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If Report Proven, ACLU Says Federal Agents Tapping Phones of Protesters Would Be 'Outrageous' Constitutional Violation

"We are headed back to the days of J. Edgar Hoover, and fast. Congress needs to find out exactly what's happening," said one civil liberties advocate.

Portland protests

A demonstrator in Portland, Oregon checks his phone during a night of protests on July 30, 2020. (Photo: Nathan Howard/Getty Images)

The ACLU and other civil rights groups said late Monday that if new reporting alleging that federal officials tapped the phones of Black Lives Matter protesters in Portland, Oregon turns out to be accurate, the Trump administration committed "an outrageous violation" of demonstrators' constitutional rights that must be investigated immediately.

Citing two unnamed former intelligence officers familiar with the matter, The Nation's Ken Klippenstein reported Monday evening that "an interagency task force involving [the Department of Homeland Security] and the Justice Department used a sophisticated cell phone cloning attack—the details of which remain classified—to intercept protesters' phone communications."

"I know it seems like we're all drinking from a fire hose of outrageous scandals, and we have to pick our battles. But if we don't fight this battle, we lose the war. Congress, don't let this one slide."
—Elizabeth Goitein, Brennan Center for Justice
"Cell phone cloning involves stealing a phone's unique identifiers and copying them to another device in order to intercept the communications received by the original device," Klippenstein wrote. "The former intelligence officials described it as part of a 'Low Level Voice Intercept' operation."

One of the former intelligence officials acknowledged that the surveillance practice was unlawful. "They were abusing people's rights," the official told The Nation.

In a statement Monday night, ACLU senior legislative counsel Kate Ruane said "if the government was secretly tapping protesters' phones without a special wiretapping warrant, it would be an outrageous violation of their constitutional rights."

"Sadly, it's also wholly consistent with the Trump administration's other lawless actions in Portland, which we have challenged in court," said Ruane, alluding federal officials' use of unmarked vehicles to detain protesters and other abuses. "The administration must immediately turn over all relevant records, and there needs to be an independent criminal investigation into the administration's suppression of protests against police violence."

The presence of federal agents on the streets of Portland drew outrage from residents, advocacy groups and local lawmakers, who warned the Trump administration's decision to deploy its officials to the city only served to inflame tensions and endanger lives. Sen. Ron Wyden (D-Ore.) likened the federal officials to an "occupying army."

In late July, the Trump administration and Oregon's Democratic Gov. Kate Brown announced an agreement to gradually remove the federal officials from Portland.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, tweeted Monday that if Klippenstein's reporting is correct, the federal agents' surveillance of protesters' phones was "a blatant violation of the law and the Fourth Amendment" that demands an immediate investigation by Congress.

"We are headed back to the days of J. Edgar Hoover, and fast," said Goitein, referring to the infamous former FBI director. "Congress needs to find out exactly what's happening. That's going to mean issuing subpoenas and actually enforcing them. I know it seems like we're all drinking from a fire hose of outrageous scandals, and we have to pick our battles. But if we don't fight this battle, we lose the war. Congress, don't let this one slide."

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