News & Commentary

According to a report from today's New York Times, the National Security Agency is collecting and monitoring virtually all text-based electronic communication into and out of the United States.  This means every e-mail and text message is intercepted, copied, systematically searched, and retained by the government--without a warrant.  It is precisely this type of government intrusion that the 4th Amendment is designed to protect us from.

Yesterday, the Guardian published details of a top secret National Security Agency program that allows analysts to search through vast databases containing emails, online chats and the browsing histories of millions of individuals virtually anywhere in the world. The program, called XKeyscore, confirms Edward Snowden's famous claim that from his workstation at Booz Allen he could "wiretap anyone, from you or your accountant, to a federal judge or even the President, if I had a personal e-mail."Indeed, XKeyscore is terribly impressive by just how easily the massive data set can be searched.Read though the training materials on XKeyscore here.Fittingly, the ACLU testified yesterday before the Senate Judiciary Committee on the need to strengthen privacy rights.  You can read Jameel Jaffer and Laura Murphy's testimony here.

Automated license plate recognition (ALPR) systems are automatic cameras that are mounted either over a street or in a police cruiser. More information available here They take pictures of the license plates of passing cars, convert these images into computer readable data, and store the information in large databases. Use of these ALPRs is on the rise nationally.  Increasingly, police and law enforcement agencies (as well as businesses and other private organizations) are employing these systems to spy on innocent Americans.  In most places, whether an individual is suspected of a crime is irrelevant. Their identity and location are sucked up just like everyone else's and can be used to paint a very accurate picture of everywhere they have been. In many cases this data is stored indefinitely with no meaningful oversight about what it can be used for. Often this data is used for discriminatory targeting of minorities as in the case of the NYPD reportedly driving unmarked cars by mosques and using ALPRs to record the license plates of attendees. Likewise, these can reveal whether a person is a regular church goer, a heavy drinker, a member of specific political or activist groups, and so much more. The indiscriminate and incredibly intrusive tracking of innocent Americans which is enabled by this technology is especially chilling in light of last month's revelations about the NSA's vacuuming up of our digital communications.  There seems to be less and less concern on the part of government about who they track.  Now instead of investigating individuals for truly suspicious behavior, everyone is seen as potential suspect of crimes which may not have even taken place.There is very little oversight regarding how this data is used.  In most states, there are no laws which place any restrictions on what law enforcement agencies can do with it, how long they can save it, or even who is allowed to use ALPR systems.  In fact, there are only two states with positive laws on the books governing ALPR use - including Maine, where the ACLU of Maine and our partners lobbied hard to pass a law limiting their use. The other is our next door neighbor New Hampshire.  In Maine, the data collected may only be used for protecting public safety and transportation infrastructure, commercial motor vehicle screening and inspection, or active criminal investigations based on articulable facts which suggest probable cause that criminal activity is taking place.  Additionally, almost all data collected may only be stored for twenty-one days.  New Hampshire has, with only a few exceptions, a general ban on the use of ALPR technology! During a recent trip that I took to Pennsylvania, I decided to try to count the number of license plate readers that I passed on the highway.  I was quite disturbed when I wound up losing count in part due to the innocuous nature of the cameras. Often it is hard to even tell if a device suspended over the highway is even a camera at all!  It makes me all the more proud to say that Maine is leading the way when it comes to protecting peoples privacy from overly intrusive use of technology by the government for the purposes of spying on innocent citizens. As some readers may be aware, we recently passed two laws (LD 1377 and LD 1040) which ensure that law enforcement must get a warrant based on probable cause before accessing an individual’s cell phone records or placing a camera on an individual's property.  I for one am proud of Maine's commitment to privacy, but that being said, we must remain vigilant.  In this climate in which government surveillance has become commonplace, our hard earned protections are only as strong as those who continue to defend them.

Yesterday, the House narrowly voted down an amendment to the Defense Appropriations bill that would have addressed recent NSA privacy abuses. As we all found out a few months ago, the NSA has been using Section 215 of the Patriot Act to indiscriminately amass cell phone data in bulk with meaningless oversight. The amendment, offered by Representative Amash, would have set limits on metadata collection - stating that Section 215 orders can only be used to collect information on those who are actually the subject of an investigation.While the measure was defeated, we're proud that Congressman Michaud and Congresswoman Pingree both voted for the Amash Amendment. We are hopeful that Senator King will also stand up for privacy and work to reform the Patriot Act when the Senate is back in session in September.

