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DPI Joins Coalition in Thanking Rep. Eshoo for Work to Prevent Unauthorized Surveillance of American
October 27, 2020–Due Process Institute joined a letter to Representative Anna Eshoo who has recently pushed for clarity around how federal agencies are using surveillance programs to collect information on countless Americans. She has specifically requested the Acting Inspector General of the Intelligence Community to investigate how federal agencies are using their surveillance powers to target Americans based on their race, ethnicity, and religion.
DPI Joins Coalition in Thanking Rep. Eshoo for Work to Prevent Unauthorized Surveillance of American
October 27, 2020–Due Process Institute joined a letter to Representative Anna Eshoo who has recently pushed for clarity around how federal agencies are using surveillance programs to collect information on countless Americans. She has specifically requested the Acting Inspector General of the Intelligence Community to investigate how federal agencies are using their surveillance powers to target Americans based on their race, ethnicity, and religion.
DPI Joins Coalition in Thanking Rep. Eshoo for Work to Prevent Unauthorized Surveillance of American
October 27, 2020–Due Process Institute joined a letter to Representative Anna Eshoo who has recently pushed for clarity around how federal agencies are using surveillance programs to collect information on countless Americans. She has specifically requested the Acting Inspector General of the Intelligence Community to investigate how federal agencies are using their surveillance powers to target Americans based on their race, ethnicity, and religion.
Due Process Institute Calls on New Director of National Intelligence to Prioritize Civil Liberties
March 4, 2025–Due Process Institute and undersigned civil society organizations, wrote to new Director of National Intelligence (DNI) Tulsi Gabbard to express interest in engaging on issues related to surveillance and civil liberties, especially on commitment to ensuring that a warrant is required before agencies subject Americans to queries of their private data acquired through Section 702 of the Foreign Intelligence Surveillance Act (FISA). As Senator Mike Lee has stated, “The Fourth Amendment protects our right to be free from unreasonable searches and seizures, including the search of our private electronic communications.”
As Congress begins early discussions about the 2026 reauthorization of Section 702, we believe it is critical that policymakers and the public have access to key factual information that will ensure the legislative debate is based on a full and accurate understanding of the program’s impact. Accordingly, we urge you to take the following initial steps to enhance public trust and oversight of government surveillance authorities:
Finally, previous administrations have taken meaningful steps to engage with and meet with civil society organizations on surveillance and transparency issues on a regular basis, and we strongly encourage you to continue this practice. Ongoing dialogue between the intelligence community and civil society is vital to ensuring that surveillance policies reflect democratic principles and the public interest.
We Urge Congress to Support Privacy Protections and to Honor Civil Liberties Hero Fred Korematsu
February 19, 2025–Due Process Institute and 97 organizations wrote to Congress in strong support of efforts to recognize Fred Korematsu’s legacy as a civil rights hero. Accordingly, we offer our endorsement and support for the reintroduction of the following legislation in the 119th Congress: (1) Fred Korematsu Congressional Gold Medal Act; (2) Recognizing the importance of establishing a national “Fred Korematsu Day of Civil Liberties and the Constitution”; (3) Korematsu-Takai Civil Liberties Protection Act.
Korematsu stood against unfounded and racist actions. At the time, our institutions — our democracy — failed him. In 1944, the Supreme Court upheld the constitutionality of excluding Japanese Americans from the West Coast in a 6-3 majority in Korematsu v. United States. The dissent by Justice Frank Murphy decried the majority opinion and declared that the order to detain Japanese Americans was the “legalization of racism” and that “[r]acial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”
We urge Congress to elevate this history for all Americans to learn from it and recognize the importance of this civil rights hero who took a stand on behalf of all of us, and urge the enactment of the following legislation:
Korematsu-Takai Civil Liberties Protection Act, which would prohibit detention or imprisonment based solely on an actual or perceived protected characteristic of an individual.
Recognizing the importance of establishing a national “Fred Korematsu Day of Civil Liberties and the Constitution,” which will help to ensure that Fred Korematsu’s legacy is remembered and honored, and that the lessons of the incarceration are not forgotten.
Fred Korematsu Congressional Gold Medal Act, which will honor Fred Korematsu for his decades-long fight for justice, and will serve as a powerful reminder of the importance of protecting civil liberties for all Americans.
We Condemn President Trump’s Firing of PCLOB Members
February 3, 2025–Due Process Institute and a host of civil liberties organizations joined to strongly condemn the White House firing of three Privacy and Civil Liberties Oversight Board (PCLOB) members, which shattered the independence that is key to the Board’s effectiveness. We urge Congress to act expeditiously to restore that independence.
PCLOB was originally proposed by the 9-11 Commission and has existed for nearly two decades as a critical oversight entity for protecting rights and combatting surveillance abuse. Its investigations and reports have debunked false claims by the intelligence community about mass surveillance programs, prompted declassification and disclosure of key facts about surveillance that had needlessly been kept secret, and spurred important legislative reforms.
Firing PCLOB members will significantly undermine the Board’s independence, and could make it impossible for it to conduct this type of effective oversight in the future. If at-will termination becomes acceptable, a President of either party will be able to block investigation of controversial or improper surveillance activities by removing any PCLOB member who begins to scrutinize conduct that the executive wants to keep hidden. The White House could kill any reports or findings from PCLOB it does not want issued, firing Board members to halt the release of information the White House wants covered up. Even the mere threat of firings would chill PCLOB from properly performing its duties, with members seeking to stay in the good graces of the White House rather than acting as a vigilant watchdog. It is for precisely this reason that Congress in 2007 removed a provision of PCLOB’s statutory charter indicating that its members “serve at the pleasure of the President.”
The effort to destroy PCLOB’s independence, and thereby significantly undermine its basic effectiveness as an oversight entity, raises significant concerns over how the executive’s surveillance powers could be misused by this or future administrations.
