ProPublica: Medicaid Programs Drowning In Backlog

This article, written by Charles Ornstein, was originally published by ProPublica on April 9.

Last week, Federal health officials celebrated two milestones related to the Affordable Care Act. The first, which got considerable attention, was that more than 7 million people selected private health plans in State and Federal health insurance exchanges. The second, which got less attention, was that some 3 million additional enrollees had signed up for Medicaid and the Children’s Health Insurance Program (public health insurance programs for the poor), many as a result of Medicaid’s expansion.

But there are growing signs that Obamacare’s Medicaid expansion is a victim of its own success, unable to keep up with demand. While about half the States have refused to expand their Medicaid programs’ eligibility, among those that have, some can’t process applications fast enough.

Media reports from New Jersey, Illinois and California (States that have expanded their Medicaid programs) show that hundreds of thousands of consumers who may qualify for new Medicaid coverage aren’t getting it.

So what’s happening?

In Illinois, the Chicago Tribune reported last month that there’s a backlog of more than 200,000 applications waiting to be processed.

Illinois officials initially expected 200,000 people to sign up for Medicaid under the expansion in 2014. But through last week, more than double that number have applied. And amid a marketing blitz, officials expect a surge of additional applications by the end of the year.

Unlike new commercial insurance products, which consumers can purchase through March 31, there’s no deadline to sign up for Medicaid. By the end of the year, state officials expect about 350,000 new users to be enrolled in the program.

The growing backlog is causing concern among health care providers worried about getting paid, and confusion, frustration and anger among consumers, whose coverage was supposed to begin in January.

Much the same thing is happening in New Jersey, the Star-Ledger reported last week.

By all accounts, enrollment in the expanded Medicaid program has gone well in New Jersey. The numbers are robust as the program’s expansion under the Affordable Care Act allows single residents and childless couples to get coverage provided their income is low enough. But getting an actual ID card that allows someone to see a doctor? The flood of applicants appears to have resulted in a systemwide backlog, according to applicants and field workers.

“I’ve heard getting an actual Medicaid card is nearly impossible. It’s like getting Willy Wonka’s Golden Ticket,” said Rena Jordan, director of external affairs for Planned Parenthood of Metropolitan Jersey, which has been helping patients enroll.

“A lot of strange things have been happening, that’s the easiest way to say it,” said Virginia Nelson, administrative supervisor of the Medicaid Department for Middlesex County.

The flood of phone calls to her office about older cases has taken time away from processing the newest cases, Nelson said.

Federal officials conceded some of the blame for the delay can be put squarely at the feet of the Federal website, Healthcare.gov. That website transferred data about applicants whose income looked like they might qualify for Medicaid to the State system, but in a format the State system couldn’t use.

And in California, the backlog now numbers 800,000 for Medi-Cal, the State’s Medicaid program, the Los Angeles Times reported this week.

One patient wrote The Times to say she has a worrisome growth behind an ovary. She submitted an application in October. County health clinics informed her she won’t be able to keep her appointments for blood tests and ultrasound scans until her Medi-Cal coverage is confirmed, she said. Or she can pay full price for the services.

As of Thursday, she was still waiting.

“A lot of good, smart people with good intentions in the state and county are working really hard to fix these problems,” said Katie Murphy, managing attorney at Neighborhood Legal Services of Los Angeles County, which has a grant from the state to provide legal assistance to patients with Obamacare enrollment cases. “But until they do, people will fall through the cracks.”

A state spokesman told the paper that “the volume of Medi-Cal applications, combined with challenges of new computer systems, hampered the State’s ability to complete eligibility reviews in a timely and accurate manner.”

Matt Salo, executive director of the National Association of Medicaid Directors, said many of the problems relate to the way HealthCare.gov transfers information to States about consumers who appear to qualify for Medicaid based on their incomes. But there are State-specific issues, as well.

“It’s been the number one issue of concern for our members for the past nine months or so,” he said in an email. “The problems are getting fixed, but what worries people is that we’re only a few months away from NEXT year’s open enrollment, so we have to hurry.”

Ornstein is a senior reporter for ProPublica covering health care and the pharmaceutical industry.

ProPublica Examines What The Proposed NSA Reforms Wouldn’t Do

This article, written by Kara Brandeisky, was originally published by ProPublica on April 3.

Ten months after Edward Snowden’s first disclosures, three main legislative proposals have emerged for surveillance reform: one from President Obama, one from the House Intelligence Committee, and one proposal favored by civil libertarians.

All the plans purport to end the bulk phone records collection program, but there are big differences – and a lot they don’t do. Here’s a rundown.

President Obama’s proposal

What it would do: As described, the President’s proposal would prohibit the collection of bulk phone records. Instead, the government would seek individualized court orders every time it wants American phone metadata. The government would get the data from telecoms, which already keep it for at least 18 months.

The proposal would solidify some changes Obama has already made: For instance, since January, analysts have needed to get court approval before searching the phone records database. Also, NSA analysts have only been able to obtain records from people who are two “hops” away from a surveillance target – a target’s friends’ friends – rather than three “hops” away. Obama’s proposal would make both of those policies law.

What it wouldn’t do: It’s hard to know. The White House hasn’t released the actual text of the legislation, and lawmakers have yet to introduce it in Congress. But privacy advocates do have a lot of questions.

One thing the President hasn’t proposed: ending the bulk phone records program now. He could do that without any vote if he simply stopped asking the Foreign Intelligence Surveillance Court to reauthorize the program, as Senator Patrick Leahy (D-Vt.) has suggested.

The secret surveillance court’s last 90-day order for Verizon phone records has expired. President Obama reportedly wants the court to renew the program at least one more time, to give Congress a chance to pass new legislation. Until Congress acts, the NSA will continue collecting American phone records in bulk.

Of course, if President Obama were to act unilaterally, another President could later reverse his changes. If Congress passes his proposal, his reforms will have the force of law.

The President’s proposal also appears to address only one of the NSA’s many surveillance programs. It doesn’t seem to change the FISA Amendments Act, which allows the NSA to sweep up foreigners’ communications without a warrant. In the process, the NSA “incidentally” collects Americans’ communications.

In January, Obama said he would ask the Justice Department to limit the government’s authority to use any American communications collected while targeting foreigners. The Administration has not offered any details yet. However, even the Senate’s biggest NSA critics say the FISA Amendments Act has been an effective counter-terrorism tool, so Congress is unlikely to repeal it.

FISA Transparency and Modernization Act

What it would do: very little to limit surveillance. Introduced by House Intelligence Committee chairman Representative Mike Rogers (R-Mich.) and ranking member C.A. Dutch Ruppersberger (D-MD), this bill represents the wishes of the NSA’s biggest defenders in Congress.

The bill nominally bans the government’s bulk collection of phone records. Like Obama’s plan, telecoms would keep the records, but this in proposal, the government could request the records without a court order.

