How the Biden Administration Could Step Up Warrantless Spying on Americans by Using Private Firms

US federal agencies such as the Department of Homeland Security (DHS) and the FBI, are limited in how they can monitor citizens online without a warrant, while the CIA and NSA are restricted in the collection of intelligence information domestically, explains CNN. Moreover, they are strictly prohibited from assuming false identities to access private messaging apps used by "extremist groups such as the Proud Boys or Oath Keepers," CNN notes. To that end, federal authorities are mulling the hiring of outside entities which could "legally" infiltrate these private groups to gather vast amounts of information, as a source familiar with the effort told the broadcaster.

Private Contractors to Spy on Americans

"The DHS will use the new workers to infiltrate organisations and spy on them from the inside, while also collecting electronic information relating to their activities," notes Philip Giraldi, a former CIA counter-terrorism specialist and military intelligence officer. "That intelligence will then be used by the Justice Department to go after the groups legally in an attempt to break them up and imprison their leaders."

​Using private contractors is not new for federal agencies, according to the CIA veteran. After 9/11, the CIA consisted of 30% contractors, while at the Pentagon those numbers have been similar.

"The danger is, of course, that the so-called war on domestic terror will become a mechanism for systematically violating the rights of all American citizens," he highlights.

There is no guarantee that a private contractors' assessment would be accurate, that the bureau would separate wheat from chaff and that the DOJ would rein everybody in, according to Giraldi.

One glaring example is ex-MI6 agent Christopher Steele's "dirty" dossier on Donald Trump and his campaign which alleged collusion with Russia. The research was partly funded by the FBI which later used the uncorroborated dossier to obtain a FISA warrant to spy on a Trump aide, Carter Page. In December 2020, the DOJ acknowledged that it lacked probable cause to surveil Page in at least two of four warrant applications but several years ago turned a blind eye to that.

In addition to this, one can no longer trust the federal intelligence agencies and their proxies to obey the rules in their investigations given that the recent FISA Court review has indicated that the FBI and NSA continues warrantless spying on Americans, the CIA veteran states.

​"The FBI is out of control and is not being held to account," echoes Larry C. Johnson, former CIA analyst and ex-State Department Office of Counterterrorism official. "The reality is that the internet has created a wealth of information that previously was only accessible by intelligence organisations. Now, private companies can do more prying and spying than the CIA and the NSA."

'Come Back With a Warrant'

In 2013, former NSA contractor Edward Snowden blew the whistle on the mass surveillance of American citizens. In September 2020, the US Court of Appeals for the Ninth Circuit ruled that the programme described by Snowden violated the Foreign Intelligence Surveillance Act and may have been unconstitutional. Under the Fourth Amendment, US citizens are protected against warrantless searches and seizures. The amendment also stipulates that the warrant could be issued only upon probable cause.

Commenting on the CNN report, Snowden tweeted: "CNN says the White House is discussing a new plan to expand domestic, warrantless surveillance of Americans - by paying private companies to infiltrate and report on the private social media groups of those it categorises as 'suspected extremists'."

When asked: "What if they actually are extremists, Ed?" the former NSA contractor responded: "Well, a previous group of extremists gathered in 1776 to contemplate that issue and arrived at a solution that seemed okay for the previous two hundred some years: 'Come back with a warrant'."

Thomas L. Knapp, a director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism, casts doubt on CNN's assumption that infiltrating private groups under false identity by private contractors would be a legal activity. He argues in his op-ed that such activities are prohibited under the Computer Fraud and Abuse Act.

According to Knapp, partnering with an entity that gathers information in that way "is no different than the government partnering with a burglar to find out what you have in your house without the bother of convincing a judge there’s probable cause to issue a search warrant." The analyst insists that those contractors who are doing a job for the government "should be held to the same standards and limits as the government."

Does 'Domestic Terrorist' Mean 'White Supremacist'?

The CNN report comes as federal authorities continue to push reports of the domestic terrorism threat allegedly posed by 'white supremacists' emboldened by the 6 January Capitol breach.

Describing the extremists in question, CNN specifically refers to the Proud Boys. However, despite the demonization of the group in the media, only one, William Chrestman, had a weapon during the deadly 6 January attack, a wooden ax handle, writes political commentator Julie Kelly, citing a grand jury indictment. Chrestman is not accused of using the weapon in the charges against him.

Following the breach, House Dems introduced the Domestic Terrorism Prevention Act (DTPA). A problem that some had with the legislation was that it specifically targeted "white supremacists" and groups related to the 6 January DC insurrection, described as "Donald Trump supporters," according to American attorney Andrew McCarthy. At the same time, the bill did not specifically mention jihadists and left-wing extremists. The legislation was "not about countering terrorism" but "weaving a political narrative," the lawyer believes.

Over the past year, most of the chaotic violence and homicides have had nothing to do with the aforementioned "white supremacists," notes Giraldi, adding that looting, arson and rioting by antifa and Black Lives Matter militants was far more noticeable.

​Nevertheless, on 4 May, US Attorney General Merrick Garland warned the House Appropriations subcommittee about the growing challenge of domestic violent extremism and domestic terrorism, adding that "both of those keep [him] up at night."

Garland requested "increases of $45 million for FBI domestic terrorism investigation and $40 million to US attorneys to manage increasing domestic terrorism caseloads."

US President Joe Biden proposed allocating $131 million for the DHS "to support diverse, innovative, and community-driven methods to prevent domestic terrorism while respecting civil rights and liberties" and $20 million for grants "to build local capacity to prevent targeted violence and all forms of terrorism."

"No matter who does the investigations, government or contractors, there will be plenty of false leads driven by the White House desire to 'get' the white supremacists," says Giraldi. "The result of an enhanced domestic terrorism war, no matter who does the work on the ground, will be to give the federal government more power that contradicts the rights guaranteed by the US Constitution."