Free Future

Following Texas’s Lead on Location Tracking

By Allie Bohm, Advocacy & Policy Strategist, ACLU at 4:21pm

Yesterday, the Texas House of Representatives passed the first bill in the nation that would require law enforcement to obtain a probable cause warrant before tracking individuals’ location by collecting their cell phone location data. As Rebecca Robertson, legal and policy director for the ACLU of Texas put it, “By approving this amendment, our legislators would take a significant step to preserve the Fourth Amendment rights of Texas citizens, protecting them from potential unreasonable searches and seizures that could take place entirely outside judicial review.” They would also set a precedent that the rest of the country should be quick to follow.

AP Phone Records Scandal Highlights a Broader Problem: Lack of Checks and Balances on Government Access to Records

By Patrick C. Toomey, Fellow, ACLU National Security Project at 11:36am

Last week we learned that the Department of Justice, in an unprecedented intrusion on the work of journalists, had obtained records for twenty telephone numbers belonging to the Associated Press or its reporters, spanning April and May 2012. The telephone records obtained do not include the content of phone calls, but they likely reveal the phone number of each and every caller on those lines for a period of weeks and, therefore, the identity of scores of confidential media sources.

The seizure of these records came to light only because the government has a special set of guidelines that require it to notify any media organization of a subpoena for its records within (at most) 90 days. The AP appears to have learned of the seizure of its phone records, albeit after the fact, only because of this special policy.

The notice given to the AP has generated a healthy debate over the limits on the government’s authority to acquire our telephone and internet records. But what if you aren’t a media organization and, therefore, do not benefit from the special government policy entitling you to notice when the government obtains your telephone or internet records? What information can the government get about you, and is it even required to tell you when it does so?

"Drones" vs "UAVs" -- What's Behind A Name?

Representatives of the drone industry and other drone boosters often make a point of saying they don’t like to use the word “drones.” When my colleague Catherine Crump and I were writing our drones report in 2011, we talked over what terminology we should use, and decided that since our job was to communicate, we should use the term that people would most clearly and directly understand. That word is “drones.”

Drone proponents would prefer that everyone use the term “UAV,” for Unmanned Aerial Vehicle, or “UAS,” for Unmanned Aerial System (“system” in order to encompass the entirety of the vehicle that flies, the ground-based controller, and the communications connection that connects the two). These acronyms are technical, bland, and bureaucratic. That’s probably their principal advantage from the point of view of those who want to separate them from the ugly, bloody, and controversial uses to which they’ve been put by the CIA and U.S. military overseas.

I suppose there is a case to be made that domestic drones are a different thing from overseas combat drones. Certainly, there’s a wide gulf separating a $17 million Reaper drone armed with Hellfire missiles and a hand-launched hobbyist craft buzzing around somebody’s back yard. But drone proponents themselves would be the first to say that drones are a tool—one that can be used for many different purposes. They can be used for fun, photography, science, surveillance, and yes, raining death upon people with the touch of a button from across the world. Even the overseas military uses of drones vary, including not just targeted killing but also surveillance and logistics.

Putting aside well-founded fears that even domestically we may someday see the deployment of weaponized drones, in the end, the difference between overseas and domestic drones is a difference in how the same tool is used. Regardless of whether you’ve got a Predator, a Reaper, a police craft, or a $150 backyard hobby rotorcraft, that tool is what it is. What it is is a drone.

I can’t touch on this subject without quoting from George Orwell’s famous essay “Politics and the English Language,” in which Orwell argued that bland and needlessly complicated language was a political act—a symptom of attempts to cover up

What the Government Says When It Says Nothing

By Bennett Stein, ACLU Speech, Privacy and Technology Project at 1:36pm

On May 8, the ACLU released a slew of government documents obtained from the FBI, U.S. Attorneys' offices around the country, and the Justice Department's Criminal Division concerning the government's access to the contents of private electronic communications. The media has seized upon one of those documents, an undated memo titled, "Guidance for the Minimization of Text Messages over Dual-Function Cellular Telephones." This memo may show that the Criminal Division is doing nothing at all to avoid reading our text messages; it may show great procedures in place to safeguard the privacy our text messages; or, likely, it may have nothing to do with either of those predictions. The public does not know because the Justice Department put a large black box over every word following the header of the 15-page memo.