DPI + Demand Progress Release Statement on Mike Turner’s Ousting from House Intelligence Leadership
January 16, 2025–On the evening on January 15, Punchbowl News reported that House Speaker Mike Johnson has decided to remove Rep. Mike Turner as chair of the House Intelligence committee because of his handling of last year’s FISA reauthorization, which will imminently return to Congress’s docket. A left-right coalition consisting of Demand Progress, Due Process Institute, FreedomWorks and Restore the Fourth called for Turner to resign as chair nearly a year ago. The following is a statement from Demand Progress Policy Director Sean Vitka and Due Process Institute Vice President Jason Pye:
“As we said 11 months ago, Mike Turner abused his chairmanship of the House Intelligence Committee to mislead his colleagues, stop commonsense privacy protections, sneak through massive expansions of warrantless surveillance and even compromise classified information. His removal couldn’t come soon enough, and it should serve as a warning to whomever his replacement is ahead of the imminent debate over FISA. We will fight just as hard against any other leader of this committee who mistakes its responsibility to conduct oversight of intelligence agencies as an excuse to push out propaganda and enable surveillance of people in the United States.”
DPI Submits Comments to OMB on Data Collection and Fourth Amendment Concerns
December 16, 2024–Due Process Institute, Brennan Center for Justice, and a host of civil liberties organizations submitted comments in response to the Office of Management and Budget (OMB)’s request for information on executive branch agency handling of Commercially Available Information (CAI) containing personally identifiable information. The comment highlighted one dangerous aspect of agency handling of CAI that demands OMB’s attention: law enforcement and intelligence agencies’ access to and use of CAI in ways that evade legal requirements set forth in the Fourth Amendment and various privacy laws enacted by Congress. Furthermore, the comments discuss the Fourth Amendment doctrines and statutes that restrict the government surveillance at issue here, how the government is using CAI to circumvent those rules, the harms of this circumvention, and recommendations that OMB should implement to regulate these practices.
We Call For Transparency On Scope of Section 702 Surveillance
October 15, 2024–Due Process Institute and other civil liberties organizations wrote to Director Haines and General Haugh to demand that the NSA supplies a public estimate of the number of U. S. persons’ communications that are “incidentally” collected as part of NSA’s surveillance under Section 702 of the FISA Amendments Act. This information has been requested repeatedly by legislators since at least 2011, and by civil society organizations since at least 2015.
An estimate of the number of U.S. persons’ communications obtained under Section 702 is vital to correct such misinformation, and to convey to Congress and to people across America the truth of the matter—namely, that there is substantial warrantless “incidental” collection of U.S. person communications under this authority. This estimate must be provided before the congressional debate over the next reauthorization of Section 702. The authority is scheduled to expire in April 2026, and the debate will likely begin well in advance of that date—perhaps as early as next spring.
ODNI and NSA cannot expect that public trust to be unconditional. If ODNI and NSA continue to renege on pledges to members of Congress, and to withhold information that lawmakers, civil society, academia and the press have persistently sought over the course of thirteen years, that public trust will be fatally undermined. It is time to follow through, and to convey a public commitment by a date certain in early 2025 to provide to the public and to Congress the estimate in question.
Due Process Institute Reacts to the Senate’s Expansion of Mass Surveillance Powers
April 22, 2024–Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the United States Senate’s passage of Reforming Intelligence and Securing America Act without amendment:
“We are dismayed by the Senate’s passage, without amendment, of the Reforming Intelligence and Securing America Act (RISAA) over the weekend. This legislation not only reauthorizes FISA Section 702 and enables intelligence agencies to continue mass warrantless surveillance, it expands the power of the surveillance state by giving the government authority to compel assistance from the vast majority of US businesses for domestic spying. This bill’s passage was, in large part, made possible by fear tactics and outright falsities about the April 19 deadline. The biggest losers of this vote are unfortunately the American people who will continue to be subjected to warrantless searches of their personal communications.
While we cannot hide our disappointment over the passage of RISAA and the ramifications for privacy are severe, we want to thank those Senators who championed the Constitution and the Fourth Amendment, including: Chairman Durbin and Senators Lee, Paul, and Wyden. Furthermore, the momentum built by our coalition of civil liberties organizations cannot be ignored as illustrated by this week’s passage of the Fourth Amendment Is Not For Sale Act in the House. The next FISA reauthorization is two years away, during which we will continue to fight for your privacy rights.”
We Oppose the Reforming Intelligence and Securing America Act (RISAA)
April 1, 2024–Due Process Institute and a coalition of civil liberties organizations urged Speaker Johnson and Leader Jeffries to oppose the Reforming Intelligence and Securing America Act (RISAA), H.R.7320, and to block its consideration on the House Floor unless members have the opportunity to vote on amendments that were critical components of this legislation’s negotiated introduction. House Members across the political spectrum are eager to vote for legislation that reforms Section 702 of the Foreign Intelligence Surveillance Act (FISA), and moving forward with only a vote on RISAA would deprive them of that opportunity. Blocking off votes on critical issues that have been central to the past year’s debate over FISA would harm Americans’ privacy, as well as needlessly threaten Section 702’s future viability.
By hewing closely to HPSCI’s legislation, RISAA is carefully crafted to preserve the status quo, not to enact the serious privacy protections for which most Americans and members of Congress are calling. We therefore urge you to oppose Floor consideration of any legislation, including RISAA, that would reauthorize Section 702 without providing votes on key amendments, including those to close the backdoor search and data broker loopholes.
We Urge Congress to Reject Inclusion of Section 702 Reauthorization in Must-Pass Funding Bill
February 28, 2024–Due Process Institute and a coalition of civil liberties and privacy organizations joined to urge congressional leaders to oppose the inclusion of Section 702 reauthorization in a must-pass funding bill and to categorically reject any such approach. Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress.
In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and — ultimately — far-reaching reforms. Bypassing this process by slipping an extension of the law into a must-pass funding bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.