The bill also says it would prohibit the government from indiscriminate collection of other kinds of data, including “library circulation records,” “firearm sales records,” and “tax return records.” But the government could still use search terms to get the records it wants.

What else it would do: roll back current protections in the law. The legislation would no longer require that the government get a court order before obtaining American records. Instead, the secret surveillance court would review the privacy procedures before the Justice Department collects any records, and the court could also tell the government to stop collecting records after the fact.

Also, under current law, the government needs to show that records are related to foreign terrorism or clandestine intelligence activities. Rogers’ bill would change that standard, requiring the government to show that records are for an individual who is associated with a “foreign power” – a broad term that includes terrorist groups, foreign governments and foreign political groups.

If the bill passes, a lot would depend on how the secret surveillance court interprets it. For instance, what kinds of “selection terms” could the government use to search for records? The broader the search terms, the more likely it is that innocent people will get caught in the dragnet.

Finally, Rogers’ bill would not amend the FISA Amendments Act. “I don’t believe that foreign collection on foreign soil is something that we need to change,” Rogers said.

This bill has House Speaker John Boehner’s support.

USA Freedom Act

What it would do: A lot. First, the bill’s authors, Democratic Senator Leahy and Patriot Act author Representative James Sensenbrenner (R-Wis.) say the legislation would end all bulk collection of American records. To do so, they’d narrow the language in the Patriot Act to require that the government only collects records that are ” relevant and material” to an authorized investigation. To qualify, an investigation must be related to foreign terrorism or clandestine activities, and the records must directly “pertain” to a foreign power.

The proposal would also close a so-called backdoor loophole that allows the NSA to search its databases for the content of Americans’ communications. Under the new bill, analysts would need an individualized warrant to access any domestic content collected “incidentally.”

In addition, the lawmakers would also tighten oversight of national security letters, a kind of administrative subpoena that lets the FBI obtain records related to “national security” without a court order. The idea is to make sure that the government can’t use the national security letters law to justify bulk collection of American records in the future.

What it wouldn’t do: The bill covers a lot of bases and has won the support of the ACLU, the Electronic Frontier Foundation, 142 representatives and 21 Senators.

However, some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute. While this bill’s language is narrower than current law, we now know the secret surveillance court has interpreted the Patriot Act very broadly. The EFF has suggested that the bill’s sponsors make their intent more explicit.

This bill has by far the most co-sponsors, but its prospects are uncertain – it was introduced in October, and it still hasn’t reached the floor.

As Full Disclosure Nears, Doctors’ Pay For Drug Talks Plummets

This article, written by Charles Ornstein, Eric Sagara and Ryann Grochowski Jones, was originally published by ProPublica on March 3.

Some of the Nation’s largest pharmaceutical companies have slashed payments to health professionals for promotional speeches amid heightened public scrutiny of such spending, a new ProPublica analysis shows.

Eli Lilly and Co.’s payments to speakers dropped by 55 percent, from $47.9 million in 2011 to $21.6 million in 2012.

Pfizer’s speaking payments fell 62 percent over the same period, from nearly $22 million to $8.3 million.

And Novartis, the largest U.S. drug maker as measured by 2012 sales, spent 40 percent less on speakers that year than it did between October 2010 and September 2011, reducing payments from $24.8 million to $14.8 million.

The sharp declines coincide with increased attention from regulators, academic institutions and the public to pharmaceutical company marketing practices. A number of companies have settled Federal whistle-blower lawsuits in recent years that accused them of improperly marketing their drugs.

In addition, the Physician Payment Sunshine Act, a part of the 2010 health reform law, will soon require all pharmaceutical and medical device companies to publicly report payments to physicians. The first disclosures required under the act are expected in September and will cover the period of August to December 2013.

Within the industry, some companies are reevaluating the role of physician speakers in their marketing repertoire. GlaxoSmithKline announced in December that it would stop paying doctors to speak on behalf of its drugs. Its speaking tab plummeted from $24 million in 2011 to $9.3 million in 2012.

Not all companies have cut speaker payments: Johnson and Johnson increased such spending by 17 percent from 2011 to 2012; AstraZeneca’s payments stayed about flat in 2012 after a steep decline the previous year.

ProPublica has been tracking publicly reported payments by drug companies since 2010 as part of its Dollars for Docs project. Users can search for their doctors to see if they have received compensation from the 15 companies that make such information available online.  (We’ve just updated our application to include payments made through the end of 2012, totaling $2.5 billion. Forest Labs, which only began reporting in 2012, reported speaking payments of $40 million, more than any other company in Dollars for Docs.)

Some companies in the database said their declines have less to do with the Sunshine Act and more to do with the loss of patent protection for key products. Lilly, for example, began facing generic competition to its blockbuster antipsychotic Zyprexa in late 2011. Its antidepressant Cymbalta lost its patent at the end of 2013.

“The value of educational programs tends to be higher when we’re launching a new medicine or we have new clinical data/new indication,” Lilly spokesman J. Scott MacGregor said in an email, adding that the drop in speaking payments also reflects the increased use of web conferencing.

Pfizer’s patent on Lipitor, its top-selling cholesterol drug, expired in 2011.

“Like any other company, our business practices must adapt to the changing nature of our product portfolio, based in part on products going off patent and new products being introduced into the market,” company spokesman Dean Mastrojohn said in an email.

Novartis’ patent for its breast cancer drug Femara expired in 2011, its hypertension drug Diovan in 2012 and its cancer drug Zometa in 2013. In a statement, Novartis said that speaking payments dropped in 2012, in part, because of a shift from big blockbuster drugs that many doctors prescribe toward specialty products prescribed by fewer physicians. Resources were also shifted “to support potential future product launches.”

The industry’s increased emphasis on expensive specialty medications for such conditions as multiple sclerosis or Hepatitis C, has been striking, said Aaron Kesselheim, an assistant professor of medicine at Harvard Medical School. A piece in the New England Journal of Medicine last week noted that half of the 139 drugs approved by the Food and Drug Administration since 2009 were for rare diseases and cancers.

“It’s possible the number of physicians they need to support sales of these items is less, leading to lower payments overall,” Kesselheim said.

In some cases, companies maintained or made smaller cuts to other forms of physician compensation while pulling back dramatically on speaking payments. Pfizer’s spending on consultants dropped 9 percent from 2011 to 2012, far less than its payments to speakers. The company’s spending on research stayed essentially the same.

Lilly increased spending on physician researchers by more than 20 percent, while reducing payments to consultants by more than two-thirds.

Many bioethicists and leaders of major academic medical centers frown upon physicians delivering promotional talks for drug companies, saying they turn doctors into sales representatives rather than leaders in research and patient care.

Officials with the Pharmaceutical Research and Manufacturers of America, the industry trade group, dispute this characterization. They said they are working with their member companies to prepare for the Sunshine Act and have created a campaign to promote the value of drug company-doctor collaborations.

