to painlessly add a social component.

Unfortunately, Facebook made a critical misjudgment: It assumed that if users were willing to share personal information with their friends, they were also willing to let their friends re-share that information.

That’s how Cambridge Analytica, now in the spotlight for its role as a digital consultant to Donald Trump’s presidential campaign, wound up “scraping” reams of data from the profiles of some 50 million Facebook users, leveraging the consent of just 270,000 who’d installed a personality quiz app.

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Nunes’s Memo Is a Stunt, but Surveillance Does Need More Scrutiny

There are legitimate concerns about the Foreign Intelligence Surveillance Court and the myriad means — not all requiring warrants — by which law enforcement gets access to private conversations involving U.S. citizens. But the fervor around the Nunes Memo means that these serious policy debates will go unexamined…

Of the many strange inversions the Trump era has produced, few are as jarring as the flip in Republican orthodoxy about the federal intelligence and law enforcement communities.

The most recent example, of course, is the controversial release of a memo produced by Rep. Devin Nunes (R-Calif.) and House Intelligence Committee staffers alleging misconduct by FBI officials.

“Law and order” conservatives who, a few years ago, treated skepticism about the Patriot Act as a blasphemous insult to the integrity of American intelligence professionals now routinely traffic in talk of “deep state” conspiracies to abuse surveillance powers.

Democrats, stepping into the role Republicans had shed, have sided with the intelligence community, invoking the need to protect classified sources and methods. And it’s not hard to see why: Nearly everything about Nunes’s reinvention as a champion of privacy and civil liberties reeks of disingenuousness.

The overarching narrative that the Nunes memo apparently seeks to build — a story of rabid partisans within the Obama administration cooking up a bogus Russia investigation to use as a weapon against Trump — is almost certainly nonsense. 

If FBI agents were less than fully candid with the FISA court, that’s worth criticizing even if candor would not have changed the outcome. If they failed to do due diligence, that’s a problem.

But, those are problems not because they reveal a grand conspiracy but because finding slipshod work in this application — targeting a prominent, politically connected American in an investigation certain to receive extraordinary scrutiny — should make us wonder what would turn up if the thousands of more-mundane FISA warrants issued each year were subject to a similarly painstaking external review. Which, of course, they never are: No FISA application has ever been made public, and vanishingly few targets of FISA surveillance ever even learn of the spying.

Moreover, whether it has anything to do with the headline-grabbing Russia investigation, something odd is clearly afoot with the FISA court. From its inception in 1979 through 2002, the FISA court never turned down a single wiretap application — a sign, intelligence agencies assured us, of the rigorous approval process before reaching the court, rather than the willingness of its judges to act as rubber stamps.

It seems unlikely that the conflict over the Nunes memo will, in the end, amount to much more than a proxy war over the legitimacy of special counsel Robert S. Mueller III’s probe of the Trump campaign. But in a better world, it would be an opportunity to exercise better oversight.

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A World Without Privacy

A world where authorities no longer have to even ask for ID is a scary one, especially if you have no recourse in how that massive collection of data gets used…

Americans have long rejected a national ID, but many U.S. state governments are quietly developing national ID systems in a variety of forms. One is the uniform identity card system envisioned by the REAL ID Act. That federal law, passed in 2005, seeks to subject state drivers’ licensing to federal data collection and information-sharing standards that will facilitate identification and tracking.

State promotion of the E-Verify background check system, which is intended to control the employment of illegal immigrants, is another path to a national ID. Successful implementation of E-Verify will require a national ID, and some states are already sharing driver data with the U.S. Department of Homeland Security so that it can be used in federally administered worker background checks.

Less well known are several other programs poised to produce the same results as a national ID without the requirement of an identity card or other formalities. These developments position states and the federal government to make once-ordinary behavior like driving on city streets and strolling the sidewalks of American towns into recordkeeping events for an overly attentive state. They compose what might be called the new national ID.

