“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” —U.S. Supreme Court Chief Justice John Roberts in Riley v. California (2014)
Technological innovation has outpaced our privacy protections. As a result, our digital footprint can be tracked by the government and corporations in ways that were once unthinkable. This digital footprint is constantly growing, containing more and more data about the most intimate aspects of our lives. This includes our communications, whereabouts, online searches, purchases, and even our bodies. When the government has easy access to this information, we lose more than just privacy and control over our information. Free speech, security, and equality suffer as well.
The ACLU Speech, Privacy, and Technology Project fights in the courts, lobbies on Capitol Hill, and works with technology companies to ensure that civil liberties are protected as technology advances. We are working to secure a warrant requirement for law enforcement access to electronic information, to chip away at the government’s excessive secrecy surrounding its surveillance practices, to promote the proliferation of privacy-protective technologies, and more.
Americans should not have to choose between using new technologies and protecting their civil liberties. We work to ensure a future in which the Fourth Amendment ban on unreasonable searches extends to digital property and keeping your data your own.
What you Need to Know
• 1986. The federal law protecting your electronic information was passed in this year, making it older than the World Wide Web.
• Fourth Amendment. The government argues that the Fourth Amendment protects information that you keep in your desk but not information that you keep online, like old emails or pictures.
• National Security Agency (NSA). In order to carry out mass surveillance, the NSA has weakened the security of the communications systems that we all rely on.
New technologies are making it easier for governments and corporations to learn the minutiae of our online activities. Corporations collect our information to sell to the highest bidder while an expanding surveillance apparatus and outdated privacy laws allow the government to monitor us like never before.
With more and more of our lives moving online, these intrusions have devastating implications for our right to privacy. But more than just privacy is threatened when everything we say, everywhere we go, and everyone we associate with are fair game. We have seen that surveillance—whether by governments or corporations—kills free speech and free association, undermines a free media, and threatens the free exercise of religion.
Law enforcement is taking advantage of outdated privacy laws to track Americans like never before. New technologies can record your every movement, revealing detailed information about how you choose to live your life. Without the right protections in place, the government can gain access to this information and your private life with disturbing ease.
As long as it’s turned on, your mobile phone registers its position with cell towers every few minutes, whether or not the phone is in use. Since mobile carriers are retaining location data on their customers, government officials—often without a warrant from a judge—can obtain detailed personal information about you by accessing your location history from your cell phone company. In tandem with information from other location-tracking technologies, like automatic license-plate readers, this information can tell the government an enormous deal about you, from which friends you’re seeing to where you go to the doctor to how often you go to church.
Freedom from unreasonable government snooping has always been a foundation of liberty in America. Through coordinated open-government laws, like the Freedom of Information Act, the ACLU has uncovered the location-tracking policies and practices of hundreds of state and local police departments. We have also litigated in courts across the country to advocate for a warrant requirement for historical and real-time location information and lobbied in the U.S. Congress for the passage of the Geolocation Privacy and Surveillance (GPS) Act.
Medical and Genetic Privacy
Medical and genetic information can reveal some of the most personal and private data about us, and maintaining control over that information is crucial. As medical records are increasingly digitized and genetic sequencing becomes faster and cheaper, threats to our privacy and autonomy intensify. Whether it’s police seeking to search medical records or conduct DNA tests without a warrant, or private corporations patenting human genes, the ACLU is standing up for your rights.
The ACLU has long fought to preserve the privacy of sensitive medical records and genetic information. For example, in Oregon Prescription Drug Monitoring Program v. Drug Enforcement Administration (2017), we argued that law enforcement must get a probable-cause warrant from a judge before requesting confidential prescription records from a state prescription-tracking database. In Maryland v. King (2013), we filed a brief in the U.S. Supreme Court opposing the drastic expansion of state DNA databases to include DNA samples from people who have been arrested but not yet convicted. In a 2004 case, we even asked a Florida court to protect the confidentiality of Rush Limbaugh’s medical records against unreasonable government search.
We have also consistently opposed attempts to infringe on people’s autonomy in making medical decisions. In 1965, the ACLU filed a friend-of-the-court brief in Griswold v. Connecticut , (1965) a landmark case where the Supreme Court struck down a state prohibition on the prescription, sale, or use of contraceptives, even for married couples, and recognized a right to privacy surrounding intimate medical and family planning decisions. More recently, in Association for Molecular Pathology v. Myriad Genetics, Inc. (2013), the ACLU successfully persuaded the Supreme Court to invalidate patents on two genes associated with hereditary breast and ovarian cancer, thus removing barriers to scientific research and treatment.
We are living in an age of dramatic technological progress. That progress has brought us many conveniences and advantages, but one result has been a rash of new spying and surveillance technologies. These include new or greatly improved imaging devices, location-tracking technologies, communications eavesdropping systems, and new means of collecting ever-more-granular data of all kinds about individuals and their activities.
All too often, the deployment of these technologies happens faster than our social, political, educational, and legal systems can react, producing a “land rush” in which companies and government agencies deploy new privacy-invasive technologies before subjects are aware that they exist—and certainly before we have consented to their use through our democratic political system.
The ACLU promotes the preservation of privacy and other values in a manner that maximizes the advantages that such technology might bring us. In some cases, technology-specific rules might be warranted. In all cases, we would benefit from the application of basic privacy principles, such as the globally recognized Fair Information Practice Principles.
Many of the basic rights we take for granted are not protected when we go to work. The ACLU continues to fight for employee privacy by challenging how those rights are violated by employers through workplace surveillance, unwarranted drug testing, and lifestyle discrimination.
Employers have a legitimate interest in monitoring work to ensure efficiency and productivity. But employee surveillance often goes well beyond legitimate management concerns and becomes simple spying in furtherance of no legitimate business interest. Electronic monitoring of employees is an area where we have seen the emergence of especially intrusive and unprecedented levels of workplace surveillance.
Any monitoring of employees should be narrowly tailored in time, place, and manner, and it should be transparent to employees (unless the employer is conducting an investigation based on substantial evidence of misconduct). Even permitted intrusions should not be used in a way that creates an atmosphere of pervasive surveillance or intimidation.
We shouldn’t have to choose between using new technologies and keeping our personal information private. The ACLU works to promote a future where technology can be implemented in ways that protect civil liberties, limit the collection of personal information, and ensure that individuals have control over their private data.
Cassandra Bowers is the communications director at ACLU of Wisconsin.
ACLU of Wisconsin
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Milwaukee, WI 53202