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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 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.
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 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 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 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.
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 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 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 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.