Far too often, when the ACLU fights for the disclosure of a government record under the Freedom of Information Act, we have a strong feeling that the government isn’t giving us or the court the whole truth. And sometimes, it appears that the government is even being misleading in the details it chooses to leave out. But rarely does a U.S. senator with access to classified information confirm our intuition.
Last year, we filed a FOIA lawsuit for an opinion authored by the Justice Department’s Office of Legal Counsel. The contents of the opinion are mostly a mystery, but we do know that John Yoo wrote the opinion in May 2003, that it relates to the Bush administration’s post-9/11 warrantless wiretapping program, that it is directly relevant to the Cybersecurity Act of 2015 (a bill we opposed and called Patriot Act 2.0), and that it pertains to “common commercial service agreements.”
While these are just a few pieces of the puzzle, they are enough to speculate that the opinion offers a legal interpretation that bears on government relationships with the private sector — likely telecom and internet companies — that enable information sharing and surveillance.
That speculation seems appropriate given how we learned of the opinion in the first place. Sen. Ron Wyden (D-Ore.) has repeatedly warned that the OLC’s opinion on common commercial service agreements is critical to understanding the ongoing cybersecurity debate and contains a legal interpretation that is “inconsistent with the public’s understanding of the law.” Sen. Wyden has a history of alerting the public to the government’s reliance on secret law. the senator warned that the executive branch’s secret legal interpretation would shock the public, it turned out he was referring to the NSA’s unlawful bulk collection of call records under Section 215 of the Patriot Act. The facts underlying his warnings roared into public consciousness with publicized in June 2013.
The government has withheld the OLC opinion on common commercial service agreements in its entirety and defended that secrecy in court. Last month, after the government filed its brief in our lawsuit, Sen. Wyden wrote a public to the attorney general noting that the government’s brief in our case contains a “key assertion” that is “inaccurate” and “central to the DOJ’s legal arguments.” He also attached a classified annex to the letter that discussed this inaccuracy in detail. Senator Wyden then submitted an amicus brief in support of our lawsuit, urging the court to review the classified annex to his public letter. (Five days later, the ACLU filed its brief challenging the government’s suppression of the opinion.)
It is virtually unprecedented for a sitting senator to submit an amicus brief calling out the government for misleading the court. Sen. Wyden’s willingness to do so shows just how important it is to release this OLC opinion. Given his track record and his repeated warnings, the court — and the public — should take notice. The OLC opinion is probably far more meaningful to the public and to our privacy than we could possibly guess.
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Press ReleaseDec 2024
Privacy & Technology
ACLU Applauds Arizona Supreme Court Historic Decision That Police Need a Warrant to Access DNAACLU Applauds Arizona Supreme Court Historic Decision That Police Need a Warrant to Access DNA
PHOENIX — In a 7-0 decision, the Arizona Supreme Court ruled that a warrant is required to extract and analyze people’s DNA, saying that a person’s limited consent to a search of biological material for a specific purpose—in this case, a blood alcohol test for a DUI arrest—does not overcome that requirement. The ACLU and the ACLU of Arizona filed a friend-of-the-court brief in State v. Mitcham, arguing the government cannot genetically test biological material it already has in its possession—whether that’s blood taken from newborns to test for diseases or swabs collected from sexual assault survivors—to investigate the donors for a crime without first obtaining a warrant. In the decision, the court wrote that “in reaching this conclusion, we emphatically reject the State’s position that it was free to analyze Mitcham’s blood in any way it pleased simply because the State lawfully possessed the blood vials.” “Government analysis of our DNA can expose detailed information about our identity, appearance, family relationships, medical conditions, and more. We don’t consent to sharing all of that information each time we involuntarily shed our DNA or consent to a blood draw. The government’s argument in this case was a privacy nightmare,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “We are greatly heartened by the Arizona Supreme Court’s decision to preserve the privacy of our sensitive genetic information.” In 2015, during a DUI arrest, the defendant in this case consented to the government collecting a sample of his blood solely to test it for blood-alcohol content, and was advised that the sample would be destroyed after 90 days. Instead, law enforcement held on to this sample for three years, at which point it used it for a completely different purpose—to extract and analyze his DNA, without a warrant or consent—while investigating another crime. Had the court accepted the government’s rationale here, all of us who consent to a biological sample collection, at any point in time, for any purpose, to any government entity, could have been subject to a warrantless DNA search after the fact. “Our DNA can reveal so much about us that our genetic privacy must be protected,” said Jared Keenan, legal director of ACLU of Arizona. “The Court’s decision is vital to protecting the strong constitutional rights that keep all Arizonans’ information safe from warrantless searches and unconstitutional intrusion.” -
News & CommentaryDec 2024
Privacy & Technology
Face Recognition Threatens to Replace Tickets, ID at Sports Events – and BeyondFace Recognition Threatens to Replace Tickets, ID at Sports Events – and Beyond
You shouldn't participate in face recognition ticketing schemes. -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Privacy & Technology
AI Generated Police Reports Raise Concerns Around Transparency, BiasAI Generated Police Reports Raise Concerns Around Transparency, Bias
AI-generated police reports threaten to exacerbate existing problems in law enforcement, and to create new ones.