American Civil Liberties Union

In the wake of the past week's revelations about the NSA's unprecedented mass surveillance of phone calls, today the ACLU filed a lawsuit charging that the program violates Americans' constitutional rights of free speech, association, and privacy.

This lawsuit comes a day after we submitted a motion to the Foreign Intelligence Surveillance Court (FISC) seeking the release of secret court opinions on the Patriot Act's Section 215, which has been interpreted to authorize this warrantless and suspicionless collection of phone records.

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.

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,

My colleague Catherine Crump testified before Congress today on location tracking and privacy, and the GPS Act that would increase legal protections for our location data. The hearing was before the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, and you can read her written testimony submitted here.

The chairman of the committee, Rep. Jim Sensenbrenner (D-Wis.), is a strong supporter of updating the law. He opened the hearing by acknowledging that the law has not kept pace with new technology—certainly a truism, and certainly true with regards to location tracking in particular, but one that is good to hear accepted as fact by powerful lawmakers.

Sensenbrenner also slammed the Justice Department for not sending a witness to the hearing. The reason, he reported, is that “it lacks a clear policy position on ECPA,” referring to the 1986 Electronic Communications Privacy Act. When Sensenbrenner was reading Catherine’s bio, which included mention of her efforts to find out how the DOJ is interpreting