Privacy SOS

Part II. Expanding Surveillance Powers and Technology

Expanding Surveillance Powers

In the decade since 9/11, government powers of surveillance have been dramatically broadened by Congress and secret executive action. In the process, Fourth Amendment protections against unreasonable searches and seizures have been seriously undermined.patriotact

The USA PATRIOT Act, which President Bush signed into law on October 26, 2001, expanded the FBI’s authority to wiretap phones, monitor computers and have homes and offices secretly searched without a demonstration of “probable cause.” It enlarged FBI powers to issue National Security Letters (NSLs) to compel Internet service providers, banks, credit card companies, libraries and other businesses to turn over sensitive client information. Such a letter did not have to be approved by any court and included a gag provision preventing a recipient from mentioning it to anyone. With an order rubber stamped by the Foreign Intelligence Surveillance Court (FISC), the FBI could also demand “any tangible thing” from an individual or organization even if it had nothing to do with a terrorist suspect. The recipient of such an order was also gagged. This kind of surveillance has prompted some activists and journalists to ask: are technology companies becoming unofficial intelligence agencies?

Below: Watch the DemocracyNow! special report on NSLs, with a guest who was the recipient of one of the letters and was prevented from speaking about it for six years.

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see You Tube’s privacy statement on their website and Google’s privacy statement on theirs to learn more. To view the ACLU’s privacy statement, click here.

The Intelligence Authorization Act for 2004 enlarged the range of financial and other institutions that could be served with NSLs to include insurance companies, real estate agencies, casinos, car dealerships, travel agencies and the post office. In the same year, the Intelligence Reform and Terrorism Prevention Act further expanded the government’s wiretap authority and watered down the 1978 Foreign Intelligence Surveillance Act (FISA) to permit the surveillance of individuals not affiliated with known international terrorist groups. Not content with the expanded powers given to the FBI by Congress, the Justice Department changed FBI guidelines in 2002 and again in 2008 to make it easier to spy on and infiltrate lawful domestic religious, civic and political activity without any suspicion of wrongdoing.

The National Security Agency (NSA) was meanwhile doing an end run around FISA provisions that a warrant be obtained before Americans could be wiretapped. Soon after 9/11, President Bush issued a secret executive order authorizing it to conduct warrantless surveillance of Americans’ international calls and e-mails with the cooperation of the telecommunications companies. When the illegal spying came to light late in 2005, the Bush Administration insisted that it was a limited program targeting terrorists.

nsa-eagle

But subsequent revelations indicated that the NSA had access to most data communications within, entering or leaving the United States and that it had been conducting data mining on a massive scale without Congressional approval or oversight. Congress passed the FISA Amendments Act of 2008 to protect NSA officials and the telecoms from prosecution and to legalize the warrantless dragnet collection of Americans’ international communications.

NSA Image Courtesy EFF


Check out this video, the first of four parts, from DemocracyNow!: “EXCLUSIVE…Bush’s Law: Eric Lichtblau on Exposing the NSA’s Warrantless Wiretapping Program and How the White House Pressured the New York Times to Kill the Story”

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see You Tube’s privacy statement on their website and Google’s privacy statement on theirs to learn more. To view the ACLU’s privacy statement, click here.

Mass Focus: Massachusetts Court Rules on GPS Spying

DPL_V3_wireless_s_no_penMethods of surveillance change rapidly and the law has to catch up. State Police suspected Everett H. Connolly, of Cape Cod, of dealing drugs. They used traditional law enforcement techniques to gather evidence to support their theory.

But then they did something that caused controversy and a legal challenge: they secretly—but with a warrant—installed a Global Positioning Satellite (GPS) device in Connolly’s minivan, and tracked him to and from suspected drug deals. They used the GPS device to set up a sting operation during which Connolly sold drugs to an undercover cop.

Connolly challenged the legality of that tactic in the state’s highest court and lost. Writing for the unanimous court, Justice Judith Cowin argued that secretly breaking into someone’s private property to install a GPS device does not violate the ban on unreasonable search and seizure, as long as police have a warrant to plant the device.

The ruling is a mixed-bag for civil libertarians: while it allows for the use of this extreme tactic, it also provides clear rules to ensure that law enforcement proves to a judge that the tactic is necessary and that the target is likely committing criminal activity.

Image above is a GPS tracking device. Photo credit Superyalda.

© 2017 ACLU of Massachusetts.