FBI Sent A Special Task Force To Portland To 'Exploit' Phones Taken From Protesters
from the collect-it-all dept
Ongoing protests in Portland have been met with a federal response. The opening salvo was disturbing: Gestapo-esque tactics carried out by unidentified federal officers driving unmarked vehicles. It didn’t get any better after that. The federal task force headed by the DHS seemed more willing to escalate the situation than settle things down, even if they were supposedly there to just do federal things like protect federal property and investigate federal crimes.
Documents leaked to Ken Klippenstein indicated the federal presence in Portland was more interested in finding evidence of some sort of Antifa hierarchy than sticking to the directive. FBI forensic analysts and their tech had been scrambled to Oregon to dig into phones taken from protesters and arrestees in hopes of finding some sort of organizational structure for them to attack.
This immediately raised questions about the Constitutionality of these device extractions. There’s a warrant requirement in place for phone searches incident to arrests and it’s not clear whether this requirement is being followed. For that matter, cloning phones belonging to detainees not necessarily suspected of criminal activity (with or without a warrant) seems like an unjustified abuse of the powers granted to law enforcement.
Emails obtained by the New York Times indicate that’s exactly what’s happening. A special deployment of FBI agents was sent to Portland specifically to aid in the extraction of information from protesters’ phones.
The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.
The Fly Teams have been in existence since shortly after the 9/11 attacks in 2001. But until now, they’ve mainly been foreign-focused — either operating in other countries or targeting foreign terrorists. This breaks some new ground in a disturbing way: counterterrorist activity targeting US citizens, some of which have engaged in nothing more than exercising their First Amendment rights.
The emails also suggest federal law enforcement is working around warrant requirements by exploiting one particular exception:
In one of the replies to [Special Agent] Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.”
The emails [PDF] detail an incident that might be used to stretch the definition of “exigent” to cover any detained protester. A man arrested for shining laser lights into officers’ eyes was found to be carrying weapons and explosives. He consented to a search of his phone, which led to a search of his home and criminal charges. If agents can talk themselves into believing any arrestee or detainee poses a threat, phones are going to be searched without warrants in the hopes a court will grant the government the benefit of a doubt if the search is challenged.
There’s nothing in the emails that says the FBI is adhering to the Fourth Amendment. There’s nothing in there that says it isn’t, either. But you generally don’t memorialize Constitutional violations in communications that can be obtained with public records requests.
As the New York Times notes, it’s unclear under what authority the FBI is acting if it’s treating domestic protests like domestic terrorism. But the Constitution may not be much of an obstacle thanks to actions taken by President Ronald Reagan nearly four decades ago.
Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US.
We’ll know more as more information leaks out or searches are challenged in court. But even if the FBI is following the law, the law gives it a lot of leeway to engage in acts it probably shouldn’t, even if it legally can.