“Companies will make their own independent decisions about how to engage professionals,” said Kendra Martello, PhRMA’s deputy vice president of strategic operations.

Scott Liebman, an attorney who advises pharmaceutical companies on the Sunshine Act, said it’s too early to know how much the law’s requirements are affecting company practices, in part because it’s so new. The fact that some companies are cutting back on speaking while preserving their spending on research and consulting suggests that other business forces could be at play, he added.

“It’s very hard to pinpoint exactly why that’s happening,” Liebman said. “I think there’s a lot of potential answers to that. I just don’t know which is the right one.”

ProPublica: You Know Who Else Collected Metadata? The Stasi.

This article, written by Julia Angwin, was originally published by ProPublica on Feb. 11.

The East German secret police, known as the Stasi, were an infamously intrusive secret police force. They amassed dossiers on about one quarter of the population of the country during the Communist regime.

stasi network analysisBut their spycraft, while incredibly invasive, was also technologically primitive by today’s standards. While researching my book Dragnet Nation, I obtained the above hand-drawn social network graph and other files from the Stasi Archive in Berlin, where German citizens can see files kept about them and media can access some files, with the names of the people who were monitored removed.

The graphic appears to be shows 46 connections, linking a target to various people: an “aunt,” “Operational Case Jentzsch” (presumably Bernd Jentzsch, an East German poet who defected to the West in 1976), places (“church”), and meetings (“by post, by phone, meeting in Hungary”).

Gary Bruce, an associate professor of history at the University of Waterloo and the author of The Firm: The Inside Story of the Stasi, helped me decode the graphic and other files. I was surprised at how crude the surveillance was. “Their main surveillance technology was mail, telephone and informants,” Bruce said.

Another file revealed a low-level surveillance operation called an im-forgang aimed at recruiting an unnamed target to become an informant. (The names of the targets were redacted; the names of the Stasi agents and informants were not.) In this case, the Stasi watched a rather boring high school student who lived with his mother and sister in a run-of-the-mill apartment. The Stasi obtained a report on him from the principal of his school and from a club where he was a member. But they didn’t have much on him. I’ve seen Facebook profiles with far more information.

A third file documented a surveillance operation known as an OPK, for Operative Personenkontrolle, of a man who was writing oppositional poetry. The Stasi deployed three informants against him but did not steam open his mail or listen to his phone calls. The regime collapsed before the Stasi could do anything further.

I also obtained a file that contained an “observation report,” in which Stasi agents recorded the movements of a 40-year-old man for two days Sept. 28 and 29, 1979. They watched him as he dropped off his laundry, loaded up his car with rolls of wallpaper and drove a child in a car “obeying the speed limit,” stopping for gas and delivering the wallpaper to an apartment building. The Stasi continued to follow the car as a woman drove the child back to Berlin.

The Stasi agent appears to have started following the target at 4:15 p.m. on a Friday. At 9:38 p.m., the target went into his apartment and turned out the lights. The agent stayed all night and handed over surveillance to another agent at 7 a.m. Saturday. That agent appears to have followed the target until 10 p.m. From today’s perspective, this seems like a lot of work for very little information.

And yet, the Stasi files are an important reminder of what a repressive regime can do with so little information. Here are the files:

Stasi File 1 Original

Stasi File 1 Translation

Stasi File 2 Original

Stasi File 2 Translation

Stasi Observation Report

Stasi Social Network Analysis

Translations by Yvonne Zivkovic and David Burnett

Epic Fail: Where Four State Health Exchanges Went Wrong

This article, written by Charles Ornstein, was originally published by ProPublica on Feb. 6.

Much has been written (and will continue to be written) about the spectacular failure of health insurance exchanges in Minnesota, Massachusetts, Oregon and Maryland 2014 all blue States that support the Affordable Care Act.

All were woefully unprepared for their Oct. 1 launch, and unlike HealthCare.gov, the Federal marketplace, they are still having trouble getting back on their feet. As a result, enrollment in those four States has lagged behind other States, including many that actively oppose the health law.

The New York Times recently reported on how problems in these States could give Republican candidates an opening. “Last month, the Republican National Committee filed public-records requests in Hawaii, Maryland, Massachusetts, Minnesota and Oregon seeking information about compensation and vacation time for the exchange directors, four of whom have resigned. All five States have Democratic governors whose terms end this year. Three of them — Governor Neil Abercrombie of Hawaii, Governor Mark Dayton of Minnesota and Governor John Kitzhaber of Oregon — are seeking re-election,” The Times reported.

One common element emerging in the coverage of these exchanges is that at least some State employees knew they were heading for disaster but didn’t take action early enough to remedy it. All the States have blamed some, if not all, of their problems on outside tech contractors. Here’s a sampling of what has been reported in each State.

Oregon

The Oregonian newspaper has done a great job chronicling the unfolding disaster with Cover Oregon. The State is the only one in which no one has been able to enroll using the website. In an article last month, the newspaper reported that a technology analyst at Oregon’s Department of Administrative Services warned last May that managers at the exchange were being “intellectually dishonest” in claiming it would be ready Oct. 1.

As The Oregonian set forth in its findings:

  • The project’s significant flaws were well documented dating back to November 2011. Multiple independent analysts repeatedly raised questions aboutpoor management along with strongdoubts that it could be operational by the Oct. 1, 2013 deadline.
  • Cover Oregon leaders wavered between despair and an almost evangelical enthusiasm that they could complete the site. In the end they charged ahead, piloting an unfinished, largely untested exchange project right up to the Oct. 1 go-live date with no backup plan ready to go.
  • Senior officials in Governor John Kitzhaber’s office and elsewhere read at least some of these warnings but took no significant steps to intervene, apparently after being convinced by others the project was on track.
  • A key official in the massive IT project took steps to silence the critics. The Oregon Health Authority last January withheld payment from the company hired to monitor the project, claiming its persistent criticism was inaccurate and inflammatory.

The director of Cover Oregon left on medical leave in December. The Oregonian also has a good piece comparing Oregon’s failures with the successes of Kentucky, whose exchange has been lauded.

Minnesota

Blame is being spread around in Minnesota, where the MNsure exchange is sputtering and its call center is unable to keep up with demand. As news site MinnPost reported last month: “The vendors are blaming the State. Governor Mark Dayton and State officials are blaming the private companies who built the faulty technology, and MNsure leaders are quick to point out that they weren’t around when controversial decisions were made. Republican lawmakers, meanwhile, are saying that the governor needs to take responsibility for the project.”

MinnPost reported that despite their efforts to blame vendors, State officials were responsible for key decisions:

Newly released contract documents suggest the state and MNsure leaders had a more direct role in the health exchange’s many missteps than they have publicly acknowledged.