Last week we told you about some privacy bills that were passed by the Maine Legislature and sitting on the governor's desk waiting to become law. Today we've got an update for you, and it's good!(editor's note: this post has been updated to reflect the Legislature's override of the governor's veto on one of our bills)Here's where things stand:LD 1377, which would require warrants before the police could read your text messages or obtain your cell phone records: became law on June 8 after Gov. LePage took no action on the bill, which easily passed in the Senate and the House.

It seems as though the struggle between people and government over Internet and cellular privacy has finally found a slogan, or at least a hot-button word to describe exactly what the government has been collecting about each and every one of our private lives: metadata. No, it's not "real" data in the traditional sense, it's metadata. Or "data about the data."Although I am as confident about my knowledge of technology and cell phone usage as any 21st century teen (i.e. extremely confident), I must admit the word 'metadata' stumped me. After some research, and a bit of reading between the lines, I came to understand that the difference between metadata and data lies in the text. Metadata shows that you called your sister at 5:30pm from your house. Data can tell you what was actually said in that call. Same goes for email. Metadata shows who you email but not the actual correspondence. Politicians love to emphasize this distinction, and have used it to supply proof that what they are doing behind drawn blinds is really not that invasive.However a new website called Immersion reveals otherwise. Immersion basically does exactly what the NSA is doing, collects the metadata of your email account. All of your social, educational or professional connections becomes a network of colored spheres in various sizes. The larger ones represent the people which you contact most frequently. I input my school email into the Immersion tool, and in under a minute the screen became a road map for my educational and extra curricular life. For example, merely by looking at the metadata anyone could find that I play tennis and soccer and prefer both more to swimming (no emails from my swim coach were responded to) and that math is by far my worst subject (the bubble representing email exchanges with my math teacher was by far the largest).Remember also that this is the metadata of a benign school email of a high school senior. Imagine what could be discovered in the metadata of a personal email account. Or all of the anonymity that would be squandered in the professional relationships that we hold so dear: business partners, doctors and patients or lawyers and clients. ACLU associate Matthew Harwood takes a look at just how revealing metadata can be.In summary, "it's just metadata" is clearly a skimpy defense for our government's blatant invasion of our privacy. Tools like Immersion, and a basic understanding of what exactly metadata is, show that you don't need the specific text or the words spoken to be able to find a shocking amount of personal information about someone. Yes, the world of technology is changing but that does certainly not mean the protections ensured by the Constitution can as well. Don't take no for an answer. Demand your metadata privacy.For more information about the harm of metadata collection, read this article.

Today, we had a BIG win for privacy when the house passed LD 236, otherwise known as the drone bill! We were excited to see that 108 House members voted to require warrants for law enforcement use of drone surveillance. We will wait for the Senate to engross the bill but for now, we feel hopeful that this is well on its way to the Governor's desk. Sadly, we lost the opportunity to amend Maine's constitution to allow for true early voting. LD 156, would have allowed town's to adopt early voting, allowing for voters to cast ballots in person right away, according to their town's process. No town or city would have been mandated to adopt early voting - and the issue would have gone out to voters to finally decide if it had passed. Because it was a constitutional amendment, the bill needed 2/3rds of the House to pass. We came short by just 6 votes.  Win some, lose some. That's what happens here. But as we wait in the Senate for the next steps to be taken to protect the privacy of Mainers, today feels like a victory overall. 

Today, the U.S. Supreme Court unanimously invalidated patents on two genes associated with hereditary breast and ovarian cancer in response to a lawsuit filed by the American Civil Liberties Union and the Public Patent Foundation. This is a huge victory not only for those seeking to have their genes tested in order to make informed medical decisions but for civil liberties, scientific freedom, patients, and the future of personalized medicine. 

Our basic right to privacy is under attack across the country, including here in Maine. Yesterday, The Guardian newspaper revealed that U.S. government has been secretly tracking the calls of every Verizon Business Network Services customer for at least the past 41 days. And here in Maine, the Portland Press Herald has reported that Maine law enforcement is monitoring hundreds of cellphone users across the state, most of whom have done nothing wrong. Both reports point to the need for updates to our electronic privacy laws and for greater oversight by our courts. As my colleague Jameel Jaffer wrote concerning the Verizon monitoring, "It's a program in which some untold number of innocent people have been put under the constant surveillance of government agents." The Guardian obtained and published a classified court order requiring Verizon to provide access to the customer data, under Section 215 of the USA PATRIOT ACT. The ACLU and other privacy rights organizations are calling for termination of the order and an investigation of its rationale and scope. For many of us who have been working to challenge government surveillance,