This may not be an actual “Wyden siren,” but it still has his name attached to it. What’s being said here isn’t nearly as ominous as this single sentence he sent to CIA leadership earlier this year:
I write to alert you to a classified letter I sent you earlier today in which I express deep concerns about CIA activities.
Few people are capable of saying so much with so little. This one runs a bit longer, but it has implications that likely run deeper than the surface level issue raised by Wyden and others in a recent letter to Trump’s (satire is dead) Director of National Intelligence, Tulsi Gabbard. Here are the details, as reported by Dell Cameron for Wired:
In a letter sent Thursday to Director of National Intelligence Tulsi Gabbard, the lawmakers say that because VPNs obscure a user’s true location, and because intelligence agencies presume that communications of unknown origin are foreign, Americans may be inadvertently waiving the privacy protections they’re entitled to under the law.
Several federal agencies, including the FBI, the National Security Agency, and the Federal Trade Commission, have recommended that consumers use VPNs to protect their privacy. But following that advice may inadvertently cost Americans the very protections they’re seeking.
The letter was signed by members of the Democratic Party’s progressive flank: Senators Ron Wyden, Elizabeth Warren, Edward Markey, and Alex Padilla, along with Representatives Pramila Jayapal and Sara Jacobs.
That’s alarming. It’s also a conundrum. VPN use (often required for remote logins to corporate systems) is a great way to secure connections that are otherwise insecure, like those made originating from people’s homes (to log into their work stuff) or utilizing public Wi-Fi. There are also more off-the-book uses, like circumventing regional content limitations or just ensuring your internet activity can’t be tied to your physical location.
The trade-off depends on the threat you’re trying to mitigate. It’s kind of like the trade-off in cell phone security. Using biometrics markers to unlock your phone might be the best option if what you’re mainly concerned with is theft of your device. A thief might be able to guess a password, but they won’t be able to duplicate an iris or a fingerprint.
But if the threat you’re more worried about is this government, you’ll want the passcode. Courts have generally found that fingerprints and eyeballs aren’t “testimonial,” so if you’re worried about being compelled to unlock your device, the Fifth Amendment tends to favor passwords, at least as far as the courts are concerned.
It’s almost the same thing here. VPNs might protect you against garden-variety criminals, but the intentional commingling of origin/destination points by VPNs could turn purely domestic communications into “foreign” communications the NSA can legally intercept (and the FBI, somewhat less-legally can dip into at will).
That’s the substance of the letter sent to Gabbard, in which the legislators ask the DNI to issue public guidance on VPN usage that makes it clear that doing so might subject users to (somewhat inadvertent) domestic surveillance:
Americans reportedly spend billions of dollars each year on commercial VPN services, many of which are offered by foreign-headquartered companies using servers located overseas. According to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, VPNs have the potential to be vulnerable to surveillance by foreign adversaries. While Americans should be warned of these risks, they should also be told if these VPN services, which are advertised as a privacy protection, including by elements of the federal government, could, in fact, negatively impact their rights against U.S. government surveillance. To that end, we urge you to be more transparent with the American public about whether the use of VPNs can impact their privacy with regard to U.S. government surveillance, and clarify what, if anything, American consumers can do to ensure they receive the privacy protections they are entitled to under the law and Constitution.
I wouldn’t expect a response from ODNI. I mean, I wouldn’t expect one in any case, but I especially don’t expect Tulsi Gabbard to respond to a letter sent by a handful of Democratic Party members.
A warning would be nice, but even an Intelligence Community overseen by competent professionals, rather than loyalists and Fox News commentators would be hard-pressed to present a solution. To be fair, this letter isn’t asking for a fix, but rather telling the Director of National Intelligence to inform the public of the risks of VPN usage, including increasing their odds of being swept up in NSA dragnets.
Certainly the NSA isn’t concerned about “incidental collection.” It’s never been too concerned about its consistent “incidental” collection of US persons’ communications and data in the past and this isn’t going to budge the needle, especially since it means the NSA would have to do more work to filter out domestic communications and the FBI would be less than thrilled with any efforts made to deny it access to communications it doesn’t have the legal right to obtain on its own.
Since the government won’t do this, it’s up to the general public, starting with everyone sharing the contents of this letter with others. VPNs can still offer considerable security benefits. But everyone needs to know that domestic surveillance is one of the possible side effects of utilizing this tech.
In 2018, the Supreme Court ruled that warrants were needed to obtain cell site location info (CSLI). That decision dealt with law enforcement’s warrantless acquisition of 127 days of location data from a cell service provider. As the court saw it, the government was leveraging access to this data to turn cell phones (which has been given heightened protections with the 2014 Riley decision) into government tracking devices, all without having to bother with warrants or deploying government-crafted tracking tech.
The rationale for this 4th Amendment bypass was this: location data slurped up by websites and downloaded apps wasn’t exactly the same thing as cell tower location data. Therefore, it could be had without a warrant. In fact, it could be had without bothering the courts at all with a subpoena or any other lighter-weight legal paperwork. The government could just buy this data and sort through it to find what it was looking for. Some third parties were even willing to do the sorting for the right price, freeing the government up to pursue other rights violations.
This option obviously experienced a jump in popularity following the Supreme Court’s Carpenter ruling. While the spokespeople constantly stated the agencies they represented (which was pretty much all of them when it came to buying data from data brokers) were super-interested in respecting constitutional rights, they never took the time to explain their “respect” meant constantly testing (or breaking!) the boundaries until court precedent forced them to do otherwise.
In 2023, anti-encryption zealot Christopher Wray was heading the FBI. During the last years of his tenure, he admitted to Congress (or, more specifically, privacy hawk Senator Ron Wyden) that the FBI was — like CBP, ICE, US Secret Service, IRS, and federal prisons — buying up as much location data as it could purchase. Wray insisted this process was “court-authorized,” but somehow couldn’t find any court documents laying around that would support his claims of authorization.
The government is still buying this data. And it’s even more problematic than it was a few years ago, when federal agencies weren’t being run by MAGA loyalists and outright racists. Now there’s a new wrinkle: the government is delving into ad markets to siphon off RTB (real-time bidding) data that’s capable of tying location data to specific devices, even if those hawking the data pretend it’s been anonymized.
When asked by U.S. Senator Ron Wyden, Democrat of Oregon, if the FBI would commit to not buying Americans’ location data, Patel said that the agency “uses all tools … to do our mission.”
“We do purchase commercially available information that is consistent with the Constitution and the laws under the Electronic Communications Privacy Act — and it has led to some valuable intelligence for us,” Patel testified Wednesday.
First, there’s the obviously false insistence that this is all very constitutional. Buying location data from data brokers doesn’t just violate the spirit of the Supreme Court’s Carpenter decision, it’s only a letter or three off from violating the letter of the law. When the only difference is where you’re obtaining long-term location tracking data, you’re just exploiting loopholes rather than actually trying to be “consistent with the Constitution.”