In recent weeks, Governor Mark Dayton and MNsure officials have increased their criticism of vendors, blaming the private technology companies for some of the underlying problems and glitches with the health exchange’s operation.

However, in early May, the state of Minnesota in effect took over responsibility from its lead contractor, Maximus Inc., for constructing MNsure’s technical infrastructure, according to contract amendments released to MinnPost by MNsure.

The new documents show that the exchange staff quietly made a significant change to its key contract for building MNsure 2014 just months after making major revisions to the timeframe and size of the project.

Dayton later said he was unsure if senior MNsure staff were keeping him apprised of the serious issues with the exchange as soon as they came up.

The Star Tribune has reported on lengthy delays at the exchange’s call center and how officials in charge of the project received bonuses before its disastrous launch.

As in Oregon, the head of Minnesota’s exchange also resigned.

Massachusetts

In many ways, Massachusetts should have been a leader in setting up its own exchange. After all, its 2006 health reform law signed by then-Governor Mitt Romney has been cited as the model for Obamacare. But the State’s exchange, the Massachusetts Health Connector, has fumbled.

The Boston Herald reported last month that, “State officials overseeing the Health Connector website knew as early as February 2013 2014 some nine months before launch 2014 that parts of the $69 million Obamacare gateway would probably be delayed, public records obtained by the Herald last night revealed.”

The Boston Globe followed up with another report:

Massachusetts officials knew in July, three months before the launch of the state’s ill-fated health insurance website, that the technology company in charge was far behind on building the site and that there was “a substantial and likely risk” it would not be ready, according to a state official’s memo.

The website launched on Oct. 1 was incomplete and riddled with errors that frustrated consumers, blocked some from getting coverage, and required the state to move tens of thousands of people whose applications could not be processed into temporary insurance programs.

The head of the Massachusetts Health Connector Authority, which runs the insurance marketplace, was copied on the July memo. But the executive director, Jean Yang, and her staff never told the Connector board during its monthly public meetings that the project was off track, according to meeting minutes.

The Globe reported in a separate story how an untold number of people who “applied for Connector plans without financial assistance have not gotten coverage, because their payments were lost or somehow never linked to their accounts.”

John J. Monahan, a columnist for the Worcester Telegram & Gazette, put it like this last weekend:

Massachusetts’ universal health care program was the model for Obamacare. And now, it seems, the Obamacare website fiasco has been modeled by Massachusetts.

The state contracted with the same software company that messed up the launch of the Obamacare website to redesign its Health Connector website for people to buy insurance. It was scheduled to be working Oct. 1 to renew insurance for Jan. 1. It still isn’t working.

Maryland

The Maryland Health Connection, like the exchanges in other States, knew well in advance that it wasn’t ready to launch, but the problems weren’t fixed in time.

The Washington Post reported last month how “senior State officials failed to heed warnings that no one was ultimately accountable for the $170 million project and that the State lacked a plausible plan for how it would be ready by Oct. 1.”

Over the following months, as political leaders continued to proclaim that the state’s exchange would be a national model, the system went through three different project managers, the feuding between contractors hired to build the online exchange devolved into lawsuits, and key people quit, including a top information technology official because, as he would later say, the project “was a disaster waiting to happen.”

The repeated warnings culminated days before the launch, with one from contractors testing the Web site that said it was “extremely unstable” and another from an outside consultant that urged state officials not to let residents enroll in health plans because there was “no clear picture” of what would happen when the exchange would turn on.

Within moments of its launch at noon Oct. 1, the Web site crashed in a calamitous debut that was supposed to be a crowning moment for Maryland officials who had embraced President Obama’s Affordable Care Act and pledged to build a state-run exchange that would be unparalleled.

Weeks later, the Baltimore Sun’s Meredith Cohn wrote a piece about just how much trouble she personally had trying to enroll:

For a chunk of two recent days, I tried to buy insurance on the Maryland health exchange.

My editors asked me to do this because Gov. Martin O’Malley recently told a national television audience that the “website is now functional for most citizens.”

They wanted to know what “functional” meant, especially after hearing stories from consumers about a glitch-prone website created under the Affordable Care Act for the uninsured and underinsured. Marylanders have described frozen screens, lost information, error messages and even mistaken identity.

My own enrollment took 5 hours and 22 minutes over two days, two calls to the exchange’s call center, seven times entering my personal information, two computers and two web browsers.

Maryland’s exchange director resigned in December. Last week, Maryland Governor Martin O’Malley signed a law that would provide a backup method for hundreds of residents to get coverage effective Jan. 1 if they can show that they tried unsuccessfully to get coverage from the exchange.

Have you tried signing up for health care coverage through the new exchanges? Help us cover the Affordable Care Act by sharing your insurance story.

ProPublica: Consumers With Canceled Insurance Plans Shifted To New Ones Without Their Permission

This post, written by Charles Ornstein, was originally published by ProPublica on Jan. 27, 2014.

When California pharmacist Kevin Kingma received a letter last fall notifying him that his high-deductible health plan was being canceled because of the Affordable Care Act, he logged into his state’s health insurance exchange and chose another plan beginning Jan. 1.

Thanks to a subsidy, Kingma’s monthly premium went down, from about $300 to $175, and his benefits improved.

But this month, Kingma logged into his bank’s website and saw that his old insurer, Anthem Blue Cross, had deducted $587.40 from his account and had enrolled him in another of its insurance products for this year — he says without permission.

Hundreds of other consumers are caught in the same predicament, insurers acknowledge. And the California Department of Insurance said it is exploring whether any laws were broken when insurance companies withdrew money from consumers’ accounts for plans they didn’t select.

Here’s what happened to Kingma and others: When they received letters last fall, they were informed that their plans had been canceled. But within the letter, it also said that if they did nothing, they would be switched over to a different plan and if they had set up their payment to autodraft from their account, it would continue to do so.

Kingma said he didn’t read the whole letter, just enough of it to know his old plan was being canceled.

Once he noticed the withdrawals from his account this month, Kingma said he tried calling Anthem’s customer service hotline but couldn’t reach anyone because of “high call volume.” Dozens of consumers have reported long phone waits trying to reach Anthem.

Kingma then repeatedly faxed and contacted the insurer through its website. An Anthem representative first told him that he may only receive reimbursement for about half of January, until the date he actually canceled the new policy. Since then, it appears the insurer canceled his policy at the end of 2013. But as of Friday afternoon, it hadn’t refunded Kingma’s money, he said.

“I and a number of other former Anthem policy holders are stuck in Anthem’s Kafkaesque nightmare as part of healthcare reform,” Kingma, 57, wrote to me in an email.

Darrel Ng, a spokesman for Anthem Blue Cross, said in an email that insurers across California had moved members from canceled plans to new ones that comply with the law “and that transition retained their payment preference.

“In cases where members neglected to inform insurers that they had selected a new plan or informed insurers too late that they had selected a new plan, members are receiving a full refund for any amount paid.”

