FBI Surveillance: If We Told You, You Might Sue

Thursday, May 12, 2011

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The question: How can law enforcement effectively access communications records in a timely manner without going to through the arduous process of obtaining a court ordered search warrant that would compel service providers to provide the information?

According to the American Civil Liberties Union (ACLU), the answer is to just ask the companies to provide the data on a voluntary basis, and to do so without disclosing the matter to their customers.

The genesis of the controversy surrounding warrantless wiretaps began in earnest after Congress passed the FISA Amendments Act in support of the Bush administration's desire to engage in warrantless wiretaps in the wake of the 9/11 terrorist attacks.

The ACLU filed a Freedom of Information Act (FOIA) request in 2009 to learn more about how the government was implementing their expanded surveillance powers, and subsequently received hundreds of heavily redacted documents in November of last year.

The ACLU alleges that the documents confirm suspicions that the government had violated several of the restrictions outlined by the revised FISA laws, and has since sought more information than the redacted documents provided.

"Two weeks ago, as part of our FOIA lawsuit over those documents, the government gave us several declarations attempting to justify the redaction of the documents. We've been combing through the documents and recently came across this unexpectedly honest explanation from the FBI of why the government doesn't want us to know which "electronic communication service providers" participate in its dragnet surveillance program. On page 32:"

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The highlighted text says, "Specifically, these businesses would be substantially harmed if their customers knew that they were furnishing information to the FBI. The stigma of working with the FBI would cause customers to cancel the companies' services and file civil actions to prevent further disclosure of subscriber information."

The text implies that the FBI is engaged in the collection of communications data with the cooperation of service providers, and without the consent of the companies' customers and without court supervision. 

The ACLU article states that "the government doesn't want you to know whether your internet or phone company is cooperating with its dragnet surveillance program because you might get upset and file lawsuits asserting your constitutional rights. Would it be such a bad thing if a court were to consider the constitutionality of the most sweeping surveillance program ever enacted by Congress?"

In related news, the Electronic Frontier Foundation (EFF) reported last week they had received documents from the Federal Bureau of Investigation that detail the agency's use of electronic surveillance software in the course of criminal investigations.

The documents outline the Bureau's use of the Computer and Internet Protocol Address Verifier (CIPAV) tool, also referred to as a "web bug", that may have been utilized as far back as 2001.

Also, WikiLeaks founder and Julian Assange asserted in an interview last week that U.S. intelligence and law enforcement agencies have already established automated intelligence gathering operations on all major social networks and with several of the largest internet-based companies.

Assange alleged that the data mining interfaces were implemented with the cooperation of the companies in order to diminish the high costs associated with providing records on an individual basis.

The crux of the matter is whether law enforcement and private companies are circumventing restrictions on domestic surveillance programs to gather information on citizens' communications without respecting the spirit of the Fourth Amendment, which specifically protects against unreasonable search and seizures and further requires law enforcement to demonstrate probable cause to obtain a court ordered search warrant.

Not many would argue that law enforcement has a difficult task in protecting citizens and our national security, especially in an age of rapidly evolving communications platforms that would be considered on par with science fiction only a generation ago.

But most everyone would agree that the ultimate endgame of law enforcement's efforts is to protect the freedoms outlined by the Constitution and clarified in the Bill of Rights.

There is no valid argument to support the erosion of individual liberty in the defense of freedom.

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