News & Commentary

During the long, hard fight to bring the outdated Electronic Communications Privacy Act (ECPA) into the 21st century, advocates have run into the most unlikely of opponents: the Securities and Exchange Commission (SEC). Yes, the SEC—the agency charged with regulating the securities industry—has brought the ECPA update to a screeching halt. Yesterday the ACLU, along with the Heritage Foundation, Americans for Tax Reform and the Center for Democracy and Technology, sent the agency a letter calling them out on their opposition.

In the wake of the NSA revelations, there has been an avalanche of state bills requiring law enforcement to obtain a probable cause warrant before tracking an individual’s location in an investigation. Most state legislators know they can’t control the NSA—but they can control their state and local law enforcement, which are engaging in some of the same invasive practices. The trend actually started in the wake of the ACLU’s nationwide public records requests on location tracking and the 2013 U.S. v. Jones decision, when Montana and Maine enacted the first two location tracking laws in the country—the recent revelations have simply increased the momentum.
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At a panel in Toronto recently I was asked whether I thought the United States had become a “surveillance state.” How to answer that question? At first glance it’s an impossibly fuzzy question, the answer to which is relative depending on whether one has in mind life in an 18th century American town, or the Stasi. At the same time, if we can impose some structure on how we approach the question, it is an opportunity to take stock of where we stand—probably a healthy exercise.

On Monday, Utah became the first state to enact legislation simultaneously protecting location information and electronic communications content, regardless of age, from government access—ensuring that state and local law enforcement can only access that sensitive information when there is good reason to believe that it will reveal evidence of a crime, or in true emergencies.

Last week I was given a tour of the “TSA Systems Integration Facility” (TSIF), the agency’s testing facility located at Reagan National Airport here in Washington, in some outlying buildings that used to house the airport’s post office facility. The tour included the opportunity to talk to some of the specialists who work there. We were shown technologies that are already familiar; there was nothing on some of the more ridiculous screening programs such as SPOT or FAST, nor anything futuristic. But I did pick up some items of possible interest to those curious about the functioning of our airport security technology—including passengers with disabilities or who face special scrutiny, such as Sikhs, who are nearly always forced to undergo extra screening because of the turbans that Sikh men wear. (The tour was arranged by TSA’s office of Civil Rights and Liberties.)

In the wake of the NSA scandals and daily corporate privacy invasions, the president asked one of his senior advisors, John Podesta, to perform a quick 90-day review of “big data” (corporate jargon for privacy) and lay out what next steps his administration should take. Today we submitted formal comments to the White House, but here is a slightly less wonky way of putting it:

Often when the government wants to keep something secret, it claims that transparency would endanger national security. We’ve been hearing a lot of this lately with regards to Edward Snowden. The leaks have caused “grave harm” to national security and even US foreign policy, Snowden’s critics repeat over and over again.The trouble is, whenever these critics are pressed to explain how Snowden's disclosures have harmed the public interest, they usually do one of two tricky things:

Today, the ACLU filed a Freedom of Information Act request with the FBI, the DEA, the Secret Service, and several other agencies asking for information about a surveillance technique known as a “cell tower dump.” If you’re wondering what that is or why we’re worried about it, a story from a few years back might help to illustrate.

The City of Sunrise, Florida, tried to take a page from the CIA’s anti-transparency playbook last week when it responded to an ACLU public records request about its use of powerful cell phone location tracking gear by refusing to confirm or deny the existence of any relevant documents. And the state police are trying to get in on the act as well. We have written about the federal government’s abuse of this tactic—called a “Glomar” response—before, but local law enforcement’s adoption of the ploy reaches a new level of absurdity. In this case, the response is not only a violation of Florida law, but is also fatally undermined by records the Sunrise Police Department has already posted online.