The Expanding Surveillance State

The US government through the FBI, federal intelligence agencies, the military, state and local police and private companies, is collecting incredible amounts of personal information about American citizens. This surveillance takes place with little or no oversight by the courts, the legislature or the public. This surveillance activity is not directed solely at terrorists and criminals, but at everybody. Increasingly, the government is engaging in suspicionless surveillance that tracks sensitive information about innocent people. The lack of restrictions on the government's power to collect people's personal information puts the right to privacy and freedom of speech at risk. This situation is only exacerbated by the current trend of giving private companies so much access to the intimate details of our lives.

The idea of the Government wiretapping our phonelines and accessing our private emails would to most of us seem entirely unrealistic. Most of us presume we are not of any interest to be spied on, thus we would not be spied on, and surely the Government would need a very good reason to do so? Technically, the US government must have a warrant to wiretap US citizens However, there are many loopholes which they use in order to keep an eye on the digital lives of its citizens. By presenting a simple subpoena to companies like Google and AT&T, the authorities have instant access to your texts and emails. This may have happened to any of us already and we would never know.

One might wonder exactly how the government can access your digital data without a warrant. Getting a warrant requires showing "probable cause" of a crime. This quite high standard is required for police to listen to your phonecalls. However, to get information on the phone numbers you call and when, as well as incoming calls, police do not need a warrant, but a subpoena, which requires a significantly lower standard of evidence, that of the data being relevant to an investigation. Lesser standards are also required for cell phone location data, text messages, cloud data and emails older than 180 days. For some reason the law gives greater protection to recent emails than to older ones.

Enacted in 1986, the Electronic Communications and Privacy Act, is in dire need of modernization to reflect the new digital economy. The way we communicate using technology has massively changed in 25 years and yet the ECPA has remained exactly the same, creating a gap between the law and users’ reasonable expectations of privacy. The Senate recently took a step toward improving privacy protection for emails, by approving an update to the 1986 ECPA that requires law enforcement officials to obtain a warrant before they can read emails older than 180 days. However, at the end of December, the Senate decided, without explanation, to drop the proposed amendments, and so for the present, law enforcement officials will continue to be able to access cloud-based data with only a subpoena.

Last year, US Magistrate Judge Steven Smith examined the history behind the ECPA court orders, and was shocked to discover, not only the incredible number of emails and other inbox data obtained by the police under the ECPA, but that most people who had been surveilled under it were completely unaware. In his report he comes to the conclusion that it is reasonable to infer that far more law-abiding citizens than criminals had been tracked under the provisions of the ECPA. This emphasises the immediate necessity of enforcing a strict search warrant requirement, as well as a new level of transparency into how and why this data is collected.

The extent of the expanding surveillance state was exposed by the New York Times in 2005 in an article uncovering the NSA's domestic spying program. This program, intended to monitor communications of suspected terrorists within the US, in fact also had an impact on millions of innocent citizens, never suspected of a crime. The government has amassed, through the major telecommunications companies, a database of detailed call-records of customers (which includes customer's names, addresses and calls), without any warrants or judicial supervision. These telecommunications companies also allowed the NSA to install communications surveillance equipment, giving the NSA unfettered access to large streams of digital communications in real-time which they could then data-mine and analyse. If the government need information on a person, they will be able to collect vast amounts of it from their database, and analyse everything that person has done in the previous years. Everything from their emails to their browsing history will be in the hands of the government.

The first necessary step is for a revised ECPA to provide the most basic of protections for communications over the internet. The government should have to obtain a warrant before compelling a service provider to disclose an individual’s private online communications. They should also have to get a warrant before it can track the location of an individual’s wireless communication device. Before it can install a trace device to capture real time transactional data, the government should be obliged to demonstrate to a court that such data is relevant to a criminal investigation. In other words, an outright ban on the ability of law enforcement to obtain emails through subpoenas, and holding law enforcement accountable for its actions are the minimum protections necessary.

In the meantime, we need to ask ourselves why we give so much information to third parties in the first place. We may not have been aware of any bargain being struck, yet services like Google are free because they can get ad data targeted to you just based on your searches. Most people are aware of this, yet choose to turn a blind eye, favouring the familiar convenience of such websites over their intrusion into our privacy. We need to start looking into safe and secure alternatives that do not carry the price of our privacy. We need to find encrypted email services, which protect our private communications from snooping eyes.