We've known for a long time that electronic privacy law is woefully outdated. But what we haven't known is how often the government is taking advantage of this fact to engage in a shopping spree in the treasure trove of personal information being collected by companies like Google.

So we're happy to see Google's just-released Government Requests tool, which is the company's attempt to shine some light on how often governments around the world request user information (and content removal) from Google. The ACLU has called for this type of disclosure for years and we applaud Google for taking this important first step to help Congress and the American people understand what's really going on and why it's time to demand a privacy upgrade that includes more transparency around when and how the government demands information from Google.

Google's Government Request Transparency Tool: What It Says — And What It Doesn't

Google's new tool displays the number of "user requests" that Google received from various governments from July to December 2009. According to the tool, the company received thousands of such requests from the U.S. government during that period — thousands of requests digging into the intimate details of individual lives that are captured in emails, search histories, reading and viewing logs, and the like. And if Google is receiving thousands of requests every six months, how many more are going out to Yahoo, Microsoft, Facebook and the thousands of other online services that we use every day?

But that number may understate the actual case for three reasons. First, Google's tool only tracks requests that are received as part of an official criminal investigation — which would exclude, for example, the infamous DOJ subpoena asking for millions of users' search queries, something that was not part of an official criminal investigation. Second, Google's tool only counts the number of requests it receives, not the number of user records that were requested. So that single DOJ subpoena seeking millions of records would only counts as a single request! Finally, Google is barred by law from disclosing the number of requests it receives pursuant to National Security Letters, although we know that upwards of 50,000 of these secret government requests are issued every year. All told, the requests that show up in Google's tool are just the tip of the iceberg.

So this is a great first step in increasing transparency — but it is only a first step. We hope that Google will continue to improve this tool to shine more light on how many non-criminal requests for user records it receives, break those down by type, provide more information on how many users were or would have been affected by those requests, and explore ways to disclose how it has responded to those requests (which is admittedly difficult to do).

Demand Your dotRights — Demand Transparency As Part of Electronic Privacy Reform!

The ACLU believes that transparency is an essential part of electronic privacy reform. As technology continues to evolve, our best hope of keeping privacy up to date is to ensure that we know how the government is using (or abusing) the current law to demand access to our personal information. That's why we think a "Wiretap Report for the Internet" is a key element to modernizing the Electronic Communications Privacy Act (PDF).

But we need your help to get Congress moving and get the privacy update we need. Please support our efforts to ensure that privacy isn't left behind as we move into the modern world by asking Congress to update ECPA!

(Originally posted on Daily Kos.)

In the wake of a veto threat (PDF) from the Obama administration, the intelligence authorization bill could be in jeopardy, all over some revisions to the "Gang of Eight" system.

The "Gang of Eight" is a group of members of Congress with a pretty sweet name that includes the leaders, both Democrat and Republican, of the Senate and House, as well as the chairmen and ranking members of the House and Senate Intelligence Committees. The "gang" is briefed on covert intelligence matters by the administration when the president "determines it is essential to limit access" to classified or national security information in "extraordinary circumstances." The "gang" is also sworn to secrecy to not disclose this information to anyone, even other members of Congress.

For more context, go here.

In honor of this peculiar threat, we decided to do a short series to highlight a few situations that could have benefitted from more, no matter how limited, oversight.

Let's kick this series off with a look back at the Bush administration's warrantless wiretapping program, the secret program that authorized the National Security Agency to wiretap Americans without a warrant, in blatant violation of federal statute, not to mention the Fourth Amendment. The Gang of Eight was brought into the loop about the wiretapping program in 2001 (PDF), and many of the eight walked away with misgivings about the program and, likely, more questions than answers. Sen. Jay Rockefeller (D-W.V.) famously wrote the vice president a letter, sealed it, and locked it in a drawer since he was held to the Gang of Eight's code of silence.

Members who are selected to sit on our congressional intelligence committees have the knowledge, background and, in some cases, expertise to understand and challenge various aspects of our intelligence activities and strategy. Also bear in mind that these intelligence committees regularly hold closed and classified hearings that even members' staff are prohibited from discussing details about.

Imagine if Sen. Rockefeller or any of his fellow gang members could have consulted with their colleagues on the intelligence committees about the warrantless wiretapping program. Had Sen. Rockefeller, or any other member of the gang, been able to do so, who knows how much more information Congress could have pried from the Bush administration. Even a closed and classified hearing is one more ray of sunlight into government secrecy than a mere Gang of Eight briefing.

