I think this is unrelated to the electoral college, but it's still good stuff.
Though the FBI won’t release the memos, we do have some information from other sources on the surveillance techniques federal agents are already using. And for the most part the FBI contends they do not need a warrant,
and one wonders, given the public nature of this information, why they are officially claiming its "secret."
Tellingly, in U.S. v. Jones, after the US government lost its case in the Supreme Court with the GPS device, it went right back to the district court and asserted it could get Jones’ cell phone site location data without a warrant.
The FBI employs highly controversial “tower dumps” where they get the location information on everyone within a particular radius, potentially violating the privacy of thousands of innocent people with one request.
In late 2012, we reported on the secretive new device the FBI has been increasingly using for surveillance known as a IMSI catcher, or “Stingray.” A Stingray acts as a fake cell phone tower and locks onto all devices in a certain area to find a cell phone’s location, or perhaps even intercept phone calls and texts. Given it potentially sucks up thousands of innocent persons’ data, we called it an “unconstitutional, all you can eat data buffet.”
The FBI has gone to great lengths to keep this technology secret, even going as far as refusing to tell judges its full range of capabilities.
In cities across the country, local police departments and other law enforcement agencies are installing automated license plate readers that create databases of location information about individual cars (and their drivers). These readers can be mounted by the side of a busy road, scanning every car that rolls by, or on the dash of a police car, allowing officers to drive through and scan all the plates in a parking lot.
This surveillance is untargeted, recording the movements of any car passes by. In cities that have become partners in the FBI’s Joint Terrorism Task Force, or have entered into another data-sharing agreement, this location information is at the fingertips of those federal agents.
On top of all this, the FBI is one of just a few dozen public agencies that has an authorization to fly a drone in the U.S. There is no evidence at this time that they are actively pursuing or using a specific device. But we do know that other branches of the federal government, namely the Department of Homeland Security (DHS), are conducting drone surveillance along the U.S. border, and have at least occasionally loaned these capabilities to other departments. EFF has sued DHS for more information about that program, but in the meantime, as with the redacted documents, information about their use in surveillance remains frustratingly opaque.
This is just the latest example of the Obama administration trying to interpret public laws in secret without adequately informing its citizens. Currently, EFF is suing the government for its secret interpretation of the Patriot Act Section 215, and for secret FISA court opinions that could shed light on the NSA warrantless wiretapping program. In addition, the ACLU has sued the Obama administration for its legal opinion stating it can kill US citizens overseas, away from the battlefield.
Of course, law enforcement needs the ability to conduct investigations. But explaining to the public how it generally conducts surveillance puts no one in danger, and compromises no investigations.
This information is vital to know if law enforcement is complying with the law and constitution. As we’ve seen with GPS devices, and we are now seeing with cell phone tracking and the use of Stingrays, law enforcement will push the limits of their authority — and sometimes overstep it — if they are not kept in check by an informed public.
But if we obey the "laws" and have nothing to hide, then we have nothing to worry about.