American Civil Liberties Union

Justice Department documents released today by the ACLU reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability.

The documents, handed over by the government only after months of litigation, are the attorney general’s 2010 and 2011 reports on the use of “pen register” and “trap and trace” surveillance powers. The reports show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications. The revelations underscore the importance of regulating and overseeing the government’s surveillance power.  (Our original Freedom of Information Act request and our legal complaint are online.)

Updated 6/14/13

We’re currently seeing an unprecedented surge of activity in state legislatures across the country aimed at regulating domestic surveillance drones. (My colleagues Jay Stanley and Catherine Crump have this recent piece detailing the trend.) Working closely with our lobbyists in state capitols around the country, we have been tracking this activity and working hard to make sure these privacy-protective bills become law. The chart below shows the current status of state legislation as we understand it. We will update this as we receive new information.

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

Court rulings unsealed last week in Washington show for the first time a behind-the-scenes legal battle over when the government should have to tell you that it's tracking your location and reading your email. These documents—which came to light only as the public learned more about the government's controversial investigation of Fox News journalist James Rosen—reveal significant new details about the government's obligation to provide notice, after the fact, when it obtains geolocation data or obtains stored email messages. Indeed, the court orders bring to light a striking contrast: federal prosecutors in Washington routinely provide notice to individuals they track using cell-phone geolocation data, even if that notice is delayed, yet the government strenuously resists giving any notice to individuals when searching and reading their emails.