It is clear that the only reason for including Section 702 in the continuing resolution would be to deny members a vote on critically-needed reforms. We urge you not to betray the trust of the American people by following such a course of action.
We Strongly Oppose the House’s Use of a Secret Session to Reauthorize Mass Surveillance Authorities
February 14, 2024–Due Process Institute and a broad bipartisan coalition of privacy, civil rights, civil liberties, and government transparency organizations joined in a statement on the House’s plan to move at least part of the public debate over mass and often secret surveillance behind closed doors in a secret session:
“It is appalling that the U.S. House of Representatives has not learned the lessons of the last secret session on warrantless surveillance in 2008, which perpetuated a mass violation of constitutional rights. This week, the House is poised to repeat those mistakes by going into another extraordinarily rare and wholly unnecessary secret session to shut out the public and potentially move toward another expansion of warrantless surveillance powers.
The reason why there is bipartisan support among civil society and members of Congress for warrantless surveillance reform is the well-documented abuses of FISA authorities by the federal government for well over a decade. These powers have been used to conduct tens of thousands of inappropriate searches, some related to the exercise of constitutionally protected activities. Members of Congress have been surveilled, average Americans have been surveilled, and unless there is reform now, the abuses will continue.
According to a recent poll, 78% of Americans think Congress should “strengthen privacy protections for people in the U.S. against warrantless government surveillance.” Congress has a duty to continue public debate and not circumvent the American people. To conduct proceedings in secret on a set of authorities that directly impact Americans is antithetical to a free society.”
We Call On Senate Majority Leader Schumer To Reject Short-Term Reauthorization of FISA Section 702
November 13, 2023–Due Process Institute and the undersigned organization wrote to Senator Chuck Schumer (D-NY) to express strong opposition to even a short-term reauthorization of Section 702 and urged to keep any such provision out of the continuing resolution and any other must-pass legislation.
Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress. Even after the FBI’s recent changes to its internal procedures, the abuses have continued, with agents conducting warrantless searches for the communications of a U.S. senator, a state senator, and a state court judge who contacted the FBI to report civil rights violations by a local police chief. NSA agents, for their part, have abused the authority to search for the communications of online dating prospects and potential tenants.
In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and — ultimately — far-reaching reforms. Allowing a short-term reauthorization of Section 702 to be slipped into a must-pass bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.
We Call On Senate Majority Leader Schumer To Reject Short-Term Reauthorization of FISA Section 702
November 13, 2023–Due Process Institute and the undersigned organization wrote to Senator Chuck Schumer (D-NY) to express strong opposition to even a short-term reauthorization of Section 702 and urged to keep any such provision out of the continuing resolution and any other must-pass legislation.
Section 702 has been routinely abused in ways that violate Americans’ fundamental civil liberties and civil rights. FBI agents have used this surveillance authority, which is supposed to be limited to non-U.S. citizens located outside the United States, to gain warrantless access to the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of the U.S. Congress. Even after the FBI’s recent changes to its internal procedures, the abuses have continued, with agents conducting warrantless searches for the communications of a U.S. senator, a state senator, and a state court judge who contacted the FBI to report civil rights violations by a local police chief. NSA agents, for their part, have abused the authority to search for the communications of online dating prospects and potential tenants.
In its current form, this authority is dangerous to our liberties and our democracy, and it should not be renewed for any length of time without robust debate, an opportunity for amendment, and — ultimately — far-reaching reforms. Allowing a short-term reauthorization of Section 702 to be slipped into a must-pass bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people.
We Endorse The Government Surveillance Reform Act
November 7, 2023–Due Process Institute supported today’s introduction of the sweeping, bipartisan Government Surveillance Reform Act (GSRA), which renews Section 702 of FISA for four years and reforms the law to better protect national security and Americans’ Constitutional rights. Notably, it reforms 702 to protect Americans from warrantless backdoor searches, ensures that foreigners aren’t targeted as a pretext for spying on the Americans with whom they are communicating, and prohibits the collection of domestic communications.
While section 702 features a sunset, it is not the only FISA authority in need of reforms. The Act ends warrantless collection of business records, ensures that the government provides accurate information to the Foreign Intelligence Surveillance Court, and requires meaningful accountability for violations of the law. Americans’ privacy is also threatened by unchecked surveillance conducted by intelligence agencies outside of FISA. This surveillance, undertaken pursuant to Executive Order 12333, presents many of the same problems as FISA surveillance only without statutory checks and balances or court oversight. The Act extends many of the same reforms needed for 702 to 12333 activities, including by limiting warrantless searches of Americans’ communications and prohibiting the targeting of foreigners as a pretext for surveilling Americans. It also limits the acquisition of Americans’ information as part of large datasets.
Federal law governing law enforcement surveillance has not kept pace with developments in technology, in large part because Congress hasn’t meaningfully updated relevant law in decades. The Act restores Constitutional protections that have been undermined by modern collection methods, by requiring warrants for surveillance of Americans’ location data, web browsing and search records, and by prohibiting the government from purchasing Americans’ data from data brokers.
The Government Surveillance Reform Act represents the most balanced, comprehensive surveillance reform bill in 45 years. This bill will strengthen the legal foundations of a vital national security authority by ensuring U.S. government surveillance of Americans takes place under a consistent, Congressionally-enacted legal framework, supervised by independent judges.
Due Process Institute Releases Statement On PCLOB Section 702 Report
September 28, 2023–Due Process Institute and civil liberties groups advocates issued the following statement responding to the Privacy and Civil Liberties Oversight Board (PCLOB) long-awaited report on Section 702 of the Foreign Intelligence Surveillance Act, which outlined abuses over the past few years, revealing that, “[i]n the reporting period covering November 2020 to December 2021, non-compliant queries related to civil unrest numbered in the tens of thousands”:
“The message of the Board’s report is clear: individualized judicial review of U.S. person queries is critical to protect Americans’ rights and prevent further abuses. The report flatly rejects the government’s self-serving claim that individualized judicial review is unworkable. It also rejects the baseless notion that broad categories of these searches, such as searches for foreign intelligence or so-called ‘defensive’ searches for potential victims’ information, should be exempted from this requirement. And it rejects the fallacy that the FBI’s tweaks to its internal procedures are sufficient to address the acute risks posed by backdoor searches.