Federal Judge: Only Powered-Off Cell Phones Deserve Privacy Protections

By Chris Soghoian, Principal Technologist and Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 11:27am

A federal magistrate judge in New York recently ruled that cell phone location data deserves no protection under the Fourth Amendment and that accordingly, the government can engage in real-time location surveillance without a search warrant. In an opinion straight from the Twilight Zone, magistrate judge Gary Brown ruled two weeks ago that “cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”

The case in question involved a physician who the DEA believed had issued thousands of prescriptions for pain killers in exchange for cash. In March of this year, the DEA had obtained a warrant for his arrest, and,

How Social Networks Short-Circuit Our Inborn Privacy Intuitions

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 12:58pm

A few years ago, one of our ACLU state affiliates received a request for help from a man who had set up a marijuana grow operation in his home. He was apparently quite proud of what he built, because he bragged about it not only to his friends, but also to his Facebook “Friends.” Unfortunately, one of his Friends was Friends with a police officer a thousand miles away in Florida. That police officer called up his colleagues in

Court Ruling Gives FBI Too Much Leeway on Surveillance Technology

By Linda Lye, Staff Attorney, ACLU of Northern California at 5:09pm

Today, a federal district judge in Arizona issued a very disappointing decision concerning the government’s obligations to be candid with courts about new technologies they are seeking a warrant to use.

The case involves Daniel Rigmaiden, who is being criminally prosecuted for an alleged electronic tax fraud scheme. The government used a surveillance device known as a stingray to locate Mr. Rigmaiden. A stingray operates by simulating a cell tower and tricking all wireless devices on the same network in the immediate vicinity to communicate with it, as though it were the carrier’s cell tower. In order to locate a suspect, a stingray scoops up information not only of the suspect, but all third parties on the same network in the area. This means that when the government uses a stingray to conduct a search, it is searching not only the suspect, but also tens or hundreds of third parties who have nothing to do with the matter. When the FBI sought court permission to use the device to locate Mr. Rigmaiden, it didn’t explain the full reach of stingrays to the court.

The ACLU and the Electronic Frontier Foundation filed an amicus brief arguing that when the government wants to use

FBI Documents Suggest Feds Read Emails Without a Warrant

By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project at 10:31am

New documents from the FBI and U.S. Attorneys’ offices paint a troubling picture of the government’s email surveillance practices. Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content (you can see the documents here).

Last month, in response to a Freedom of Information Act request, the ACLU received IRS documents indicating that the agency’s criminal investigative arm doesn’t always get a warrant to read Americans’ emails. Today we are releasing these additional documents from other federal law enforcement agencies, reinforcing the urgent need for Congress to protect our privacy by updating the laws that cover electronic communications.

The FBI and Electronic Communications: Where’s the Warrant?

The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t.

In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. But that decision only applies in the four states covered by the Sixth Circuit, so we filed our FOIA request to find out whether the FBI

Homeland Security, May I Earn a Living?

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 4:43pm

One of the things in play in the current wrangling over immigration reform is whether we will see the E-Verify work authorization program expanded nationwide and made mandatory. We’ve just put out a white paper summarizing “The 10 big Problems With E-Verify.”

Overall, E-Verify represents a move toward the creation of a “Mother may I” or “permission society” in the United States. In an attempt to stop the tiny percentage of those starting jobs in the United States each year who are unauthorized workers, E-Verify would force everyone to obtain affirmative permission from government bureaucracies before engaging in the core life functions of working and earning a living. That not only inverts the relationship between the individual and government, but will lead to a number of other serious problems, which we set forth in the paper.

The Privacy-Invading Potential of Eye Tracking Technology

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 9:42am

Eye tracking technology received new attention recently due to its inclusion in the Samsung Galaxy IV phone, where it can (with mixed results, according to reviewers) let users scroll the screen with their eyes or dim the screen when they look away. Clearly this is a technology that has the potential for a lot of clever applications. But what are the privacy implications?

Eye tracking for research was used for over a century before computers (see the quick history outlined in this article). The earliest research, in the 19th century, actually involved direct mechanical contact with the cornea. Already by 1898, researchers were discovering some really cool phenomena of the human brain. Motion pictures were applied to the problem as early as 1905, and the first head-mounted eye-tracker was developed in 1948, which freed study subjects from having to keep their heads still. In the mid-1970s the first remote trackers were developed that were truly unobtrusive to the subject. By then, research and writing based on eye tracking was booming, not only on the part of psychologists but also the military.