Dahda v. United States
Whether cell phone communications collected under an invalid wiretap order should be excluded from evidence pursuant to Title III
- EPIC Urges Supreme Court to Preserve Wiretap Act Suppression Remedy: EPIC has filed an amicus brief in Dahda v. United States, a case concerning the federal Wiretap Act and the suppression of evidence obtained following an invalid wiretap order. The Wiretap Act requires exclusion of evidence obtained as a result of an invalid order. However, the lower court denied suppression even though the order was invalid. EPIC wrote that “it is not for the courts to create atextual exceptions” to federal privacy laws. EPIC explained that Congress enacted broad and unambiguous privacy provisions in the Wiretap Act. “If the government wishes a different outcome,” EPIC wrote, “then it should go to Congress to revise the statute.” EPIC routinely participates as amicus curiae in privacy cases before the Supreme Court, most recently in Byrd v. United States (suspicionless searches of rental cars) and Carpenter v. United States (warrantless searches of cellphone location records).] (Dec. 7, 2017)
More top news »
- National Archives Moves Forward EPIC's Request for Kavanaugh White House Records » (Dec. 14, 2018)
The National Archives has
announced its intent to release dozens of undisclosed emails concerning Justice Kavanaugh's role in controversial White House surveillance programs. The announcement comes in response to EPIC’s
Freedom of Information Act lawsuit, which previously led the agency to
discover hundreds of Kavanaugh email exchanges about warrantless wiretapping and passenger profiling. Prior to Kavanaugh’s confirmation hearing, EPIC
warned that Kavanaugh—both as a White House legal advisor and then as a federal appellate judge—showed little regard for the constitutional privacy rights of Americans. The Kavanaugh emails are set to be released to EPIC in March.
- EPIC FOIA: National Archives Finds More Kavanaugh E-mails on Surveillance Programs » (Oct. 24, 2018)
The National Archives has
found hundreds of e-mails about Justice Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and passenger profiling. Following EPIC's
Freedom of Information Act lawsuit, the agency found hundreds of Kavanaugh email messages about the wiretapping program from 2003. Kavanaugh also exchanged 95 e-mail messages about the
controversial renewal in 2004, which the Attorney General and FBI Director opposed. There are also 573 Kavanaugh email messages about "Lichtblau" and "Risen" prior to the
New York Times expose on the warrantless wiretapping program. The National Archives also found more than 8,000 e-mails that Kavanaugh sent or received about passenger profiling programs. Prior to the nomination hearing, EPIC warned that Kavanaugh, both as a White House legal advisor and then as a federal appellate judge, showed little regard for the constitutional privacy rights of Americans.
- FBI Overstated Number of Encrypted Devices it Could Not Access Last Year » (May. 23, 2018)
According to the Washington Post, the FBI
"provided grossly inflated statistics to Congress and the public" about the number of encrypted cellphones inaccessible to law enforcement. The FBI stated it was locked out of 7,800 devices, but a subsequent review suggested the actual number is about 1,200. EPIC President Marc Rotenberg
told POLITICO that the revelation was "a very serious matter" that "calls into question" the FBI's other statements about "the scope of electronic surveillance in the United States." According to the federal wiretap
reports, in 2016 a total of 68 federal wiretaps were reported as being encrypted, of which 53 could not be decrypted. In a 2016
debate before the American Bar Association, former FBI Director James Comey said the FBI was locked out of about 650 phones. Rotenberg countered that
3.1 million phones were stolen or lost in a year and subject to misuse without strong encryption.
- Supreme Court: Fourth Amendment for Lawful Driver of Vehicle Regardless of Rental Agreement » (May. 14, 2018)
The U.S. Supreme Court
ruled today that a driver in lawful possession of a rental car has a reasonable expectation of privacy regardless of a rental car agreement. The Court held in
Byrd v. United States that, "the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy." EPIC filed an
amicus brief in the case, joined by 23 technical experts and legal scholars members of the EPIC Advisory Board, which stated that "relying on rental contracts to negate Fourth Amendment standing would undermine legitimate expectations of privacy." EPIC also urged the Court to recognize that a modern car collects vast troves of personal data and "make little distinction between driver and occupant, those on a rental agreement and those who are not." EPIC routinely participates as amicus curiae in cases before the Supreme Court, such as in
United States v. Microsoft Corp.,
Dahda v. United States, and
United States v. Jones.
- Supreme Court: Government's Reading of Wiretap Act 'Makes Little Sense' » (May. 14, 2018)
The Supreme Court has
ruled in
Dahda v. United States, a case about the
federal Wiretap Act and the suppression of evidence obtained under an overly broad wiretap order. A lower court permitted the evidence, relying on a novel interpretation of the Act. EPIC filed an
amicus brief in the case, arguing that "it is not for the courts to create textual exceptions" to federal privacy laws. The Supreme Court agreed with EPIC that it "makes little sense" for the court to rewrite the statute. However, the Court declined to suppress the evidence, finding that it was a lawful search under a narrow interpretation of the Wiretap Act. EPIC routinely participates as
amicus curiae in privacy cases before the Supreme Court, including
Byrd v. United States (a case in which the Court
rejected suspicionless searches of rental cars) and
Carpenter v. United States (a case about warrantless searches of cellphone location records).
