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 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so we filed our FOIA request to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant. Distressingly, the FBI appears to think the Fourth Amendment’s warrant requirement doesn’t always apply.
IMHO this is a sad day. Clearly this administration has no more regard for civil protections and limits to surveillance than George Bush on a bad day. For all that has gone better with this administration, this rather large wart on his legacy will remain regardless of the outcome of medical reform or the economy.
A divided Supreme Court halted a legal challenge Tuesday to a once-secret warrantless surveillance project that gobbles up Americans’ electronic communications, a program that Congress eventually legalized in 2008 and again in 2012.
The 5-4 decision (.pdf) by Justice Samuel Alito was a clear victory for the President Barack Obama administration, which like its predecessor, argued that government wiretapping laws cannot be challenged in court. What’s more, the outcome marks the first time the Supreme Court decided any case touching on the eavesdropping program that was secretly employed in the wake of 9/11 by the President George W. Bush administration, and eventually codified into law twice by Congress.
A high court majority concluded that, because the eavesdropping is done secretly, the American Civil Liberties Union, journalists and human-rights groups that sued to nullify the law have no legal standing to sue — because they have no evidence they are being targeted by the FISA Amendments Act. Some of the plaintiffs, which the court labeled “respondents,” are also journalists and among other things claimed the 2008 legislation has chilled their speech and violated their Fourth Amendment privacy rights.
In dissent, Justice Stephen Breyer said standing should have been granted. He said that the spying, “Indeed it is a s likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”
In August, the agency that oversees the San Francisco area transit system became the first government agency in the nation to block electronic communications in order to quell social unrest. Now, it has approved a policy that authorizes police to turn off wireless communications in train stations, but only for extraordinary threats.
The policy approved unanimously by the Bay Area Rapid Transit Board of Directors limits blackouts to cases in which train passengers, employees or property are threatened or a substantial disruption to train service is possible.
According to the BART website, temporary interruption can be implemented when BART “…determines that there is strong evidence of imminent unlawful activity that threatens the safety of District passengers, employees and other members of the public…”. It provides the following examples: “…evidence of use of cell phones as instrumentalities in explosives; to facilitate violent criminal activity or endanger District passengers…”
Officials crafted the policy after BART was criticized for cutting cellphone and wireless data service in San Francisco subway stations to thwart a planned protest in August. The action led to outcry by free speech activists and motivated a cyber-attack by the hacker collective Anonymous.
“The intent of this cell phone interruption policy is to balance free speech rights with legitimate public safety concerns,” BART Board President Bob Franklin said on the agency’s website. “This policy, with input from the Federal Communications Commission, and the American Civil Liberties Union, will serve as a pioneering model for our nation, as a reference to other public agencies that will inevitably face similar dilemmas in the future. “
Spying Online: ‘Even if the war on terrorism ends, the surveillance infrastructure it spawned is likely to remain in place for d
Back in the day, when bad guys used telephones, the FBI and other law enforcement agencies would listen in with wiretaps. As long as phone companies cooperated—and they had to, by law—it was a relatively straightforward process. The Internet, however, separated providers of communications services—Skype, Facebook, Gmail—from those running the underlying infrastructure. Thus, even if the FBI obtains a suspect’s traffic data from their Internet service provider (ISP)—Comcast, Verizon, etc.—it may be difficult to make sense of it, especially if the suspect has been using encrypted services. This loophole has not been lost on child pornographers, drug traffickers, terrorists, and others who prize secret communications.
To catch up with the new technologies of malfeasance, FBI director Robert Mueller traveled to Silicon Valley last November to persuade technology companies to build “backdoors” into their products. If Mueller’s wish were granted, the FBI would gain undetected real-time access to suspects’ Skype calls, Facebook chats, and other online communications—and in “clear text,” the industry lingo for unencrypted data. Backdoors, in other words, would make the Internet—and especially its burgeoning social media sector—“wiretappable.”
The FBI’s plans have left civil libertarians and privacy advocates worried. The backdoors, they say, would make surveillance too easy and might result in over-collection of personal data. Companies in Silicon Valley are worried, too. Complying with demands for backdoors, they say, is costly, thus burdensome for startups, thus a limit on innovation.
Thoughtful proponents of backdoors acknowledge these concerns, but argue that security may trump the value of privacy and innovation. Strong bipartisan congressional support for renewing the surveillance-enabling Patriot Act suggests those proponents might have powerful allies.
But do backdoors actually boost security? Susan Landau, formerly an engineer with Sun Microsystems, thinks not. In her new book, Surveillance or Security?, she argues that Mueller’s plan actually would create greater insecurity. While she agrees that law enforcement agents may have a legitimate need to listen to some electronic communications, she believe backdoors are the wrong strategy, and law enforcement should instead explore opportunities for surveillance afforded by cell phones and social networking.
But in the end, the issue may be moot: backdoors and sophisticated new surveillance tools may both be unnecessary for the purposes of acquiring information. By routinely giving away a huge amount of personal data, everyday Internet users might already have become law enforcement’s greatest ally…