Three members of the Board stated that they would support a probable cause standard for U.S. person queries in any criminal investigation, including those related to foreign intelligence. In her statement, the Chair of the Board compellingly explained why the full ‘probable cause’ standard is required by the Fourth Amendment and necessary to safeguard Americans’ privacy. We believe the same logic supports a requirement for a probable cause order for any U.S. person query.
We note that the Board limited its inquiry and its recommendations to Section 702. It did not address many of the other issues that are very much part of the current debate, including the government’s use of data brokers to circumvent legal protections for Americans’ privacy and the use of overseas surveillance to collect Americans’ information without statutory authority or judicial oversight. Congress, however, must address these issues. If it limits itself to reforms of Section 702, the government will simply continue its warrantless surveillance of Americans using these other methods.”
Due Process Institute + Civil Liberties Advocates Statement Following Meeting with DNI Avril Haines
September 8, 2023–Due Process Institute and over a dozen privacy, civil rights, and civil liberties groups from across the political spectrum met yesterday with Director of National Intelligence (DNI) Avril Haines and other high ranking intelligence community officials to discuss Section 702 of the Foreign Intelligence Surveillance Act (FISA 702), and connected surveillance issues such as data purchases and surveillance pursuant to Executive Order 12333. Following the meeting, the undersigned attendees issued the following statement:
“We appreciate DNI Haines taking time to hear our serious concerns with warrantless FISA 702 surveillance, but remain deeply distressed that the intelligence community will not commit to any of the meaningful reforms that are critical to protect Americans’ privacy.
After years of misuse such as deliberately seeking out private messages of activists on the left and right, a batch of 19,000 campaign donors, and lawmakers, it’s clear that FISA 702 and related surveillance powers need serious change. The administration and intelligence community must be willing to come to the table and accept significant new privacy protections that advocates, Congress, and the American people are calling for. There simply isn’t a path to reauthorization built on half-measures, window dressing, and codification of internal procedures that have repeatedly failed to protect Americans’ civil rights and civil liberties.”
As detailed in a letter provided to DNI Haines in advance of the meeting, participants view reauthorization of FISA 702 as dependent on a range of meaningful reforms, including:
We Call For Substantial Reforms to Section 702
June 12, 2023–Due Process Institute and a coalition of civil rights organizations urged Congress to not reauthorize Section 702 without critical reforms ahead of the Senate Judiciary hearing on June 13. Section 702 reform is urgent as it has become a rich source of warrantless government access to Americans’ phone calls, texts, and emails. Since Section 702 was last reauthorized, a series of disclosures has revealed the extent of this problem. In 2022 alone, the FBI conducted over 200,000 warrantless searches of Section 702 communications to find Americans’ information. Congress can address the use of Section 702 to spy on Americans, the barriers to judicial review, the vast government collection personal communication data with no statutory limits, and the economic and privacy impact of overbroad surveillance through these reforms and solutions:
First, lawmakers must put a stop to the government using Section 702 as an end-run around Americans’ constitutional rights. Congress should require agencies to obtain a warrant (in criminal investigations) or a FISA Title I order (in foreign intelligence investigations) before searching Section 702-acquired information for Americans’ communications.
Second, Congress should strengthen FISA’s amici provisions by giving amici better access to relevant information and by encouraging appointment of amici in cases involving sensitive targets such as religious or political organizations, candidates for public office, and the media. An amendment that would have implemented these measures, offered by Senators Leahy and Lee, passed the Senate by a vote of 77-19 in 2020.9 Congress also should prohibit the government’s use of “parallel construction” to avoid notice obligations. And it should correct the Supreme Court’s misreading of FISA by clarifying that federal courts may review surveillance materials in civil cases.
Third, any surveillance that results in the collection of Americans’ communications and other sensitive data should take place pursuant to statute and with oversight by Congress and the courts. Accordingly, Congress should legislate basic protections for any EO 12333 surveillance that impacts Americans. These protections should include limits on bulk collection, which poses unique threats to Americans’ privacy; a warrant requirement for backdoor searches of EO 12333 data; and oversight by Congress and the FISA Court.
Finally, Congress should enact limits that will prevent the targeting of ordinary private citizens who are unlikely to be communicating information about foreign threats. Congress also should remove barriers to judicial review and establish limits on bulk collection, as described above. These measures would both protect Americans’ privacy and address the threat that Section 702 surveillance poses to U.S. businesses. It’s high time for Congress to step in and enact these reforms that will safeguard Americans’ rights and business interests.
We Call for House Committee on Armed Services to Preserve Critical Transparency Amendment
September 28, 2022–Due Process Institute joined a coalition from across the political spectrum to urge House Members to preserve in the National Defense Authorization Act for Fiscal Year 2023 (NDAA) an amendment offered by Representatives Jacobs and Davidson, which the House of Representatives adopted en bloc without opposition, and which Senators Wyden and Daines have offered in the Senate. This amendment brings critical transparency to a vital public debate.
This amendment would provide Congress and the public with only the information necessary to assess the profound privacy consequences of the Department of Defense buying its way around the Fourth Amendment. Specifically, it requires the Department of Defense to disclose which components are purchasing smartphone location and internet activity records about people in the United States without court orders. Government agencies have yet to be transparent about their purchase of Americans’ sensitive information without court orders — and yet this policy debate is already long overdue.
The purchase of information that would otherwise require a court order to obtain has critical implications for Americans’ constitutional rights. Quite simply, despite having no Congressional or judicial authorization, the executive branch has taken the position that if it buys data, Americans have no privacy rights at all. Transparency is crucial to ensuring the exploitation of this loophole does not further outpace Congressional, judicial, and public oversight.
