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2013-05-10

Are the FBI and IRS Secretly Reading Your Email Without a Warrant?

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The American Civil Liberties Union has obtained documents revealing that the FBI and IRS may be reading emails and other electronic communications of U.S. citizens without obtaining a warrant. This comes just as reports have emerged that the Obama administration is considering approving an overhaul of government surveillance of the Internet. The New York Times reported the new rules would make it easier to wiretap users of web services such as instant messaging. "The FBI wants to be able to intercept every kind of possible communication," says attorney Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project. "The FBI basically wants to require all of these companies to rewrite their code in order to enable more government surveillance. … And in order to accomplish that, they would make the whole Internet less secure."

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: We turn now to the issue of government surveillance. The American Civil Liberties Union recently obtained documents revealing that the FBI and the IRS may be reading emails and other electronic communications of U.S. citizens without obtaining a warrant.

AMY GOODMAN: This comes as reports have emerged that the Obama administration is considering approving an overhaul of government surveillance of the Internet. The New York Times reported the new rules would make it easier to wiretap users of web services such as instant messaging.

Well, to talk more about this, we’re joined by Ben Wizner, an attorney at the ACLU and director of the Speech, Privacy, and Technology Project.

We welcome you back to Democracy Now! What did you find out?

BEN WIZNER: I suppose we didn’t find out anything that was all that shocking. A 1986 law called the Electronic Communications Privacy Act actually allows law enforcement to read emails that are stored for more than 180 days without a warrant. Now, of course, that law was enacted before there was a World Wide Web, before there was cloud storage of email, when in order to store an email that long you had to download it to your own computer. So it’s an incredibly out-of-date law.

Now in 2010, a federal court said that it was unconstitutional for the FBI to obtain and read those emails without a warrant, which strikes us as absolutely correct. So we wanted to know: Is the FBI actually following this federal court decision? It’s a federal court decision that covers four states, but it seems to state the law absolutely correctly. And so we filed FOIA requests with lots of government agencies. And what we learned is that some seem to be following this decision, and others don’t. The FBI gave us a 2012 operations guideline that doesn’t even mention that case and that says unequivocally that it can obtain stored email communications without a warrant, simply with a subpoena.

JUAN GONZÁLEZ: The—but the IRS.

BEN WIZNER: Yeah.

JUAN GONZÁLEZ: Why are they being able to look through people’s emails without a warrant?

BEN WIZNER: Well, they ought to be able to look through emails with a warrant. I mean, the IRS conducts criminal investigations, and perhaps they should conduct more criminal investigations, you know, given the way some people avoid tax laws in this country. But there’s no reason why they should not be able to obtain a probable cause warrant from a judge. You know, it’s ironic that we’ve been screaming about this for years and years, that there’s a big movement to reform this law, but only when we released documents about the IRS did any Republicans on Capitol Hill take any notice of this at all.

So I think the prospects for reform, for overhauling that out-of-date law, and for providing real constitutional protection for emails—and there’s no reason why your email should have different constitutional protections than a letter that you write. People expect, when they send a private email to someone else, that it is private, that it shouldn’t be treated just as a kind of business record that the government can obtain without good reason.

AMY GOODMAN: Do you find, after the Boston Marathon bombing, that there is increased willingness to accept all kinds of surveillance? I mean, the use of face-recognition technology, the whole country then sees that the suspects are then arrested. How are you dealing with this?

BEN WIZNER: You know, it’s very interesting, because I think that the Boston situation confirmed largely what we know about that kind of video surveillance. It doesn’t prevent or deter serious attacks. It didn’t in Boston, it didn’t in London, it didn’t in Madrid, and it didn’t in Times Square. It can be useful in helping to figure out after the fact who did it, which is why we don’t oppose camera systems at high-profile targets or events.

What we don’t want is cameras to be so pervasive that they’re pointed into our backyards or into bedroom windows, and for records to be stored primarily of innocent people going about their daily business. It’s not just a Big Brother problem that we’ll have this permanent database. It’s a "little brother" problem. We saw, you know, the NYPD flying over a rooftop and videotaping a couple in an amorous moment, and somehow that was leaked to a news station, so we know about it. I imagine that kind of thing happens all the time.

