Not Without a Warrant: Privacy Upgrade and Digital Liberty from Surveillance

If we do nothing but complain, take no action, things on the surveillance front are not going to get better, not on their own, not without a ‘fight’ to hold onto our freedoms, our rights, our country. No more snooping on our digital communications like the feds’ phishing expeditions in hopes of finding something terrorism-related. We’re not all terrorists. We are America’s citizens, not the enemy. It makes me want to stand up and shout, “Not without a warrant!”

There’s this little thing called the United States Constitution that has a Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”

America, the land of the free, has become a land of suspicion, of fear and of warrantless federal surveillance with little to no digital due process. In real time, innocent people who know their rights are treated like criminals or terrorists when saying no, I do not consent to a search; no, you cannot have my encryption key; no, come back with a search warrant. The Constitution protects your calendars, photos, emails, documents and other private data stored on your laptop. Law enforcement is required to have a warrant before seizing it. You are protected as you access your online data in real-time. CDT points out, “Yet the same data, sitting in your private, password protected account with a service provider, is available to the government without a warrant under ECPA.” The government also says it does not need a warrant to track your geolocation via mobile devices, “to force a service provider to disclose your whereabouts in real-time or going back for weeks or months, precisely time-stamped and easily plotted on a map.” According to the latest Google transparency report, US law enforcement made 5,950 separate requests for user data from 11,057 user accounts, and Google complied 93% of the time. Microsoft has a long history of complying with law enforcement and spying on its users for free. Government agencies routinely spy on American citizens in these ways, often without the benefit of search warrants to seize private data, and are building massive and secret databases from ‘suspicious’ people’s data stored in the cloud, to hunt for patterns in the name of national security and stopping terrorism. Does that sound like the land of the free?

Do we really need for Homeland Security to push “see something, say something” when we love our country and would undoubtedly report it if we truly suspected terrorists planning something?

How many of you grew up in schools where you started the day by placing your right hand over your heart and reciting, I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation indivisible, with liberty and justice for all? Liberty and justice are lovely thoughts on the unhappy 10th anniversary of the Patriot Act, but we talking about the same USA where the government has the power to hide behind National Security Letters. NSLs that the FBI can issue, with no approval required from a judge, to get its hands on personal information like phone records, emails, computer history, credit card and banking history. More than 200,000 NSLs have been issued by the feds and only 1% was even terror-related in 2010. They come with a “gag order” that prohibits anyone from saying they received one, but gives at least 34,000 law enforcement and intelligence agents access to records amassed through NSLs. Also thanks to the Patriot Act, the personal data that was snagged does not need to be destroyed, not even if the suspect turned out to be an innocent American citizen. This is liberty and justice for all?

We are unfortunately stuck with the Patriot Act, its provisions and ‘secret law’ until June 1, 2015.

And while there is a lot of talk of government transparency, even though many FOIA requests are answered with almost fully redacted documents, it makes me wonder . . . when did the definition of transparency get changed to blacked out? But that’s nothing, since the government seems to have plans to withhold the truth from American citizens by lying about and hiding the existence of records. Our own Department of Justice proposed a revision that would change the cannot-confirm-or-deny records, aka Glomar denial, into government agencies responding to FOIA requests as if “the excluded records did not exist” – even when they do exist! This is the same DOJ that advised Bank of America on attorneys who, in turn, “hired private intel firms to hack, whack and attack WikiLeaks and its supporters.” Something seems to be very broken in America.

Yet there is something we can do to help fix things in the USA. We can demand an update to the law, to the outdated privacy protections of the 25-year-old Electronic Communications Privacy Act (ECPA) so it starts protecting us from mass government surveillance. Jim Dempsey, Vice President for Public Policy at the Center for Democracy & Technology, recently wrote, “Citing ECPA, the government claims it can track your movements without having to get a warrant from a judge, using the signal your mobile phone silently sends out every few seconds. The government also claims it can read your e-mail and sneak a peek at your online calendar and the private photos you have stored in ‘the cloud,’ all without a warrant.”

The EFF wrote, “If the government wants to track our cell phones, or see what web sites we’ve visited, or rummage through our Gmail, or read our private messages on Facebook, it should be required to go to a judge and get a search warrant based on probable cause. Demand a privacy upgrade!”

A coalition of heavy hitters in the privacy, digital rights and civil liberties arena, including the EFF, CDT and the ACLU, want us to tell Congress to reform ECPA by protecting our privacy and “requiring government agents to get a warrant before using technological means to track an individual.” The language in the petition to reform ECPA states:

The government should be required to go to a judge and get a warrant before it can read our email, access private photographs and documents we store online, or track our location using our mobile phones. Please support legislation that would update the Electronic Communications Privacy Act of 1986 (ECPA) to require warrants for this sensitive information and to require the government to report publicly on the use of its surveillance powers.

No more online snooping. No more federal phishing expeditions like we are all terrorists which will eventually come to light after hovering up and storing our digital communications. We are America’s citizens, not the enemy. Please go to Not Without a Warrant and let your voice be heard! It’ll take you no more than minute to sign the petition and you can even choose to “display in list as Anonymous.” Please take action and do something; demand a ECPA privacy protection upgrade now, so there may be digital liberty and justice for all.

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