Kaiser Permanente spokesman Chris Stenrud confirmed that his insurer has also found cases similar to Kingma’s.

“Unfortunately, about 500 of our existing members in California who had automatic payment set up for their current plans were inadvertently charged before our systems recognized their enrollment in new plans through Covered California,” the state’s exchange, he wrote in an email. “We have identified the affected members and are in the process of contacting them to make them aware of the mistake, and of course, our commitment to refund the extra charge.

“We take this seriously, and want to assure our members that we will make them whole,” he wrote.

These actions may not fully satisfy the California Department of Insurance. Janice Rocco, deputy commissioner for health policy and reform, wrote in an email that insurers have cooperated with her agency and refunded premiums when questions arose, so “we hadn’t been focused on what the potential legal violations might be.”

She said insurers may have violated the law in two ways by deducting funds from customers’ bank accounts electronically. “Moving a policyholder from one product to another would be considered a ‘material change’ that would trigger a requirement in law to provide information about how to cancel the electronic funds transfer agreement. We did not see any notice of how to cancel an electronic transfer of funds in the policy cancellation notices, so there may be some violations of law in this regard.”

Beyond that, Rocco said, some of the new products used by two health insurers were technically “sold by one of the insurer’s affiliated companies with which that policyholder had no prior electronic funds transfer agreement, so that might be another area of potential legal violations,” she wrote.

It isn’t known whether similar complaints have been lodged outside of California. But insurers in a number of states sent consumers letters saying they would be moved to new plans unless they said otherwise. (This letter was posted online by Politifact.) The Associated Press reported last month that at least 4.7 million people were told their old health plans were going away because they didn’t meet the coverage standards of the Affordable Care Act.

In the meantime, consumers have taken to Twitter to voice their frustration. Here’s a sampling of their tweets (ProPublica has not verified their claims):

@AnthemPR_CA I’ve been on the phone for 2.5 hours to cancel part of a plan I never purchased. Can you please help cancel it?

— gregmachlin (@gregmachlin) January 24, 2014

@AnthemPR_CA It looks like you had charged me for a cancelled plan, please refund.

— mortanyong (@mortanyong) January 18, 2014

@AnthemPR_CA Been trying to cancel my policy for a month. You stole money from my bank acct. Can’t get anyone to help. What do I have to do?

— Kathi Kruse (@kathikruse) January 20, 2014

Kingma said the whole situation has left him frustrated.

“No business conducts fair business that way,” he said in an interview. “In December, they should be telling customers, this is the plan you will be converted into, this is the cost. I don’t put anything past large corporations.”

 

ProPublica Reports: Guards May Be Responsible For Half Of Prison Sexual Assaults

This article, written by Joaquin Sapien, was originally published by ProPublica on Jan. 23.

A new Justice Department study shows that allegations of sex abuse in the nation’s prisons and jails are increasing 2014 with correctional officers responsible for half of it  2014 but prosecution is still extremely rare.

The report, released today by the Bureau of Justice Statistics, takes data collected by correctional administrators representing all of the nation’s federal and state prisons as well as many county jails. It shows that administrators logged more than 8,000 reports of abuse to their overseers each year between 2009 and 2011, up 11 percent from the department’s previous report, which covered 2007 and 2008.

It’s not clear whether the increase is the result of better reporting or represents an actual rise in the number of incidents.

Allen Beck, the Justice Department statistician who authored the reports, told ProPublica that abuse allegations might be increasing because of growing awareness of the 2003 Prison Rape Elimination Act.

“It’s a matter of speculation, but certainly there’s been a considerable effort to inform staff about the dangers of sexual misconduct, so we could be seeing the impact of that,” said Beck.

The survey also shows a growing proportion of the allegations have been dismissed by prison officials as “unfounded” or “unsubstantiated.” Only about 10 percent are substantiated by an investigation.

But even in the rare cases where there is enough evidence to prove that sexual abuse occurred, and that a correctional officer is responsible for it, the perpetrator rarely faces prosecution. While most prison staff shown to be involved in sexual misconduct lost their jobs, fewer than half were referred for prosecution, and only 1 percent ultimately got convicted.

Roughly one-third of staff caught abusing prisoners are allowed to resign before the investigation comes to a close, the report concludes, meaning there’s no public record of what exactly transpired and nothing preventing them from getting a similar job at another facility.

“These findings point to a level of impunity in our prisons and jails that is simply unacceptable,” said Lovisa Stannow, Executive Director of Just Detention International, a prisoner advocacy group in California. “When corrections agencies don’t punish or choose to ignore sexual abuse committed by staff members2014 people who are paid by our tax dollars to keep inmates safe2014 they support criminal behavior.”

The lack of punishment may deter inmates from reporting. When the Justice Department has surveyed inmates directly, as opposed to the administrators that oversee them, the reports of abuse have been far greater. A 2013 survey estimated that more than 80,000 prisoners had been sexually victimized by fellow inmates or staff over a two-year period, roughly five times the rate reported by administrators.

“Inmates don’t report because of the way the institution handles these complaints: they’re afraid if they do report, then the staff will retaliate,” said Kim Shayo Buchanan, a law professor at the University of Southern California who studies the issue. “Even if you report and they believe you, which they probably won’t, the most likely thing to happen is that the person will be suspended or maybe fired.”

Calls for comment to the Federal Bureau of Prisons and the Association of State Correctional Administrators weren’t immediately returned.

ProPublica: Journalists Turn To Themselves For Obamacare Stories

This article, written by Charles Ornstein, was originally published by ProPublica on January 22.

After months of hype and hysteria, insurance policies purchased under the Affordable Care Act went into effect on New Year’s Day, and journalists have largely pivoted from writing about the problems of HealthCare.gov to how the law is actually working for consumers.

Some journalists don’t have to look very far. That’s because they are the story, too.

Back in December, I wrote about Missouri public radio reporter Harum Helmy, who earned too much for her state’s Medicaid program and too little to qualify for a subsidy that would have offset the cost of an insurance policy on Healthcare.gov.

“I know — an uninsured health reporter,” she wrote to me. “The joke’s not lost on me.”

Since then, reporters across the country have been telling their stories—and they seem to square with the broader experiences of the public.

Take Steve Friess, a freelance journalist and former reporter at Politico. In a first-person story for the Daily Caller last week, Friess wrote about how his partner, Miles Smith, had signed up for a plan, only to try to cancel it days after it took effect because it turned out to have unexpected costs.

After the initial elation at finding a reasonably priced plan, Friess wrote, Smith found out it wasn’t so great after all.

Three days into 2014, Miles took his Obamacare out for its maiden drive. His stop at the doctor went fine. At the pharmacy, it crashed.

His medication — which has cost us a co-pay of between $10 and $30 under every other plan he’s had since 2004 including one under Blue Cross Blue Shield of Michigan — would not be covered. At all.