The second part is even stupider. When you claim that legally-questionable efforts have “led to some valuable intelligence,” you’re just saying that the ends justify the means. And if that’s the low bar you’ve set for yourself, you’re going to be violating rights regularly because you prefer harvesting data to respecting rights.
This sums up the government’s stance concisely:
The FBI claims it does not need a warrant to use this information for federal investigations; though this legal theory has not yet been tested in court.
The government — especially this one — will never err on the side of restraint. It would rather explore the outer edges of legal theory, sacrificing our rights in exchange for more government power. At some point, this legal theory will be tested. But until it is, the government is going to continue to pretend the implications of Carpenter don’t apply to anything that hasn’t been specifically ruled unconstitutional.
The Trump administration is loosening restrictions on the sharing of law enforcement information with the CIA and other intelligence agencies, officials said, overriding controls that have been in place for decades to protect the privacy of U.S. citizens.
Government officials said the changes could give the intelligence agencies access to a database containing hundreds of millions of documents — from FBI case files and banking records to criminal investigations of labor unions — that touch on the activities of law-abiding Americans.
Administration officials said they are providing the intelligence agencies with more information from investigations by the FBI, Drug Enforcement Administration and other agencies to combat drug gangs and other transnational criminal groups that the administration has classified as terrorists.
But they have taken these steps with almost no public acknowledgement or notification to Congress. Inside the government, officials said, the process has been marked by a similar lack of transparency, with scant high-level discussion and little debate among government lawyers.
“None of this has been thought through very carefully — which is shocking,” one intelligence official said of the moves to expand information sharing. “There are a lot of privacy concerns out there, and nobody really wants to deal with them.”
A spokesperson for the Office of the Director of National Intelligence, Olivia Coleman, declined to answer specific questions about the expanded information sharing or the legal basis for it.
Instead, she cited some recent public statements by senior administration officials, including one in which the national intelligence director, Tulsi Gabbard, emphasized the importance of “making sure that we have seamless two-way push communications with our law enforcement partners to facilitate that bi-directional sharing of information.”
In the aftermath of the Watergate scandal, revelations that Presidents Lyndon Johnson and Richard Nixon had used the CIA to spy on American anti-war and civil rights activists outraged Americans who feared the specter of a secret police. The congressional reforms that followed reinforced the long-standing ban on intelligence agencies gathering information about the domestic activities of U.S. citizens.
Compared with the FBI and other federal law enforcement organizations, the intelligence agencies operate with far greater secrecy and less scrutiny from Congress and the courts. They are generally allowed to collect information on Americans only as part of foreign intelligence investigations. Exemptions must be approved by the U.S. attorney general and the director of national intelligence. The National Security Agency, for example, can intercept communications between people inside the United States and terror suspects abroad without the probable cause or judicial warrants that are generally required of law enforcement agencies.
Since the terror attacks of Sept. 11, 2001, the expansion of that surveillance authority in the fight against Islamist terrorism has been the subject of often intense debates among the three branches of government.
Word of the Trump administration’s efforts to expand the sharing of law enforcement information with the intelligence agencies was met with alarm by advocates for civil liberties protections.
“The Intelligence Community operates with broad authorities, constant secrecy and little-to-no judicial oversight because it is meant to focus on foreign threats,” Sen. Ron Wyden of Oregon, a senior Democrat on the Senate Select Committee on Intelligence, said in a statement to ProPublica.
Giving the intelligence agencies wider access to information on the activities of U.S. citizens not suspected of any crime “puts Americans’ freedoms at risk,” the senator added. “The potential for abuse of that information is staggering.”
Most of the current and former officials interviewed for this story would speak only on condition of anonymity because of the secrecy of the matter and because they feared retaliation for criticizing the administration’s approach.
Virtually all those officials said they supported the goal of sharing law enforcement information more effectively, so long as sensitive investigations and citizens’ privacy were protected. But after years in which Republican and Democratic administrations weighed those considerations deliberately — and made little headway with proposed reforms — officials said the Trump administration has pushed ahead with little regard for those concerns.
“There will always be those who simply want to turn on a spigot and comingle all available information, but you can’t just flip a switch — at least not if you want the government to uphold the rule of law,” said Russell Travers, a former acting director of the National Counterterrorism Center who served in senior intelligence roles under both Republican and Democratic administrations.
The 9/11 attacks — which exposed the CIA’s failure to share intelligence with the FBI even as Al Qaida moved its operatives into the United States — led to a series of reforms intended to transform how the government managed terrorism information.
A centerpiece of that effort was the establishment of the NCTC, as the counterterrorism center is known, to collect and analyze intelligence on foreign terrorist groups. The statutes that established the NCTC explicitly prohibit it from collecting information on domestic terror threats.
National security officials have spent much less time trying to remedy what they have acknowledged are serious deficiencies in the government’s management of intelligence on organized crime groups.
In 2011, President Barack Obama noted those problems in issuing a new national strategy to “build, balance and integrate the tools of American power to combat transnational organized crime.” Although the Obama plan stressed the need for improved information-sharing, it led to only minimal changes.
President Donald Trump has seized on the issue with greater urgency. He has also declared his intention to improve information-sharing across the government, signing an executive order to eliminate “information silos” of unclassified information.
More consequentially, he went on to brand more than a dozen Latin American drug mafias and criminal gangs as terrorist organizations.
The administration has used those designations to justify more extreme measures against the criminal groups. Since last year, it has killed at least 148 suspected drug smugglers with missile strikes in the Caribbean and the eastern Pacific, steps that many legal experts have denounced as violations of international law.
Some administration officials have argued that the terror designations entitle intelligence agencies to access all law enforcement case files related to the Sinaloa Cartel, the Jalisco New Generation Cartel and other gangs designated by the State Department as foreign terrorist organizations.
The first criterion for those designations is that a group must “be a foreign organization.” Yet unlike Islamist terror groups such as al-Qaida or al-Shabab, Latin drug mafias and criminal gangs like MS-13 have a large and complex presence inside the United States. Their members are much more likely to be U.S. citizens and to live and operate here.
Those steps were seen by some intelligence experts as potentially opening the door for the CIA and other agencies to monitor Americans who support antifa in violation of their free speech rights. The approach also echoed justifications that both Johnson and Nixon used for domestic spying by the CIA: that such investigations were needed to determine whether government critics were being supported by foreign governments.
The wider sharing of law enforcement case files is also being driven by the administration’s abrupt decision to disband the Justice Department office that for decades coordinated the work of different agencies on major drug trafficking and organized crime cases. That office, the Organized Crime Drug Enforcement Task Force, was abruptly shut down on Sept. 30 as the Trump administration was setting up a new network of Homeland Security Task Forces designed by the White House homeland security adviser, Stephen Miller.