- EPIC Amicus: Supreme Court Divided Over Microsoft Stored Communications Case » (Feb. 28, 2018)
This week, the Supreme Court heard arguments in
United States v. Microsoft Corps., a case concerning law enforcement access to personal data stored in Ireland. The Court appeared divided during the argument, but both Justice Ginsburg and Justice Alito appeared to agree that Congress and not the Court was better positioned to find a solution. In an
amicus brief, EPIC urged the Supreme Court to respect
international privacy standards. EPIC wrote, the "Supreme Court should not authorize searches in foreign jurisdictions that violate international human rights norms." EPIC cited important cases from the European Court of Human Rights and the European Court of Justice. EPIC warned that "a ruling for the government would also invite other countries to disregard sovereign authority." EPIC has long supported
international standards for privacy protection, and EPIC has urged U.S. ratification of the
Council of Europe Privacy Convention. EPIC routinely participates as
amicus curiae in privacy cases before the Supreme Court, most recently in
Carpenter v. United States (privacy of cellphone data),
Byrd v. United States (searches of rental cars), and
Dahda v. United States (wiretapping).
- EPIC Amicus: Supreme Court to Hear Arguments in Wiretap Act Case » (Feb. 20, 2018)
The Supreme Court will hear arguments this week in
Dahda v. United States, a case concerning the
federal Wiretap Act and the suppression of evidence obtained following an invalid wiretap order. The Wiretap Act requires exclusion of evidence obtained as a result of an invalid order, but a lower court denied suppression in the case even though the order was unlawfully broad. In an
amicus brief, EPIC wrote that "it is not for the courts to create textual exceptions" to federal privacy laws. EPIC explained that Congress enacted strict and unambiguous privacy provisions in the Wiretap Act. "If the government wishes a different outcome," EPIC wrote, "then it should go to Congress to revise the statute." EPIC routinely participates as
amicus curiae in privacy cases before the Supreme Court, most recently in
Byrd v. United States (suspicionless searches of rental cars) and
Carpenter v. United States (warrantless searches of cellphone location records).
- EPIC Urges Supreme Court to Preserve Wiretap Act Suppression Remedy » (Dec. 7, 2017)
EPIC has filed an
amicus brief in
Dahda v. United States, a case concerning the
federal Wiretap Act and the suppression of evidence obtained following an invalid wiretap order. The Wiretap Act requires exclusion of evidence obtained as a result of an invalid order. However, the lower court denied suppression even though the order was invalid. EPIC wrote that “it is not for the courts to create atextual exceptions” to federal privacy laws. EPIC explained that Congress enacted broad and unambiguous privacy provisions in the Wiretap Act. “If the government wishes a different outcome,” EPIC wrote, “then it should go to Congress to revise the statute.” EPIC routinely participates as
amicus curiae in privacy cases before the Supreme Court, most recently in
Byrd v. United States (suspicionless searches of rental cars) and
Carpenter v. United States (warrantless searches of cellphone location records).]
- EPIC Backs Commission on Evidence-Based Policymaking, Urges Congress to Take Steps to Preserve Privacy » (Sep. 26, 2017)
In a
statement to Congress, EPIC expressed support for the
findings of the Commission on Evidence-Based Policymaking. Congress
established the Commission to study how data across the federal government could be combined to improve public policy while protecting privacy. The Commission's report recommends new privacy safeguards and encourages broader use of statistical data. EPIC submitted
comments to the Commission urging the adoption of Privacy Enhancing Techniques that minimize or eliminate the collection of personal data. Several of EPIC's
recommendations were incorporated in the Commission report. A
report from the National Academies of Science earlier this year examined federal data sources and privacy.
- EPIC FOIA: DOJ will neither "confirm nor deny" existence of FISA Application for Trump Tower » (Mar. 18, 2017)
In a
letter to EPIC, the Department of Justice’s National Security Division stated it will neither "confirm nor deny" the existence of a FISA application to monitor Trump Tower. After the President has charged that President Obama "had [his] wires tapped in Trump Tower,” EPIC filed an urgent
FOIA request with the DOJ for the public release of any applications filed under
"FISA" for wiretapping Trump Tower. In response to EPIC’s FOIA request, the DOJ has stated, "we can neither confirm nor deny the existence of records in these files responsive to your request." EPIC will challenge the agency's determination. The Senate Select Committee on Intelligence released a bipartisan
statement rejecting the allegations, and House Speaker Paul Ryan stated on Thursday they have "
seen no evidence" of wiretapping. EPIC also filed a related
request for five categories of FISA applications related to the alleged surveillance of the Trump team. The DOJ provided the same
response to EPIC to that request.
- EPIC Seeks Release of FISA Order for Trump Tower » (Mar. 6, 2017)
EPIC has filed an urgent
FOIA request with the Department of Justice for the release of the warrant for wiretapping the Trump Tower in New York city. The President has charged that President Obama "had [his] wires tapped in Trump Tower." EPIC has filed a formal Freedom of Information request of the public release of any applications filed under
"FISA" for wiretapping in Trump Tower. Such an order would have been filed by the National Security Division of the Justice Department and approved by the
Foreign Intelligence Surveillance Court. The complete text of the Foreign Intelligence Surveillance Act is available in the
Privacy Law Sourcebook (EPIC 2016) at the
EPIC Bookstore.