That’s $438 out of pocket. Every month. And it won’t even go against the plan deductible.

In other words, this nifty $246 Obamacare plan would actually cost $686 a month.

Friess said he ate up an entire work week making a series of lengthy phone calls to try to figure out why the medication wasn’t covered. It was an exercise in frustration.

That’s not how it was supposed to be. After dozens of hours of phone calls that displaced my usual work obligations this week, only one thing is clear: Nobody can give anybody a straight or consistent answer to anything.

Our troubles may strike some as trivial and particular, although they wouldn’t if it happened to them. And anyone who wants a successful system – as we do – must understand that these nightmares are happening across the nation to the very people who want Obamacare to work.

Other reporters also felt similar frustration, but their stories had somewhat different endings. Jon Brooks, a former reporter at KQED radio in San Francisco, wrote a piece about the incorrect information he was given, delays, and, ultimately, success.

But if all goes smoothly from here on out, it is quite true that I, personally, am going to be one of the winners in the Obamacare game, receiving guaranteed insurance at a big cost savings. And by big, I mean about 60 percent, or thousands of dollars per year.

Not everyone is experiencing that, of course: Cancellations of individual policies that seemed to put the lie to the president’s now notorious “If you like your insurance, you can keep it,” message have been well-reported, as has the sticker shock when some of those cancelled customers shopped for a replacement policy on an exchange.

For me, though, I’d have to say the entire process was a little like my recent mortgage refinancing: frustrating and riddled with potential pitfalls at every step, but with a big financial benefit as the end result.

Finally, last month, freelance science writer Anna Azvolinsky shared her concerns on Twitter in response to a tweet about enrollment in the New York State of Health exchange:

@DanGoldbergCNY @charlesornstein Still waiting for confirmation of my ‘sign up’. Have not heard from Empire to pay. Getting kinda nervous

— Anna Azvolinsky (@annaazvolinsky) December 30, 2013

@charlesornstein @DanGoldbergCNY 90 min 49 sec on hold..Empire only started sending bills to those who signed up for #aca on Dec. 23rd

— Anna Azvolinsky (@annaazvolinsky) December 30, 2013

I checked in with Azvolinsky this week via email to ask her how it was going. She said she and her husband had been on hold with Blue Cross for a total of 22 hours trying to pay their premiums and ensure they were enrolled. On Jan. 10, they received insurance cards in the mail, but they were for their previous plan and were of no use. She added:

We were finally able to receive our [new plan] ID number on the 10th of Jan. I needed a prescription filled on the 13th so spent more than an hour on hold several times that day to receive the Rx numbers on Monday Jan. 13th, again being volleyed from rep to rep. We would be forwarded to reps in other states that had only information about specific geography customers but not to our information (in NY and other states in this area I assume).

She told me that she still doesn’t have her ID card and has found that none of her doctors take her new plan. She expects to write more about her experience in the future.

Sometimes journalists become better reporters when they not only cover a story but live it, too. I can’t help but wonder if that’s what’s happening here.

ProPublica Examines Four Questionable Claims Obama Has Made on NSA Surveillance

by Kara Brandeisky ProPublica, Jan. 17, 2014, 7 a.m.

Today President Obama plans to announce some reportedly limited reforms to National Security Agency surveillance programs.

Since the first disclosures based on documents provided by former NSA contractor Edward Snowden, Obama has offered his own defenses of the programs. But not all of the president’s claims have stood up to scrutiny. Here are some of the misleading assertions he has made.

1. There have been no abuses.

And I think it’s important to note that in all the reviews of this program [Section 215] that have been done, in fact, there have not been actual instances where it’s been alleged that the NSA in some ways acted inappropriately in the use of this data … There had not been evidence and there continues not to be evidence that the particular program had been abused in how it was used. — Dec. 20, 2013

At press conferences in June, August and December, Obama made assurances that two types of bulk surveillance had not been misused. In fact, the Foreign Intelligence Surveillance Court has reprimanded the NSA for abuses both in warrantless surveillance targeting people abroad, and in bulk domestic phone records collection.

In 2011, the FISA Court found that for three years, the NSA had been collecting tens of thousands of domestic emails and other communications in violation of the Fourth Amendment. The court ordered the NSA to do more to filter out those communications. In a footnote, Judge John D. Bates also chastised the NSA for repeatedly misleading the court about the extent of its surveillance. In 2009 – weeks after Obama took office – the court concluded the procedures designed to protect the privacy of American phone records had been “so frequently and systemically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.”

The NSA told the court those violations were unintentional and a result of technological limitations. But the NSA’s own inspector general has also documented some “willful” abuses: About a dozen NSA employees have used government surveillance to spy on their lovers and exes, a practice reportedly called “LOVEINT.”

2. At least 50 terrorist threats have been averted.

We know of at least 50 threats that have been averted because of this information not just in the United States, but, in some cases, threats here in Germany. So lives have been saved. — June 19, 2013

The record is far less clear. Obama’s own review group concluded that the sweeping phone records collection program has not prevented any terrorist attacks. At this point, the only suspect the NSA says it identified using the phone records collection program is a San Diego cab driver later convicted of sending $8,500 to a terrorist group in his homeland of Somalia.

The NSA’s targeting of people abroad appears to have been more effective around counter-terrorism, as even surveillance skeptics in Congress acknowledge. But it’s impossible to assess the role the NSA played in each case because the list of thwarted attacks is classified. And what we do know about the few cases that have become public raises even more questions:

3. The NSA does not do any domestic spying.

We put in some additional safeguards to make sure that there is federal court oversight as well as Congressional oversight that there is no spying on Americans. We don’t have a domestic spying program. What we do have are some mechanisms where we can track a phone number or an e-mail address that we know is connected to some sort of terrorist threat, and that information is useful. — Aug. 7, 2013

In fact, plenty of Americans’ communications get swept up. The government, of course, has the phone records of most Americans.  And, as the FISA Court learned in 2011, the NSA was gathering tens of thousands of domestic emails and other communications.

Additionally, the NSA’s minimization procedures, which are supposed to protect American privacy, allow the agency to keep and use purely domestic communications in some circumstances. If the NSA “inadvertently” vacuums up American communications that are encrypted, contain evidence of a crime, or relate to cybersecurity, the NSA can retain those communications.

The privacy standards suggest there is a “backdoor loophole” that allows the NSA to search for American communications. NSA critic Sen. Ron Wyden, D-Ore., has said, “Once Americans’ communications are collected, a gap in the law that I call the ‘back-door searches loophole’ allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans.”It’s not clear whether the NSA has actually used this “backdoor.”

And while the NSA acknowledges that it intercepts communications between Americans and surveillance targets abroad, the agency also intercepts some domestic communications that mention information about foreigners who have been targeted. As a result, the NSA has sometimes searched communications from Americans who have not been suspected of wrongdoing – though an NSA official says the agency uses “very precise” searches to avoid those intercepts as much as possible.

