No Warrant, No Problem; How Government Buys Its Way Around the 4th Amendment

No Warrant, No Problem; How Government Buys Its Way Around the 4th Amendment

When the Supreme Court ruled in 2018 that law enforcement agencies need warrants before they can request geolocation data from cell phone companies, civil liberties advocates touted the judgment as a major win for privacy.

But since then, government agencies have devised a new surveillance method: instead of getting warrants to force companies to provide data, they simply purchase the information from brokers. Call it entrepreneurial innovation in the market for tyranny.

The scope of this activity has been slowly revealed over the last year, beginning with a February 2020 Wall Street Journal article, which reported that the Department of Homeland Security (DHS) has “bought access to a commercial database that maps the movements of millions of cellphones in American and is using it for immigration and border enforcement.” Later reports revealed that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) purchase similar data.

Had the world not essentially collapsed about a month later, this might have been big news. Alas, government’s data purchases have gone largely unpublicized in the midst of pandemics, riots, elections, and so on.

Even though geolocation data purchases are a norm in government, there are some public officials who agree with civil libertarians that the programs are unconstitutional. For example, in a memo made public this week, the inspector general for the Department of Treasury criticized the IRS for purchasing location information.

According to the IG’s memo, the IRS subscribed to a geolocation database provided by the data broker Venntel. The inspector general shared his view that the IRS program likely violated the Fourth Amendment and the precedent set by the Supreme Court in Carpenter v. US.

However, the IG’s opinion is far from government consensus. In fact, the IG’s memo notes that the IRS shuttered its geolocation tracking program not because of concerns about its constitutionality, but only because it wasn’t useful—a similar fate to what happened with the NSA’s bulk metadata collection.

Other departments have also expressed the opinion that bulk data purchases are constitutional. The Defense Intelligence Agency said in a memo made public last month that it can buy bulk data because the Supreme Court’s Carpenter decision only applies to law enforcement—and not to intelligence agencies.

“The court did not consider ‘collection techniques involving…national security,’” the memo said. “By extension, the court did not address the process, if any, associated with commercial acquisition of bulk commercial geolocation data for foreign intelligence/counter-intelligence purposes.”

Nor does the Biden Administration seem interested in checking the geolocation tracking programs. When new National Intelligence Director Avril Haines was asked about the programs during her confirmation process, she played lip service to the importance that “American people have an understanding of when, and under what authorities, the government is buying their private data”—but she said nothing about curtailing such surveillance.

If it’s indeed important for Americans to know how they’re being tracked, then it’s unclear why the DSH, CBP and ICE are still contesting a lawsuit from the American Civil Liberties Union to produce records about their geolocation tracking programs. Again, this ACLU lawsuit isn’t even challenging the tracking programs— it’s only trying to wrangle records from them—and yet government is insistent on pursuing litigation that could last years.

By the time the Supreme Court would make any rulings on the geolocation tracking programs, it could be nearing the end of the decade, and government agencies will almost certainly have found another workaround by then.

“If law enforcement agencies can buy their way around the Fourth Amendment’s warrant requirement, the landmark protection announced by the Supreme Court in Carpenter will be in peril,” the ACLU said when announcing its lawsuit in December.

Unfortunately, it’s apparent that the Carpenter decision has long passed the point of peril, taking the entire Fourth Amendment with it.

How the Military is Using Your Data to Fight China

How the Military is Using Your Data to Fight China

A new generation of Cold Warriors want your data to build artificial intelligence-powered weapons for their escalating conflict with China.

This has been made explicit by the U.S. National Security Commission on Artificial Intelligence (NSCAI), a relatively new and secretive government body tasked with boosting the military’s AI capabilities. The NSCAI is a who’s who of the military-tech complex, with figures such as former Google CEO Eric Schmidt, former deputy defense secretary Robert Work, Oracle CEO Safra Catz, and Chris Darby, who heads the CIA investment arm In-Q-Tel.

According to these people, China wants to use AI to become the next dominant world power—and they’re willing to mimic some of China’s authoritarianism to stop that from happening.