But, yes, I mean, I do—I think that there is this belief that greater surveillance leads to greater security. And I think that at times the opposite is true. Trying to prevent terrorism is trying to find a needle in a haystack. There’s just not a lot of terrorists. And the worst way to do that is to make the haystack so large that the needle can’t be found. And the more information that gets swept up, stored, the harder it is for law enforcement, with their limited resources, to actually figure out what’s going on.

JUAN GONZÁLEZ: And what about the efforts now in Congress and with the Obama administration siding with the FBI in actually weakening safeguards against surveillance, especially of people’s emails?

BEN WIZNER: Isn’t it interesting, right, that the FBI agrees with us that the laws are out of date? We think it makes it too easy for them to conduct surveillance, and they think it makes it too difficult for them to conduct it. But what that story this week was, is that, you know, the FBI wants to be able to intercept every kind of possible communication. Now, if they get a warrant from a judge to listen to phone calls, they can go to a phone company, a switch can be flicked, and they can listen to those phone calls. But there’s lots of ways that we communicate online right now—through emails, through chats and text messages, through peer to peer, through encrypted communications—where the technology simply doesn’t exist for the FBI to get that information in real time. They can get it once it’s stored, with a warrant. The FBI basically wants to require all of these companies to rewrite their code in order to enable more government surveillance, essentially to change the world in order to facilitate surveillance.

What’s very interesting in that story, you saw that big businesses who this would affect are very much against it. And it’s tempting to sort of sit back and eat popcorn and watch the telecoms and the FBI slug it out against each other, but the issues are too important. You know, our government wasn’t created to make sure that law enforcement could spy on every single communication. People have always been able to walk out into a field and have a conversation not using a technology that could be wiretapped. And this would be a very, very dangerous proposal. I expect a pretty big fight.

JUAN GONZÁLEZ: And obviously, in the telecom battles, the telecoms would eventually cut a deal with the government and figure out a way to give the government some of what it wants while keeping their ability to keep making money.

BEN WIZNER: You know, they could be seeking leverage to make sure the government has to pay for all of the changes. No, we can’t entrust our civil liberties to for-profit entities.

AMY GOODMAN: Last year, National Security Agency whistleblower William Binney appeared on Democracy Now!, and I asked him about President Obama’s record on surveillance.

AMY GOODMAN: Do you believe all emails, the government has copies of, in the United States?

WILLIAM BINNEY: I would think—I believe they have most of them, yes.

AMY GOODMAN: And you’re speaking from a position where you would know, considering your position in the National Security Agency.

WILLIAM BINNEY: Right. All they would have to do is put various Narus devices at various points along the network, at choke points or convergent points, where the network converges, and they could basically take down and have copies of most everything on the network.

AMY GOODMAN: And, of course, William Binney was at the National Security Agency—

BEN WIZNER: Right, [inaudible].

AMY GOODMAN: —which is several times larger than the CIA.

BEN WIZNER: That’s right. And, you know, as we all know, and as you reported many times, they’re constructing a massive data facility in Utah. And many people believe that the purpose of that is essentially to create a surveillance time machine to intercept every communication that they can, even encrypted ones, with the understanding that even if they can’t prevent attacks by building this haystack, as I said, they can at least connect the dots in hindsight by doing that.

But I will say that this new proposal adds a new level of danger, because it would require these companies to break encryption. There’s many kinds of communication that human rights activists use, that journalists use, with end-to-end encryption, so that even the companies that are providing the services can’t read the communication. The FBI considers this a "going dark" problem. They don’t want us to be able to communicate with each other in that kind of encrypted way. And in order to accomplish that, they would make the whole Internet less secure, because in order to build in this kind of surveillance back door, you’re essentially opening up all of these online platforms to cyber-attack from criminals, from hackers, from foreign governments. And some governments are even less benign than our own.

AMY GOODMAN: Well, Ben Wizner, I want to thank you for being with us, attorney at the ACLU, director of the Speech, Privacy, and Technology Project.

And that does it for our broadcast. Juan, you’re headed to Philadelphia tonight.

JUAN GONZÁLEZ: Yes, the final opening of the Harvest of Empire movie based on my book is going to be at the Riverview Plaza Stadium 17 tonight at—and I’m going to be speaking afterwards, after the 7:25 showing. And since Philadelphia was my home for many years—I started my journalism career there—I expect that, hopefully, that many of my former colleagues and friends, as well as those Democracy Now! listeners, will show up and be there tonight at 7:25.

AMY GOODMAN: And I really encourage people to go out to see Harvest of Empire.

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