News & Commentary

The endless tide of NSA revelations has made us all too familiar with government agencies’ hunger for personal information, especially in the context of national security. But we’re also seeing surveillance systems being set up by smaller, less newsworthy agencies to monitor our day-to-day activities.

A new battleground has opened up in the war over who has access to our electronic data trails: legislation is now being debated in states across the country to require a warrant for law enforcement access to location information in criminal investigations. The biggest roadblock these bills are facing? Attempts to reduce their protections to cover only "real-time" location tracking, leaving inconsistent and often completely absent rules governing law enforcement access to "historical" data.

Representatives of the online advertising industry headed to the White House last week to speak with the task force on “big data and privacy” that President Obama asked advisor John Podesta to head up. The executives said they would bring the White House their usual message: that advertising supports free content on the Web. After the meeting, the ad executives reported being pleased, with one telling Adweek, “It was clear they knew the importance of the digital economy.”

Local law enforcement agencies across the Bay Area have so-called stingray devices, a powerful cellphone surveillance tool, and more are planning to acquire the technology, according to public records recently obtained by Sacramento News10. The devices are highly intrusive and completely unregulated. Although the Wall Street Journal reported in 2011 that they were being used by the federal government, the News10 records reveal for the first time that these devices are also in widespread use by local authorities stretching from San José to Sacramento. The revelations are troubling. Once again, we see the proliferation of powerful new surveillance tools, but without any rules to constrain their use. The acquisition of these devices is shrouded in secrecy and driven by federal grant money, which undermines local democratic oversight. Their actual use by local law enforcement reflects the all too common phenomenon of mission creep: Although the justification for acquiring these devices is “fighting terrorism,” agencies seem to be using them for ordinary criminal law enforcement.

In a pair of stories this past weekend, the Washington Post and the AP reported on the construction of an ambitious surveillance system by which the government aims to carry out detailed surveillance of its own employees.

Yesterday, a federal district court ruled that the Justice Department does not need to disclose two secret memos providing guidance to federal prosecutors and investigators regarding the use of GPS devices and other location tracking technologies. The government had previously released the documents in response to the ACLU’s Freedom of Information Act lawsuit, but their contents were almost entirely censored. (You can view the redacted documents, in all their glory, here and here.)

Most governments don’t have the resources to manufacture the surveillance technology that’s required to hack into the computers of unsuspecting citizens. In recent years, surveillance software firms have stepped in to fill that gap, proliferating into what has become a $5 billion industry. In the TED talk below, ACLU Principal Technologist Chris Soghoian discusses the new methods that governments, including our own, are using to track their “targets” – which, in some cases, include journalists, activists, and dissidents.

A conversation like this may well take place not far in the future:

In February 2014, the attorney general for the state of Utah did something remarkable, something that law enforcement officials hardly ever do: He willingly gave away some of his power. The power was too great, he said, and the potential for abuse too serious. Furthermore, the AG argued, the broad, unaccountable power was not needed to protect the public.