“I don’t think we’re overhyping the threat from China in AI,” Work said at a public NSCAI meeting in July. “They’ve been quite clear that they think artificial intelligence will allow them to leapfrog the U.S. and allow them to become the preeminent military power on the planet. And they’re intent on doing just that.”

Right now, the United States has a leg up on China with most AI applications. But the NSCAI worries that China’s unfettered access to all its citizens’ data will propel it past the U.S. by 2030. By tapping the centralized data of the billion-plus residents and other people around the world, the Chinese government can better train its facial- and voice-recognition technology, launch more sophisticated cyberattacks, manipulate individuals, and spy on Western countries.

To the detriment of liberty, the NSCAI has suggested that the U.S. implement similar policies to maintain its lead in the AI race. While paying lip service to “AI ethics” and insisting that the U.S. needs to stay dominant to preserve global freedom, commission members have made startling proposals such as centralizing all the country’s data for the use of Pentagon researchers, limiting U.S.-China trade relations, and developing powerful new surveillance tools.

Chairman Schmidt outlined his ambitions last week during a House Armed Services Committee hearing, where he called for “broad research exemptions” on the use of big data to boost America’s warfighting efforts.

“What I would like to see is a broad research exemption that would allow the kind of data that is being collected to be used for research with appropriate safety safeguards and privacy concerns and so forth,” he said. “One of the key things to understand about AI is it needs data. It eats data; it’s how it trains it, how it learns. And the more data, the better.”

Schmidt’s statements echo his fellow NSCAI member and Google Cloud AI director Andrew Moore, who said in an interview in May that universities should pool their AI-ready data sets for the common good.

“Rather than having every university—or, god forbid, every professor—try to build their own local data store to practice their experiments on, we need to build something where the academic United States is able to share and experiment with data at this much larger level,” he said.

Commission members haven’t publicly called for government to have direct access to tech companies’ consumer data, but they have drooled over China’s ability to do that—making statements in internal reports such as “mass surveillance is a killer application” and “having streets carpeted with cameras is good infrastructure for smart cities.” Moreover, universities and tech companies frequently partner to develop AI systems, with the tech firms forking over droves of consumer data to researchers. IBM has released millions of photos so companies can improve facial recognition technology, and Google has partnered with university hospitals to run medical data through AI programs—just to name a couple examples.

If the NSCAI has its druthers, all this data and more will be accessible to Pentagon researchers. And unfortunately, many agree with the commission that this is necessary.

The specter of a dystopian AI society dominated by China has led libertarian-leaning folks to abandon their free trade, anti-war principles because they say the world is better off with the U.S. as its leader. People like Peter Thiel and others who supported Trump for his relatively non-interventionist approach to the Middle East, for instance, support decoupling the two countries’ economies because they say their core values are inimical to each other.

But what good is it for the U.S. to win the AI race if government must sacrifice whatever remaining free market and libertarian values it has? Are Americans really prepared for another Cold War-style arms race that will undoubtedly increase the use of AI for authoritarian purposes at home and abroad?

When urging the U.S. to take a less militaristic approach to the USSR in 1947, former diplomat George Kennan perhaps said it best: “The issue of Soviet-American relations is in essence a test of the overall worth of the United States as a nation among nations. To avoid destruction the United States need only measure up to its own best traditions and prove itself worthy of preservation as a great nation.”

Unfortunately, Kennan’s contemporaries didn’t heed his advice, and 40-some years of Cold War ensued—spilling over to the current ongoing quagmire in Afghanistan due to the U.S. arming the mujahedeen to fight the Soviets there in the 1980s.

A new cold war with China could be even more devastating, and libertarians should do all they can to oppose the efforts of the NSCAI and others who are leading us in that direction.

Big Tech Firmly Embedded in the War State, DoD Report Shows

Big Tech Firmly Embedded in the War State, DoD Report Shows

The Department of Defense inspector general has released a damning report on the DoD’s massive “JEDI” cloud computing project, exposing a revolving door between Amazon and the Pentagon.

The DoD’s September 2017 announcement of JEDI (a catchy acronym for Joint Enterprise Defense Infrastructure) sparked a frenzy in the US tech sector, with the country’s largest companies vying for the access, power, and prestige that would accompany the $10 billion prize. Government awarded Microsoft the contract last October, but Amazon is disputing the decision in court, and allegations of corruption continue to fly.