The new task forces, which were first described in detail by ProPublica last year, are designed to refocus federal law enforcement agencies on what Miller and other officials have portrayed as an alarming nexus of immigration and transnational crime. The reorganization also gives the White House and the Department of Homeland Security new authority to oversee transnational crime investigations, subordinating the DEA and federal prosecutors, who were central to the previous system.
That reorganization has set off a struggle over the control of OCDETF’s crown jewel, a database of some 770 million records that is the only central, searchable repository of drug trafficking and organized crime case files in the federal government.
Until now, the records of that database, which is called Compass, have only been accessible to investigators under elaborate rules agreed to by the more than 20 agencies that shared their information. The system was widely viewed as cumbersome, but officials said it also encouraged cooperation among the agencies while protecting sensitive case files and U.S. citizens’ privacy.
Although the Homeland Security Task Forces took possession of the Compass system when their leadership moved into OCDETF’s headquarters in suburban Virginia, the administration is still deciding how it will operate that database, officials said.
However, officials said, intelligence agencies and the Defense Department have already taken a series of technical steps to connect their networks to Compass so they can access its information if they are permitted to do so.
The White House press office did not respond to questions about how the government will manage the Compass database and whether it will remain under the control of the Homeland Security Task Forces.
The National Counterterrorism Center, under its new director, Joe Kent, has been notably forceful in seeking to manage the Compass system, several officials said. Kent, a former Army Special Forces and CIA paramilitary officer who twice ran unsuccessfully for Congress in Washington state, was previously a top aide to the national intelligence director, Tulsi Gabbard.
The FBI, DEA and other law enforcement agencies have strongly opposed the NCTC effort, the officials said. In internal discussions, they added, the law enforcement agencies have argued that it makes no sense for an intelligence agency to manage sensitive information that comes almost entirely from law enforcement.
“The NCTC has taken a very aggressive stance,” one official said. “They think the agencies should be sharing everything with them, and it should be up to them to decide what is relevant and what U.S. citizen information they shouldn’t keep.”
The FBI declined to comment in response to questions from ProPublica. A DEA spokesperson also would not discuss the agency’s actions or views on the wider sharing of its information with the intelligence community. But in a statement the spokesman added, “DEA is committed to working with our IC and law enforcement partners to ensure reliable information-sharing and strong coordination to most effectively target the designated cartels.”
Even with the Trump administration’s expanded definition of what might constitute terrorist activity, the information on terror groups accounts for only a small fraction of the records in the Compass system, current and former officials said.
The records include State Department visa records, some files of U.S. Postal Service inspectors, years of suspicious transaction reports from the Treasury Department and call records from the Bureau of Prisons.
Investigative files of the FBI, DEA and other law enforcement agencies often include information about witnesses, associates of suspects and others who have never committed any crimes, officials said.
“You have witness information, target information, bank account information,” the former OCDETF director, Thomas Padden, said in an interview. “I can’t think of a dataset that would not be a concern if it were shared without some controls. You need checks and balances, and it’s not clear to me that those are in place.”
Officials familiar with the interagency discussions said NCTC and other intelligence officials have insisted they are interested only in terror-related information and that they have electronic systems that can appropriately filter out information on U.S. persons.
But FBI and other law enforcement agencies have challenged those arguments, officials said, contending that the NCTC proposal would almost inevitably breach privacy laws and imperil sensitive case information without necessarily strengthening the fight against transnational criminals.
Already, NCTC officials have been pressing the FBI and DEA to share all the information they have on the criminal groups that have been designated as terrorist organizations, officials said.
The DEA, which had previously earned a reputation for jealously guarding its case files, authorized the transfer of at least some of those files, officials said, adding to pressure on the FBI to do the same.
Administration lawyers have argued that such information sharing is authorized by the Intelligence Reform and Terrorism Prevention Act of 2004, the law that reorganized intelligence activities after 9/11. Officials have also cited the 2001 Patriot Act, which gives law enforcement agencies power to obtain financial, communications and other information on a subject they certify as having ties to terrorism.
The central role of the NCTC in collecting and analyzing terrorism information specifically excludes “intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.” But that has not stopped Kent or his boss, intelligence director Gabbard, from stepping over red lines that their predecessors carefully avoided.
In October, Kent drew sharp criticism from the FBI after he examined files from the bureau’s ongoing investigation of the assassination of Charlie Kirk, the right-wing activist. That episode was first reported by The New York Times.
Last month, Gabbard appeared to lead a raid at which the FBI seized truckloads of 2020 presidential voting records from an election center in Fulton County, Georgia. Officials later said she was sent by Trump but did not oversee the operation.
In years past, officials said, the possibility of crossing long-settled legal boundaries on citizens’ privacy would have precipitated a flurry of high-level meetings, legal opinions and policy memos. But almost none of that internal discussion has taken place, they said.
“We had lengthy interagency meetings that involved lawyers, civil liberties, privacy and operational security types to ensure that we were being good stewards of information and not trampling all over U.S. persons’ privacy rights,” said Travers, the former NCTC director.
When administration officials abruptly moved to close down OCDETF and supplant it with the Homeland Security Task Forces network, they seemed to have little grasp of the complexities of such a transition, several people involved in the process said.
The agencies that contributed records to OCDETF were ordered to sign over their information to the task forces, but they did so without knowing if the system’s new custodians would observe the conditions under which the files were shared.
Nor were they encouraged to ask, officials said.
While both the FBI and DEA have objected to a change in the protocols, officials said smaller agencies that contributed some of their records to the OCDETF system have been “reluctant to push back too hard,” as one of them put it.
The NCTC, which faced budget cuts during the Biden administration, has been among those most eager to service the new Homeland Security Task Forces. To that end, it set up a new fusion center to promote “two-way intelligence sharing of actionable information between the intelligence community and law enforcement,” as Gabbard described it.
The expanded sharing of law enforcement and intelligence information on trafficking groups is also a key goal of the Pentagon’s new Tucson, Arizona-based Joint Interagency Task Force-Counter Cartel. In announcing the task force’s creation last month, the U.S. Northern Command said it would work with the Homeland Security Task Forces “to ensure we are sharing all intelligence between our Department of War, law enforcement and Intelligence Community partners.”
In the last months of the Biden administration, a somewhat similar proposal was put forward by the then-DEA administrator, Anne Milgram. That plan involved setting up a pair of centers where DEA, CIA and other agencies would pool information on major Mexican drug trafficking groups.
At the time, one particularly strong objection came from the Defense Department’s counternarcotics and stabilization office, officials said. The sharing of such law enforcement information with the intelligence community, an official there noted, could violate laws prohibiting the CIA from gathering intelligence on Americans inside the United States.