Each of the 50 states has different stances on various ID systems, including REAL ID, E-Verify, facial recognition, and license-plate scanning. Together, those technologies—along with other initiatives orchestrated at the federal level—are the leading edge of a national identification and tracking infrastructure.

Officials and citizens in every American state should review their states’ identification, data collection, and data retention policies. The privacy and liberty of all Americans are threatened by such increasingly widespread surveillance systems.

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Senate Joins House in Vote to Continue Mass Surveillance

Have we officially abandoned the Fourth Amendment in the Bill of Rights?

At 12:51pm on January 18, 2018 — just a day before it was set to expire — the Senate followed the House’s lead and reauthorized the Foreign Intelligence Surveillance Amendments Act (FAA) Section 702 mass surveillance program for another six years by a vote of 65-34.

Section 702 reauthorization proponents have asserted that the program does not deliberately target Americans — that any communications of Americans swept up in Section 702 dragnet are “incidentally” collected. But there’s nothing “incidental” about deliberately targeting people — including Americans at home or abroad — who use the Tor anonymity tool for online browsing — something NSA has been doing for at least a decade.

As the Section 702 “minimization” procedures approved by then-Attorney General Eric Holder in 2009 make clear, NSA can keep and analyze any domestic U.S. communications acquired that employ any form of encryption.

With the growing number of Americans utilizing apps like Signal, Wickr, and similar encrypted messaging apps, it means the total number of Americans NSA can target for simply using encryption to protect their privacy will grow.

And if NSA can’t figure out for sure if you are, in fact, a U.S. citizen, they will target you until they can prove otherwise.

The bill the Senate just passed and that President Trump will sign makes all of these problems worse. It’s another tragic example of the triumph of fear over liberty in the Digital Age.

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House Votes to Continue Mass Surveillance of American People

This morning, a bipartisan group of House members voted to reauthorize the soon-to-expire FISA Section 702 mass surveillance program…

Two months of drama in the House of Representatives over the soon-to-expire FISA Section 702 mass surveillance program came to an end this morning, with a bipartisan group of House members first defeating a FISA reform amendment (USA RIGHTS Act) offered by Rep. Justin Amash (R-MI), then passing the GOP House leadership bill. The key votes in support of the GOP House leadership effort came from Democrats, including Minority Leader Nancy Pelosi (D-CA) and House Intelligence Committee Ranking Member Adam Schiff (D-CA).

The USA Rights Act was itself a significantly deficient surveillance reform measure. The bill didn’t require the IC/FBI to purge their databases of data on Americans not the subject of a criminal investigation, nor did it mandate the kind of GAO audits that are necessary to truly help end surveillance abuses. It also accepted that Section 702 is necessary, legitimate, and effective, where, in actuality, it is a surveillance power that should never have existed.

Despite those serious flaws, the USA Rights Act was a vastly more comprehensive FISA Sec. 702 reform measure than every existing alternative. It would have restored the 4th Amendment probable cause standard for searches of the data of Americans stored on FBI or IC IT systems, and it made it easier for innocent Americans to sue the federal government for unlawful spying. 

Unfortunately, traditional advocacy on surveillance issues has generally proven ineffectual in stopping, much less rolling back, post-9/11 surveillance powers that we know have been abused. The reason is simple. The groups that lobby on these issues do not engage in electoral politics — which means politicians can vote for more surveillance powers in the name of “public safety” without fear of organized, targeted political reprisal from Bill of Rights supporters.

Until that dynamic changes, enduring surveillance reform will remain elusive.

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The Future of Surveillance: Reform, Repeal, or Renewal for Section 702?

On July 27 join us for this interesting event with Senators Rand Paul and Ron Wyden.

One of the most potent and controversial tools in the American intelligence community’s arsenal is set to lapse at the end of this year. Section 702 of the FISA Amendments Act of 2008 allows the government to intercept the communications of foreign targets as they cross U.S. soil—including conversations with American citizens. Spy agencies claim it’s a vital weapon against terrorists and should not only be reauthorized but also made permanent. Civil libertarians, however, worry that the law’s incredible scope—targeting some 100,000 people and hauling in hundreds of millions, if not billions, of communications each year—makes it ripe for abuse without significant reform.