Thus far, the press has largely focused on the most salacious aspect of the controversy: allegations by former defense secretary James “Mad Dog” Mattis that Donald Trump told him to “screw Amazon” out of the JEDI contract. According to Mattis, Trump wanted to take revenge on Amazon CEO Jeff Bezos for the negative coverage he’s received from the Bezos-owned Washington Post.

However, the IG report released last week shows that the corruption surrounding JEDI runs far deeper than the WWE-like feud Trump has with Mattis, Bezos, and the Post. Though the IG did not conclude that the procurement process was rigged one way or the other, the report shows that Big Tech is firmly embedded in the national security state.

The IG investigated seven current or former DoD officials – including Mattis – finding that four had ties with Amazon before, after or in some cases during their time with the DoD.

The smokiest gun in the IG report relates to former DoD official Deap Ubhi, who worked as a cloud technician at Amazon Web Services (AWS) from 2014 to 2016 before joining the Defense Department as a digital services expert. The report says Ubhi worked on the JEDI project in late 2017, even taking a one-on-one meeting with Microsoft to learn about the company’s cloud products – at the same time he was negotiating with Amazon to return there!

Ubhi accepted a job with Amazon in October 2017 while still working on the JEDI project, according to the IG report. A Twitter account in Ubhi’s name says that he still works at Amazon.

The IG found that Ubhi failed to disclose information or lied – yes, the IG report uses the word “lied” – at least three times in an effort to conceal his ties with Amazon. Despite this egregious misconduct, the IG only recommended that the DoD review Ubhi’s security clearances. His case was referred to a federal prosecutor, who did not pursue the matter further and declined to comment on the case.

Ubhi may be the most glaring red flag in the IG report, but is certainly not the only one.

Turn to Sally Donnelly, who left the DoD in 2012 to start the DC lobbying shop SBD Advisors – described by Politico as a “stealth” consulting firm. According to the IG report, Amazon hired Donnelly’s SBD Advisors in 2015 to “help AWS understand better how the DoD worked.”

After consulting for Amazon about the inner workings of the DoD, Donnelly returned to government as a special advisor to Mattis in January 2017. With her came former SBD Advisors director Tony DeMartino.

Donnelly and DeMartino worked on the JEDI project in 2017 before leaving again to form their own consulting firm, Pallas Advisors. Another person involved in the JEDI project, Robert Daigle, also left the DoD in 2017 to join Donnelly and DeMartino at Pallas, the report says.

Yet another former DoD official, Victor Gavin, also took part in the JEDI procurement process even though he had already accepted employment with Amazon. Here, the Inspector General did not flag any ethics violations because Gavin disclosed his ties with Amazon, only sat in one meeting about JEDI, and was not heavily involved in the project.

Lest readers think the IG only investigated the Amazon-Trump controversy, the report also scolds DoD official Stacy Cummings for taking part in the JEDI procurement process while owning between $15,001-50,000 of Microsoft stock. The report notes that Cummings disclosed her Microsoft stock, but made the mistake of participating in the JEDI project anyways – stopping only when a DoD ethics attorney flagged the violation. The Inspector General recommended that Cummings undergo counseling and training.

So what about the Mad Dog himself?

The IG report does not identify any financial ties between Mattis and Amazon, but it certainly seems like the former Defense Secretary had his heart set on the tech giant from the beginning.

After discussing cloud technology with his buddies in the CIA – which uses Amazon as its cloud provider – in December 2016, the report says Mattis came to the conclusion that a comprehensive cloud may be the best fit for the DoD’s data storage needs. Mattis then had an “off-the-record” meeting at a charity dinner in the UK with Amazon executive Teresa Carlson in March 2017, before meeting Bezos at least twice over the next 10 months.

The last meeting was a January 2018 private dinner in DC with Mattis, Donnelly, Bezos and Carlson, who discussed “leadership,” security, China and global trends, space technologies, and “Mr. Bezos’ offer to help support the DoD,” according to the IG report.

By this point, Amazon’s relationship with the Pentagon was starting to draw attention from the media.