We Urge Senate Judiciary Committee Members To Vote NO On The Cooper Davis Act
June 5, 2023–Due Process Institute joined criminal justice and civil rights advocacy groups to urge members of the Senate Judiciary Committee to oppose S. 1080, the Cooper Davis Act. The bill purports to address the sale of methamphetamine, fentanyl, and “counterfeit substances” by coopting online services to report the alleged or suspected creation, manufacture, or distribution of these substances — or possession with intent to create, manufacture, or distribute them. Rather than meaningfully addressing the public health crisis caused by such substances, this bill would instead incentivize online services to search through user content and effectively deputize them as agents of the Drug Enforcement Agency (DEA), undermining the Fourth Amendment and the Stored Communications Act, likely with disproportionate effects on people of color, LGBTQ+ people, and other marginalized communities.
This bill circumvents constitutional and statutory privacy protections and falls short of its intended purpose. The bill requires online services — including social media, email, and internet service providers — to identify “facts or circumstances” indicating an “apparent violation involving” “the creation, manufacturing, distributing, dispensing, or possession with intent to manufacture, distribute, or dispense” fentanyl, methamphetamine, or a counterfeit substance and report them to the DEA. Not only does the bill require reporting for “actual knowledge” of those “facts and circumstances,” but it permits reporting on a mere “reasonable belief” that an “apparent” violation has occurred. Failure to perform the required reporting can result in criminal and civil fines amounting to hundreds of thousands of dollars. The bill goes further in encouraging companies to turn over identifying information including screen names, photos, IP addresses, geolocation information, and even the content of communications to the DEA and potentially other law enforcement agencies.
The bill also requires that the provider retain the information for later access by law enforcement and prohibits notice to the user. Rather than addressing a pressing health crisis, this bill does an end run around the Fourth Amendment by requesting user information from online services in the form of reporting and voluntary disclosures. This puts online services in the position to decide what appears to be a sale of or intent to sell illicit substances and then decide how much to report to the DEA. The bill’s “reasonable belief” standard is not clearly defined and falls far short of the probable cause standard demanded by the Fourth Amendment that law enforcement generally has to meet before obtaining a warrant and engaging in a search. The bill also expressly undermines the already limited warrant or subpoena and notice requirements of the Stored Communications Act.
We Call for Congressional Hearings on Surveillance Reform
March 15, 2023–Due Process Institute, Americans for Prosperity, Restore the Fourth, Demand Progress Action, Project for Privacy and Surveillance Accountability, FreedomWorks, Electronic Privacy Information Center, and Free Press Action wrote to urge congressional leaders to hold hearings on the government’s surveillance of Americans given the latest revelations of unconstitutional surveillance by the intelligence community made at last week’s hearings held by the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence. These revelations included the warrantless searches of Section 702 data based on local political party affiliation and racial profiling, over 200,000 searches of Americans’ communications in 2022 by the FBI, and the circumvention of court order requirements by federal agencies when obtaining mobile phone geolocation data.
Congress must approach its review of the 702 program and related intelligence operations with the same purpose as the original Foreign Intelligence Surveillance Act of 1978: to rein in rogue intelligence agencies and ensure proper Congressional oversight. This year’s Section 702 reauthorization debate presents a unique opportunity for Congress to work together to accomplish much needed reforms. Meaningful proposals have long been pursued by members across the political spectrum who have rightly expressed concern with warrantless surveillance of people in the United States. To inform the debate, it is necessary for the committees of jurisdiction to begin holding hearings with a focus on protecting the civil liberties of all Americans.
We Call for House Committee on Armed Services to Preserve Critical Transparency Amendment
September 28, 2022–Due Process Institute joined a coalition from across the political spectrum to urge House Members to preserve in the National Defense Authorization Act for Fiscal Year 2023 (NDAA) an amendment offered by Representatives Jacobs and Davidson, which the House of Representatives adopted en bloc without opposition, and which Senators Wyden and Daines have offered in the Senate. This amendment brings critical transparency to a vital public debate.
This amendment would provide Congress and the public with only the information necessary to assess the profound privacy consequences of the Department of Defense buying its way around the Fourth Amendment. Specifically, it requires the Department of Defense to disclose which components are purchasing smartphone location and internet activity records about people in the United States without court orders. Government agencies have yet to be transparent about their purchase of Americans’ sensitive information without court orders — and yet this policy debate is already long overdue.
The purchase of information that would otherwise require a court order to obtain has critical implications for Americans’ constitutional rights. Quite simply, despite having no Congressional or judicial authorization, the executive branch has taken the position that if it buys data, Americans have no privacy rights at all. Transparency is crucial to ensuring the exploitation of this loophole does not further outpace Congressional, judicial, and public oversight.
We Urge Congress to Investigate CIA’s Data Collection Programs + Protect the Privacy of Americans
March 18, 2022–Due Process Institute and civil liberties organizations from across the political spectrum expressed urgent concerns regarding recently declassified documents that confirm the Central Intelligence Agency (CIA) currently operates at least two bulk collection programs, both with significant impacts on the privacy of U.S. persons and other people in the United States.
On February 10, the CIA released documents pertaining to two reports authored by the Privacy and Civil Liberties Oversight Board (PCLOB), titled “Deep Dive I” and “Deep Dive II.” Both reports reveal CIA activities that involve bulk collection, result in the acquisition of U.S. person information, and have been operational for years. According to the CIA, the programs are directed at the activities of foreign governments and foreign nationals, but PCLOB’s reporting and recommendations show that they significantly affect Americans. The surveillance described in Deep Dive I includes the bulk acquisition of financial transactions involving Americans and others. For Deep Dive II, however, the CIA has disclosed neither what type of information it is collecting in bulk nor for what purpose.