The Pentagon, he warned, would want no part of such a plan.
Senator Ron Wyden says that when a secret interpretation of Section 702 is eventually declassified, the American public “will be stunned” to learn what the NSA has been doing. If you’ve followed Wyden’s career, you know this is not a man prone to hyperbole — and you know his track record on these warnings is perfect.
Just last month, we wrote about the Wyden Siren — the pattern where Senator Ron Wyden sends a cryptic public signal that something terrible is happening behind the classification curtain, can’t say what it is, and then is eventually proven right. Every single time. The catalyst then was a two-sentence letter to CIA Director Ratcliffe expressing “deep concerns about CIA activities.”
Well, the siren is going off once again. This time, Wyden took to the Senate floor to deliver a lengthy speech, ostensibly about the since approved (with support of many Democrats) nomination of Joshua Rudd to lead the NSA. Wyden was protesting that nomination, but in the context of Rudd being unwilling to agree to basic constitutional limitations on NSA surveillance. But that’s just a jumping off point ahead of Section 702’s upcoming reauthorization deadline. Buried in the speech is a passage that should set off every alarm bell:
There’s another example of secret law related to Section 702, one that directly affects the privacy rights of Americans. For years, I have asked various administrations to declassify this matter. Thus far they have all refused, although I am still waiting for a response from DNI Gabbard. I strongly believe that this matter can and should be declassified and that Congress needs to debate it openly before Section 702 is reauthorized. In fact,when it is eventually declassified, the American people will be stunnedthat it took so long and that Congress has been debating this authority with insufficient information.
Here’s a sitting member of the Senate Intelligence Committee — someone with access to the classified details — is telling his colleagues and the public that there is a secret interpretation of Section 702 that “directly affects the privacy rights of Americans,” that he’s been asking multiple administrations to declassify it, that they’ve all refused, and that when it finally comes out, people will be stunned.
If you’ve followed Wyden for any amount of time, this all sounds very familiar. In 2011, Wyden warned that the government had secretly reinterpreted the PATRIOT Act to mean something entirely different from what Congress and the public understood. He couldn’t say what. Nobody believed it could be that bad. Then the Snowden revelations showed the NSA was engaged in bulk collection of essentially every American’s phone metadata. In 2017, he caught the Director of National Intelligence answering a different question than the one Wyden asked about Section 702 surveillance. The pattern repeats. The siren sounds. Years pass. And then, eventually, we find out it was worse than we imagined.
Now here he is, doing the exact same thing with Section 702 yet again, now that it’s up for renewal. Congress is weeks away from a reauthorization vote, and Wyden is explicitly telling his colleagues (not for the first time) they are preparing to vote on a law whose actual meaning is being kept secret from them as well as from the American public:
The past fifteen years have shown that, unless the Congress can have an open debate about surveillance authorities, the laws that are passed cannot be assumed to have the support of the American people. And that is fundamentally undemocratic. And, right now, the government is relying on secret law with regard to Section 702 of FISA. I’ve already mentioned the provision that was stuck into the last reauthorization bill, that could allow the government to force all sorts of people to spy on their fellow citizens. I have explained the details of how the Biden Administration chose to interpret it, and how the Trump Administration will interpret it, are a big secret. Americans have the right to be confused and angry that this is how the government and Congress choose to do business.
That’s a United States senator who has a long history of calling out secret interpretations that lead to surveillance of Americans — standing on the Senate floor and warning, once again, that there’s a secret interpretation of Section 702 authorities. One that almost certainly means mass surveillance.
And Wyden knows exactly how this plays out. He’s been through the reauthorization cycle enough times to know the playbook the intelligence community runs every time 702 is up for renewal:
I’ve been doing this a long time, so I know how this always goes. Opponents of reforming Section 702 don’t want a real debate where Members can decide for themselves which reform amendments to support. So what always happens is that a lousy reauthorization bill magically shows up a few days before the authorization expires and Members are told that there’s no time to do anything other than pass that bill and that if they vote for any amendments, the program will die and terrible things will happen and it will be all their fault.
Don’t buy into that.
He’s right. Every time reauthorization is on the table, no real debate happens, and then just before the authorization is about to run out, some loyal soldier of the surveillance brigade in Congress will scream “national security” at the top of their lungs, insist there’s no time to debate this or people will die, and then promises that we need to just re-authorize for a few more years, at which point we’ll be able to hold a debate on the surveillance.
A debate that never arrives.
But even setting aside the secret interpretation Wyden can’t discuss, his speech highlights something almost as damning: just how spectacularly the supposed “reforms” from the last reauthorization have failed. Remember, one of the big “concessions” to get the last reauthorization across the finish line was a requirement that “sensitive searches” — targeting elected officials, political candidates, journalists, and the like — would need the approval of the FBI’s Deputy Director.
This was in response to some GOP elected officials being on the receiving end of investigations during the Biden era, freaking out that the NSA appeared to be doing the very things plenty of civil society and privacy advocates had been telling them about for over a decade while they just yelled “national security” back at us.
So how are those small “reforms” working out? Here’s Wyden:
The so-called big reform was to require the approval of the Deputy FBI Director for these sensitive searches.
Until two months ago, the Deputy FBI Director was Dan Bongino. As most of my colleagues know, Mr. Bongino is a longtime conspiracy theorist who has frequently called for specious investigations of his political opponents. This is the man whom the President and the U.S. Senate put in charge of these incredibly sensitive searches. And Bongino’s replacement as Deputy Director, Andrew Bailey, is a highly partisan election denier who recently directed a raid on a Georgia election office in an effort to justify Donald Trump’s conspiracy theories. I don’t know about my colleagues, but this so-called reform makes me feel worse, not better.
So the grand reform that was supposed to provide meaningful oversight of the FBI’s most sensitive surveillance activities ended up placing that authority in the hands of a conspiracy theorist, followed by a partisan election denier. And just to make the whole thing even more farcical, Wyden notes that the FBI has refused to even keep a basic record of these searches:
But it’s even worse than it looks. The FBI has refused to even keep track of all of the sensitive searches the Deputy Director has considered. The Inspector General urged the FBI to just put this information into a simple spreadsheet and they refused to do it. That is how much the FBI does not want oversight.
They won’t maintain a spreadsheet. The Inspector General asked them to track their use of a sensitive surveillance power using what amounts to a basic Excel file, and the FBI said no. That’s the state of “reform” for Section 702 after the last re-auth.