In March 2018, an unnamed non-profit organization ran a full-page ad in the New York Post, the first line reading: “President Trump: Your Defense Department is set to award a no-bid, ten-year contract for all its IT infrastructure to Administration-enemy Jeff Bezos’ Amazon.” The ad, which has been removed from the Post’s website, featured a prominent picture of Mattis walking and speaking with Bezos, according to the IG report.

The same month, Bloomberg News and Business Insider also published articles reporting that Oracle CEO Safra Catz was in Trump’s ear about how the JEDI procurement process was being rigged for Amazon. Bloomberg later reported that it had obtained a copy of a 33-page dossier that portrayed “a web of conflicts to cast doubt on the integrity of the cloud procurement,” with allegations that “Defense Department officials participated in shady activities, all of which gave Amazon an edge.”

The media reports and Oracle’s protests apparently succeeded, as Trump started lobbing Twitter insults towards Amazon and Bezos while allegedly exerting influence on the JEDI procurement process behind the scenes throughout 2018. The abovementioned DoD officials departed government from late 2017 to late 2018 – Ubhi and Gavin to work for Amazon; Donnelly, DeMartino and Daigle to start a new lobbying shop; and Mattis, ostensibly to protest Trump’s Syria “withdrawal.”

If one views this through MAGA-tinted glasses, it might seem like Trump was following through his promise to Drain the Swamp by cutting the DoD from its ties to Amazon.

But when one takes into account that Oracle CEO Catz was a member of Trump’s transition team and had dinner with the president in April 2018 to discuss JEDI, it seems far more likely that Mattis was telling the truth when he said Trump wanted to “screw Amazon” – either as revenge on Bezos, a favor to Catz, or a combination of the two. As Thomas Knapp argued in an article published on last December, Trump should have squashed the entire JEDI project altogether if he really wanted to reduce government waste and malfeasance.

There are no good guys in these power struggles – just various factions vying for money and control, all at the public’s expense.

The $2 Trillion Stimulus Package Is Funding Your Own Surveillance

The $2 Trillion Stimulus Package Is Funding Your Own Surveillance

From corporate bailouts to endowments for art, the $2 trillion stimulus package signed into law last Friday has been roundly criticized as a smash-and-grab robbery perpetrated by the country’s elite.

And rightly so.

However, there is another provision in the 1,000-plus page legislation that should concern Americans just as much as any of its negative fiscal or economic implications: funding for what seems to be a massive surveillance program.

Tucked away in a section labeled “emergency appropriations for coronavirus health response and agency operations” is a $500 million allocation to the CDC for “public health data surveillance and analytics infrastructure modernization.” There are few details, other than a line saying that the CDC will report to the House and Senate appropriations committees on the development of a “public health surveillance and data collection system for coronavirus” within 30 days of the law’s enactment.

This reporter asked for more details from a press officer at the CDC National Center for Health Statistics, but has not received a response.

Based on the numerous reports, it’s reasonable to assume that the allocation has something to do with collecting geolocation data from smartphones – ostensibly to track the spread of coronavirus, and to make sure all of us good boys and girls are practicing social distancing. Indeed, this is happening in numerous other jurisdictions, including Israel, Australia, and at least four European countries.

Another clue that the system will entail geolocation tracking is the exorbitant price tag, which leads one to believe that the program will be highly technical. At $500 million, the surveillance system is five times what the NSA spent over a three-year period on its failed bulk data collection scheme.

If these assumptions are correct – and to be sure, this is only speculation – we could be looking at the beginning of a government tracking system the likes of which we’ve never seen. 

Either way, it’s hard to fathom how an agency that has failed so miserably in its response to the global pandemic would be rewarded with a $500 million influx – though even Andrew Yang has come to the realization that public bureaucracies are rewarded for failure.

Yes, it’s true that covid-19 tracking in the US is a mess, largely due to a lack of uniform reporting standards amongst the states. Not all states report the number of negative covid-19 test results, which has prevented researchers from estimating contraction rates. And not all report the number of coronavirus carriers that have had to be hospitalized, which would be helpful to know how dangerous this pandemic is.

But this could be addressed by the CDC mandating uniform reporting requirements among the states – low-hanging fruit that should hardly cost anything, let alone the GDP of a small Caribbean island.