- National Academies Releases Report on Government Data, Statistics, and Privacy » (Jan. 12, 2017)
The National Academies of Sciences has released a new
report that examines how disparate federal data sources can be used for policy research while protecting privacy. The NAS Statistics and Privacy Report states that privacy must be a "core value" of any use of government data and recommends that federal statistical agencies "adopt modern database, cryptography, privacy-preserving, and privacy-enhancing technologies” and "engage in collaborative research with academia and industry to continuously develop new techniques to address potential breaches of the confidentiality of their data." EPIC President Marc Rotenberg and EPIC Advisory Board member Cynthia Dwork served on the
committee that developed the report. Mr. Rotenberg
testified before the
Commission on Evidence-Based Policymaking, which is working on increasing access to government data for policy analysis. EPIC also filed
comments with the Commission urging it to promote Privacy Enhancing Techniques.
- Watchdog Report Shows Wiretap Powers Ineffective » (Dec. 9, 2016)
The Justice Department's Inspector General has released the latest
report to Congress on government surveillance. The report includes a review of the FBI's data collection under Section 215 of the Patriot Act, which was revised by the
Freedom Act. According to the IG report, FBI agents "did not identify any major case developments that resulted from use of the records obtained in response to the [Section 215] orders." Similar findings were made by the
PCLOB and the
Senate Judiciary Committee: section 215 has not prevented terrorist acts. The Second Circuit
ruled last year that the NSA's telephone record collection
program exceeded the legal authority of Section 2015. EPIC recently obtained
nonpublic IG reports through a FOIA
lawsuit.
- Federal Judge Unseals Secret Surveillance Records » (Sep. 22, 2016)
A federal judge has ordered the public release of
235 sealed records of government surveillance in response to a
request from a journalist. EPIC has
urged greater transparency of these "pen register and trap and trace" orders. As a result of a Freedom of Information Act lawsuit against the Justice Department,
EPIC v. DOJ, EPIC made public formerly secret
documents about the government’s use of pen registers to collect the records of private communications.
- EPIC Urges Policy Commission to Support Privacy Techniques » (Sep. 12, 2016)
EPIC President Marc Rotenberg appeared before the recently established
Commission on Evidence-Based Policymaking. Mr. Rotenberg discussed
Privacy Perspectives on data use. He pointed to the
federal wiretap reports and also
climate data as government data sources that are enormously influential yet raise few privacy concerns. He recommended that the Commission encourage the development of
Privacy Enhancing Techniques that protect personal information while enabling data analysis. Rotenberg serves on a
National Academies study that will release a report on privacy and big data in early 2017.
- Federal Court Lifts Gag Order on National Security Letter Recipient » (Dec. 1, 2015)
For the first time, a federal court has
lifted a
national security letter gag order, allowing an Internet Service Provider to publish the FBI's demands for records of user web browsing history, IP addresses, online purchases, and
location information. The FBI issues
thousands of NSLs each year, forcing companies to disclose troves of consumer records without probable cause. Recipients are preventing from acknowledging these warrantless searches. EPIC filed an
amicus brief in
In re National Security Letter, arguing that NSL gag orders frustrate the public's right to know about government surveillance programs.
- Slight Decrease in Wiretaps in 2014, Encryption Not a Barrier to Investigations » (Jul. 2, 2015)
In 2014, combined state and federal wiretap applications
decreased 1%, from 3,577 to 3,555. Investigators encountered encryption in only 25 cases, and were able to obtain plain text in all but four cases. This fact contradicts
claims that law enforcement agencies are "going dark" as a result of new encryption technologies. Of the 3,544 arrests based on wiretaps in 2014, only 553 resulted in convictions. The
annual Wiretap Report, details
government surveillance and provides insight into the debate over surveillance and the use of encryption. EPIC has repeatedly cited the annual
Wiretap Report as a model
for greater transparency of other surveillance activities . EPIC also maintains
comprehensive tables and charts on electronic surveillance.
- EPIC (Finally) Obtains Memos on Warrantless Wiretapping Program » (Sep. 8, 2014)
More than eight years after filing a
Freedom of Information Act request for the legal justification behind the "Warrantless Wiretapping" program of President Bush, EPIC has now obtained a mostly unredacted version of two key memos
(OLC54) and
(OLC85) by former Justice Department official Jack Goldsmith. EPIC requested these memos just four hours after the New York Times broke
the story about the program in December 2005. When the agency failed to release the documents, EPIC
filed a lawsuit. The ACLU and the National Security Archive later joined the case. These two Office of Legal Counsel memos offer the fullest justification of the warrantless wiretapping program available to date, arguing that the president has inherent constitutional power to monitor American's communications without a warrant in a time of war. But some parts of the legal analysis, including possibly contrary authority, are still being withheld. The warrantless wiretapping program was part of "Stellar Wind," a broad program of email interception, phone record collection, and data collection undertaken by the NSA without the approval of Congress. For more information see
EPIC: EPIC v. DOJ: Warrantless Wiretapping Program.
- Federal and State Wiretaps Up 5% in 2013 According to Annual Report, But Stats Don't Support FBI Claims of "Going Dark" » (Jul. 29, 2014)
The Administrative Office of the U.S. Courts has issued the
2013 Wiretap Report, detailing the use of surveillance authorities by law enforcement agencies. This annual report, one of the most comprehensive issued by any agency, provides an insight into the debate over surveillance authorities and the use of privacy-enhancing technologies. In 2013, wiretap applications increased 5%, from 3,576 to 3,395. Authorities encountered encryption during 41 investigations, but encryption prevented the government from deciphering messages in only 9 cases. This statistic contradicts
claims that law enforcement agencies are "going dark" as new technologies emerge. Of the 3,074 individuals arrested based on wiretaps in 2013, only 709 individuals were convicted based on wiretap evidence. EPIC has repeatedly
called on greater transparency of FISA surveillance, citing the Wiretap Report as a model for other agencies. EPIC also maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see
EPIC: Title III Wiretap Orders,
EPIC: Wiretapping, and
EPIC: Foreign Intelligence Surveillance Act.
- Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain » (May. 1, 2014)
The Department of Justice has published the
2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a
modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see
EPIC: FISC Orders 1979-2014 and
EPIC: FISA Graphs.
- Appeals Court Orders Release of Classified Legal Analysis, EPIC Filed Amicus Brief » (Apr. 21, 2014)
A federal court of appeals has
ruled that the Department of Justice must release the legal analysis justifying the controversial "targeted killing" drone program. The government
argued in
New York Times v. Department of Justice that the analysis should be exempt from release as a privileged communication. But the ACLU and the New York Times, supported by
EPIC and other open government organizations, argued that because the government relied on the legal reasoning to justify the drone program it cannot be kept secret. The Second Circuit agreed, ruling that the after "senior Government officials have assured the public" that the program is "lawful and that . . . advice establishes the legal boundaries," it can no longer claim that the document is exempt from FOIA. EPIC has pursued a similar case for more than seven years, seeking the disclosure of the OLC's legal analysis of the Warrantless Wiretapping program. And earlier this year EPIC
wrote in the New York Times that if "the Justice Department expects others to follow its advice, the analysis that supports its conclusions should be made public." For more information, see
EPIC: New York Times v. DOJ and
EPIC: EPIC v. DOJ - Warrantless Wiretapping Program.
- Federal and State Wiretaps Up 24%, Primary Target Mobile Devices According to 2012 Report » (Jun. 28, 2013)
The Administrative Office of the United States Courts has issued the the
2012 Wiretap Report. The annual report, provides comprehensive data on all federal and state wiretap applications, including the types of crimes investigated, as well as the costs involved and whether arrests or convictions resulted. In contrast,
the annual report from the Foreign Intelligence Surveillance Court provides almost no information about a surveillance authority that is routinely directed toward the American public. According to the 2012 Wiretap Report, 3,395 intercept orders were issued in 2012. Of these orders, 3,292 (97%) targeted "portable devices" and 7 were "roving" taps to target individuals using multiple devices. The vast majority (87%) of wiretaps were issued in narcotics investigations, though some involved multiple offenses. In 2012, installed wiretaps were in operation for an average of 39 days, 3 days below the average in 2011. Encryption was reported for 15 wiretaps in 2012 and for 7 wiretaps conducted during previous years. In four of these wiretaps, officials were unable to decipher the plain text of the messages. This is the first time that jurisdictions have reported that encryption prevented officials from obtaining the plain text of the communications since the Administrative Office began collecting encryption data in 2001.There were 3,743 arrests related to these intercepts, which resulted in 455 (12%) convictions. EPIC maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see
EPIC: Title III Wiretap Orders - Stats,
EPIC: Wiretapping, and
EPIC: Foreign Intelligence Surveillance Act.
- 2012 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied » (May. 2, 2013)
According to the
2012 Foreign Intelligence Surveillance Act (FISA) Report, the Department of Justice submitted 1,856 applications to the Foreign Intelligence Surveillance Court (FISC), a 6.4% increase over 2011. Of the 1,856 search applications, 1,789 sought authority to conduct electronic surveillance. The FISC did not deny any of the applications, although one was withdrawn by the Government. However, the FISC did make modifications to 40 of the applications, including one from the 2011 reporting period. In addition to the FISA orders, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons. This is a modest decrease from the 16,511 requests sent in 2011. Almost no information is available about FISA surveillance beyond the figures contained in the annual FISA letter, sent to the Senate each year by the Department of Justice, Office of Legislative Affairs. EPIC has
recommended greater reporting of FISC applications and opinions, similar to what is disclosed in the
Federal Wiretap Reports. For more information, see
EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2012 and
EPIC: Foreign Intelligence Surveillance Act.
- 2011 Report: Wiretap Authorizations Decrease » (Jul. 3, 2012)
According to the
2011 Wiretap Report, released by the Administrative Office of the US Courts, federal and state applications for wiretap orders dropped 14 percent in 2011, compared to the number reported in
2010. The reduction in wiretaps resulted primarily from a drop in applications for intercepts in narcotics offenses. In 2011, a total of 2,732 intercept applications were authorized by federal and state courts, with 792 applications by federal authorities and 1,940 by the states. In 2011, 98 percent, or 2,674, of all authorized wiretaps were designated as portable devices. The Wiretap Report does not include interceptions pursuant to the Foreign Intelligence Surveillance Act of 1978. For more information see:
EPIC: Wiretapping and
Administrative Office of the US Courts: Wiretap Reports.
- Supreme Court Set to Review Wiretap Case » (May. 21, 2012)
The Supreme Court has
agreed to hear Clapper v. Amnesty International USA, a challenge to the
FISA Amendments Act of 2008. The Act expanded the Government's authority to engage in warrantless surveillance, and followed news of the Bush administration's program to wiretap international communications. A group of lawyers, journalists, and public interest organizations, who regularly engage in international communications, challenged the new law saying they feared that their private communications would be intercepted. The US Court of Appeals for the Second Circuit
ruled that the case could proceed even though the plaintiffs had not established that they were subject to surveillance. The Government filed a petition for the Supreme Court to hear the case, which was granted today. EPIC recently filed an amicus brief in a Supreme Court case,
First American v. Edwards, raising similar Article III standing issues in the context of a consumer protection statute. EPIC also filed an amicus brief along with the Stanford Constitutional Law Center and other interested groups, in
Hepting v. AT&T, a case challenging AT&T's involvement in the FISA warrantless wiretapping program. For more information, see
EPIC: Foreign Intelligence Surveillance Act (FISA).
