With their dangerous crusade for an anti-encryption bill in Congress all but dead (for now), the FBI and US justice department are now engaged in a multi-pronged attack on all sorts of other privacy rights – this time, with much less public scrutiny.
A report from the nonpartisan Government Accountability Office harshly criticized the FBI last week for its little discussed but frequently used facial recognition database and called on the bureau to implement myriad privacy and safety protections. It turns out the database has far more photos than anyone thought – 411.9m to be exact – and the vast majority are not mugshots of criminals, but driver’s license photos from over a dozen states and passport photos of millions of completely innocent people. The feds searched it over 36,000 times from 2011 to 2015 (no court order needed) while also apparently having no idea how accurate it is.
Worse, the FBI wants its hundreds of millions of facial recognition photos – along with its entire biometric database that includes fingerprints and DNA profiles – to be exempt from important Privacy Act protections. As the Intercept reported two weeks ago: “Specifically, the FBI’s proposal would exempt the database from the provisions in the Privacy Act that require federal agencies to share with individuals the information they collect about them and that give people the legal right to determine the accuracy and fairness of how their personal information is collected and used.”
In Congress, Senate Republicans are pushing for a vote this week on controversial new warrantless surveillance measures that would let the FBI use unconstitutional National Security Letters to get email records and internet browsing history from countless US citizens – without going to a judge or court at all. The Senate leadership is bringing the measure up to vote by invoking the Orlando attack, despite the fact that we know the FBI had no problem surveilling the Orlando killer when he was previously investigated. It is a blatant attempt to exploit the tragedy in order to gain powers the FBI has long asked for (powers, by the way, the FBI is already reportedly using, despite the justice department telling them it’s basically illegal).
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The justice department, meanwhile, is busy attempting to implement a new rule for the court system that would make it much easier for the FBI to hack into computers worldwide – including those of hacking victims. Using the obscure process for amending the Federal Rules of Criminal Procedure, the department has convinced the courts that they should be able to get one warrant to potentially hack thousands of computers, and shouldn’t have to comply with the normal rules involving getting the court order in the jurisdiction where the crime occurred.
As the Electronic Frontier Foundation has noted, “this is a recipe for disaster,” and it is being done by circumventing the normal democratic process. Several organizations (including Freedom of the Press Foundation, the organization I work for) have called on Congress to put a stop to it.
Also in the courts, the justice department has continued to argue that the US government doesn’t need a warrant to gather the cell phone location information of Americans – even though that type of information can give authorities your precise whereabouts 24 hours a day, seven days a week.
The justice department convinced the fourth circuit court of appeals last month to overturn its previous ruling that police need a probable cause warrant to get such information. The court agreed with the justice department that cellphone users don’t have a “reasonable expectation of privacy” around their location, even though it is some of the most intimate information that exists, giving law enforcement officials a detailed picture of your life that even your close friends and family may not know.
Last year, the FBI director disingenuously tried to claim that the pendulum “has swung too far” in the way of privacy, despite the fact that the agency has virtually unprecedented access to all sorts of information on Americans. If it wasn’t clear before, it should be now: they plan on using any means necessary to further erode the rights of hundreds of millions of citizens in their crusade against privacy.