Among the law’s most vocal critics have been two senators from opposite sides of the political spectrum: Ron Wyden and Rand Paul. At this Cato forum, they’ll join a panel of policy experts to explore how section 702 works and whether it needs stronger safeguards to protect Americans’ privacy. Should a warrant be required to search for citizens’ communications in the vast 702 database? Is it feasible to demand an estimate of how many Americans have been “incidentally” caught up in 702 surveillance—a number that the intelligence community has said it’s unable to provide? And does the foreign backlash against 702 surveillance threaten global Internet commerce? We’ll delve into these questions in a wide-ranging discussion moderated by Pulitzer Prize–winning New York Times reporter Charlie Savage.

If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #Cato702. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.

Register here to attend…

Police Are Tapping Your Cell Phone — Sort Of.

Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens….

The device, known as a stingray, is being used in at least 23 states and the District of Columbia, and can track the physical locations of phones and possibly even intercept the content of their communications.

Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.

In addition, police agencies have gone to incredible lengths to keep information about stingray use from defense attorneys, judges, and the public. Through the use of extensive nondisclosure agreements, the federal government prevents state and local law enforcement from disclosing even the most elementary details of stingray capability and use. That information embargo even applies to criminal trials, and allows the federal government to order evidence withheld or entire cases dropped to protect the secrecy of the surveillance device.

The controversy around police stingray surveillance challenges our antiquated Fourth Amendment jurisprudence, undermines our cherished principles of federalism and separation of powers, exposes a lack of accountability and transparency among our law enforcement agencies, and raises serious questions about the security of our individual rights as the government’s technological capability rapidly advances.

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Police Are Using Drones. What Does This Mean for Privacy?

Unmanned aerial vehicles, commonly referred to as “drones,” are increasingly being used in a range of industries, including policing. Should we be concerned?

Law enforcement drones have clear benefits: allowing police to more easily find missing persons, suspects, and accident victims, for example. They also allow police to investigate dangerous situations such as bomb threats and toxic spills. Yet without strict controls on their use, drones could present a very serious threat to citizens’ privacy. Regrettably, while the Supreme Court has tackled privacy issues amid the emergence of new technologies, SCOTUS’s rulings on aerial surveillance are not well suited for today, now that police are using drones.

Fortunately, lawmakers at the state and federal levels can implement policies that allow police to take advantage of drones while protecting privacy. These policies should not only address familiar issues associated with searches, such as warrant requirements, but also relatively new concerns involving weaponization, biometric software, and surveillance technology. Such controls and regulations will allow police to do their job and prevent drones from being used as tools for secretive and needlessly intrusive surveillance.

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The Second Annual Cato Surveillance Conference

It has been a dizzying year in the world of surveillance: In June, nearly two years after Edward Snowden shocked the world with unprecedented leaks revealing the scope of National Security Agency spying, Congress moved to limit the bulk collection of domestic communications data via the USA FREEDOM Act but how much privacy protection will the law’s reforms truly provide?

Meanwhile, courts and policymakers struggle to keep up with a rapidly evolving array of high-tech threats to privacy, each posing difficult policy questions. Should encryption technologies be engineered to include back doors for government, as some law enforcement officials have proposed? How should companies respond to ever-growing demands for user data on a borderless Internet—and what consequences will the answer hold for America’s technology sector and global freedom? What tools can individuals rely on to protect themselves from intrusive states and malicious hackers? Does cybersecurity require sharing ever more information with government? Are new laws required to regulate the increasing use of cell phone location tracking by police?

Please join us on Wednesday, October 21st, from 9:00AM to 5:00PM, to explore these questions and more with the top scholars, litigators, intelligence officials, activists, and technologists working at the intersection of privacy, technology, and national security.

If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #CatoSpyCon.

• Get More Information and RSVP
• Watch the 2014 Cato Surveillance Conference, featuring Edward Snowden