- EPIC Urges Justice Department to Investigate Google for Unlawful Wiretapping » (Apr. 17, 2012)
EPIC wrote a
letter to Attorney General Eric Holder asking the Department of Justice to investigate Google’s collection of Wi-Fi data from residential networks by means of "Street View" vehicles. The Federal Communications Commission recently
fined Google $25,000 for obstructing an investigation concerning Street View and federal wiretap law. But as EPIC noted "by the agency’s own admission, the investigation conducted was inadequate and did not address the applicability of federal wiretapping law to Google's interception of emails, usernames, passwords, browsing histories, and other personal information." Members of Congress have expressed support for EPIC's recommendation to the Justice Department. Senator Richard Blumenthal said that "Google's interception and collection of private wireless data potentially violates the Wiretap Act or other federal statutes, and I believe the Justice Department and state attorneys general should fully investigate this matter." Congressman Ed Markey said that "[t]his fine is a mere slap on the wrist for Google," and called for a more comprehensive investigation. Many countries have found Google guilty of violating national privacy laws, and a US federal court recently held that unencrypted wireless network communications are not exempt from the protections of the Wiretap Act. For more information, see
EPIC: Investigation of Google Street View and
EPIC: Ben Joffe v. Google.
- Appeals Court: Noncitizens Protected by Electronic Communications Privacy Act » (Oct. 4, 2011)
A federal appeals court has
ruled in Suzlon Energy v. Microsoft Corp. that foreign citizens are protected by the Electronic Communications Privacy Act. The decision is not that surprising as the
Electronic Communications Privacy Act protects consumer data, without regard to nationality, by forbidding companies from disclosing communications data with third parties in most circumstances. Suzlon involved a civil suit in which Microsoft refused to disclose data from the Hotmail email account of Rajagopalan Sridhar, an Indian citizen. The court ruled that Sridhar was protected by the Electronic Communications Privacy Act and that Microsoft correctly refused to disclose communications from Sridhar's email account. For more information, see
EPIC: Wiretapping.
- DC Circuit Court Grants Access to Cell Phone Surveillance Records » (Sep. 7, 2011)
The Circuit Court for the District of Columbia has
ruled that the Department of Justice must release information regarding government surveillance of cell phone location data. The
American Civil Liberties Union had filed a Freedom of Information Act request for information regarding current and past cases where the Department of Justice had accessed cell phone location data without a warrant. The agency sought to keep this information secret, claiming that releasing cell phone tracking data could implicate privacy of investigation subjects. The court, however, disagreed, stating, "The disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool." For more information, see
EPIC: Wiretapping and
EPIC: Electronic Surveillance 1968-2010.
- Court Approved Wiretaps Reach a New All-Time High » (Jul. 6, 2011)
According to the newly released
2010 Wiretap Report, federal and state courts issued 3,194 orders for the interception of wire, oral, or electronic communications in 2010, up from 2,376 in 2009, a 34% increase. Only one request for authorization was denied. The average number of persons whose communications were intercepted rose from 113 per wiretap order in 2009 to 118 per wiretap order in 2010. Only 26% of intercepted communications in 2010 were incriminating. The report also indicated that encryption did not prevent officials from obtaining the plaintext of communications in the six cases in which it was encountered. The 2010 Wiretap Report does not include interceptions regulated by the
Foreign Intelligence Surveillance Act (FISA) or interceptions approved by the President outside the exclusive authority of the federal wiretap law and the FISA. For more information, see
EPIC: Wiretapping and
EPIC: Title III Order Statistics.
- Judge Rules Google Street View Data Collection May Violate Wiretap Act » (Jul. 1, 2011)
In a lawsuit filed by several private citizens, a federal judge has
found that Google's purposeful and secretive collection of Wi-Fi data as part of its "Street View" activities could constitute illegal wiretapping. EPIC filed an
amicus brief in the case, providing a detailed legislative history of the Electronic Communications Privacy Act (ECPA) and arguing that private Wi-Fi communications are entitled to privacy protection under ECPA. EPIC said that Congress established "a presumption in favor of confidentiality except in those circumstances where the user has knowingly chosen to broadcast communications to the general public." For three years in thirty countries, Google's Street View cars collected data, including the content of personal emails, from wireless routers located in private homes and businesses. Several countries, including the U.K., Germany, Spain, and Canada, have conducted similar investigations and determined that Google violated their privacy laws. In the U.S., the Federal Communications Commission
opened an investigation after EPIC filed a
complaint, but the Commission has failed to announce a ruling. For more information, see
EPIC: Google Street View.
