Earlier this year, President Trump took to Twitter to accuse President Obama of wiretapping Trump Tower, and followed up those claims by requesting an investigation. Former FBI director James Comey later testified that he had "no information" to support Trumps wiretapping claims but not long after, Trump doubled down on his attacks, accusing Susan Rice, former national security adviser to Obama, of illegally seeking and sharing intelligence information about Trumps associates. Though Rice did request to unmask some names in a classified foreign intelligence report that turned out to include Trump campaign and transition team members, she denies any wrongdoing, and theres no evidence that it was done for political reasons (versus legitimate intelligence purposes). Still, the whole saga does raise questions about how the American government can gather personal information about its citizens. There is a good point buried in all that, Neema Singh Guliani, ACLU legislative counsel, tells Teen Vogue . One of the things that is not inaccurate is that it is very easy for the government to get data about Americans.
And once the government has that information, Singh Guliani says, they can use it in various aways against individual Americans like singling out protestors , enforcing immigration laws , and prosecuting domestic crimes without revealing to those Americans how they got the information to begin with. Technically, under the Fourth Amendment , American citizens and resident non-citizens are protected against unreasonable searches and seizures including surveillance without warrants. So then how does the government get around that? Here are the basics on some of the key ways.
Via National Security Surveillance Authorities A few years ago, former NSA contractor Edward Snowden revealed documents detailing the NSAs extensive global surveillance program. And among the millions of communications intercepted by the U.S. government targeting foreigners for national security purposes, The Washington Post later found , nearly half of what they looked at included information marked as that of American citizens or residents. And thats currently allowed, under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the government to target communications of non-U.S. persons outside the U.S. without a court order or warrant (though it does require the approval of a FISA court). Though Section 702 cant legally be used to target Americans, it doesnt entirely prevent incidental collection of Americans' communications. For example, if the government is intercepting a foreign phone call and someone in the U.S. is on the other end of it, thats allowable because the American wasnt the one being targeted, according to the ACLU.
Similarly, Executive Order 12333 allows the government to gather communications and data abroad sans warrant, which it can then share with other government agencies and if Americans information is incidentally caught in the crosshairs, thats OK, too. But it gets hairy when you consider that the government could hold onto that incidental information and potentially use it for purposes, like those stated above, that have nothing to do with national security. I think the average person thinks incidental means accidental, Singh Guliani says. Well, thats actually not true at all. What it actually means is the government fully knows its going to collect the information of Americans and has procedures that allow the government to actually use that information once they collect it. The government is justifying meeting low standards, like not getting an individualized court warrant in some cases because the people theyre surveilling are overseas, when really they know theyre going to collect information about people in the U.S. and they fully intend to use that information.
Theres a chance some of this could change in the very near future, though: Section 702 is set to expire this year, and Congress will have to decide whether or not to reauthorize it. That said, though both President Trump and Vice President Pence have spoken out against government surveillance in the wake of Trumps wiretapping accusations, Trump seemed to oppose surveillance reform while on the campaign trail, as have both attorney general Jeff Sessions and CIA director Mike Pompeo .
At the borders So, those Fourth Amendment rights we mentioned earlier? They dont provide so much protection at the borders of the country. The border search exception means that border officials can search anyone entering the country, including U.S. citizens, without a warrant or even probable cause. Though the Electronic Frontier Foundation (EFF) notes that the exception only applies to routine searches (like of luggage) that dont impact a person's "dignity and privacy," officials argue that digital devices are fair game at the border. The government has taken the position [that they] can search your stuff at the border, Singh Guliani says. That mightve made sense when all you carried was a suitcase, but if youve got your laptop and your phone, thats the equivalent of two truckloads worth of paper.
The issue gets even hairier when you consider that other government agencies outside of U.S. Customs and Border Protection (CBP), which do require warrants to search your devices, can then access the information obtained in the border exception searches and potentially use it for other law enforcement agendas and gathering intelligence, rather than to enforce customs and immigration laws. (The ACLU does offer some tips to protect your information, like storing your sensitive data securely in the cloud and keeping it off of the devices youre traveling with.) Singh Guliani says there have been claims that CBP deliberately conducted searches on behalf of other agencies and that CBP "uses their border authority, even though actually the reason theyre stopping that person is because another federal agency just wants to get around the warrant requirement, she says. You have this idea that government agencies are deliberately taking advantage of these loopholes.
While American citizens cant be denied entry into the country for refusing to unlock or provide passwords for their devices, that refusal could ultimately mean your device will get seized for weeks (or longer), or you could be detained longer than you otherwise would. If youre not a U.S. citizen, [its] much more complicated, because they can technically deny you entry into the country, so you can be turned around and sent back, Singh Guliani says.
Via electronic communications and devices Even aside from the border exception, the government could theoretically collect information on citizens through electronic devices, largely because the laws that would prevent it are too outdated. Our laws havent been updated to reflect new technologies, Singh Guliani says. So the laws that govern when the government can get your location information from your phone were written before [everyone had cell phones].
Because of that, theres a lot of gray area involved in what information the government can legally collect. For example, last year Singh Guliani testified before the House Committee on Oversight and Government Reform that the Department of Justice's position was that it was OK to collect cell site location information without a warrant and keep it for as long as seven months. And there are a lot of new issues around [for example] when you talk to your Alexa , what standards do they have to meet [to gather that information]?
And then theres the issue of the recent repeal of new FCC rules that would have prevented Internet service providers from seeing and selling consumers browser behavior without explicit consent. Although those measures technically only affect private Internet behavior, Paul Ohm, the faculty director of the Georgetown Center on Privacy and Technology wrote in a Washington Post op-ed that they could inspire the FBI to request information on personal Internet behavior from ISPs, knowing that the providers have the access. And the outdated laws, as they stand, dont specifically prohibit that. (That said, per the op-ed, the FBI would still need a court order to make an ISP hand over website visit and app-use histories and a warrant to get information on content viewed.)
The Email Privacy Act bill, which is pending in the Senate, would address some of these issues and require law enforcement to obtain warrants before accessing electronic content, which could be a major win for privacy advocates.
In the meantime, Singh Guliani says, the best things concerned consumers can do are call their members of Congress and urge the representatives to pass surveillance reforms like the Email Privacy Act, as well as others that come down the pipe; take measures to protect your information; and find out as much as you can (by reading privacy policies or even asking) about how your information is being collected, stored, and shared by ISPs and other Internet services. Not only that, but I also think that consumers should target companies for their advocacy, she says. They should be going to Gmail and Facebook and saying, Look, we want you to be more vocal on surveillance reform. We want you to say that its important...and we want you in the interim to purge our information [and] promise not to turn over information about immigration status to the federal government unless youre served with a court order. These are things that companies can do and that consumers can pressure companies to do.
Related: Senate Votes for Internet Providers to Sell Browsing Data Without Customer Permission
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How the Government Can Collect Your Personal Information Without a Warrant - TeenVogue.com