4. Snowden failed to take advantage of whistleblower protections.

I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community – for the first time. So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions. — Aug. 9, 2013

Obama’s presidential policy directive forbids agencies from retaliating against intelligence personnel who report waste, fraud and abuse. But the measure mentions only “employees,” not contractors. Whistleblower advocates say that means the order does not cover intelligence contractors.

“I often have contractors coming to me with whistleblower-type concerns and they are the least protected of them all,” attorney Mark Zaid told the Washington Post.

What’s more, the directive was not yet in effect at the time Snowden came forward.Since the leaks, the Office of the Director of National Intelligence has said “the Executive Branch is evaluating the scope” of the protections.

Former NSA employee Thomas Drake argues that even if Snowden were a government employee who went through the proper legal channels, he still wouldn’t have been safe from retaliation. Drake says while he reported his concerns about a 2001 surveillance program to his NSA superiors, Congress, and the Department of Defense, he was told the program was legal. Drake was later indicted for providing information to the Baltimore Sun. After years of legal wrangling, Drake pleaded guilty to a lesser charge and got no prison time.

No Warrant, No Problem: How the Government Can Get Your Digital Data

ProPublica is back with an update of their December 2012 reference guide outlining the many, many ways law enforcement can get into your personal data – phone records, GPS, email and much more – without a warrant, and without informing you you’re being watched. This is an immensely informative reference, and it’s as up to date as anything out there.

 

By Theodoric Meyer and Peter Maass

ProPublica

Update, Jan. 8, 2014: This post has been updated. It was originally published on Dec. 4, 2012.

The government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena that doesn’t require showing probable cause of a crime. And recent revelations about classified National Security Agency surveillance programs show that the government is regularly sweeping up data on Americans’ telephone calls and has the capability to access emails, files, online chats and other data — all under secret oversight by a special Federal court.

The breadth of and justification for the surveillance are the subjects of ongoing debate in Washington. President Obama and others have defended the programs as necessary to identify terrorists and stop attacks before they happen, but privacy advocates and several U.S. lawmakers have questioned them.

Here’s a look at what the government can get from you and the legal framework behind its power:

Phone Records

How They Get It

Listening to your phone calls without a judge’s warrant is illegal if you’re a U.S. citizen. But police don’t need a warrant — which requires showing “probable cause” of a crime — to get just the numbers for incoming and outgoing calls from phone carriers. Instead, police can get courts to sign off on a subpoena, which only requires that the data they’re after is relevant to an investigation — a lesser standard of evidence. The FBI can also request a secret court order for phone records related to an international terrorism or spying investigation without showing probable cause. One such order obtained by The Guardian newspaper shows that the FBI requested all phone records over a three-month period last year from Verizon Business Network Services. Director of National Intelligence James R. Clapper said in a statement that such orders are renewed by the court every 90 days. And similar orders reportedly exist for other phone companies, including AT&T, Sprint and Bell South. The phone records being collected are for what’s called “metadata” — time, duration, numbers called — but not the content of calls, which President Obama, in defending the surveillance, said would require a judge’s consent.

What The Law Says

Police can get phone records without a warrant thanks to a 1979 Supreme Court ruling, Smith v. Maryland, which found that the Constitution’s Fourth Amendment protection against unreasonable search and seizure doesn’t apply to a list of phone numbers. The New York Times reported in 2012 that New York’s police department “has quietly amassed a trove” of call records by routinely issuing subpoenas for them from phones that had been reported stolen. According to the Times, the records “could conceivably be used for any investigative purpose.” The Foreign Intelligence Surveillance Act, which Congress expanded in 2001 when it passed the Patriot Act, also allows the FBI to apply for a FISA court order to get “any tangible things (including books, records, papers, documents, and other items).” The FISA court ruled on May 24, 2006, that this provision applied to a phone company’s entire call database, according to The Washington Post. (The phone companies had previously handed over the data voluntarily, the Post reported, but grew nervous after The New York Times published a story on the Bush Administration’s warrantless wiretapping program in 2005.) The court order for Verizon obtained by The Guardian — which covers all records from April 25 to July 19, 2013 — is much more expansive than a typical warrant or subpoena, said Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation. It covers “telephone metadata … for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” In a statement, Clapper’s office said the government can’t query the metadata it has collected unless there is a “reasonable suspicion” it is associated with a specific foreign terror group. That happened fewer than 300 times in 2012, the statement said, adding that the data is destroyed after five years. Judge Richard J. Leon of the Federal District Court for the District of Columbia ruled last month that the NSA’s bulk collection of phone records likely violates the Constitution. But a second Federal judge, William H. Pauley III, ruled that the collection was legal less than two weeks later, citing Smith v. Maryland in his opinion.

Location Data

How They Get It

Many cell phone carriers provide authorities with a phone’s location and may charge a fee for doing so. Cell towers track where your phone is at any moment; so can the GPS features in some smartphones. In response to a recent inquiry by Senator Edward J. Markey, a Massachusetts Democrat, Sprint reported that it provided location data to law enforcement 67,000 times in 2012. AT&T reported receiving 77,800 requests for location data in 2012. (AT&T also said that it charges $100 to start tracking a phone and $25 a day to keep tracking it.) Other carriers, including T-Mobile, U.S. Cellular and Verizon, didn’t specify the number of location data requests they had received or the number of times they’ve provided it. Internet service providers can also provide location data that tracks users via their computer’s IP address — a unique number assigned to each computer. Clapper has repeatedly said the NSA does not collect location data from cell carriers under Section 215 of the Patriot Act (which is how it vacuums up other phone “metadata”). But the NSA does gather location data on hundreds of millions of phones overseas, according to The Washington Post, including from Americans abroad.

What The Law Says

Many courts have ruled that police don’t need a warrant from a judge to get cell phone location data. They only have to show that, under the Federal Electronic Communications Privacy Act (EPCA), the data contains “specific and articulable facts” related to an investigation — again, a lesser standard than probable cause. Last year, Maine became the second state, after Montana, to require police to obtain a warrant for location data; Gov. Jerry Brown of California, a Democrat, vetoed a similar measure in 2012. Senators Patrick Leahy, a Vermont Democrat, and Mike Lee, a Utah Republican, introduced a bill last year that would have updated the ECPA but wouldn’t have changed how location data is treated. Rep. Zoe Lofgren, a California Democrat, introduced a separate bill in the House that would require a warrant for location data as well as emails. Neither bill has passed. The New Jersey Supreme Court ruled last July that police needed a warrant for location data. But the United States Court of Appeals for the Fifth Circuit in New Orleans ruled weeks later that the authorities could get historical location data from cell carriers without a warrant. Two similar cases, U.S. v. Davis and U.S. v. Graham, are scheduled for oral argument before Federal appeals courts in the coming months.  The Supreme Court has not yet ruled on location data.