These bulk spying programs carried out by the CIA show that current law does not adequately protect Americans from bulk surveillance. Given the breadth of this type of surveillance and its roots in an unaccountable claim of inherent presidential power, Congress must act now or risk diminishing its own power to conduct intelligence oversight and to establish the rules governing intelligence surveillance of Americans.
Congress must also enact legislation to ensure that any surveillance resulting in the collection of Americans’ personal data is subject to statutory limits and judicial review. The only way to accomplish this is to set forth specific rules that are the “exclusive means” by which the government may acquire the information of U.S. persons. The Fourth Amendment Is Not For Sale Act (S.1265/H.R.2738), currently the only pending legislation that includes “exclusive means” language, would bar federal agencies from purchasing, without a warrant, sensitive data that if acquired directly would require the government to first obtain a court order.
We Urge Congress to Investigate CIA’s Data Collection Programs + Protect the Privacy of Americans
March 18, 2022–Due Process Institute and civil liberties organizations from across the political spectrum expressed urgent concerns regarding recently declassified documents that confirm the Central Intelligence Agency (CIA) currently operates at least two bulk collection programs, both with significant impacts on the privacy of U.S. persons and other people in the United States.
On February 10, the CIA released documents pertaining to two reports authored by the Privacy and Civil Liberties Oversight Board (PCLOB), titled “Deep Dive I” and “Deep Dive II.” Both reports reveal CIA activities that involve bulk collection, result in the acquisition of U.S. person information, and have been operational for years. According to the CIA, the programs are directed at the activities of foreign governments and foreign nationals, but PCLOB’s reporting and recommendations show that they significantly affect Americans. The surveillance described in Deep Dive I includes the bulk acquisition of financial transactions involving Americans and others. For Deep Dive II, however, the CIA has disclosed neither what type of information it is collecting in bulk nor for what purpose.
These bulk spying programs carried out by the CIA show that current law does not adequately protect Americans from bulk surveillance. Given the breadth of this type of surveillance and its roots in an unaccountable claim of inherent presidential power, Congress must act now or risk diminishing its own power to conduct intelligence oversight and to establish the rules governing intelligence surveillance of Americans.
Congress must also enact legislation to ensure that any surveillance resulting in the collection of Americans’ personal data is subject to statutory limits and judicial review. The only way to accomplish this is to set forth specific rules that are the “exclusive means” by which the government may acquire the information of U.S. persons. The Fourth Amendment Is Not For Sale Act (S.1265/H.R.2738), currently the only pending legislation that includes “exclusive means” language, would bar federal agencies from purchasing, without a warrant, sensitive data that if acquired directly would require the government to first obtain a court order.
We Demand Urgent Congressional Action to Protect Privacy Rights
January 26, 2022–Due Process Institute and 50 civil liberties and privacy groups urged Senate and House leaders to hold committee hearings on the Fourth Amendment Is Not For Sale Act (S.1265/H.R. 2738). Currently, this legislation enjoys bipartisan support in both chambers due to the disturbing practices of government agencies, ranging from the Internal Revenue Service to the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection. These entities allege they can lawfully avoid the constitutional requirement for probable cause warrants by simply buying our personal information from commercial data brokers. The Fourth Amendment Is Not For Sale Act would close the statutory loopholes that allow the government to bypass the constitutional protections of the First and Fourth Amendment.
Furthermore, most Americans are still unaware of this commonplace practice by intelligence and law enforcement agencies. Holding committee hearings on this legislation would help underscore this disturbing fact, inform the American public about the desperate need for privacy protections, and build momentum for this legislation.
We Urge Congress to Prioritize Privacy Protections
December 21, 2021–Due Process Institute joined seven other civil liberties organizations calling on Rep. Jerry Nadler, Chair of the House Judiciary Committee, to hold hearings for the bipartisan Fourth Amendment Is Not For Sale Act (H.R. 2738) in this coming session.
Currently, intelligence and law enforcement agencies, from the Internal Revenue Service to the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection, allege they can lawfully avoid the constitutional requirement for probable cause warrants by simply buying our personal information from commercial data brokers because the relevant federal statutes do not specifically prohibit such actions.
As a result, data from apps most Americans routinely use are open to warrantless examination by the government and are unaware that the government can obtain personal information by simply opening the federal wallet. These practices are clearly offensive to the spirit of the Constitution and threaten First and Fourth Amendment rights of every American.
But without a hearing to drive the news, most Americans will never know how seriously their privacy has been compromised. Hearings held in the House Judiciary Committee would underscore these disturbing facts, inform the American public, and create the momentum needed to turn The Fourth Amendment Is Not For Sale Act into law.
DPI Joins Coalition of Civil Liberties Groups To Limit Warrantless Surveillance of Americans
July 26, 2021–Due Process Institute joined a letter to urge all members of the House of Representatives to support the Lofgren-Massie amendment offered to H.R. 4505, the Commerce, Justice, Science, and Related Agencies Appropriations Act for FY 2022. This amendment would prohibit the use of funds for the warrantless search of United States persons’ communications acquired under Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), the controversial foreign intelligence authority that acquires an untold number of Americans’ Fourth Amendment protected information.
According to one opinion, the FBI, over the course of one year, conducted three million queries of a single database containing Section 702 communications, most of which presumably were U.S. person queries in light of the FBI’s primarily domestic mission. Although Congress has required the FBI to obtain a FISC order for a small subset of these queries, the FISC found that the FBI has literally never complied with this statutory requirement and has violated it on at least dozens of occasions. Ending this unconstitutional practice is imperative to ensure that foreign intelligence surveillance does not swallow Americans’ privacy rights.
We Support Greater Privacy Protections Against Government Surveillance
July 20, 2021–Due Process Institute joined a diverse group of organizations spanning the political spectrum to urge the House and Senate Committees on the Judiciary to consider and support The Fourth Amendment Is Not For Sale Act (S.1265 / H.R.2738). Current law allows federal agencies to buy Americans’ digital data and metadata in bulk from internet marketing firms rather than obtaining court orders based on individualized probable cause.
