It's Time For Real Spying Reform

Nearly six months after Edward Snowden’s first revelations, daily evidence of a widespread and unchecked government surveillance dragnet continue to shock privacy advocates and ordinary Americans alike. Domestic spying reaches deeper than most of us ever imagined: the federal government collects records of our phone calls and internet activity, maps our social networks, and has reportedly worked to crack the encryption codes that millions of people use every day for secure communications and financial transactions.

In other words, Big Brother is most definitely watching. That's why voters should urge federal elected officials to back the recently introduced USA Freedom Act, sponsored by Patriot Act lead author Rep. Jim Sensenbrenner (R-Wis.) and Sen. Patrick Leahy (D-Vt.). Adoption of the measure would rein in some of the worst excesses of these federal mass collection programs.

Rapid advances in surveillance technology have enabled government officials to search and track us without entering our homes. But the Constitutional principles of privacy and individual liberty haven’t changed.

Meanwhile, "Little Brother" has gotten in on the surveillance act, too. Massachusetts officials have sought to track our movements via GPS devices and smartphones without obtaining probable cause warrants, while police departments use automatic license plate readers to create enormous databases of information about our movements -- even monitoring us in our own neighborhoods.

This government tracking isn’t just invasive; it threatens the very foundations of democratic society. Let’s recall James Otis, the brilliant young Massachusetts attorney who helped to spark the American movement for independence by challenging government writs of assistance, which allowed British officials to raid and search homes absent suspicion of criminal activity. Those draconian searches and seizures appalled the founders of our Commonwealth and our nation, who enshrined protections against them in our Constitution and Bill of Rights.

Today, rapid advances in surveillance technology have enabled government officials to search and track us without entering our homes. But the Constitutional principles of privacy and individual liberty haven’t changed. It is our generation’s turn to defend these fundamental American principles that keep our nation both safe and free.

Once again, Massachusetts should take the lead. Massachusetts courts should require a clear showing of probable cause that someone committed a crime before government officials will be permitted to track her location, regardless of which technology they deploy.

[sidebar title="" width="300" align="right"] This piece was co-authored by Jessie Rossman, an ACLU of Massachusetts staff attorney who litigates on privacy, poverty and free speech.[/sidebar]

Early this year, in the case of Commonwealth v. Rousseau, the Massachusetts Supreme Judicial Court correctly held that the Commonwealth must show probable cause and get a court’s permission when it uses a government GPS device to undertake extended tracking of a person’s movements. The ACLU of Massachusetts had argued in a friend-of-the-court brief that all people have a right of privacy in our location, because where we go reveals a lot about who we are. The Court agreed, holding that extended GPS surveillance by the government requires “judicial oversight and a showing of probable cause.”

The Supreme Judicial Court can now extend that privacy protection to the Commonwealth’s use of tracking devices most of us now carry nearly everywhere: our cell phones. In a new case, Commonwealth v. Augustine, the court is considering whether the Commonwealth needs to show probable cause before acquiring location information that cell phone providers keep about our phones. Every time you make or receive a phone call, your cell phone registers with a nearby cell phone tower. Cell phone companies collect and store this cell site location information. Although this information can be used to paint frighteningly accurate portraits of our lives — and despite the clear privacy holding in Rousseau — state officials now seek the power to track us via our cell phones without a probable cause warrant.

Such unchecked power is both wrong and dangerous. Here, too, the Supreme Judicial Court has an opportunity to ensure that law keeps pace with technology. The court should hold that state and local officials may not conduct broad fishing expeditions into our personal lives absent probable cause.

Massachusetts has long served as a beacon of liberty. But today, the Commonwealth unconstitutionally uses beacons to track our location without probable cause.

But ensuring privacy rights is not up to the courts alone. Voters can protect themselves by urging state lawmakers to adopt basic privacy-protection bills now pending before the state legislature. The Electronic Privacy Act sets requirements for phone, internet and location tracking. The License Plate Privacy Act regulates automatic license plate readers. The Free Speech Act bars police surveillance of political activity. And the Drone Privacy Act regulates aerial surveillance.

Passing these fundamental privacy bills would help to ensure that core constitutional protections envisioned by the founders of our Commonwealth and our nation will be protected for this and future generations. Massachusetts has long served as a beacon of liberty. But today, the Commonwealth unconstitutionally uses beacons to track our location without probable cause.

In the courts, in the legislature and, if necessary, on the streets, it’s time for the people of Massachusetts and their leaders to demand that the constitutional principles that have kept our nation free be applied to 21st century technology.

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