IP Addresses

How They Get It

Google, Yahoo, Microsoft and other webmail providers accumulate massive amounts of data about our digital wanderings. A warrant is needed for access to some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the American Civil Liberties Union, those records are kept for at least a year. The NSA also runs a program called Marina designed to sweep up Internet “metadata,” or “digital network information,” according to The Washington Post. Whether or not that includes IP addresses is unclear.

What The Law Says

Police can thank U.S. v. Forrester, a case involving two men trying to set up a drug lab in California, for the ease of access. In the 2007 case, the government successfully argued that tracking IP addresses was no different than installing a device to track every telephone number dialed by a given phone (which is legal). Police only need a court to sign off on a subpoena certifying that the data they’re after is relevant to an investigation — the same standard as for cell phone records. FISA also allows the FBI to apply for a secret court order to get “any tangible things (including books, records, papers, documents, and other items)” relevant to an international terrorism or spying investigation.

Emails

How They Get It

There’s a double standard when it comes to email, one of the most requested types of data. A warrant generally is needed to get recent emails, but law enforcement can obtain older ones with only a subpoena. Google says it received 16,407 requests for data — including emails sent through its Gmail service — from U.S. law enforcement in 2012, and an additional 10,918 requests in the first half of 2013. Microsoft, with its Outlook and Hotmail email services, says it received 11,073 requests from U.S. law enforcement agencies in 2012, and an additional 7,014 in the first half of 2013. The company provided some customer data in 75.8 percent of the 2013 requests. (The figures don’t include requests for data from Skype, which Microsoft owns.) And Yahoo says it received 12,444 such requests in the first half of 2013, providing at least some customer data in 91.6 percent of them. Google said last year that it would lobby in favor of greater protections for email. The NSA also obtains emails from companies such as Microsoft, Google, Yahoo and AOL under a program called Prism, as revealed by The Washington Post and The Guardian. Clapper has said the program does not target U.S. citizens or anyone in the country. The Post reported in October that the agency has tapped the private fiber-optic cables that connect Google and Yahoo data centers overseas to collect email metadata en masse, as well as other files. In a single 30-day period, the NSA processed 181,280,466 new records, including email metadata.

What The Law Says

This is another area where the ECPA comes into play. The law gives greater protection to recent messages than to older ones, based on a 180-day cutoff. Only a subpoena is required for emails older than that; otherwise, a warrant is necessary. This extends to authorities beyond the FBI and the police. I.R.S. documents released by the American Civil Liberties Union suggest that the I.R.S.’ Criminal Tax Division reads emails without obtaining a warrant. The ECPA update bills introduced by Leahy and Lee in the Senate and Lofgren in the House would require a warrant for the authorities to get all emails regardless of age. The Justice Department, which had objected to such a change, said last March that it doesn’t any longer. Clapper has said the Prism program is legal under Section 702 of the FISA Amendments Act of 2008, which lays out how intelligence agencies may spy on non-U.S. citizens abroad. Under “limitations,” the section says the surveillance “may not intentionally target a United States person reasonably believed to be located outside the United States” and “shall be conducted in a manner consistent” with the Fourth Amendment’s protections against unreasonable search and seizure. The NSA’s tapping of fiber-optic cables between Google and Yahoo data centers — which would be illegal inside the U.S. — is allowed overseas doesn’t seem to intentionally target U.S. citizens or permanent residents.

Email Drafts

How They Get It

Communicating through draft emails, à la David Petraeus and Paula Broadwell, seems sneaky. But drafts are actually easier for investigators to get than recently sent emails because the law treats them differently.

What The Law Says

The ECPA distinguishes between communications — emails, texts, etc. — and stored electronic data. Draft emails fall into the latter, which get less protection under the law. Authorities need only a subpoena for them. The bills introduced by Leahy and Lee in the Senate and Lofgren in the House would change that by requiring a warrant to obtain email drafts.

Text Messages

How They Get It

Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails. Many carriers charge authorities a fee to provide texts and other information. For texts, Sprint charges $30, for example, while Verizon charges $50.

What The Law Says

The ECPA also applies to text messages, according to the EFF’s Fakhoury, which is why the rules are similar to those governing emails. But the ECPA doesn’t apply when it comes to actually reading texts on someone’s phone rather than getting them from a carrier. State courts have split on that issue. Ohio’s Supreme Court has ruled that police need a warrant to view the contents of cell phones of people who’ve been arrested, including texts. But the California Supreme Court has said no warrant is needed. The U.S. Supreme Court in 2010 declined to clear up the matter.

Cloud Data

How They Get It

Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive and other services that allow users to store data on their servers, or “in the cloud,” as it’s known. The NSA is gathering “stored data” from companies like Google, according to an NSA PowerPoint briefing obtained by The Washington Post and The Guardian. Clapper has said only non-U.S. citizens abroad are targeted. The agency has also tapped the fiber-optic cables linking Google and Yahoo data centers overseas. Both companies offer cloud-storage services.

What The Law Says

The law treats cloud data the same as draft emails — authorities don’t need a warrant to get it. But files that you’ve shared with others — say, a collaboration using Google Docs — might require a warrant under the ECPA if it’s considered “communication” rather than stored data. “That’s a very hard rule to apply,” says Greg Nojeim, a senior counsel with the Center for Democracy & Technology. “It actually makes no sense for the way we communicate today.” If cloud data is covered by FISA — which seems likely, as the law specifically states that “documents” are included — it would let the FBI request a secret court order for data deemed relevant to international terrorism or spying investigations.

Social Media

How They Get It

When it comes to sites like Facebook, Twitter and LinkedIn, the social networks’ privacy policies dictate how cooperative they are in handing over users’ data. Facebook says it requires a warrant from a judge to disclose a user’s “messages, photos, videos, wall posts, and location information.” But it will supply basic information, such as a user’s email address or the IP addresses of the computers from which someone recently accessed an account, under a subpoena. Twitter has reported that it received 1,494 requests for user information from U.S. authorities in 2012, and an additional 902 in the first half of 2013. The company says it received 56 percent of the 2013 requests through subpoenas, 11 percent through other court others, 23 percent through search warrants and 10 percent through other means. Twitter says that “non-public information about Twitter users is not released except as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process.” The NSA is also gathering data from social media from companies such as Facebook, YouTube and Paltalk as part of its Prism program, according to the NSA PowerPoint briefing. Clapper has said only non-U.S. citizens abroad are targeted.

What The Law Says

Courts haven’t issued a definitive ruling on social media. In 2012, a Manhattan Criminal Court judge upheld a prosecutor’s subpoena for information from Twitter about an Occupy Wall Street protester arrested on the Brooklyn Bridge. It was the first time a judge had allowed prosecutors to use a subpoena to get information from Twitter rather than forcing them to get a warrant.