20+ Groups Call on Senate to Protect 4th Amendment Rights, Applaud Introduction of Wyden-Daines Amendment

Following bombshell news that the United States military is paying for access to a "super majority of all activity on the internet," 22 organizations including the ACLU, Americans for Prosperity, Demand Progress Action, Project for Privacy & Surveillance Accountability, and Wikimedia Foundation sent a letter to the Senate Armed Services Committee calling on Chairman Jack Reed (D-RI) and Ranking Member James Inhofe (R-OK) to preserve bipartisan transparency language in the House-passed NDAA that would require the Department of Defense to disclose which components are purchasing access to Americans' internet activity and other records without a court order.

The House adopted this provision without opposition thanks to the leadership of Reps. Sara Jacobs (D-CA) and Davidson (R-OH). The letter also urges the Senate to adopt the companion amendment introduced by Senators Wyden (D-OR) and Daines (R-MT), which Sens. Brown (D-OH), Hirono (D-HI), Lee (R-UT), Markey (D-MA), Paul (R-KY), and Schatz (D-HI) have cosponsored.

In September, Vice revealed that -- without any court orders or Congressional oversight -- "[m]ultiple branches of the U.S. military have bought access to a powerful internet monitoring tool that claims to cover over 90 percent of the world's internet traffic, and which in some cases provides access to people's email data, browsing history, and other information such as their sensitive internet cookies."

"This amendment is critical to enabling Congressional, judicial, and public oversight because this unconstitutional checkbook surveillance currently occurs without any Congressional or judicial authorization or oversight whatsoever," said Demand Progress senior policy counsel Sean Vitka. "This rapidly expanding practice represents an enormous and irreversible threat to constituents' right to privacy. By preserving the modest transparency requirement included in the Jacobs-Davidson amendment, we can illuminate to what extent the government is buying its way around the Fourth Amendment. All Senators should support the Senate companion introduced by Senators Wyden and Daines. he Senate Armed Services Committee must keep this language in the NDAA."

The Letter

September 28, 2022

The Honorable Jack Reed
Chairman
Senate Committee on Armed Services
228 Russell Senate Office Building
Washington, DC 20510

The Honorable Adam Smith
Chairman
House Committee on Armed Services
2216 Rayburn House Office Building
Washington, DC 20515

The Honorable James Inhoff
Ranking Member
Senate Committee on Armed Services
228 Russell Senate Office Building
Washington, DC 20515

The Honorable Mike Rogers
Ranking Member
House Committee on Armed Services
2216 Rayburn House Office Building
Washington, DC 20515

Re: Preserve Jacobs-Davidson Amendment to the National Defense Authorization Act for Fiscal Year 2023

Dear Chairman Reed, Ranking Member Inhofe, Chairman Smith, and Ranking Member Rogers:

We write to urge you 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. Investigations by members of Congress and the media have already produced disturbing details. Most recently, Vice's Motherboard revealed that "multiple branches of the US military and a civilian law enforcement agency have bought access to a powerful internet monitoring tool that claims to cover over 90 percent of the world's internet traffic," including "people's email data, browsing history," and other types of information that experts describe as "everything."

These investigations and reports have also revealed: (1) government claims that data brokers are not bound by the Electronic Communications Privacy Act's carefully crafted privacy protections, which otherwise prohibit the government from buying this information; (2) the Defense Intelligence Agency's conclusion that it may purchase location information in bulk, even when that information includes Americans' data, despite the Supreme Court's holding in Carpenter v. US; and (3) the agencies exploiting the loopholes in question include at least the Department of Homeland Security, the Drug Enforcement Administration, the Internal Revenue Service, and the Federal Bureau of Investigation. Most relevant to the Jacobs-Davidson amendment is the Department of Defense's ongoing refusal to disclose information that it has already determined is not classified: which Defense components are buying information about Americans' smartphone location and internet activity.

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. Accordingly, we urge you to ensure the Jacobs-Davidson amendment remains in the NDAA by including the Wyden-Daines amendment to the Senate NDAA and retaining this language in conference.

Sincerely,

Advocacy for Principled Action in Government
American Civil Liberties Union
Americans for Prosperity
Brennan Center for Justice at NYU School of Law
Center For Democracy & Technology
Council on American-Islamic Relations
Demand Progress Action
Due Process Institute
Electronic Frontier Foundation
Fight for the Future
Freedom House
FreedomWorks
Free Press Action
Government Information Watch
Muslim Justice League
National Association of Criminal Defense Lawyers
Project for Privacy & Surveillance Accountability
Project On Government Oversight
Restore The Fourth
Surveillance Technology Oversight Project
Wikimedia Foundation
X-Lab