Wyden has also been sounding the alarm about the expansion of who can be forced to spy on behalf of the government, thanks to a provision jammed into the last reauthorization that expanded the definition of “electronic communications service provider” to cover essentially anyone with access to communications equipment. As Wyden explained:
Two years ago, during the last reauthorization debacle, something really bad happened. Over in the House, existing surveillance law was changed so that the government could force anyone with “access” to communications to secretly collect those communications for the government. As I pointed out at the time, that could mean anyone installing or repairing a cable box, or anyone responsible for a wifi router. It was a jaw-dropping expansion of authorities that could end up forcing countless ordinary Americans to secretly help the government spy on their fellow citizens.
The Biden administration apparently promised to use this authority narrowly. But, of course, the Trump administration has made no such promise. As we say with every expansion of executive authority, just imagine how the worst possible president from the opposing party would use it. And now we don’t have to wonder any more.
Wyden correctly points out that secret promises from a prior administration are worth exactly nothing:
But here’s the other thing – whatever secret promise the Biden Administration made about using these vast, unchecked authorities with restraint, the current administration clearly isn’t going to feel bound by that promise. So whatever the previous administration intended to accomplish with that provision, there is absolutely nothing preventing the current administration from conscripting those cable repair and tech support men and women to secretly spy on Americans.
So to tally this up: Congress is about to vote on reauthorizing Section 702 with a secret legal interpretation that Wyden says will stun the public when it’s eventually revealed, with “reforms” that placed surveillance approval authority in the hands of conspiracy theorists who won’t even keep a spreadsheet, with a massively expanded definition of who can be forced to help the government spy, with secret promises about restraint that the current administration has no intention of honoring, and with a nominee to lead the NSA who won’t commit to following the Constitution.
The Wyden Siren is blaring. And if history is any guide — and it has been, without exception — whatever is behind the classification curtain is worse than what we can see from the outside.
We’ve been writing about Section 230 for a very long time. We’ve written about why it matters, why the people attacking it are wrong, and why most of the proposed “reforms” would make the internet dramatically worse for everyone except the already powerful. And for just about as long as we’ve been doing that, Senator Ron Wyden—who co-authored Section 230 three decades ago—has been doing the same thing, often as a lonely voice in a Senate full of colleagues who either don’t understand the law or are actively trying to destroy it.
The Communications Decency Act just turned 30, and Wyden marked the occasion with an op-ed in MSNow that lays out, clearly and forcefully, why Section 230 matters more right now than it has in years. And the piece is a must-read, because it highlights something that should be blindingly obvious to Democrats in Congress but apparently remains invisible to far too many of them: gutting Section 230 while Donald Trump is president would be handing him the pen to rewrite the rules of online speech.
As President Donald Trump and his administration wage war against free speech, it is vital that Americans have a free and open internet where they can criticize the government, share personal health information and simply live their lives without government censorship and repression. For those of us who value the ability for regular people to speak and be heard online, preserving Section 230 is one of the most consequential ways to prevent Trump and the cabal of MAGA billionaires from controlling everything Americans see and read.
Senator Dick Durbin, a Democrat, is still co-sponsoring legislation with Lindsey Graham to repeal Section 230 entirely within two years. This is beyond absurd. A senior Democratic senator is actively working to hand this administration the ability to reshape online speech liability from scratch.
In what universe does that end well?
If you need a refresher on what these senators are proposing to gut, Wyden lays it out plainly:
Section 230 is a simple law: In effect, it says the person who creates a post is the one responsible for it. Without it, goodbye retweets and reskeets, Reddit mods, Wikipedia editors and the people curating feeds on Bluesky. The ability to rapidly reshare information online is only possible because of the law.
That’s it. That’s what they want to hand Trump the power to rewrite.
And it gets worse.
Wyden highlights a category of proposal that perfectly encapsulates why building government censorship tools “for the right reasons” always backfires:
Other proposals include repealing Section 230 for posts the Health and Human Services secretary decides are medical misinformation. This was introduced in 2021 in response to the proliferation of COVID-19 misinformation, but today it would essentially give HHS Secretary Robert F. Kennedy the power to silence critics of his anti-vaccine agenda.
You might recall this one if you’re a regular Techdirt reader. Introduced by Democratic Senators Amy Klobuchar and Ben Ray Lujan, we called out how dangerous (and unconstitutional) it was back in 2021, and then reminded Senators Klobuchar and Lujan of this when RFK Jr. was first nominated to head HHS.
As Wyden notes, a bill written and supported by Democrats, designed to combat COVID misinformation by “reforming” Section 230, if it were law, would now hand Robert F. Kennedy Jr.—the most prominent anti-vaccine activist in American public life—the authority to define what constitutes medical “misinformation” online.
The person who has spent decades spreading conspiracy theories about vaccines would get to decide which health speech is acceptable on the internet. This is exactly the kind of scenario that people like us (and Wyden) have been warning about for years: the regulatory environment you create to fight the speech you don’t like today will be wielded by the people you trust least tomorrow.
Democrats like Durbin, Klobuchar, and Blumenthal spent years convinced that weakening Section 230 would force Big Tech to clean up its act. The counterargument—made by Wyden, by us, by basically everyone who actually read the law—was always the same: any power you create to shape online speech rules will eventually be used by people whose priorities look nothing like yours. That day has arrived. Those same Democrats are somehow still pushing the same bills.
So what would actually happen if they got their way? Nothing good. Wyden points to how Americans have been using platforms to document what’s actually happening with immigration enforcement:
Americans have used WhatsApp, Signal, Bluesky and TikTok to document violent, lawless activities by Immigration Customs Enforcement and Customs and Border Protection across the country. While corporate news organizations like CBS Newshave buried storiesabout Trump administration immigration abuses and are increasingly pushing disingenuous “both sides” reporting, regular Americans have helped to change public opinion with their first-hand videos of government-sanctioned violence that have spread across the internet.
That was possible because of Section 230. Take it away and you would see ICE agents bring bad faith lawsuits against those platforms, perhaps claiming that Meta helped incite anti-ICE protests or defamed them by carrying posts alleging excessive force. To understand what would be possible, just look at how police departments and Big Oil have used civil suits to try and silence their biggest critics.
This is the part that the “repeal 230” crowd never seems to grapple with. Without Section 230, the platforms hosting that content become legally vulnerable for the content their users post. And the people with the deepest pockets and the most to hide—government agencies, corporations, the powerful—are exactly the ones who would use that vulnerability to silence critics through litigation. We’ve talked about this for years. It wouldn’t be Big Tech that suffers from a 230 repeal. Big Tech can afford armies of lawyers. The people who get crushed are the small platforms, the community forums, the individual users who share and reshare information that the powerful would prefer stayed hidden.
Wyden drives this home with another relevant example:
Or look at the Jeffrey Epstein case. It took dogged journalism by the Miami Herald and activism from Epstein’s victims to keep the story alive. But without Section 230, anyone who merely shared a story or allegation about Epstein and his associates on their social media could be sued by Epstein’s deep-pocketed pals, along with the site that hosted those posts.
