If the Government Spied on You, How Would You Know?

How would you know if the federal government had been electronically spying on you? Short answer: You probably wouldn’t.

Today, the ACLU sued the Justice Department to find out more about the circumstances under which the government thinks it can spy on Americans without telling them. This challenge seeks important information about a spying statute whose renewal is currently up for debate in Congress.

The answer to the question above should be simple: When the government invades your privacy — whether by searching your home, your car, your emails, or anything else — it should give you notice of that intrusion unless it has a compelling reason for delay. You see it on television all the time: When the police search a house, they show a warrant or leave one behind at the scene. The individual whose privacy is at stake knows there was a search and what was taken. This isn’t just to amp up drama — it’s a constitutional requirement.

Call For Surveillance Reform 

If the government never told you that it had spied on you, you’d never be able to challenge the search or stop it from happening again. You’d be stuck essentially having to trust that if the government searched your emails or other belongings, it had good reason to and was acting lawfully.

It’s worth noting, however, that the federal government has a long history of abusing its surveillance powers. And as the amount of digital data has expanded, the amount of surveillance has exploded, too. So has the secrecy and the absence of accountability surrounding electronic searches. These searches are conducted under various laws, but they have one thing in common: Individuals rarely find out that their private emails, internet chats, or documents stored in the cloud have been searched. (Some companies strive to inform their customers when the government demands private data, but very often the companies that receive these demands are gagged from saying anything.)

One example of this notice problem involves Section 702 of the Foreign Intelligence Surveillance Act — a controversial spying law scheduled to expire in December. Under Section 702, the government secretly obtains hundreds of millions of communications each year — including countless emails and phone calls involving Americans — all without a warrant. Yet the government is required to tell individuals that it has spied on them under Section 702 only in very limited circumstances: when the government intends to use evidence that was gathered with the help of such a search in a criminal trial or other legal proceeding.

The vast majority of Americans surveilled under Section 702 will never be criminally prosecuted, so they will never know that the government has been secretly watching them. And without definitive proof that the government spied on them, individuals have an incredibly difficult time challenging the government’s spying in court.

While those who are eventually charged and brought to trial are supposed to have a chance to challenge the government’s surveillance, only a handful of criminal defendants have ever received notice as the statute requires. It’s unlikely that the government isn’t using evidence obtained with the help of Section 702 in criminal investigations and prosecutions. For example, the FBI has said that it routinely combs through its vast Section 702 databases when conducting both national security and ordinary criminal investigations.

The problem may be, instead, that the government is interpreting its duty to give notice far too narrowly — in order to avoid disclosing the spying in criminal cases. We’ve seen this kind of problem before. For five years up until 2013, the Justice Department unlawfully withheld notice of Section 702 surveillance from criminal defendants in every single case. The government eventually changed its notice policy under public pressure. But its new policy remains secret to this day, meaning neither the public nor courts can tell whether the government is providing notice as the law requires.

That brings us to our new FOIA lawsuit. The Justice Department confirmed in response to a FOIA request filed by the ACLU that, late last year, it distributed a 31-page memorandum describing its new policy — which affects both criminal and foreign-intelligence wiretaps — to federal prosecutors. The government, however, refused to release any portion of this memorandum. So we’re suing to get it.

It’s all the more important for the public to know how the government is providing notice of its spying activities because Section 702 of FISA is set to expire this year. As Congress debates whether to reauthorize the statute, information about how the Justice Department interprets its legal obligations is necessary for Congress and the public to have an informed debate about the merits of the law.

For that, it would help to know if the government is obeying it.

View comments (50)
Read the Terms of Use

Anonymous

Wow, this is hilarious and I needed this right now, thank you for the 13-year-old humor.

Anonymous

Campaign Finance Reform is a big part of this problem - lawmakers and judges are full-time employees of big business. Voters are merely their part-time gig - receiving less attention.