- Senator Leahy Introduces Bill to Update Digital Privacy Law » (May. 17, 2011)
Senator Patrick Leahy (D-VT) has introduced
the Electronic Communications Privacy Act (ECPA) Amendments Act to update
the 1986 law for electronic mail and stored communications. Senator Leahy
said "Since the Electronic Communications Privacy Act was first enacted in 1986, ECPA has been one of our nation’s premiere privacy laws. But today this law is significantly outdated and out-paced by rapid changes in technology . . ." The bill includes new provisions that clarifies access by government agents to locational data, but stops short of regulating the use of locational data by private firms. EPIC has
said that safeguards for locational data are critical for users of new modern communications services. For more information, see
EPIC: Wiretapping and
Summary of Legislation.
- Senator Leahy Calls for Updates to Federal Privacy Law, Attorney General Confirms Sony Investigation » (May. 4, 2011)
At a
Justice Department oversight hearing, Senate Judiciary Chairman Patrick Leahy today
urged Congress to enact the bipartisan Personal Data Privacy and Security Act. He also said that the "collection, use and storage of Americans’ sensitive personal information, including by mobile technologies, is an important privacy issue." He asked the Attorney General to work with the Congress on updates to the Electronic Communications Privacy Act and other Federal laws implicating Americans’ privacy. During the hearing, the Attorney General confirmed an investigation into the Sony network attack, considered the most serious data breach to date. For more information, see
EPIC - Wiretapping,
EPIC - Identity Theft.
- In Court Filing, EPIC Argues Residential Wi-Fi Routers are Not Exempted Under Federal Wiretap Laws » (Apr. 15, 2011)
EPIC filed an amicus
brief in federal court arguing that users of private residential routers are entitled to privacy protection. The EPIC brief is in response to a
series of questions asked by a federal judge as to whether private WiFi communications are covered under the Federal Wiretap Act. EPIC explained that a "Wireless Local Area Network (WLAN)" provides functionality for those within the home who take advantage of shared services, such as printers and Internet access. In contrast, WiMAX, WWAN, and WiLD are wireless devices that broadcast over a long distance and are intended for public access. EPIC also pointed out that users of residential WLANS can configure their devices to operate as "Hot Spots," but few choose to do so. EPIC said that Congress established "a presumption in favor of confidentiality except in those circumstances where the user has knowingly chosen to broadcast communications to the general public." For more information, see
EPIC: Google Street View.
- EPIC v. DOJ: Warrantless Wiretapping Memos Disclosed » (Mar. 22, 2011)
Pursuant to
EPIC v. DOJ, the Justice Deparment has turned over two legal memos concerning the Bush-era warrantless wiretapping program. EPIC sought these memos within hours after the
New York Times first reported on the wiretapping program in 2005. The memos, dated
November 2, 2001 and
May 6, 2004, contain portions of the Bush Administration's justifications for the program, but are heavily redacted. The Obama Administration
withheld three other memos in their entirety. For more information, see
EPIC: Wiretapping,
EPIC: Foreign Intelligence Surveillance Act (FISA), and
Lawfare, "DOJ Releases Redacted Version of 2004 Surveillance Opinion."
- Federal Appeals Court Finds A "Reasonable Expectation of Privacy" in Email » (Dec. 17, 2010)
The Sixth Circuit Court of Appeals has
ruled that the Constitution establishes greater protections for stored email than is set out in federal laws. In Warshak v. United States, the government compelled an internet service provider to reveal 27,000 emails without securing a warrant or giving notice to the customer, Steven Warshak. The Court held that the seizure violated Warshak's Fourth Amendment rights. In response to the Government's assertions that its actions were based on the Stored Communications Act, the Court responded "to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional." The Sixth Circuit joins the First Circuit in finding that email is subject to strong protections under electronic privacy laws. EPIC joined a group of civil liberties organizations and Professor Orin Kerr to submit a "Friend of the Court"
brief in
U.S. v. Councilman, a First Circuit case concerning email and the Wiretap Act. A separate
amicus brief in Councilman from leading technology experts explained that privacy protection is "critical for electronic mail." For more information, see
EPIC: Wiretapping.
- Canada: Google Street View Violates Privacy Laws » (Oct. 20, 2010)
Canada's Privacy Commissioner
has determined that Google violated Canadian privacy law when the company's
Street View cars collected user information from wireless networks. The personal information Google captured included e-mails and the names, addresses, and home phone numbers of people suffering from a certain medical condition. The Commissioner called on Google to strengthen its controls and designate an individual to be responsible for privacy issues. In May, EPIC urged the Federal Communications Commission to open an investigation into Street View, as Google's practices appear to violate
U.S. federal wiretap laws as well as the
U.S. Communications Act. For more information, see
EPIC: Google Street View.
- Federal Appeals Court Protects Innocent Targets of Government Surveillance » (Sep. 29, 2010)
A federal appeals court in New York
overruled a lower court order that would have disclosed thousands of wiretapped conversations, to the Security and Exchange Commission. The appeals court called the disclosure a "clear and indisputable" abuse of discretion. In SEC v. Galleon, the SEC sought 18,150 private conversations, obtained by the FBI, before any determination of whether the interceptions were relevant or lawful.The court issued the order which was then appealed. EPIC filed an
amicus brief and urged the appellate court to protect "the privacy rights of hundreds of individuals" who had no involvement in the case. The court agreed and found that "ordering discovery of the wiretap materials before any determination of the legality of the surveillance involved exceeded the district court’s discretion." For more information, see
EPIC: SEC v. Galleon and
EPIC: Wiretapping.
