Privacy SOS

The “lawful interception” fig leaf obscures real state of surveillance

Last month I wrote about how cell phone spoofing technology manufacturers are hawking their goods to police departments, advertising the secret sniffing devices as ideal for covertly monitoring protests.

We know this because a spook-tech purveyor made the mistake of being forthright about his product with the wrong person: Eric King of Privacy International. To his enormous credit, representatives of the surveillance industrial complex have called King an "Anti-lawful interception zealot blogger."

Reading those words – “lawful interception” – reminded me to write this.

I’ve been thinking about that phrase for a while. I come across it daily on the websites and promotional materials of corporations that profit off of world governments’ seemingly insatiable appetites for surveillance tools; it’s the go-to rhetorical defense when anyone raises privacy concerns about these technologies. “We are complying with all necessary state and federal laws,” the refrain goes. “These tools enable lawful interception so law enforcement can keep us safe,” and so on.

Hearing the refrain repeated ad nauseam by people who work in the billions of dollars rich (and growing) surveillance industry begs the question:

What does “lawful interception” really mean?

Unfortunately, it is a euphemism which masks an ugly reality. Our digital communications privacy law is woefully obsolete, where it hasn’t been degraded. The phrase contains the word “lawful,” which makes it sound nice, but it is a dangerous fig leaf that effectively obfuscates the nasty truth about surveillance law in the United States today.

From the federal USA Patriot Act and the FISA Amendments Act to little-known but powerful administrative subpoena statutes in states, US surveillance law presently grants government agencies wide latitude to spy on our communications without or with minimal judicial oversight. Making matters worse, the processes and even sometimes the laws themselves are shrouded in secrecy.

The most extreme example is also the most threatening. NSA whistleblowers say the agency retains all of our electronic communications, no matter who we are or what we’ve done. It's possible that the government is here playing on a technicality, enabling them to collect and store our information without warrants, while claiming it is following the law. As long as a human being never looks at our emails, they haven’t really been collected, the argument goes.

But we can't be sure about any of this because the government won't tell us how it interprets key portions of surveillance law. 

Our relationship with the government is precisely the opposite of what it should be. We know very little about it, and it knows virtually everything about us.

Known knowns, known unknowns

The lack of clarity around surveillance law notwithstanding, what we know is enough to give us serious pause when we hear surveillance technology purveyors justify their tools by claiming they are deployed only for “lawful interception.”

In a must-read article featuring ACLU privacy expert and counsel Catherine Crump, we learn that the federal government doesn’t think it needs a warrant to read our emails.

Let that sink in: The federal government doesn’t think it needs a warrant in order to read our emails.

As Crump says,

No data is more personal than email correspondence…Email is deeply personal and private. It is an unfiltered view of our thoughts and a catalog of our relationships stretching back for years. Government agents should not be allowed to troll through all of our most private correspondence without proving to a judge that they have probable cause to believe that a search will turn up evidence of a crime.

Here's something else we know:

Where it hasn't affirmatively made the law more permissive to government spies and more invasive against our personal privacy, Congress has allowed giant loopholes in electronic communications privacy law to wreak havoc on the security of our digital communications and data. In most cases, the law on the books today in the United States does not explicitly address new technologies like GPS tracking via mobile phones, license plate readers, face recognition identification schemes, or mega-databases that contain unimaginably comprehensive data profiles of each of us.

We have ample reason to believe that where the law does not explicitly prevent police from tracking us or surveiling us with new technology, the police and federal government are likely doing so without pesky judicial oversight. In the first two weeks of August the 9th Circuit Court of Appeals issued two decisions underscoring both this problem and the issue of official impunity, making both worse.

In one case on GPS tracking, the court's ruling will likely give police departments more reason to disregard Fourth Amendment considerations in the applications of cutting edge surveillance tools.

Again, Catherine Crump:

…the U.S. Court of Appeals for the Ninth Circuit issued a disappointing but fortunately narrow decision in a case involving warrantless tracking of a vehicle with a GPS device. The three-judge panel refused to exclude GPS tracking evidence under what’s known as the “good faith” exception, ruling that when the tracking took place, law enforcement agents reasonably relied on binding circuit court precedent in concluding that no warrant was necessary. The tracking happened before the Supreme Court issued its decision in United States v. Jones that GPS device tracking triggers Fourth Amendment protections….

In this most recent round of briefing in the Ninth Circuit, Mr. Pineda-Moreno argued that, after Jones, the GPS tracking evidence in his case should be thrown out, because a warrant is the constitutional minimum (the ACLU filed an amicus brief in his support). Today the Ninth Circuit disagreed, but on narrow grounds that limit the decision’s relevance for the rest of us. It held that, given the state of Ninth Circuit case law at the time Mr. Pineda-Moreno was tracked, the agents reasonably relied on binding Ninth Circuit precedent in believing it was lawful to attach a GPS device to a car without a warrant. And given that reasonable reliance, the Court held that the evidence gathered by GPS tracking could be used against Mr. Pineda-Moreno.

The court found that the evidence used to convict Mr. Pineda-Moreno was legit, even though it doesn’t stand a constitutional test according to the Supreme Court, because police believed they were obeying the law when they used the technology to warrantlessly track him. The implications of this unfortunate decision are clear: Police have been given a green light to ignore the spirit of the Fourth Amendment when using new technologies that the drafters of the Constitution could not have imagined. If it isn't explicitly covered, the police can run wild until a court or a legislature explicitly tells them to stop and get a warrant.

Another 9th Circuit Court of Appeals decision from August 2012 underscores why we should be skeptical of “lawful interception” claims — and stand ready to confront official impunity and government secrecy. EFF’s Cindy Cohn wrote on the Al Haramain warrantless wiretapping case, in which claimants sued the US government for spying on them without judicial oversight:

First, the Court ruled that Congress in passing this section of FISA created a cramped statute that, at least in section 1810, only allows a claim for redress if the government uses the information it illegally gathers, and creates no a remedy against the government for the unlawful collection of information. Apparently, when it came to granting a legal claim for damages, Congress intended to allow the government to do as much wiretapping in violation of the law as it wanted to, and only allow individuals to sue for use of the information illegally collected.  It seems unlikely that the American people believe that the line should be drawn in this strange way.

“Lawful interception” therefore means very different things to different people. To civil libertarians, it means getting a warrant to invade someone’s privacy, to look at their private communications or real-time location information. Full stop.

But to many law enforcement agencies, from your local police department all the way up to the NSA — and even to Congress and some courts — it has in most cases come to mean ignoring commonsense application of the spirit of the Fourth Amendment to new technologies wherever the law doesn’t explicitly regulate their use. It means the government can spy on us with total freedom in dark rooms scattered across our national landscape, and we don’t have an opportunity for redress unless it uses that private information against us in court. 

As Cohn wrote, it’s unlikely most people agree with that interpretation. Nonetheless, it’s the prevailing order of our time.

That may be technically "lawful", but it sure isn't right.

© 2021 ACLU of Massachusetts.