He also takes a moment to push back on the persistent myth that Section 230 gives Big Tech blanket immunity to do whatever it wants—a myth that has fueled much of the bipartisan rage against the law:
Critics of Section 230 often misunderstand it. The statute only protects companies when a lawsuit tries to treat a company as the speaker of the post they find offensive or harmful.
(Wyden’s right that 230 isn’t the blanket immunity its critics claim—though where courts have drawn those lines remains hotly contested, and some of us would argue several of these rulings created more problems than they solved. In fact, the fallout from some of those rulings actually serves to show why Section 230 is so important.)
Either way, none of this should be new information, given how many times it’s been litigated and explained. But apparently it bears repeating every single time this debate comes up, because the same wrong arguments keep getting trotted out by the same people who refuse to read 26 words of statute.
Wyden closes with a warning that should be required reading for every legislator contemplating a 230 “reform” bill:
Opening up Section 230, especially right now, while Trump is president, would give him the pen to rewrite online speech rules. Given his administration’s attacks on free speech, I think that would be disastrous.
It says something profoundly depressing about the state of Congress that the guy who wrote the law 30 years ago is still the one who understands it best, and that he has to keep explaining it to colleagues who should know better. Wyden has been right about this from the start. He was right when Republicans attacked Section 230 because they wanted to force platforms to carry their content. He was right when Democrats attacked it because they wanted to force platforms to remove content they didn’t like. And he’s right now, when tearing it down would hand the most speech-hostile administration in modern memory the tools to reshape online expression however it sees fit.
Happy 30th birthday, Section 230. Here’s hoping your co-author can keep his colleagues from smothering you in your sleep.
If you’ve been paying attention to surveillance and civil liberties issues over the past fifteen years, you’ve likely learned to recognize a particular pattern. Senator Ron Wyden will occasionally send a public letter that essentially says “hey, I can’t tell you what’s happening because it’s classified, but something really bad is going on and you should all be paying attention.”
A decade ago some dubbed this the Wyden Siren. And when the Wyden Siren goes off, history tells us we should listen. Because every single time he’s done this, he’s eventually been proven right.
On Tuesday, Wyden sent a remarkably short letter to CIA Director John Ratcliffe. The entire substantive content is this:
I write to alert you to a classified letter I sent you earlier today in which I express deep concerns about CIA activities.
That’s it. That’s the whole thing. “Deep concerns about CIA activities.” He can’t say what. He can’t say why. But he’s making damn sure there’s a public record that he raised the alarm.
And if he’s done that, it means something very, very, very bad is happening.
If you’re not familiar with the Wyden Siren, let me walk you through the pattern, because it’s been remarkably consistent.
Back in 2011, Wyden and Senator Mark Udall tried to warn the public that the federal government had secretly reinterpreted the PATRIOT Act to mean something entirely different from what the text actually said. They couldn’t reveal the details because they were classified, but Wyden made the situation clear:
We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says.
For a couple years, civil liberties advocates were left guessing what that secret interpretation might be. Then Ed Snowden came along and revealed the NSA’s bulk metadata collection program—the exact thing Wyden had been warning about. Apparently, one of the things that reportedly pushed Snowden to leak was watching then Director of National Intelligence, James Clapper, lie to Wyden’s face in a hearing about whether the NSA was collecting data on millions of Americans. Wyden knew the answer. Clapper lied anyway. Snowden had the proof.
In 2015, Wyden was at it again, this time warning about a secret Justice Department legal opinion related to cybersecurity legislation:
I remain very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public. This opinion, which interprets common commercial service agreements, is inconsistent with the public’s understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch.
In 2017, we wrote about the Wyden Siren going off again when Dan Coats, then Director of National Intelligence, gave an answer about Section 702 surveillance that Wyden pointed out was to a different question than the one he’d actually asked:
That was not my question. Please provide a public response to my question, as asked at the June 7, 2017, hearing.
The pattern repeats. Wyden asks a specific question about surveillance. The intelligence community answers a slightly different question in a way that technically isn’t lying but is designed to mislead. Wyden calls them out. Eventually, the truth comes out, and it’s always worse than people assumed.
It’s not just surveillance, either. Wyden has used this same approach to expose ICE illegally collecting millions of Americans’ financial records through bulk administrative subpoenas—a program that was hastily shut down the moment Wyden’s office started asking questions about it. He’s caught the government gathering push notification data from Apple and Google while forbidding those companies from telling anyone about it. He’s questioned domain seizures, the FBI’s power to look at your browsing history without a warrant, and countless other government activities that were happening in secret.
The track record here is essentially perfect. When Wyden sends a cryptic letter or asks a pointed question suggesting something concerning is happening behind the classification curtain, something concerning is absolutely happening behind the classification curtain.
So what’s happening at the CIA that has Wyden sending a two-sentence letter that amounts to “I legally cannot tell you what’s wrong, but something is very wrong”?
We don’t know yet. That’s the whole point of classification—it keeps the public in the dark about what their government is doing in their name. But Wyden’s letter is the equivalent of a fire alarm. He’s seen something. He can’t say what. But he wants there to be a record that he raised the concern.
Given the current administration’s approach to, well, everything, the possibilities are unfortunately vast. Is it about domestic surveillance? Something about current ODNI Tulsi Gabbard? International operations gone sideways? Some new interpretation of the CIA’s authorities that would make Americans’ hair stand on end if they knew about it? We’re left guessing, just like we were guessing about the PATRIOT Act’s secret interpretation back in 2011.
But here’s what we do know: Ron Wyden has been doing this for at least fifteen years. And every single time, he’s been vindicated. The secret programs were real. The abuses were real. The gap between what the public thought was happening and what was actually happening was real.
A bipartisan group of the most anti-internet Senators around have released their latest version of a plan to “sunset Section 230.” We went over this last year when they floated the same idea: they have no actual plan for how to make sure the open internet can continue. Instead, their “plan” is to put a gun to the head of the open internet and say they’re going to shoot it… unless Meta gives them a different alternative. Let’s bring back Eric Goldman’s meme:
There is no plan for how to protect speech on the internet. There’s just hostage-taking. And remarkably, the hostage-takers are saying the quiet part out loud. Here’s Senator Dick Durbin’s comment on releasing this bill:
“Children are being exploited and abused because Big Tech consistently prioritizes profits over people. Enough is enough.Sunsetting Section 230 will force Big Tech to come to the table take ownership over the harms it has wrought.And if Big Tech doesn’t, this bill will open the courtroom to victims of its platforms. Parents have been begging Congress to step in, and it’s time we do so. I’m proud to partner with Senator Graham on this effort, and we will push for it to become law,” said Durbin.
