Currently, EFF is representing victims of the illegal surveillance program in Jewel v. NSA , a lawsuit filed in September seeking to stop the warrantless wiretapping and hold the government and government officials behind the program accountable. In July , a federal judge ruled that the government could not rely on the controversial "state secrets" privilege to block our challenge to the constitutionality of the program.
This case is being heard in conjunction with Shubert v. Obama , which raises similar claims. The Director of National Intelligence has since confirmed that the collection of Verizon call records is part of a broader program. In addition to making the same arguments we made in Jewel , we argue in First Unitarian that this type of collection violates the First Amendment right to association.
Previously, in Hepting v. In Smith v. Obama , we are arguing the program violated her Fourth Amendment rights by collecting a wealth of detail about her familial, political, professional, religious and intimate associations. First Unitarian v.
Jewel v. While some developments will be revealed only retrospectively, one is immediately manifest: public health requirements will force us to decide just how much technology-fueled surveillance we really want. Pending an effective vaccine or cure for the new disease, it is inescapable that we will need at scale and speed at least two tools we do not currently have: 1 contact tracing, to track the interactions of infected individuals so as to reduce the spread of the disease, and 2 testing, to determine who is currently infected as well as who has been infected and presumably has some immunity.
This will require gathering information about individuals on a massive scale, analyzing the enormous amounts of data with the help of artificial intelligence, and reporting the results.
The anodyne approach is to call these activities public health monitoring, but from the vantagepoint of someone who dealt every day with technology-enabled surveillance issues, it is crucial that we recognize it as surveillance, in order to not shy away from important policy questions. In any case, we would use surveillance to achieve actual public health outcomes—ranging from simply alerting someone that they were in contact with a disease carrier to reallocating ventilators and personal protective equipment to anticipated virus hot spots.
It is by no means clear, however, that our society will embrace the full potential that current technology has to offer. Some Asian countries, with different cultures and government models, have been the most willing to utilize surveillance tools in aid of controlling the epidemic, but even Europe, with its strong privacy laws, has turned to technology to track individuals.
But the leader in relying on technology to make public health decisions in the pandemic is, not surprisingly, China, which through an Alibaba affiliate is assigning red, yellow, or green codes to its citizens, barring or entitling them to use public transportation or resume work, depending on whether they test positive or negative for Covid Meanwhile, here in the United States, we are struggling with shortages of everything from testing kits to medical gear.
But even belatedly, if we are to break free from current national stay-at-home rules, virtually every public health expert counsels us to undertake widespread monitoring and tracking coupled with effective utilization of the resulting data to curtail disease spread and to assist hospitals and their professionals.
Technology is currently able to do all this, and more. The goal here is not to prescribe or predict which types of monitoring and data collection would be best but to outline the challenges that will inevitably confront us and to offer possible solutions. Using our decades-old and relatively refined set of principles governing surveillance for national security purposes, here are six interrelated considerations we must keep in mind for a new public health scheme:. Left unsaid was what other types or durations of surveillance might be reasonable.
Suffice it to say that, at least on an anonymized or mass level, the general collection and analysis of data for public health purposes will not run afoul of the Constitution; and even if individual data were involved, it should be possible to construct a constitutionally permissible scheme. A clearly defined statute authorizing government surveillance with appropriate safeguards, especially when balanced against critical public safety needs, will go a long way to assuring constitutional reasonableness.
The resolution of most of these considerations will hinge on what type of data is being collected, and it is thus not possible to supply one answer to address all possibilities. That question is equally important and will be the deciding factor in how effective the endeavor will be and how much public confidence it will enjoy. We will need a solution that is seen as effective and legitimate and thus worthy of public compliance and trust. Only government can furnish the needed sense of authority and legitimacy, and yet the private sector clearly has a vital role to play, both in collecting and in offsetting concerns over too much government involvement.
Within government, while our spy agencies such as the NSA and CIA have experience in dealing with electronic surveillance, they manifestly should not have and do not want to have anything to do with the completely separate public health mission.
The ACLU has been at the forefront of the struggle to rein in the surveillance superstructure, which strikes at the core of our rights to privacy, free speech, and association. In June , The Guardian published documents provided by whistleblower Edward Snowden confirming the massive scale of this international dragnet. Recent disclosures also show that an unknown number of purely domestic communications are monitored, that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions , and that virtually every email that goes into or out of the United States is scanned for suspicious keywords.
Learn more about Section The case, Amnesty v. Clapper , was filed on behalf of a broad coalition of attorneys and organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with individuals located abroad. Through Upstream surveillance, the U. The suit was brought on behalf of nine educational, legal, human rights, and media organizations, including the Wikimedia Foundation, operator of one of the most-visited websites on the internet.
Collectively, the plaintiffs engage in more than a trillion sensitive internet communications every year, and each has been profoundly harmed by NSA surveillance. Executive Order 12,, signed by President Reagan in and modified many times since, is the authority primarily relied upon by the intelligence agencies to gather foreign intelligence outside of the United States.
Recent disclosures indicate that the U.
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