Slowing down the surveillance state: a guide to warrantless government spying

Reuters / Samantha Sais
If the growing use of governmental tip-toeing to wiretap phone lines and emails doesn’t seem serious, think again. So heightened lately are concerns over surveillance that two major organizations have published a primer on federal spy programs.

Both ProPublica and the Electronic Frontier Foundation have released thorough guides this week that explore what the US government can and can’t do in terms of tracking US citizens using an array of weirdly-worded wiretap laws currently on the books.

The EFF, a long-time opponent of the expanding evasive spy state, published on Thursday a collection of information they’re considering “Warrantless Surveillance 101: Introducing EFF's New NSA Domestic Spying Guide.” Just two days earlier, the independent journalism project ProPublica released their own breakdown, “No Warrant, No Problem: How The Government Can Still Get Your Digital Data.”

Although both the EFF and ProPublica reports highlight the history of federal surveillance going back to the start of the United States, it’s no coincidence that they are just now offering insight into the government’s spy programs. In recent months, Congress has considered an array of legislation that allows for different types of surveillance, and the Senate and House are expected to soon weigh in even more heavily.

As ProPublica notes, just last week the Senate “took a step toward updating privacy protection for emails” by approving an updated to the 1986 Electronic Communications and Privacy Act (ECPA) that will require law enforcement agents to obtain a warrant before reading emails older than 180 days. ProPublica predicts that Congress will push the issue aside, however, and go back to passing haunting legislation that lets Uncle Sam access seemingly everything.

“Meantime,” the site reads, “here’s how police can track you without a warrant now.” From there, the organization breaks down the basics behind how cops can obtain warrants and what the law says about how they’re used.

“The US government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI, to snoop on the digital trails you create every day,” the site acknowledges. Phone records, location data, IP addresses, emails, text messages and data stores on the cloud can all be collected by the government, ProPublica warns, and some of that can be received with just a simple court order or another easy-to-obtain form.

“Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena,” they warn. “Usually you won’t even be notified.”

On their part, the EFF presents a more thorough examination into not just who can administer these wiretaps and with how much ease, but breaks down the history of the National Security Agency and the multitude of scandals it has involved itself in regarding domestic surveillance going all the way back to its infancy during the Truman administration.

“While the government claims the NSA’s infamous program is too secret to be litigated, it isn't a secret — and we’ve catalogued the trove of information that has become public since it was first revealed by the New York Times in 2005,” the EFF explains. “This including declarations under oath by an AT&T whistleblower and three NSA whistleblowers, sworn testimony before Congress, investigations by government Inspectors General and stories by major media organizations based on highly placed sources, along with public admissions by government officials.”

In order to provide a blueprint for persons trying to familiarize themselves with NSA spying as the EFF awaits a court date in the matter later this month, they’ve published a NSA domestic spying timeline, an explanation of how the NSA conducts the spying, a history of the controversial ‘state secrets’ privilege and a breakdown of how the government uses word games in order to avoid disclosing their dastardly secrets.

In an easy-to-view format, the EFF has uploaded information from Inspectors General reports, court hearings, Congressional testimonies and mainstream news articles detailing the history of the NSA and how the government has used the ECPA along with the Foreign Intelligence Surveillance Act (FISA) and other legislation to legally (more or less) go through loops.

The EFF will be back in federal court on December 14 in the latest arguments in the case of Jewel v. NSA, a five-year old case that involves the National Security Agency’s involvement in a top-secret spy program with telecom giants AT&T.

“On December 14th, we hope that the Northern District of California federal court will agree with us that our case challenging illegal domestic spying should move forward,” says the EFF. “ Warrantless wiretapping isn't a state secret—it's a clear violation of FISA, other laws, and the Constitution. Government secrecy claims should not mean that the violation of the privacy rights of millions of ordinary Americans are swept under the rug.”