Anonymous

Maybe the worst violation of Title 18 Criminal Code "pattern & practice" crimes is "employment tampering" where the federal government essentially deputizes state and local governments. The ACLU should demand a special prosecutor to indict some, not all, rogue FBI agents, homeland officials and contractors at the federal, state and local levels. Henrico County, Virginia would be a great place for honest prosecutors to start.

Anonymous

These pieces of garbage continue there same harassment that has been going on for almost 10 years now here in Boise Idaho. Gang stalking is probably the best term to use but suffice to say "law enforcement and the wacked out "fusion center" are as much involved as the military and in many regards a large Mormon population as well. I recognize many of them because I've lived here so long (35 years) and what they have done regarding my jobs and constant harassment is so far out of bounds that they could all easily be convicted and tried in a public court of opinion for "cruel and unusual punishment". The Mormons are one of the best kept secrets that the government is using and has used to work at the NSA, and there new spy center just outside of BYU. Anyone who could believe the crap they believe is certainly capable of a good brain washing and the government certainly wasted no time in building them the gigantic spy center in Bluffsdale Utah. Google targeted individuals and read about poor Maynard May, the New Mexico prosecutor who was so hounded that he finally lost his mind and went crazy in a Florida University library. I'm sure you've all read the story. This is a carryover from the wicked CIA's MKultra days and the FBI's cointelpro days. The military is equally involved along with law enforcement and there "Johnny come lately Fusion centers". If America does not put these tyrants to rest, Nazi Germany will owe the U.S an apology one day.

Anonymous

Omg This true about the Mormons...I have been ganged stalk for year in salt lake..My eyes are open this is nothing short of Nazi Germany. ..It is do hard to prove because its behind the scenes and not tangible. .But its real and evil...If you ever been in the web of corruption of the abuse of the government you will understand. .But the mormon church is one a the biggest abusive organization of surveillance and stalking and harassing behind the scenes..Be afraid be very afraid they will try and convince people your certified crazy while they try to drive you there...This must be exposed...It dark and its only going to get darker

Anonymous

However many people and obvisouly you believe that all mormons are bad is not true there are 2 different branches of the mormon church the cult which is the one that kills people and spies on people but there is also a good version true Mormons believe Jesus Christ is literally the Son of God, the Savior and Redeemer, who died for the sins of humankind and rose from the dead on the third day with an immortal body. God, the Father, also has an immortal body.

Brian

I have been followed for the last year. They have successfully come between myself, brother and some of my children. These individuals follow me from state to state and have made it impossible for me to even go back to my home state. They have denied me housing which I have proof and worked to keep me homeless so they can control me and my whereabouts. They have bugged my last apartment, my car and i know my cell phone. At what was at one time my closest allie does not speak to me. The only blemish on my record was a reckless driving ticket 30 years ago. Other family members who have always supported me and I them, now ask me the strangest questions. I have been hospital twice with exhaustion and those who once texted and called no longer do. There are no outstanding warrants and as i type a surveillance plane flies directly overhead to locate me. If they think ive commited a crime arrest me and lets get on with it, but no they are trying to break me down and destroy my life. Does this sound familiar to anyone else..

Anonymous

Brian- yes. I am being gangstalked and they have convinced everyone around me that i am either a criminal or mentally insane... Neither of which, I am. And through their inability to have me labeled as such, they constantly harrass me. What would be the point of gathering information with surveillance in order to drive me crazy? If thry think I've committed a crime to which they cannot prove? That would be the only thing I can think of. But even still, that is not a good enough reason, in my eyes, to constantly surveill and harrass a parent and her children. And yes... My children are gangstalked as well. I just wish someone would get on with whatever it is theyre trying to do... But they cant because then they would have to admit to illegal surveillance and all of the other illegal things that have been done against me and my kids. Too many things to list here!!

Anonymous

Sounds to me it's government corruption at it's best. It also looks and feels like the American people have had all they can take. History and our events tells us of instances where The People have had to take back there Government when the corruption runs so deep.

Monique white

Absolutely correct!

Pages

Stay Informed