- Federal Court to Hear Oral Argument in Wiretap Abuse Case » (Jul. 8, 2010)
A
federal court in New York will hear oral argument today in
SEC v. Galleon, a case involving the disclosure of federal wiretap recordings. EPIC filed a
"friend of the court" brief, urging the court to protect the privacy of innocent individuals who were inadvertently recorded on the wiretaps. A trial court judge ordered disclosure of all wiretaps conducted in a criminal investigation, even though no court has ruled on the recordings' legality or relevance. EPIC noted that "hundreds of thousands of individuals are recorded on wiretaps every year," and "80% of those personal communications are wholly unrelated to criminal activity." For more information, see
EPIC: SEC v. Galleon and
EPIC Wiretapping.
- Applications for Court Approved Wiretaps Reach All-Time High in 2009 » (May. 3, 2010)
According to the newly released
2009 Wiretap report, federal and state courts issued 2,376 orders for the interception of wire, oral or electronic communications in 2009, up from 1,891 in 2008, an increase of more than 25%.
U.S. Courts Press release.) As in the previous four years, no applications for wiretap authorizations were denied by either state or federal courts. With the exception of 2008, the total number of authorized wiretaps has grown in each of the past seven calendar years, beginning in 2003. The 2009 Wiretap Report does not include interceptions regulated by the
Foreign Intelligence Surveillance Act or interceptions approved by the President outside the exclusive authority of the federal wiretap law and the FISA. See
EPIC Wiretapping and
EPIC Title III Order Statistics.
- EPIC Urges Federal Court to Protect Individuals from Wiretap Abuse » (Apr. 30, 2010)
EPIC filed a
"friend of the court" brief, urging a
federal appeals court to protect the privacy of innocent individuals who were inadvertently recorded on federal wiretaps. In SEC v. Rajaratnam, a trial court judge ordered disclosure of all wiretaps conducted in a criminal investigation, even though a court has yet to rule on the recordings' legality or relevance. EPIC noted that "hundreds of thousands of individuals are recorded on wiretaps every year," and "80% of those personal communications are wholly unrelated to criminal activity." For more information, see
SEC v. Galleon and
EPIC Wiretapping.
- EPIC Renews Call for Release of Bush Warrantless Wiretap Memos » (Sep. 18, 2009)
In
court papers filed this week in Washington, DC, EPIC and the ACLU asked a federal judge now reviewing an open government case to consider the publication of the
Inspectors General Unclassified Report on the President's Surveillance Program. EPIC and the ACLU are seeking the release of the relevant legal memos relating to the program, but the government contends that the entire matter is secret. However, the Inspector General's report, which is widely available, discusses several of the memos at issue in the case. EPIC filed the original request for the legal memos in December 2005 after the New York Times
first reported on the warrantless wiretapping program. The case is
EPIC v. Dep't of Justice.
- PATRIOT Act Revisions Introduced in Senate » (Sep. 17, 2009)
Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the
Judicious
Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see
EPIC USA PATRIOT Act,
EPIC FISA,
EPIC Wiretapping, and
EPIC National Security Letters.
- Senators Consider PATRIOT Act Reforms » (Aug. 7, 2009)
Senators
Russ Feingold (D-WI) and
Dick Durbin (D-IL) are
drafting legislative
reforms to revise the
USA PATRIOT Act. The USA PATRIOT Act allows authorities to conduct surveillance without judicial review through the use of
National Security Letters. The Senators asked the
Attorney General and the
Chairmen of the Senate Judiciary and Intelligence Committee to consider two
previous
bills that add protections to
PATRIOT ACT. Pursuant to a EPIC lawsuit, a federal judge had
ordered the
Justice Department to provide for independent judicial inspection of documents relating to
warrantless wiretapping. For more information, see
EPIC USA PATRIOT Act,
EPIC FISA,
EPIC Wiretapping, and
EPIC National Security Letters.
- Inspector Generals Release Report on President's Surveillance Program » (Jul. 10, 2009)
The Inspector Generals of the
Intelligence Community released a
report
on the President's Surveillance Program. The report summarizes the unclassified
collective results of the reviews. The Program involved the massive, warrantless
surveillance of Americans in the United States. The IG Report finds that the
absence of effective oversight contributed to the ineffectiveness of the program.
In December 2005, EPIC had
requested the legal opinions that were prepared to justify the program. The government has refused to produce many key documents, and
EPIC sued under the Freedom of Information Act. In March this year, the Attorney General
released several related memos, which previously were secret, following President Obama's
statement on government transparency. See
EPIC FISA,
EPIC Surveillance FOIA,
EPIC Wiretapping, and
EPIC National Security Letters.
- FBI's Use of FISA Increasing » (May. 20, 2009)
In a
report to Congress, the
Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. In 2008, the FBI made 24,744 NSL requests pertaining to 7,225 persons compared to 16,804 requests pertaining to 4,327 persons in 2007. The report also detailed 2,082 applications by the FBI to the Foreign Intelligence Surveillance Court for authority to conduct surveillance and physical searches. An
earlier audit had revealed that some "blanket-NSLs" did not document the relevance of the information sought to a national security investigation and the statistics were not reported to the Congress. For more information, see EPIC's Page on
Foreign Intelligence Surveillance Act,
National Security Letters, and
Wiretapping.