This bipartisan legislation, recently introduced by privacy champions in both chambers, would greatly strengthen federal protections against this type of backdoor government snooping. Law enforcement and intelligence agencies would be prohibited from purchasing communications content, geolocation information, and other highly sensitive data. The bill also would limit the government’s ability to concoct new and constitutionally unsound workarounds in the future by establishing that the mechanisms provided in statute are the exclusive means by which the government may acquire such information about people in the United States.
We Endorse Bipartisan Bill to Strengthen Privacy Protections Against Government Surveillance
April 22, 2021–Due Process Institute urges Congress to pass the bipartisan Fourth Amendment Is Not For Sale Act (S. 1265) which, among other things, would greatly strengthen federal privacy protections against backdoor government snooping. Current law allows federal agencies to buy Americans’ digital data and metadata in bulk from internet marketing firms rather than obtaining court orders based on individualized probable cause.
“The speed of technological innovation far outpaces the laws and rules that protect Americans from unwarranted government intrusion,” said Due Process Institute Founder and President, Shana-Tara O’Toole, “For that reason, Congress must close the current loopholes that allow law enforcement and intelligence agencies to bypass the constitutional protections against unreasonable government searches and surveillance. The Fourth Amendment Is Not For Sale Act is an essential piece of legislation that exemplifies the Congressional diligence needed to bring our modern laws into line with our long-standing constitutional values.”
DPI Joins Coalition Calling for Reform of the Intelligence Authorization Act
November 24, 2020–Due Process Institute and our allies joined a letter to highlight the deeply problematic nature of the Intelligence Authorization Act in its current form. Sections of this bill establish social media and online threat surveillance but provide no clear definitions to shield us from the ensuing and sweeping data collection. These stipulations also offer no safeguards for the victims of baseless suspicion and will further stigmatize vulnerable communities. The insufficient regulations in the Intelligence Authorization Act ultimately open the door to future First and Fourth Amendment violations. We call for these sections to be removed, protections to be strengthened, and to expand independent amici in Foreign Intelligence Surveillance Court.
DPI Joins Coalition to Thank Rep. Eshoo for Work to Prevent Unauthorized Surveillance of Americans
October 27, 2020–Due Process Institute joined a letter to Representative Anna Eshoo who has recently pushed for clarity around how federal agencies are using surveillance programs to collect information on countless Americans. She has specifically requested the Acting Inspector General of the Intelligence Community to investigate how federal agencies are using their surveillance powers to target Americans based on their race, ethnicity, and religion.
DPI and Coalition Urge House Leadership to Allow Proper Consideration of FISA Reauthorization
September 14, 2020–Due Process Institute and a bipartisan group of leaders in Congress have been fighting for months to secure reforms to the Foreign Intelligence Surveillance Act that establish reasonable safeguards without hindering our national security. Key provisions of FISA have now lacked Congressional authorization for six months and major concerns have been raised about the widespread misuse of these authorities. Together with allies from across the political spectrum, we sent a letter to House leadership urging them to not utilize an unconventional legislative vehicle for the extension of these authorities that would bar adequate consideration of these controversial and important issues.
DPI Continues Efforts to Confirm Federal Agencies are Complying with Federal Surveillance Law
August 5, 2020–Due Process Institute and a bipartisan coalition of 10 groups called on Congressional leadership to utilize oversight of federal agencies to ensure they are not conducting illegal surveillance of people in the United States through questionable legal authorities. Several provisions of the Foreign Intelligence Surveillance Act have been expired since March but some Executive and Congressional leaders have alleged that authorization of these provisions is not required for federal agencies to conduct mass surveillance of American citizens.
This request follows a letter sent by the Due Process Institute in May requesting transparency and a recent letter sent by Senators Patrick Leahy and Mike Lee.
Congressional Leaders Join DPI in Requesting Vital Information About Surveillance Programs
July 21, 2020–Senators Patrick Leahy and Mike Lee sent a letter to the Attorney General and the Director of National Intelligence requesting that they confirm the termination of certain federal surveillance programs that Congress has failed to reauthorize and provide detailed explanations for the continuation of similar activities under other questionable legal authorities.
These requests mirror those included in a letter Due Process Institute, Defending Rights & Dissent, Demand Progress, and FreedomWorks urging that Congress receive similar information before reauthorizing key provisions of the Foreign Intelligence Surveillance Act.
We Urge YES Vote on H.R. 6172 to Restore Constitutional Safeguards
May 27, 2020–Due Process Institute supports the USA FREEDOM Reauthorization Act (H.R. 6172). We urge a YES vote in support of long overdue reform of FISA surveillance, regardless of whether additional reform amendments are successful.
Two weeks ago, the Senate successfully passed the USA FREEDOM Reauthorization Act (previously passed by the House) with the addition of one important bipartisan amendment improving third-party oversight and input into the Foreign Intelligence Surveillance Court process. The legislation the Senate passed—which does not include every reform that is necessary to address all of our concerns with FISA surveillance in the United States—still represents a major improvement over current law.
USA FREEDOM Reauthorization Act Highlights
The House has an opportunity to further protect our Fourth Amendment rights by adopting additional reform amendments before passing the underlying legislation. These amendments would ensure the reasonable Constitutional safeguard of a warrant is met before the government can search through our personal information—an extraordinary power that our Founding Generation understood could be abused. But regardless of the success of such amendments, we urge a YES vote on the meaningful improvements contained in H.R. 6172.
Please watch our explainer video for more on the importance of reforming FISA.
80+ Organizations Join in Calling for Protection of Fourth Amendment
May 18, 2020–Due Process Institute joined a bipartisan coalition in urging Congressional leadership in the House to adopt an amendment that failed by one vote in the Senate to reform the Foreign Intelligence Surveillance Act. This amendment would ensure that federal agencies secure a warrant to obtain internet search and browsing history, thus honoring the Constitutional guarantee of the Fourth Amendment.
