Government Surveillance

Justice Department's Overreaching on Leaks Threatens Freedom of the Press

By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office at 3:54pm

A week after the Department of Justice notified the Associated Press that it had secretly seized records for more than 20 phone lines in a leak investigation, The Washington Post uncovered an overlooked search warrant in another leak case that raises similar – and perhaps more serious – constitutional concerns.

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?

Experts Discuss Surveillance Society at Domestic Drones Hearing

By Sandra Fulton, ACLU Washington Legislative Office at 5:14pm

An important Congressional subcommittee held a hearing today on domestic drone use. Members and witnesses didn't just rehash familiar concerns; they dug deeper to explore how advanced surveillance technology has become, and the real dangers of the surveillance society that it creates.

The hearing, held by the House Judiciary Committee's Subcommittee on Crime, Terrorism, Homeland Security, and Investigations began with testimony from the ACLU and three representatives from the academic community. (You can read the ACLU's complete testimony here.) While they had different ideas of what government regulation of domestic drone use should look like, the witnesses all stressed the increasing sophistication of drones, which will lead to levels of surveillance previously unseen. The testimony drove home the fact that drones are getting smaller, cheaper, and their use is about to blow 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,

The Asymmetry Between Past and Future, and Why it Means Mass Surveillance Won’t Work

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 11:39am

Former Senator Joseph Lieberman recently charged that mistakes by U.S. security agencies were responsible for failing to stop the Boston Marathon bombing. I recently wrote about how mass surveillance makes this kind of recrimination inevitable, because once a government agency spies on a person, they become in a sense responsible for any actions that that person takes. To paraphrase Colin Powell, we might sum it up as “You surveil him, you own him.”

I recently came across a good analogy for why it’s deceptively hard for security agencies to detect and stop out-of-nowhere terrorist attacks like the Boston bombing—and why mass surveillance isn’t likely to help. It comes from the book The Drunkard’s Walk: How Randomness Rules Our Lives, by the physicist and writer Leonard Mlodinow, in a discussion of Brownian motion.

Brownian motion, you may recall, is the random jiggling of molecules in a liquid or other substance. A dye molecule floating in a seemingly still glass of water will randomly move about, covering about an inch in three hours, buffeted by random collisions with the smaller water molecules that surround it.

What would it take to actually explain the motion of that molecule? This is where the parallel to anti-terrorism efforts comes in. Mlodinow points out, “In any complex string of events in which each event unfolds with some element of

VIDEO: Is Law Enforcement Reading Your Email Without a Warrant?

By Noa Yachot, Communications Strategist, ACLU at 2:38pm

The FBI doesn't think it needs a warrant to read emails and other electronic communications – despite the fact that a federal court has ruled that doing so violates the Fourth Amendment. Ben Wizner appeared today on Democracy Now! to discuss this and other ACLU revelations regarding government surveillances practices.

The ACLU this week released documents that paint a disturbing picture of the authority the government claims to access a wide range of our communications – from emails to Facebook messages and much more. These latest developments reinforce what has long been clear: it is well past time to modernize ECPA, the egregiously outdated law that governs our electronic privacy but hasn't been updated since 1986, before the World Wide Web was even invented. As Wizner said:

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

IRS Says It Will Respect 4th Amendment With Regard to Email, But Questions Remain

By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project at 4:07pm

With tax day behind us, taxpayers may soon have something else to celebrate from the IRS. In testimony before the Senate Finance Committee today, IRS Acting Commissioner Steven Miller was questioned aggressively about documents released by the ACLU last week that indicate that the IRS does not think it needs a warrant to read all emails and other electronic communications during criminal investigations. Under pressure from senators, Miller agreed to update IRS policy documents within 30 days to state that a warrant is required for access to all emails, regardless of their age.

Statistics image