- EPIC Urges Greater Accountability for Network Surveillance » (Apr. 29, 2009)
Today, EPIC
asked Senator Patrick Leahy to investigate the Department of Justice's failure to make public statistics detailing federal use of
"pen registers" and "trap and trace" devices, which record "non-content" information about telephone calls, email and web traffic. In a letter to the Chairman of the Senate Judiciary Committee, EPIC observed that the Attorney General is required to provide to Congress detailed statistics concerning the use of these techniques. Yet, "the DOJ does not publicly disclose pen register reports as a matter of course." EPIC also raised questions regarding the agency's compliance with reporting requirements for the period 2004-2008. The lack of public accountability for these network monitoring techniques contrasts with the U.S. Courts' routine public reporting of federal wiretaps, EPIC said. The Courts released
the most recent wiretap report on April 27, 2009. For more information, see EPIC's
Wiretapping page.
- Applications for Court Approved Wiretaps Down in 2008 » (Apr. 28, 2009)
According to the 2008 Wiretap
report, federal and state courts issued 1,891 orders for the interception of wire, oral or electronic communications in 2008, down from 2,208 in 2007. (
Dept. of Justice Press release.) As in the last three years, no applications for wiretap authorizations were denied by either state or federal courts. The total number of authorized wiretaps had grown in each of the six past calendar years, beginning in 2003. The 2008 Wiretap Report does not include interceptions regulated by the
Foreign Intelligence Surveillance Act or interceptions approvedby the President outside the exclusive authority of the federal wiretap law and the FISA. See EPIC
Wiretapping page and EPIC
Title III Orders.
Summary
The Supreme Court has agreed to review an important case concerning the scope of the exclusionary rule under Title III of the Wiretap Act. Title III strictly limits the authority of the government to intercept communications. This case concerns a Wiretap issued by a lower court in Kansas that was found facially invalid because it permitted interception of cell phone calls outside the court's territorial jurisdiction. The Supreme Court will consider in this case whether communications intercepted pursuant to that facially invalid order must be suppressed.
Question Presented
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires the suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.
Background
U.S. District Court for the District of Kansas
Defendant Los Rovell Dahda and his co-defendants were convicted of drug-related offenses based largely on evidence gathered from 9 wiretap orders targeting several cell phones. Dahda moved to suppress the evidence at trial on the grounds that the wiretap orders were facially insufficient because they authorized interception of communications outside of the lower court’s territorial jurisdiction. The court denied Dahda's motion to suppress and the defendants were subsequently convicted and appealed the judgment.
U.S. Court of Appeals for the Tenth Circuit
On appeal, the Tenth Circuit affirmed the district court’s denial of Dahda's motion to suppress. While the court agreed that the orders were facially insufficient, the court found that the Wiretap Act suppression provision, 18 U.S.C. 2518(10)(a)(ii), only applied if the insufficiency of the order implicated a “core concern” of the Wiretap Act. The law provides that "[a]ny aggrieved person" can "move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom" if they can show either (1) "the communication was unlawfully intercepted;" (2) "the order of authorization or approval under which it was intercepted is insufficient on its face;" or (3) "the interception was not made in conformity with the order of authorization or approval." If the court grants the motion, then the communication and any evidence derived "shall be treated as having been obtained in violation of this chapter," and are thus prohibited from being introduced into evidence under 18 U.S.C. § 2515.
Despite finding that the order was insufficient on its face, the Tenth Circuit held that the territorial-jurisdiction limitation did not implicate a "core concern" of the Wiretap Act and concluded that the evidence should not be suppressed.
Supreme Court of the United States
On July 3, 2017, petitioners filed a petition for a writ of certiorari. Petitioners argued that the Tenth Circuit’s holding “cannot be justified under traditional principles of statutory interpretation or by resort to the Court’s earlier decisions.” The issue in this case is one of “substantial and growing importance” and need to be address to put an end to what petitioners think is an “erroneous interpretation of Title III’s suppression remedy.”
On October 16, 2017, the Supreme Court granted certiorari.
EPIC's Interest
EPIC has an interest in promoting privacy by upholding robust constitutional and statutory protections. EPIC has filed many amicus curiae briefs in Supreme Court, Federal Court, and State cases related to suppression of evidence and protecting rights. For instance, EPIC filed an amicus brief in Riley v. California, a Supreme Court case concerning whether officers can search a suspect’s cell phone without a warrant during an arrest. EPIC argued that the warrantless search of a cell-phone provides access to sensitive personal data, and current available techniques are already available for law enforcement to secure cell phone data pending a court’s determination of probable cause. As a result, the cell phone evidence was suppressed.
EPIC also filed an amicus brief in United States v. Jones, a Supreme Court case concerning the warrantless use of a tracking device and whether the attachment and use of a GPS device to a car to monitor a person’s movements on public streets violated the Fourth Amendment. EPIC argued that GPS tracking is an invasive technique that collects and stores a large amount of personal information about a person’s movements. Absent a warrant, law enforcement use of this device threatens Fourth Amendment protections.
EPIC also filed an amicus brief in Tolentino v. New York, a Supreme Court case questioning whether the Fourth Amendment requires a court to suppress evidence of a driver's suspended license when the police obtained that evidence after an illegal search. EPIC argued that the evidence should be suppressed, stating that "the risk is real that car stops will increasingly become pretextual because of the opportunity to search a government database for data unrelated to the reason that gave rise to the original stop." The Supreme Court dismissed the case as improvidently granted.
Legal Documents
United States Supreme Court, No. 16-402
- Merits Stage
- Petition Stage
U.S. Court of Appeals for the Tenth Circuit, Nos. 15-3226
U.S. District Court for the Middle District of Pennsylvania, No. 14-321
Resources
News