And when it comes to tracking geolocation data, there’s no reason why that can’t be left to the private sector. The startup Tectonix Geo, for example, has already wowed Twitter with its demonstration about how a single Fort Lauderdale beach party can lead to the virus spreading around the country.

Many people said they were creeped out by Tectonix Geo’s demonstration, even though the company claims to be complying with privacy laws like Europe’s GDPR and the California Consumer Privacy Act.

If the thought of a private company tracking smartphones is hair-raising, then whatever the CDC plans on doing with that $500 million should be downright terrifying. 

The NSA’s Encroaching Oversight

The NSA’s Encroaching Oversight

The NSA’s spy program failed miserably, but some spooks want to expand it

The US National Security Agency spent $100 million over three years on illegally collecting millions of American phone records – all for two reports with unique counterterrorism intelligence, according to a declassified report from an NSA oversight body.

So naturally, intelligence officials and lawmakers want the NSA’s records collection program reauthorized, and some even want it expanded to include more modern forms of communications such as encrypted chat apps.

The NSA’s failed spying scheme is detailed in a report released Wednesday by the Privacy and Civil Liberties Oversight Board (PCLOB). Congress faces a March 15 deadline to decide whether to renew the NSA’s program.

According to the PCLOB report, the latest iteration of the NSA’s data collection scheme – which was “reformed” by the Freedom Act in 2015 – was not abused or intentionally misused. Nevertheless, the program resulted in the collection of some 1 billion records on more than 18 million phones.

Much of the metadata was illegally collected due to human error, PCLOB said.

In a particularly illuminating example, the NSA used outdated and misleading intelligence information in a FISA application – due to an FBI agent being on vacation.

According to the report, a “foreign partner” provided additional information to an FBI analyst that would have called into question certain facts included in the FISA application. Because the analyst was on vacation, the additional information was not conveyed to the NSA until the agency already used the FISA order to vacuum records.

And despite collecting more than 1 billion phone records – whether legally or otherwise – the NSA only produced 15 intelligence reports, and only two with information the FBI didn’t already have, according to PCLOB. Moreover, of the two relevant reports, one led to a dead end and the details of the other were redacted by PCLOB.

“The low volume of intelligence reporting produced by the program — 15 reports over several years — is particularly informative, especially when coupled with NSA’s assessment that it would expect a program of this scale and expense to generate hundreds or thousands,” the report said.

But like so many other government programs, US spooks now argue that the NSA’s authority should not only be renewed, but expanded, too. You see: the NSA has been limited to collecting metadata from traditional phone services, and needs to also be able to collect the same from chat applications, social media, emails, and other sources.

Two PCLOB members made this case in Wednesday’s report.

“The [Freedom] Act did not provide … authority for the myriad other ways in which terrorists may communicate, from emails to encrypted messaging. That proved to be a problem,” PCLOB members Aditya Bamzai and Jane Nitze said in the oversight report. “Thus, in the future, for surveillance authorities to be useful in a world of rapidly advancing technology, they should be neutral as to communications methods.”

It’s also noting that despite the instances of improper data collection identified in the report, PCLOB still argued that overall the program is constitutional.

“We first consider whether the collection of telephony metadata under the [records collection] program constituted a ‘search’ or ‘seizure’ under the Amendment’s text as interpreted by relevant Supreme Court cases,” PCLOB said. “We believe it did not, and that the program was constitutional for this reason alone.”

Take PCLOB with a grain of salt, however: The body was created by the Bush administration in 2004, and allowed rampant abuses to go unchecked for years. Somehow, the board found that even the NSA’s original bulk data collection program – exposed by Edward Snowden – was constitutional, too.

To their credit, two board members, Ed Felten and Travis LeBlanc, released their own dissenting statement, calling for the unconstitutional program to be permanently shuttered.

“This large-scale CDR program surely sweeps in the CDRs of protestors, journalists, political activists, whistleblowers, and ordinary people,” Felten and LeBlanc said. “In the end, whether for concerns over constitutional implications or for policy reasons, we concur with NSA’s decision to end the program and believe the program should remain shuttered.”

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