We Are Encouraged By Bipartisan Senate Collaboration to Reform Mass Surveillance of Americans
May 14, 2020–Due Process Institute releases statement praising the Senate for passing reforms to the Foreign Intelligence Surveillance Act that will protect due process rights.
“The USA FREEDOM Reauthorization Act could have been significantly improved by the inclusion of a bipartisan amendment from Senators Wyden and Daines that would have protected Americans’ private internet histories from warrantless government surveillance, but the version that the Senate has passed is still a significant improvement over the current laws that undermine due process rights,” said Shana-Tara O’Toole, Founder and President of Due Process Institute. “We are encouraged that Senate leaders crossed their respective political aisles to work together on important reforms that begin to better protect constitutional rights and still allow our government to do the important work of maintaining national security. We urge the House to promptly pass this legislation to ensure that America’s surveillance laws are brought more in line with vital protections guaranteed in our Constitution.”
DPI Urges Senators to Approve Amendments That Will Protect the Freedoms of All Americans
May 11, 2020–Due Process Institute joined a coalition of more than 35 organizations calling for the U.S. Senate to protect their constituents’ freedoms by adopting three vital amendments to the USA FREEDOM Reauthorization Act. These amendments will help end the warrantless surveillance of the American people currently empowered by questionable interpretations of the Foreign Intelligence Surveillance Act by federal agencies.
DPI Requests Federal Agencies Confirm Compliance with Expiration of Authority to Surveil Americans
May 6, 2020–Due Process Institute joined Defending Rights & Dissent, Demand Progress, and FreedomWorks to request that the Department of Justice and Office of the Director of National Intelligence confirm all relevant federal agencies have ended their surveillance activities under expired provisions of the Foreign Intelligence Surveillance Act. We also request that relevant agencies confirm they are not improperly using the remaining limited exceptions to continue activities that infringe upon the constitutional rights of all Americans.
On May 7th, 2020, this same coalition formally requested assistance with this request from leadership in the House and Senate Judiciary Committees.
DPI Calls for Senate to Critically Consider Surveillance Reforms
March 16, 2020–“By allowing the significant federal surveillance programs authorized by Section 215 to expire in an effort to hastily advance the USA FREEDOM Reauthorization Act without appropriate consideration, Senate leadership shows that it is willing to gamble with both our national security and constitutional rights to appease federal agencies,” said Shana-Tara O’Toole, President of Due Process Institute. “Congress has had months to craft vital bipartisan reforms that would ensure these programs continue with important safeguards. We ask Senators to oppose cloture and support the 45-day extension so Congress can intentionally and thoughtfully craft positive reforms that will protect the constitutional rights of all Americans and ensure that our surveillance community does not utilize our constitutional protections as a justification to violate our privacy rights.”
To learn more about these reforms, see our recent blog post.
DPI Urges Sun-setting and/or Reforms to FISA Section 702
October 17, 2019–Due Process Institute is part of a bipartisan advocacy effort to convince Congress to curtail FISA Section 702 abuse by the FBI and others.
Civil Liberties Groups Tell Congress: End the Call Detail Records program
August 14, 2019–Due Process Institute has joined with dozens of other civil liberties organizations to urge the House Judiciary Committee to adopt important reforms to the re-authorization of Section 215. Chief among those reforms is the elimination of the Call Detail Records program. This program, run by the National Security Agency, was found to have illegally collected data on millions of Americans over a three year period.
DPI Commentary on Treasury Dept’s Renewal of Financial Surveillance Program Under the PATRIOT Act
July 8, 2019–In our opinion, the existing statutory framework of Section 314 and its implementing regulations already give significant cause for concern and fail to adequately protect Americans’ Fourth Amendment and privacy rights. Previous attempts to expand this program through statutory or regulatory means are even more concerning. It is our hope that FinCEN will reevaluate the necessity and efficacy of the Section 314 program and ultimately abandon the practice of warrantless bulk searches and seizures of financial records, or at the very least, adopt clear legal standards and procedural measures consistent with our foundational Constitutional rights. It is also our hope that FinCEN will discontinue its attempts to expand this program by lobbying Congress to amend the authorizing statute or via pursuing additional rule-making.
DPI Joins 40 Other Groups Spanning Political Spectrum To Limit Warrantless Surveillance of Americans
June 13, 2019–Due Process Institute is urging Representatives to support the Amash-Lofgren amendment (Division C, amendment #24) to H.R. 2740, the Labor, Health and Human Services, Education, Defense, State, Foreign Operations, and Energy and Water Development Appropriations Act of 2020. Why?
The Amash-Lofgren amendment seeks to thoughtfully limit the warrantless surveillance of Americans conducted pursuant to Section 702 of the Foreign Intelligence Surveillance Act.
DPI-Supported E-mail Privacy Act Passes Houses, Moves on to Senate
July 16, 2018–Thanks in part to our efforts, the House of Representatives including the E-mail Privacy Act when it passed the 2019 National Defense Authorization Act. This is an important step towards updating our laws to reflect certain technological advances with respect to the Fourth Amendment.
DPI Calls for Transparency in Government Collection of Phone Call Data
June 1, 2018–Due Process Institute urges the Office of the Director of National Intelligence to report important data regarding the government’s collection of details of phone calls, as required under the USA FREEDOM Act. Obtaining this data is particularly important given that the number of call detail records collected under surged to over 540 million in 2017–more than triple what was reported for 2016.
DPI Opposes Funding of Invasive Surveillance Technology at Border
February 5, 2019–Due Process Institute joined several civil liberties and tech organizations in asking Congress to refrain from funding certain invasive surveillance technology as a security measure to protect the nation’s border. These proposals have included biometrics, mass surveillance, license plate readers, and DNA data, among others.