Read that bolded part again. Durbin is admitting—in a press release, for the record—that he wants Big Tech to write internet policy. He’s threatening to blow up the legal framework that allows everyday people to speak online unless Mark Zuckerberg comes to his office and tells him what laws to pass. This is Congress openly abdicating its responsibility to govern in favor of letting a handful of tech CEOs do it instead.
The problem? The people who benefit from Section 230 aren’t the big tech CEOs. They’re you. They’re me. They’re every small forum, every Discord server, every newsletter with comments, every community space online where people can actually talk to each other without first getting permission from a building full of lawyers.
They want “big tech” to come to the table, even though (as we’ve explained over and over and over again) the damage from repealing 230 is not to “big tech.” Hell, Meta has been calling for the removal of Section 230 for years.
Why? Because Meta (unlike Durbin) knows exactly what every 230 expert has been saying for years: its main benefit has fuck all to do with “big tech” and is very much about protecting you, me, and the everyday users of the internet, creating smaller spaces where they can speak, interact, build community and more.
Repealing Section 230 doesn’t hurt Meta at all. Because if you get rid of Section 230, Meta can afford the lawsuits. They have a building full of lawyers they’re already paying. They can pay them to take on the various lawsuits and win. Why will they win? Because the First Amendment is what actually protects most of the speech these dipshit Senators are mad about.
But winning on First Amendment grounds probably costs between $2 million and $5 million. Winning on 230 grounds happens at an earlier stage with much less work, and probably costs $100k. A small company can survive a few $100k lawsuits. But a few $5 million lawsuits puts them out of business.
We already know this. We can see it with the DMCA, which was always weaker than Section 230. A decade and a half ago, Veoh was poised to be a big competitor to YouTube. But it got sued. It won the lawsuit… but went out of business anyway, because the legal fees killed it before it won. And now YouTube dominates the space.
When you weaken intermediary protection laws, you help the big tech providers.
Separately, notice Durbin’s phrasing about children being exploited. Can some reporter please ask Dick Durbin to explain how removing Section 230 protects children? He won’t be able to answer, because it won’t help. Or maybe he’ll punt to Senator Graham, whose press release at least attempts an answer:
“Giant social media platforms are unregulated, immune from lawsuits and are making billions of dollars in advertising revenue off some of the most unsavory content and criminal activity imaginable.It is past time to allow those who have been harmed by these behemoths to have their day in court,”said Graham.
Day in court… for what? Most “unsavory content” is constitutionally protected speech. The rap sheet is mostly First-Amendment activity—Section-230 just spares hosting it; repeal means litigating over legal speech, one plaintiff at a time.
As for criminal activity, well, that’s a law enforcement issue, not related to Section 230. If you don’t think that criminal activity is being properly policed online, maybe that’s something you should focus on?
Section 230 gives companies the freedom to make changes to protect children. That was the entire point of it. Literally, Chris Cox and Ron Wyden wanted a structure that would create incentives for platforms to be able to protect their users (including children!) without having to face legal liability for any little mistake.
If you take away Section 230, you actually tie the hands of companies trying to protect children. Because, now, every single thing they do to try to make their site safer opens them up to legal liability. That means you no longer have trust & safety or child safety experts making decisions about what’s best: you have lawyers. Lawyers who just want to protect companies from liability.
So, what will they do? They’ll do the thing that won’t protect children (which is risky), the thing that avoids liability, which tends to be to putting your head in the sand. Avoiding knowledge gets you out of these lawsuits, because under existing distributor liability concepts, knowledge is key to holding a distributor liable.
The only benefits to killing Section 230 are (1) to the biggest tech companies who wipe out competitors, (2) to the trial lawyers who plan to get rich suing the biggest tech companies, and (3) to Donald Trump, who can use the new rules to put even more pressure on the internet to suppress speech he doesn’t like.
I know for a fact that Senator Wyden has tried to explain this to his colleagues in the Senate, and they just refuse to listen.
Reminding everyone for no particular reason that Section 230 is one of the last things standing between free speech online and Trump having control over everything you see and say on the internet
This is exactly why Techdirt needs your support. When the most powerful people in government are ignoring experts and pushing legislation based on lies, someone needs to keep explaining what’s actually happening. We’ve been doing that for over 25 years, and we’re going to keep doing it—but we need your help to make sure that continues.
Meanwhile, the actual users of the open internet—and the children Durbin claims to be protecting—come out worse off. Senator Durbin and his cosponsors (Senators Graham, Grassley, Whitehouse, Hawley, Klobuchar, Blackburn, Blumenthal, Moody, and Welch) know all this. They’ve been told all of this. Sometimes by Senator Wyden himself. But all of them (with the possible exception of Welch who I don’t know as much about) have a long and well-known history of simply hating the fact that the open internet exists.
The bill isn’t child protection, and it sure isn’t tech regulation. It’s a suicide pact drafted by people who’ve always despised an internet they don’t control. Zuckerberg gets handed the pen; we get handed the bill—and the bullet.
This is, as they say, why we can’t have nice things.
This week Senator Ron Wyden — one of the few U.S. Senators who takes public and consumer privacy seriously — attempted to pass two bills that would have expanded privacy laws that currently only apply to government employees.
S.2850, or Protecting Americans from Doxing and Political Violence Act, would have extended restrictions on the sale of government official location and behavior data to all Americans. Meanwhile, S.2851 would have extended privacy protections for federal officials and lawmakers to state officials and their staff, in addition to survivors of domestic violence and sexual assault.
“Members of Congress should not receive special treatment,” Wyden said of the effort. “Our constituents deserve protection from violence, stalking, and other criminal threats.”
“Cruz was the sole objecting senator, who claimed without evidence that Wyden’s bill could disrupt law enforcement, “such as knowing where sexual predators are living.”
A survey from U.S. News and World Report last year found that 84% of the public, across partisan ideologies, wants Congress to pass tougher privacy laws. But as we’ve noted repeatedly, our broken oligarchy is too corrupt to function, which has prevented us from passing even basic internet-era privacy protections or regulating dodgy data brokers who track your every click and movement.
The other reason the country doesn’t pass useful privacy laws is because the U.S. government has found it’s trivial to skip warrants and just buy domestic surveillance data from said data brokers. However, so can other international governments and bad actors, a national security hole in our logic that America, once again, has been too corrupt to functionally square.
That’s resulting in increasingly dangerous outcomes, and the country is absolutely begging for a modern privacy scandals that make all past scandals look like some sort of grade school picnic. When that day comes, of course, Ted Cruz (and all the industry-backed “think tankers” who claimed that having even baseline privacy protections would “stifle innovation”) will be nowhere to be found.
