The next few weeks will determine whether the government can continue utilizing loopholes in the law to spy on you.
The law at issue — Section 702 of the Foreign Intelligence Surveillance Act — grants U.S. intelligence agencies expansive power to surveil foreigners outside of the United States. It is set to expire at the end of the year unless Congress reauthorizes it, and Senate Judiciary Committee Chair Sen. Dick Durbin (D-Ill.) should use his authority to advance laws to prevent abuses of the law.
Durbin himself has pointed to the government’s abuse of Section 702 to conduct warrantless surveillance of Americans, noting at a committee hearing in June that the FBI conducted “improper searches of the 702 database for Americans’ communications [over] 278,000 times.”
To reign in this warrantless surveillance, Durbin must demonstrate strong leadership to advance the bipartisan Government Surveillance Reform Act. Some of the strongest evidence of the need for robust privacy reform comes from his own backyard.
In 2019, I obtained documents revealing that a little-known company, Clearview AI, had been quietly selling facial recognition technology to law enforcement agencies across the United States. Clearview sells billions of images of people’s faces — almost certainly yours and mine — collected from social media sites without their knowledge. This startling revelation, reported in 2020 by the New York Times, drew global attention to the need for privacy laws to evolve alongside technology.
Though it is becoming increasingly precise, facial recognition technology is not infallible and has historically been more likely to misidentify people of color. For instance, facial recognition has misidentified innocent people as crime suspects and police have used these misidentifications to arrest innocent people — who, in all known cases, have been Black. At the same time, police departments from Pittsburgh to Boca Raton have used facial recognition software to identify individuals who are merely exercising their First Amendment rights, such as at public demonstrations.
Here in Illinois, local law enforcement, including the Chicago Police Department, had Clearview subscriptions before the company settled allegations that it violated Illinois’ Biometric Information Privacy Act — one of the strongest privacy laws in the country — for collecting biometric data without our consent.
Close data broker loophole
Which brings us back to Section 702. One principal demand in the reauthorization talks has been to close the loophole that allows law enforcement and intelligence agencies to buy highly sensitive data they would otherwise need a warrant to access. Data brokers build detailed profiles about us using our purchasing data, mobile location data, website and search history, and more, packaging and selling intimate information about our lives to anyone willing to pay.
Warrant requirements are supposed to prevent mass surveillance by limiting how easily the government can grab this sensitive data. But police across the country can now simply go to data brokers and buy our data instead of getting a warrant.
The Pentagon used this loophole to purchase access to phone location data harvested by a Muslim prayer app that offered users an e-book version of the Quran. The Department of Homeland Security has used this loophole to purchase phone location data in violation of the agency’s privacy rules. In essence, the government is buying its way out of the Fourth Amendment, a practice the nonpartisan Project On Government Oversight has aptly likened to law enforcement “giving a landlord a handful of cash to access someone’s apartment instead of getting a search warrant for it.”
To meaningfully protect Americans’ privacy, Congress must close the data broker loophole. Likewise, Congress must also prohibit the government from buying data collected in violation of a third company’s terms of service, as Clearview AI and others have done. Importantly, the Government Surveillance Reform Act includes both of these reforms.
At the same time, Durbin should reject dangerous bills like the one championed by U.S. Rep. Darin LaHood (R-Ill.), which would expand warrantless surveillance, including of asylum seekers.
Durbin must do more than just talk about warrantless surveillance. As Senate majority whip in addition to chair of the Senate Judiciary Committee — a powerful perch with jurisdiction over this very issue — he will decide whether the Government Surveillance Reform Act stands a chance at becoming law.
The ball is in his court once again, and Illinoisans should watch closely for his next move.
Freddy Martinez is the executive director of Lucy Parsons Labs where he focuses on the use of technology by police.
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