Here are a few recent opinion columns and editorials about e-mail surveillance, FISA and the use of drones. Time has an op-ed on e-mail privacy and the 1986 Electronic Communications Privacy Act (“ECPA,” also known as Title 18 § 2511 of the United States Code). The Verge has an op-ed about the recent reauthorization of the Foreign Intelligence Surveillance Act. The FISA reauthorization extends the government’s power to intercept electronic communications of people suspected of being spies or terrorists, but there are significant questions about whether the law adequately protects Americans’ privacy rights. The Seattle Times has an op-ed by the American Civil Liberties Union of Washington about the domestic use of aerial drones (also known as unmanned aerial vehicles, “UAVs”) to conduct surveillance. (See a recent post for more on privacy issues connected with drones.)
There have long been calls on Congress to upgrade e-mail privacy, but it has not done so — and recently, it let us down once again. This failure to act is not the usual Washington inertia or gridlock. It is because there are a lot of people in government who like the idea of being able to read citizens’ private e-mail. And Internet users — who have gotten good at pushing back against Facebook over privacy issues — have not been putting pressure on Congress to strengthen e-mail privacy.
The Electronic Communication Privacy Act — the main law governing e-mail privacy — was enacted in 1986, when no one had any idea how important e-mail would become or how it would be used. The ECPA requires the government to obtain a search warrant to read e-mail — just like regular mail — but the FBI’s position is that it does not need a warrant once you have opened your e-mail. That means in much of the country — some federal courts have said no — all the FBI needs to do in order to read your e-mail is, essentially, ask Google or Yahoo nicely (and issue an easy-to-do subpoena). […]
Law enforcement lobbied strongly against the requirement of a search warrant to read stored e-mails, arguing that it “could jeopardize the effectiveness of investigations,” and opposed new requirements that would give people prompt notice if the government obtained a search warrant to look at their e-mail. […]
The weak privacy protection for e-mail is a real crisis because e-mail is one of the most sensitive realms of modern life.
That’s the bipartisan message Congress is sending with the Foreign Intelligence Surveillance Act (FISA) Reauthorization Act of 2012, a bill which passed through the Senate yesterday unscathed by any of the four amendments which sought to strike a balance between civil rights, transparency, and national security. Being as how President Obama has already expressed his support, the bill’s passage all but guarantees the preservation of expansive government spying powers that were set to expire by the end of the year, allowing US intelligence agencies to continue their warrantless wiretapping programs for the next five years.
You’d think that in a world where a good portion of us carry tiny computers that leave trails of sensitive information everywhere we go, it might be reasonable for law-abiding citizens to ask that their private communications and data receive the same rigorous protections as, say, a briefcase left in our home — or that we should at very least have a right to know to what extent our data is being searched. But to each of these requests, members of Congress on both sides of the aisle have repeatedly answered “no.” […]
What we do know [about FISA] is not very reassuring. An investigation earlier this year led by one of FISA’s most outspoken critics, Senator Ron Wyden (D-OR), found that the government’s surveillance activities had “on at least one occasion” violated the rights of American citizens under the Fourth Amendment. Before that, a Wired article on the NSA’s secret data center in Utah and a New York Times report in 2009 revealed more evidence of Constitutional violations. During the proceedings, Sen. Wyden compared these broad data sweeps to “writs of assistance,” the general search warrants issued by the British Empire in colonial days to enter the homes of American colonists and search for smuggled goods.
But with FISA, all attempts to criticise the law run into the same brick wall of government secrecy. […]
The fight isn’t over, though. Trevor Timm of the Electronic Frontier Foundation writes in a post-mortem that “all eyes should now turn to the Courts,” where the NSA is currently attempting to shut down an ACLU lawsuit which claims their surveillance program violates the Constitution.
“Op-ed: Protect privacy as Seattle Police drones take off,” Seattle Times (Shankar Narayan is legislative director and Doug Honig is Communications Director of the American Civil Liberties Union of Washington)
Drones, best known as tools for going after alleged terrorists abroad, are coming in force to American skies. They already are deployed to patrol our nation’s borders. And the Federal Aviation Administration is predicting that there could be as many as 30,000 unmanned aerial vehicles over domestic skies by the end of the decade, according to a report in the Washington Times.
We should keep in mind the likely development of America’s drone industry as Seattle considers policies for law enforcement use of unmanned aerial vehicles. […]
But with drones emerging as a cornerstone of our military strategy, research is proceeding apace. We can bet that drones will become more powerful, more versatile and less expensive. Advances in artificial intelligence will enhance their ability to carry out increasingly invasive surveillance. We can expect drones that will carry high-power zoom lenses, employ thermal imaging and use radar to penetrate the walls of homes and businesses. With facial recognition software, they will be able to recognize and track individuals. And the Air Force is testing a system called “Gorgon Stare,” which uses multiple cameras to look at a whole city.
Unmanned aerial vehicles make it easier than ever for law enforcement to monitor people and locations. If police drones become commonplace, government will be tempted to seek new missions beyond the initial deployment for search-and-rescue and crime scene work.
And if data captured by drones is not immediately deleted, it would become a massive trove of video, audio, and other data potentially available to anyone who seeks it under public disclosure laws. Although cameras have proliferated in our society, drones are different both because of their surveillance capabilities and the fact that it is the government doing the recording. […]
In light of these concerns, the Seattle Police Department has drafted guidelines for its use of drones and is seeking public input. But police department policies alone are not sufficient. We need regulations enacted by our elected officials and enshrined in law to ensure that police drones are not used for political surveillance, nor do they carry weapons.