American Civil Liberties Union

Can using privacy-enhancing tools (such as Tor or a Virtual Private Network) actually expose you to warrantless surveillance by the National Security Agency? This week, the ACLU sent off four FOIA requests to federal agencies in order to try and answer this question.

To understand why we think that may be the case, we have to go back to the passage of the FISA Amendments Act (FAA) in 2008. That act was not a high-point for civil liberties or the rule of law. It included a provision giving immunity to the telecom companies that violated the law by assisting the NSA with its warrantless wiretapping program. Although the get-out-of-jail-free card given to the phone companies is the most well-known aspect to the FAA, there is much more to the law, and many other things that give privacy advocates reason to worry.

For the past year, the ACLU has been gathering information on local law enforcement agencies’ use of cell phone location tracking. (We’ve written about what we’ve learned here, here, here, here, and here.) In addition to everything we’ve discovered about location tracking itself, we’ve also learned about a number of other techniques law enforcement and the telcos can use when they work together. Sometimes the information came to light because, as with this telecom data retention chart, the information on the other techniques was mingled with the information on cell phone location tracking. Sometimes it was because law enforcement agencies misunderstood our public records requests and sent us everything they had related to telephones.

Adam Thierer of the libertarian Mercatus Center posted a thoughtful critique of my recent piece on online tracking and consumer “choice.” I wrote about a new paper on behavioral advertising and how it “demonstrates the absurdity of the position that individuals who desire privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.”

Some of the Wikileaks-fueled swirl of stories about the TrapWire program appear to have been overhyped, as my colleague Kade Crockford of the ACLU of Massachusetts noted in her excellent roundup of the story yesterday. Others writing about the program have followed suit.