OPINION:
During the first Trump administration, the FBI quietly spent $5 million on Pegasus, an Israeli-developed software product known generically as “zero click.”
Zero click permits the user to download the contents of another mobile or desktop device without tricking the user of that device into clicking a viral link.
When FBI Director Christopher A. Wray was confronted with evidence of this purchase in 2021, he stated under oath at a congressional hearing that his agents did not and would not use it, but they bought it because they wanted to understand how it worked. He claimed it was in storage, under lock and key, in a warehouse in New Jersey.
In 2023, not trusting his own FBI director, President Biden signed an executive order prohibiting the use of this software by any employee of the federal government except in true national security emergencies.
Last week, we learned that President Trump quietly rescinded Mr. Biden’s executive order.
We also learned last week that the infamous section 702 of the Foreign Intelligence Surveillance Act, which expires next month and which Mr. Trump once condemned when he believed it was being used against him, now has the president’s full endorsement for a legislative extension.
Here is the backstory.
After the presidential employment of the CIA and FBI to violate Americans’ privacy during the Richard Nixon administration, Congress enacted FISA, which proclaims itself to be the sole lawful way for the intelligence community to spy on Americans.
Hogwash. The sole lawful way for any government person to use the power of government to spy on anyone in the United States, American or not, is to obtain a search warrant under the Fourth Amendment.
That requires presenting probable cause of a crime to a federal judge and the judge’s issuance of a warrant permitting the surveillance. The warrant must specifically describe the places to be searched and the people or things to be seized.
FISA purports to change that by changing the nature of the evidence presented to and the warrants issued by any federal judge who sits on the FISA Court. Instead of probable cause of crime, mandated by the Fourth Amendment, FISA court judges may issue search warrants based on probable cause of communicating with a foreign person.
Instead of the Fourth Amendment’s mandated specificity requirements, FISA court judges may authorize federal agents to search where they wish in a given database and seize what they find.
One FISA court judge signed a search warrant permitting federal agents to rummage through the telephone records of all Verizon’s American customers, which at the time was 115 million households.
This search-where-you-wish-and-seize-what-you-find mantra has the earmarks of general warrants that were used by British soldiers and government agents on Colonists in prerevolutionary America. General warrants were outlawed by the Fourth Amendment, but Congress, notorious for shirking its constitutional duties, doesn’t think twice about enacting statutes that directly contravene the Constitution.
It gets worse. Section 702 of FISA permits warrantless surveillance on foreign people in the U.S. and elsewhere. This also violates the Fourth Amendment, which protects all “people” and has never been limited to Americans.
It gets worse still. Section 702 permits warrantless surveillance on all people who have communicated with foreign people, and the FISA Court has extended those permissions out to the sixth degree. Thus, if you call your cousin in Dublin or email an art dealer in Florence, the feds can surveil all your communications without a warrant, even those having nothing to do with your cousin or your art dealer.
Then they can surveil without a warrant all people with whom you communicate and all people with whom your communicants communicate, out to the sixth degree.
In 2023, the feds surveilled a database of 3 million Americans who spoke with foreign people. This surveillance, taken to the sixth degree, can exponentially swell to all 340 million Americans. Presto, the feds found a way to spy on all of us and claim it is legal.
It is not legal. Congress had no authority to enact FISA, including Section 702, and the FISA Court had no authority to expand the scope of Section 702 out to the sixth degree. When, in 2015, someone from the Trump campaign spoke to a Russian friend, the feds used Section 702 and its sixth-degree extensions to spy on Mr. Trump’s folks, including the presidential candidate himself.
When Mr. Trump learned of this, he publicly called for FISA to be scrapped. Now that he is back in the White House and has a more pliant FBI and CIA, he wants Section 702 extended.
Still, the entire FISA architecture is itself a fig leaf because of zero clicks. As horrific to personal freedom as FISA is, as inexplicable as Mr. Trump’s belated turnabout support for it is, as patently unconstitutional as warrants based on anything but probable cause of crime, all this is a subterfuge since the feds took zero click out of that New Jersey warehouse.
Zero click is profoundly unconstitutional, as it is an artificial intelligence version of computer hacking. Hacking — the unauthorized entry into another person’s electronic device, whether data is downloaded or not — is a felony, and many of the same FBI agents who use zero click on unsuspecting Americans actually investigate and help prosecute people for computer hacking. Don’t expect the feds to prosecute their own.
What’s going on here?
What’s going on is silent violence against the quintessential American right to be left alone. What’s going on is a reckless Congress, faithless to the Constitution it has sworn to uphold. What’s going on is the silent destruction of personal freedom.
Of what value is the Constitution if the people in whose hands we repose it for safekeeping can ignore it?
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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