The FBI and U.S. Customs and Border Protection (CBP) have some explaining to do.

Rep. Anna Eshoo (D-Palo Alto) along with 22 of her House colleagues sent letters to the two agencies Friday demanding answers about surveillance of protesters.

Eshoo represents California’s 18th Congressional District, comprising most of Silicon Valley. In a 10-minute phone call with San Jose Inside, she said First Amendment and Fourth Amendment rights are at the heart of the matter.

The congresswoman sent an initial letter on June 9 to the FBI, CBP, the National Guard and the Drug Enforcement Administration demanding that the agencies stop surveillance of peaceful protesters around the country.

After receiving a vague response from the FBI on July 1 and a similarly unhelpful reply from the CBP a day later, 23 federal lawmakers sent a follow-up letter this morning with a long list of specific questions in hopes of getting some specific answers.

The letters came amid reports that the FBI flew an RC-26B aircraft—potentially equipped with infrared sensors, electro-optical cameras and a device that collects cell phone data—during protests in Washington, D.C. and Las Vegas in the days after the George Floyd killing at the hands of Minneapolis police.

The CBP also flew a Predator B-drone [CBP-104] over Minneapolis as protests rocked the city. The incident drew concern from civil liberties advocates who question the CBP’s role in the protests and the matter of protecting privacy and constitutional rights.

“I think Americans have a right to peacefully protest,” Eshoo said. “The Fourth Amendment prohibits illegal searches by the government, which includes protection from surveillance. Surveillance can have a chilling effect, and it certainly has on protests. The American people should not have to take proactive measures to protect themselves from their own government as they engage in peaceful demonstrations.”

Eshoo told San Jose Inside that she was none too pleased with the letters of response she received from the FBI and CBP, because “they really didn’t answer our questions.”

Among the dozens of questions asked in Friday’s follow-up letters, Eshoo and her colleagues asked: For what purpose, and under what legal authority, did the FBI conduct aerial surveillance? What policies, protocols or procedures—including privacy impact assessments—do the FBI have in regards to aerial surveillance? And what surveillance equipment did CPB-104 have on board while it flew over Minneapolis?

In light of the federal agencies flying manned and unmanned aircrafts over the protests, civil society groups have been publishing guides on how protesters can protect themselves. If peaceful protesters are identified, there is fear of retribution in the way of arrests, job firing and more, Eshoo said.

“I’ve written to them [agencies] again because their answers lacked substance,” she said. “They  didn't really answer our questions, but I will stay on them. We’re talking about our Constitution and we’re a nation of laws, thank God. But when they’re violated by our own government, we have to pursue that. And that’s exactly what i’m doing.”

Eshoo went on to say:  “For example, I received a non-response letter saying it would be inappropriate to share law enforcement information. Excuse me. Congress owns the FBI. We have a Constitution, and there has to be transparency in this. They have to come clean with what exactly took place. From their non-response letter, they just don’t want to acknowledge it, but we will keep pressing for specifics. Congress has an oversight role that is very important. Oversight is one of the most important functions to hold agencies responsible for what they do and don’t do.”

Below is a copy of the letter in full.

Dear Director Wray, General Lengyel, Acting Administrator Shea, and Acting Commissioner Morgan,

We write to you to express our deep and profound concerns that the surveillance tactics of the Federal Bureau of Investigation (FBI), the National Guard Bureau, the Drug Enforcement Administration (DEA), and Customs and Border Protection (CBP) during the recent protests across the U.S. are significantly chilling the First Amendment rights of Americans. We demand that you cease any and all surveilling of Americans engaged in peaceful protests.

George Floyd and Breonna Taylor are only the most recent cases of Black Americans who’ve been murdered by law enforcement officials in our country. We stand with the millions of Americans in hundreds of communities who are peacefully calling for transformational changes to better our nation by addressing the systemic racism and injustice embedded in our society.

The First Amendment protects the right of Americans to assemble and protest government actions. Further, the Fourth Amendment protects “[t]he right of the people to be secure in their persons … against unreasonable searches and seizures,” a restriction that applies to the agencies you lead.

While the job of law enforcement is to protect Americans, limited actions may be necessary if a demonstration turns violent. However, this authority does not grant the agencies you lead to surveil American citizens or collect vast amounts of personal information. Recent press reports indicate that:

• the FBI and National Guard flew RC-26B aircraft equipped with infrared and electrooptical cameras over Washington, D.C. and Las Vegas;

• the FBI may have flown Cessna 560 aircraft equipped with ‘dirtboxes,’ equipment that can collect cell phone location data, over Washington, D.C.;

• the CBP flew Predator drones that collected and disseminated live video feeds over Minneapolis, San Antonio, and Detroit;

• the DEA was granted broad authority to “conduct covert surveillance” over protesters responding to the death of George Floyd.

Aside from these documented examples of vast overreach of federal government surveillance in just the last 10 days, we know that federal agencies, including the ones you lead, have used other technologies to surveil Americans, such as Stingrays, which mimic cell towers to collect location, call, text, and browsing data of nearby cellular devices;  facial recognition technology;  and automated license plate readers.

Americans have a healthy fear of government surveillance that started at the founding of our country and has continued to modern times. Polls show that seven in ten Americans believe the government surveils their phone calls and emails. In November 2019, nearly two-thirds of Americans said they were concerned about how the government collects and uses data about citizens.

Government surveillance has a chilling effect. Downloads for encrypted messaging apps have spiked during recent demonstrations, 10 showing a broad concern of surveillance among protesters. As further evidence of the concerns of protesters, the following headlines have appeared in popular publications or on the websites of civil society groups over the 10 days, aiming to help Americans considering protesting protect themselves:

• Washington Post, “Your protest is being watched. Here's how to protect your privacy”

• Vice, “How to Protest Without Sacrificing Your Digital Privacy”

• The Verge, “How to secure your phone before attending a protest”

• WIRED, “How to Protest Safely in the Age of Surveillance”

• Consumer Reports, “How to Protect Phone Privacy and Security During a Protest”

• Electronic Frontier Foundation, “Surveillance Self-Defense: Attending Protests in the Age of COVID-19,”

• Project on Government Oversight, “How to Respond to Risk of Surveillance While Protesting”

Americans should not have to take proactive measures to protect themselves from government surveillance before engaging in peaceful demonstration.

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. For these reasons, we demand you cease surveilling peaceful protests immediately and permanently.

Most gratefully,

Anna G. Eshoo, Member of Congress

Bobby L. Rush, Member of Congress