It wasn't until December 2005 that the public learned about the secret wiretapping program. Legal challenges were mounted, but while these issues progressed through the courts, Congress passed the FISA Amendments Act (FAA), fundamentally altering Americans' Fourth Amendment rights. The FAA not only essentially legalized President Bush’s warrantless spying program, but it also gave the NSA new and virtually unlimited power to conduct warrantless and suspicionless dragnet monitoring of Americans' international telephone calls and emails. With this expansion of spy powers, it's even more crucial that more intelligence committee members are briefed on the goings-on at our nation's national security and intelligence agencies.

The FAA also notoriously granted immunity to the telecom companies that participated in that spying, which prevents judicial review of whether the telecoms acted illegally (hence the recent dismissal of Hepting v. AT&T ). Without judicial review, the responsibility lies even more heavily on Congress to maintain vigorous oversight.

Tomorrow we'll be arguing before the 2nd Circuit Court of Appeals for the reinstatement of our lawsuit challenging the wiretapping provisions of the FAA. We brought this lawsuit one hour after then-President Bush signed the FAA into law. The district court dismissed the case last summer, on the grounds that the plaintiffs — who include journalists, defense lawyers and human rights workers who rely on confidential communications to perform their jobs — did not have the right to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.

As a candidate, President Obama argued for more sunlight on government secrecy under his predecessor. It would be a shame for him to use his first veto to simply draw more curtains.

San Francisco's Police Chief George Gascón roundly offended many Muslim-Americans last month when he suggested that retrofitting San Francisco's Hall of Justice had made the structure safe from both earthquakes and Yemeni or Afghan San Franciscans who might want to park a van in front of the building and blow it up.

Gascón's subsequent apology to the city's Middle Eastern communities provided some closure for a city government that likes to see itself above racial profiling. But though the memory of Gascón's gaffe may soon fade for the general public, it underlines the extent to which racial profiling — in this case, assumed terrorist tendencies of Muslim-Americans and Americans from predominantly Muslim countries — is pervasive throughout American law enforcement.

When there are repeated and widespread reports of misguided intelligence sweeps that affect the lives of innocent Americans, the ACLU and other civil rights organizations must step in. The ACLU of Northern California — like many of our sister ACLU affiliates and allied civil rights organizations — is carefully monitoring racial profiling of Muslim communities. We recently joined with the Asian Law Caucus and San Francisco Bay Guardian in filing a Freedom of Information Act request to the FBI for records related to the surveillance of Muslim communities in Northern California.

The FBI, acknowledging the widespread media interest and public concern about relationships between these communities and American law enforcement, granted our request for expedited processing, and we are looking forward to receiving documentation on surveillance methods that may show whether and how race and religion are used to determine targets of investigations. We also hope to review aggregate data about criminal prosecutions and immigration proceedings that begin with terrorism investigations, with and without the use of undercover informants.

Muslim-Americans, like all citizens, play an important role in domestic intelligence investigations. Policies and investigative practices that focus on race or religion only are ineffective and ultimately could be dangerous for our country as a whole.

For this reason, the ACLU of Northern California is working with the Center on American-Islamic Relations and the Asian Law Caucus to present "Know Your Rights" information at mosques and community centers to help people understand their rights during 'voluntary' interviews with FBI agents.

Having represented several people who were contacted by the FBI for such interviews, it is clear to me that for many Muslim-Americans, interactions with law enforcement can seem both involuntary and deeply troubling. In order for our government to collect useful information that benefits us all, it is crucial for all people to have knowledge of their rights, and a representative or buffer with the government so that they can cooperate fully without fearing unjust prosecution. Stories of FBI infiltrators in mosques and Islamic centers who deliberately create divisions and act as agent provocateurs, as well as the FBI's overt courting in local communities, justly fuel these fears.

Gascón is new to San Francisco, with a reputation for fairness and for rejecting biased policing against Latinos and blacks. His unwitting betrayal of bias can deepen the crisis in Muslim and Arab communities and increase the fear of law enforcement, or it can be used to ramp up effective and smart intelligence practices that truly promote public safety. The ACLU will continue to hold law enforcement agencies to the latter, higher, goal.

A few weeks ago, Jay wrote about the Obama administration's failure to appoint members to the Privacy and Civil Liberties Oversight Board (PCLOB). It looks like all those letters from members of Congress (PDF) and a civil liberties coalition (PDF) Jay mentioned might've been the nudge the president needed, because in today's Washington Post, Ellen Nakashima reported some good news: "The White House is vetting someone for one of the three Democratic seats on the board."

The article, which also quotes Jay, also reports that Republicans will be supplying names of people to fill the two remaining seats in the next two weeks.

We're encouraged by this news. As we hear more and more news about out-of-control watchlists and dubious airport security measures, we hope a fully-staffed PCLOB will bring some much-needed oversight to our national security establishment.