Late last year, eight major U.S. telecoms were the victim of a massive intrusion by Chinese hackers who managed to spy on public U.S. officials for more than a year. The “Salt Typhoon” hack was so severe, the intruders spent a year rooting around the ISP networks even after discovery. AT&T and Verizon, two of the compromised companies, apparently didn’t think it was worth informing subscribers this happened.
More recently, the U.S. federal court system (Both Case Management/Electronic Case Files and PACER) were also hacked, leveraging vulnerabilities that had been widely known since 2020. Thanks to that hack, multiple nation-state and criminal hacking groups — including those linked to Russian intelligence — stole vast troves of case data from at least a dozen district courts since at least July.
“Yet, you continue to refuse to require the federal courts to meet mandatory cybersecurity requirements and allow them to routinely ignore basic cybersecurity best practices. Federal judicial technology and cybersecurity policy is set by a committee of judges whose membership you have kept hidden from the public and who presumably have no technology expertise. The case management system used by the federal courts has been hacked multiple times, in part because the system is insecure, antiquated and expensive to operate. While the judiciary has solicited advice from leading government experts on establishing a modern, secure and efficient case management system, the judiciary thus far has ignored that advice and has made no meaningful progress towards a replacement. These serious problems in the judiciary’s approach to cybersecurity have been able to fester for decades because the judiciary covers up its own negligence, has no inspector general and repeatedly stonewalls congressional oversight. This status quo cannot continue.”
Wyden urged Roberts to appoint an “independent, public, expert review” headed by the National Academy of Sciences to examine both intrusions, repeatedly pointing out that the the judiciary has failed to even publicly acknowledge any of the longstanding problems plaguing the systems. That seems… unlikely to happen at the hands of the secretiveweird fucking zealots currently in charge.
Despite these sorts of repeated embarrassments, the second Trump administration keeps taking a hatchet to cybersecurity defenses and the regulators tasked with protection national security.
For example, the administration has effectively lobotomized the FCC, just as the agency was starting to try and hold telecoms accountable for lax security and privacy practices. Our dipshit authoritarian overlords also clumsily dismantled the Cyber Safety Review Board (CSRB), (responsible for investigating significant cybersecurity incidents). and randomly fired oodles of folks doing essential work at the Cybersecurity and Infrastructure Security Agency (CISA).
This is another lovely example of how the U.S. has steadily been consumed by incompetence and artifice. The press and government spent four straight years performatively freaking out about the privacy and security ramifications of a single app (TikTok), while our telecom networks were being historically compromised, and our court systems were plagued with cybersecurity vulnerabilities broadly known to exist since 2020.
And instead of transparently addressing these problems, passing a federal privacy law, empowering regulators and modernizing essential systems, we elevated a full-diapered former reality TV star manbaby who genuinely has zero understanding of how anything works. It’s worth repeating: if foreign adversaries were trying to destroy the U.S. from within, it’s hard to see how it would look any different.
To be sure, the DHS is just going to blow off Senator Wyden’s demands for answers, just as it has blown off congressional oversight, court orders, and pretty much the entirety of the US Constitution. (We’re all just waiting to be told we’re obligated to house National Guard troops sent by the administration to whatever state happens to be irritating him at the moment.)
Last month, Dhruv Merota of Wired reported the DHS was now adding DNA collected from migrant children to a criminal database run by the FBI (CODIS [Combined DNA Index System]) and accessible by hundreds of US law enforcement agencies. It was originally created to track dangerous and violent criminals.
Now, for reasons only explained by this administration’s blind hatred of non-white people, more than 133,000 migrant kids (ranging from teens to at least one four-year-old) are now populating a criminal database solely because their parents were undocumented migrants.
DNA is forever and this is a forever database. The government has no obligation to remove anyone from CODIS, which means migrant children are intermingling with dangerous criminals, only a search away from being presumed to be criminals by any law enforcement officer located pretty much anywhere in the United States.
The presumption is that anyone added has been, at the very least, served with criminal charges. But that’s not what happened here. That’s what Ron Wyden’s letter [PDF] makes clear, as he seeks answers he’ll probably never receive from Kristi Noem and/or the multiple immigration-focused agencies she now controls. (h/t Dell Cameron/Wired)
Lots of legitimate concerns are raised by Senator Wyden, starting with this apparent abuse of a criminal database to fill it with a bunch of non-criminal DNA samples.
The Trump administration appears to be broadly detaining individuals and collecting their DNA for permanent storage in CODIS. Reporting also suggests that 97% of noncitizens whose DNA was collected were detained under CBP’s civil authority, and not on any criminal charges.
Of that 97% of non-citizen non-criminals, more than 133,000 were minors, which is something that would normally under a normal regime make these people exempt from DNA collection efforts. Under Trump, however, anyone looking kinda like someone in need of deportation is getting added.
DHS policy states that individuals under the age of 14 are generally exempt from DNA collection, but DHS officials appear to have discretion to collect DNA in certain circumstances. The Executive Branch has not provided any justification for the permanent collection of the children’s DNA samples, or for the storage of children’s genetic information in a system originally designed to ensure public safety from violent criminals.
The end result is this: this DNA collected from migrant children will remain in CODIS forever, accessed every time a law enforcement officer seeks a DNA match from the system. While some people may think this is a victimless crime, the reality is that these kids are treated as criminal suspects during queries (because the database presumes anyone in it is a criminal). When false positives happen (and they will!), innocent children will be treated as criminal suspects despite having done nothing more than… well, being lied to by government agents.
[P]ublic reporting suggests that individuals were not aware of their DNA being collected by federal officials—many individuals thought their cheeks were swabbed by federal agents for the purposes of a COVID-19 test.
Yep, and that’s in addition to the family separation policies deployed by both Trump administrations. Immigration agents have — for several years now — made it a point to break up families, which makes it easier to get migrant kids to do what the government wants without being blocked by parents who might try to invoke their rights or otherwise discourage cooperation with (seemingly unlawful) actions by the US government.
In addition to all of the questions the public deserves answers to, Ron Wyden makes a point that will surely be lost on the fascists currently running the nation.
Governments exercising such broad discretion to involuntarily collect and retain DNA are repressive authoritarian regimes also engaging in gross human rights violations, such as genocide, ethnic cleansing, torture, and more. In fact, the U.S. Government has condemned the involuntary collection of DNA by the People’s Republic of China and has sanctioned entities engaged in this practice, yet this practice appears to be ongoing on our own soil.
Being compared to China with receipts attached is a low point for this nation. But that’s what Trump and his enablers seem to think will finally make America great: domestic surveillance, ethnic cleansing, the silencing of the media, the stripping of public funding from anything that seems remotely altruistic, and deploying the military to “police” cities and states whose the most powerful political figures oppose Trump and his actions. And every bit of info it can collect on the people living in the United States helps, even if its cheek swabs from kids who were told by federal officers they were being checked for possible infections.
