The Federal Government Is Still Spying on You
Senator Chuck Grassley’s disclosure of “Arctic Frost” documents shows that federal surveillance on American citizens is as bad as ever.
Surveillance powers granted to the deep state allow the FBI and others to spy on Americans as a method of control. Those worried about a slip into authoritarianism must look past whomever is in the White House at any one time and see what new technology and old laws has allowed us to become.
The latest example comes from an FBI document obtained by Senate Judiciary Committee Chairman Chuck Grassley (R-IA), which reveals the FBI targeted eight Republican senators’ personal cell phones for “metadata” collection as part of its Arctic Frost investigation into the events of January 6. One Republican member of the House was also spied on. Metadata shows when and to whom a call is made. It also shows the duration of the call and the physical location for both ends of the call. It does not require a warrant. It does not require probable cause. The FBI can simply subpoena a company like Verizon or T-Mobile and demand they turn over all the metadata records they have on someone. The FBI teaches local law enforcement how to do that to spread the net.
Whistleblower disclosures to Grassley also revealed the FBI confiscated the government cell phones of President Donald Trump and former Vice President Mike Pence during its Arctic Frost investigation. The FBI was seeking to uncover links among the elected officials and people associated with January 6. The goal was to prosecute if possible. To help keep the spying secret, the document detailing this all was stored in an FBI Prohibited Access file.
Grassley’s oversight exposed the existence of Prohibited Access files, a hereto unknown system the FBI used to hide access from most of its internal staff, including the Inspector General, and Congress. Information related to the election-year Crossfire Hurricane spying on Trump associates believed to be connected to Russia was also hidden away inside Prohibited Access files. Grassley is currently seeking more files. Of particular interest are those relating to FBI Special Agent Walter Giardina, who somehow (coincidentally?) played a role in the investigation of Trump advisor Peter Navarro, as well as Arctic Frost, Crossfire Hurricane, Special Counsel Robert Mueller’s investigation of Russiagate, and the Dan Scavino, Roger Stone, and Hillary Clinton cases.
This information raises fundamental questions not only about the separation of powers, political neutrality of the FBI, and the role of congressional oversight, but also about the scope and strength of Fourth Amendment protections in the digital age. Specifically, should warrantless metadata collection be an unlawful search? What compels judicial oversight and safeguards against abuse? And how do we reconcile so-called investigative priorities with constitutional rights?
The old argument here is that the contents of the calls themselves were not accessed. This argument is hopelessly naive. It is dangerous for the FBI to collect phone metadata because such information, including who one calls, when, and for how long, can reveal deeply personal patterns of behavior, associations, and beliefs, even without the content of conversations. Metadata can expose a person’s political affiliations, medical conditions, romantic relationships, and religious practices through network analysis. (Did you call your doctor? Then your boyfriend? Then the pharmacy?) When analyzed with AI, these patterns create a behavioral map more invasive than traditional surveillance, one that enables profiling, manipulation, and coercion. The very data once dismissed as “non-content” now serves as a digital fingerprint of private life.
Metadata can also serve as an “index” for the NSA and other agencies to go back and harvest the actual contents of the calls. Metadata is one of the most powerful spying tools available to the deep state. One remembers the former FBI Director Edgar J. Hoover, who in the 1950s and 60s used spy data showing powerful people in secret relationships as a tool to influence their decision making regarding his beloved FBI. Hoover had no idea what the crude surveillance tools of his day would morph into post 9/11.
Listening in on the actual contents of conversations still requires a court-approved wiretap. Yet the collection of metadata is still warrantless. In the pre-cell phone era landmark decision Smith v. Maryland (1979), the Supreme Court held an individual does not retain a reasonable expectation of privacy when dialing numbers from their telephone because the telephone user “voluntarily conveys” those numbers to the phone company, and thus they are “not privy to an expectation of privacy” under the Fourth Amendment. That case concerned pen-trap data (dialed numbers, an olde-timey version of what is now part of metadata) not actual call content. The Court's ruling has been interpreted to apply broadly to metadata held by third parties (e.g., telephone companies, internet providers, etc.) without accounting for the fact that modern day metadata based on cellular technology reveals far more today than it did in 1979.
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A basic tension in modern Fourth Amendment doctrine is when the collection of “low-invasive” metadata becomes sufficiently revealing, pervasive, or targeted that it should trigger heightened protections akin to a “search” and thus require a warrant. Yet based on current law and practice, obtaining days of call data related to lawmakers’ political coordination in a high-stakes situation sits in the clear legally. The metadata collected during a hyper-sensitive time such as January 6 arguably could yield far more insight than the old Smith paradigm envisioned. At the very least it has a chilling effect on legislators’ free deliberation (the Constitution's speech and debate clause) and information gathering, as well as risks chilling Congress’s ability to conduct oversight of the executive branch. At the extreme are things like blackmail.
Note only GOP senators and a congressman were targets in the January 6 metadata investigation. This makes obvious the partisan weaponization of law enforcement in this case, but leaves open the idea that the tools of surveillance are available in any administration. Even if legal authority exists, the decision to use it in politically sensitive circumstances by any party risks undermining faith in impartial justice and underscores the power of the deep state to intervene in some of the more important events in our democracy. It pokes holes in the separation of the branches.
The technological and human factors constraining the gathering and processing of information in the past are gone. Many violations of the Fourth Amendment are held in check only by the goodwill of the deep state, the ultimate nightmare for the Founders. The Fourth Amendment, based on 18th century paper searches, 19th century physical searches, and pre-cellular, pre-Internet 20th century changes, must evolve through legislative reform and judicial reconsideration to ensure digital surveillance is subject to the same constitutional limits as traditional searches and stem the ever-growing power of the deep state. The elected officials swept up in the metadata investigation surrounding January 6 are just the latest canaries in the coal mine.
