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Democrats seek answers on high-tech surveillance of protesters by U.S. agencies

Lawmakers seek information about possible use by FBI, National Guard, Customs and Border Patrol of high-tech surveillance gear during recent protests

Demonstrators march on Constitution Avenue to honor George Floyd and victims of racial injustice Saturday in Washington.
Demonstrators march on Constitution Avenue to honor George Floyd and victims of racial injustice Saturday in Washington. (Tom Williams/CQ Roll Call)

Congressional Democrats are probing the possible use of high-tech surveillance tools by federal law enforcement agencies to monitor protesters at nationwide marches against police brutality.

House Democrats have in recent days sent letters to the FBI, Drug Enforcement Administration, the National Guard Bureau, Customs and Border Protection and the Defense Department seeking to understand whether authorities have deployed powerful tools like facial recognition and cell phone data-tracking against protesters.

And Sen. Edward J. Markey, D-Mass., on Monday sent a list of questions to Clearview AI, the controversial facial recognition technology company that partners with law enforcement agencies and private companies, to ensure it “will not force Americans to choose between sacrificing their rights to privacy or remaining silent in the face of injustice.”

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In a statement to CQ Roll Call, Hoan Ton-That, Clearview AI’s chief executive, said he would respond directly to Markey’s letter.

“Clearview AI’s technology is intended only for after-the-crime investigations, and not as a surveillance tool relating to protests or under any other circumstances,” Ton-That said.

The inquiries come amid weeks of mostly peaceful protests across the United States following the deaths of George Floyd, Breonna Taylor and other black Americans at the hands of police. As the protests have continued, concerns about surveillance have grown among civil liberties advocates who say the surveillance could have a chilling effect on those marching.

“It’s not good for the First Amendment and it’s not the right response to the protests,” Neema Singh Guliani, senior legislative counsel at the American Civil Liberties Union, told CQ Roll Call. “The right response is to seriously consider the issues that people are raising, not to create an environment that instills further fear in people and makes them more afraid to speak out.”

[Democrats push bigger role for courts to curb police misconduct]

In a letter to federal agencies on Tuesday, Reps. Anna G. Eshoo, D-Calif., and Bobby L. Rush, D-Ill., questioned the use of FBI and National Guard surveillance aircraft over protests in Las Vegas and Washington D.C., and CBP drones over Minneapolis, San Antonio and Detroit.

They also asked about a BuzzFeed report that said the DEA had been given authority by the Justice Department to “conduct covert surveillance” of protesters and a VICE report that an FBI plane may have deployed technology that imitates a cell phone tower to collect personal data.

Eshoo and Rush noted recent articles on tactics protesters can use to protect themselves against invasive surveillance tactics, especially those that can be used against smartphones.

“Americans should not have to take proactive measures to protect themselves from government surveillance before engaging in peaceful demonstration,” they wrote. “The fact that the agencies you lead have created an environment in which such headlines are common is, in and of itself, an indication of the chilling effect of government surveillance on law-abiding Americans.”

Eshoo and Rush, backed by 33 additional House Democrats, said the agencies should cease any surveillance practices currently in place.

Drones over Minneapolis

In a separate letter, Democrats on the House Oversight and Reform Committee asked the Homeland Security Department, which encompasses CBP, to explain why one of its drones was flying over protests in Minneapolis.

Writing to Chad Wolf, the acting secretary of Homeland Security, committee Democrats led by Chairwoman Carolyn B. Maloney, D-N.Y., asked whether the drone, which took off from Grand Forks Air Force Base and flew over protestors on May 29, recorded any video footage of the protest and, if so, how DHS plans to use it.

They also asked whether DHS or any other law enforcement officers privy to the drone’s video feeds are users of facial recognition technology. The letter also questioned whether use of the drone was legal because of limitations on CBP’s jurisdiction further than 100 miles from the U.S. border.

“This administration has undermined the First Amendment freedoms of Americans of all races who are rightfully protesting George Floyd’s killing,” they wrote. “The deployment of drones and officers to surveil protests is a gross abuse of authority and is particularly chilling when used against Americans who are protesting law enforcement brutality.”

The letter was co-signed by Democratic Reps. Jamie Raskin of Maryland, Stephen F. Lynch and Ayanna S. Pressley of Massachusetts, and Alexandria Ocasio-Cortez of New York. The members requested answers from DHS to a detailed list of questions by Friday.

Other Democrats, including House Intelligence Chairman Adam B. Schiff, D-Calif., are probing how the Defense Department may be involved in surveillance efforts.

In a letter Monday to Joseph Kernan, the Pentagon’s undersecretary for intelligence, Schiff said he is concerned military personnel may be asked to undertake “unlawful or unethical activities that could violate civil liberties and erode even further the legitimacy of, and trust in, the military and law enforcement.”

“We know that you share our reverence for the rights enshrined in the Constitution and are committed to your duty to protect Americans’ civil liberties and constitutional rights,” Schiff wrote to Kernan. “It is therefore imperative that [you] refrain from any activity that could infringe upon those rights, or even be perceived as doing so.”

Guliani, of the ACLU, said the efforts in Congress are key to understanding whether protesters are being surveilled by federal authorities. But she said Congress should curb investments in surveillance technologies that raise privacy concerns, especially in the hands of police.

“We have to get a handle on what has become an increasingly well-funded, out-of-control surveillance infrastructure where we’ve deployed a variety of technologies, often without transparency,” she said. “We’re seeing the result of that, which is use of these technologies in contexts where they’re raising significant First Amendment concerns.”

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