South Bay legislator pushes to investigate government spying on protesters

WASHINGTON, D.C. — Rep. Anna Eshoo, D-Palo Alto, is calling on the Privacy and Civil Liberties Oversight Board to investigate the federal government’s surveillance of Black Lives Matter protests.

Eshoo, along with Sen. Ron Wyden (D-Oregon) and Rep. Bobby Rush (D-Illinois), sent a joint letter to the board last week.

“The act of protesting has played a central role in advancing civil rights in our country, and our Constitution protects the right of Americans to engage in peaceful protest unencumbered by government interference,” they wrote.

“We are, therefore, concerned that the federal government is infringing on this right, and we ask that the (PCLOB) investigate the federal government’s surveillance of recent protests, the legal authorities for that surveillance, the government’s adherence to required procedures in using surveillance equipment, and the chilling effect that federal government surveillance has had on protesters,” the letter stated.

The PCLOB is an independent and bipartisan agency within the executive branch. It was established by the 9/11 Commission Act to ensure the federal government’s efforts to prevent terrorism were balanced with the need to protect civil liberties.

Protestors across the nation took to the streets last summer to demand police reform after George Floyd, a 46-year-old Black man, was killed in police custody on May 25. Details of government surveillance soon surfaced, including reports of a Predator drone operated by U.S. Customs and Border Protection flying over protests in Minneapolis on May 29.

San Jose resident Brian Oden said he’s concerned about these reports. The 43-year-old, who attended a BLM protest in downtown San Jose, said he worries it will discourage some protestors from participating in future events.

“People won’t want to attend protests or speak-up because they will be scared,” he said.

But Oden won’t personally be deterred. As a Black man, Oden explained he fears for his life anytime a police officer approaches. He once got pulled over for making an illegal U-turn, he said, and was so terrified his entire body started shaking.

“Our message has to be spread,” he said. “…We have to keep going in order to bring change, we have to keep fighting until we get change.”

David Keating, the president of the Institute for Free Speech, told San José Spotlight law enforcement has an obligation to respect First Amendment rights, and to be transparent about its actions to lawmakers.

“History teaches us the danger of allowing government to monitor people who are exercising First Amendment rights, especially the right to criticize the government,” he said. “Many of the Supreme Court’s most important rulings for free speech arose from government efforts to identify and track its critics.”

Keating said Congress should consider passing laws to ensure the government does not take advantage of technological advances to gather “First Amendment-related intelligence” without a legitimate law enforcement purpose.

First Amendment-related intelligence, he explained, is the gathering of information or any other investigative activity which is undertaken due to a person’s beliefs, opinions, associations, or the content of the speech or expression protected by the First Amendment.

Throughout the last few months, Silicon Valley’s representatives have repeatedly voiced support for the protesters’ right to privacy.

Eshoo sent letters last summer to multiple government agencies demanding answers about the reported surveillance. The letters were signed by 21 other Democratic members of Congress, including Rep. Ro Khanna of Fremont and Rep. Zoe Lofgren of San Jose.

The letter to the FBI asked for a detailed list of every aircraft the agency had flown over protests in the United States since May 25, and whether these aircraft were equipped with any surveillance equipment, such as rangefinders, thermal imaging devices, facial recognition technology, video surveillance systems or radio frequency sensors.

Jill Tyson, an assistant director for the FBI’s Office of Congressional Affairs, wrote back and explained the violent actions of some protesters compromised the safety of others.

“The FBI is committed to identifying, apprehending, and supporting prosecutions of violent instigators who exploit legitimate, peaceful protests and engage in violations of federal law,” she wrote.

Tyson added that it would be inappropriate to disclose sensitive information about the FBI’s methods or specific operations.

During a House Judiciary Committee hearing in July, Lofgren said she was alarmed by reports the government was using cell-site simulators to collect cellphone information from protesters or others who might be nearby. The congresswoman asked Attorney General William Barr to explain what authority the government had to use these surveillance tools.

Barr said he was unable to provide details or confirm if surveillance technology was being used. He said most of the federal government’s cyber activities were generally conducted by the FBI for the purpose of detecting crime.

Lofgren argued citizens had a right to know if they were being spied on. A cell-site simulator can obtain more than basic cell phone information, she explained, it can capture the private conversations between two people.

“This really isn’t just about the demonstrators,” she said. “This is about the privacy of all Americans.”

Contact Katie King at [email protected] or follow @KatieKingCST on Twitter.