News & Commentary

What happens when legislatures pass laws enabling law enforcement to obtain sensitive, private information about people without requiring any evidence of criminal activity, and without any outside oversight whatsoever?

Thanks to Edward Snowden we now understand that the NSA runs many dragnet surveillance programs, some of which target Americans. But a story yesterday from Washington, D.C. public radio station WAMU is a reminder that dragnet surveillance is not just a tool of the NSA—the local police use mass surveillance as well.

Last week I wrote about how a central problem with reliance on the FISA Court as a principal pillar of NSA oversight is that the court, in an environment of extreme secrecy and without an adversarial proceeding, has no reliable means of determining whether its orders have been carried out. We have learned plenty in recent months about the agency’s failure to follow the law.

Cellphones are the spies in our pockets, gathering information about whom we befriend, what we say, where we go, and what we read. That’s why Sen. Edward Markey, D-Mass., recently asked the nation’s major cellphone companies to disclose how frequently they receive requests from law enforcement for customer call records—including the content of communications, numbers dialed, websites visited, and location data. Sometimes police have a warrant, sometimes they don’t.
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Wednesday we learned that the NSA is collecting location information en masse. As we’ve long said, location data is an extremely powerful set of information about people. To flesh out why that is true, here is the kind of future memo that we fear may someday soon be uncovered:
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Live in Delaware, New Jersey, or Pennsylvania? You can rest a little bit easier today, knowing that police need a warrant before putting a GPS tracker on your car to monitor your movements. The Department of Justice has declined to appeal a Third Circuit Court of Appeals ruling that the police violated the Fourth Amendment rights of electrician Harry Katzin when they placed a GPS tracker on his van without a warrant.

An effort is underway to significantly set back even the limited amount of government privacy oversight that currently takes place over commercial privacy in the United States. Tuesday the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade held a hearing titled Federal Trade Commission Review and Outlook. At the hearing, FTC Commissioner Maureen Ohlhausen argued for the repeal of the communications common carrier exemption which would transfer regulatory power of telecommunications networks from the Federal Communications Commission (FCC) to the FTC. While this might sound innocuous enough, the rework could have serious implications for consumer privacy protections.

Amazon attracted a lot of attention this weekend when, on “60 Minutes,” CEO Jeff Bezos announced a futuristic vision for the company: using drones to make deliveries within 30 minutes to homes in metropolitan areas.

With the latest release of documents about the NSA and the FISA Court (this one in response to an ACLU/EFF Freedom of Information Act request) we now have yet more evidence that the NSA’s compliance with the court’s orders has been poor. We learn, for example, that, according to the court, “the NSA exceeded the scope of authorized [metadata] acquisition continuously during the more than [redacted] years of acquisition under these orders.” And, “NSA’s record of compliance with these rules has been poor.”