News & Commentary

2013 could easily be christened the year of the drone. It was the first full state legislative session after Congress passed a law requiring the Federal Aviation Administration (FAA) to open up domestic airspace much more widely to drones, and it brought an avalanche of state legislative activity as legislators and the public across the country grappled with how to protect privacy in the face of this fast-approaching technology.

Today, we filed our second motion in five months in the Foreign Intelligence Surveillance Court (FISC) asking for public access to secret court opinions authorizing government surveillance en masse. The motion seeks to uncover the original and complete legal underpinnings of the government’s bulk collection of Americans’ records, such as our internet-usage history and location information. It was filed by the national ACLU, the ACLU of the Nation’s Capital, and the Media Freedom and Information Access Clinic at Yale Law School (MFIA).

At a time when the Snowden revelations have focused new attention on the question of oversight over our giant national security establishment, many are closely watching the Privacy and Civil Liberties Oversight Board (PCLOB). The PCLOB is a brand new organization and still quite small, but it holds great promise as a truly independent mechanism for much-needed oversight over the national security state. In coming months and years, we will see whether it is able to live up to that potential.

If you’re concerned about the dragnet nature of the National Security Agency’s surveillance programs, then you should also pay attention to what your local police department is doing. You may find that the dragnet surveillance happening there has a lot in common with the NSA’s mass collection of phone log data.

Can the government force you to decrypt your hard drive? Do the Fifth Amendment of the United States Constitution and Article 12 of the Massachusetts Declaration of Rights protect us from being compelled to disclose or enter our encryption keys, and thereby potentially incriminate ourselves? The answer to these questions in Massachusetts hinges on the Supreme Judicial Court’s upcoming decision about whether decrypting a computer is like giving someone a key or a combination to a safe, or instead, if it’s like translating words from one language to another.

Edward Snowden’s whistleblowing has generated much debate within the United States over whether his leaking of NSA documents was a heroic act or something deserving of punishment. And the NSA activities that he has revealed have similarly generated controversy. I know some very thoughtful people who I see eye-to-eye with on the vast majority of political issues, who nonetheless see this story completely differently from me. They think that the NSA scandal is overblown, and view Snowden with an extremely dubious eye.

Late last night, the ACLU and ACLU of Virginia filed an amicus brief urging a federal appeals court to overturn a contempt-of-court finding against Lavabit, the now-defunct secure email service provider. The company had been resisting a court order to hand over the private encryption keys relied on by the company’s 400,000 users to keep their information secure. (You can read our brief here, filed with the Fourth Circuit Court of Appeals in Richmond, Va.).

Today the Third Circuit Court of Appeals ruled that law enforcement agents must obtain a warrant based on probable cause to attach a GPS device to a car and track its movements. The case, United States v. Katzin, is the first in which a federal appeals court has explicitly held that a warrant is required for GPS tracking by police. The ACLU submitted an amicus brief in the case (joined by the ACLU of Pennsylvania, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers) and presented oral argument to the court in March.

Shocking revelations about creepy government surveillance came in waves over the summer, from the Snowden leaks to the Hemisphere Project, through which the government has paid AT&T for access to a mind-bogglingly vast database of our telephone calls. In many cases of new surveillance technologies like Hemisphere, there are serious constitutional concerns that courts have not yet reviewed. That's where we come in.