Electronic Surveillance

I

Introduction

Electronic Surveillance, the interception of communications by electronic listening or other devices by someone who is not a party to the conversation. Electronic surveillance may be conducted by governments or individuals and may be targeted against any type of communications device, such as conventional telephones, wireless cellular phones, or computers. Electronic surveillance may occur with many mediums, or methods, of communicating, including communications over the Internet. Prior to the widespread use of digital and other new forms of communication, the term “wiretapping” was often used generically to cover all types of electronic surveillance.

In the United States, electronic surveillance of telephone conversations is prohibited by a 1968 federal statute and the laws of some states. Law enforcement officers, however, are permitted to conduct electronic surveillance of telephone conversations under federal statute, including the 1978 Foreign Intelligence Surveillance Act (FISA), and the laws of some states, provided a court order has been obtained.

II

Legal Rulings on Electronic Surveillance

In 1928 the Supreme Court of the United States ruled in Olmstead v. United States that wiretapping of telephone lines could be employed without violating the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure, provided the police did not enter the subject’s home or office. The Supreme Court reversed Olmstead in 1967, ruling in Katz v. United States that electronic communications are protected by the Fourth Amendment. In 1968 Congress enacted a statute that imposed comprehensive restrictions on wiretapping, including a requirement for a judicial warrant. See also Bill of Rights; Privacy.

Although court-ordered wiretapping is now legal, wiretapping by the federal government without a court order is not. The courts have sustained the use of wiretapping to obtain foreign intelligence information, but in 1971 the Supreme Court held in two different cases that (1) domestic electronic surveillance of radical political groups without a court order violated the Fourth Amendment, and (2) witnesses before a grand jury could refuse to answer questions arising out of information developed from unauthorized wiretaps. In 1972 the Court rejected an argument put forward by the administration of President Richard M. Nixon that the president had the power to wiretap without court approval to protect national security. In an opinion written by Justice Lewis Powell, the Court declared: “History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”

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III

Passage of the Foreign Intelligence Surveillance Act

In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA). The law was enacted in response to abuses by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) in the 1960s and 1970s. Congressional hearings held by Senator Frank Church in 1975, known as the Church hearings, revealed that the two agencies had wiretapped anti-Vietnam War protesters and civil rights activists, including Martin Luther King, Jr. Motivated by these disclosures and the abuses of power revealed by the Watergate scandal, Congress passed FISA to prevent such abuses by allowing electronic surveillance only for foreign intelligence purposes and under the supervision of a special court known as the Foreign Intelligence Surveillance Court. See also Civil Rights and Civil Liberties.

Antiterrorism legislation passed in the aftermath of the September 11, 2001, terrorist attacks in the United States significantly expanded the federal government’s surveillance powers. The Patriot Act, for example, for the first time formally gave the federal government the right to monitor e-mail communications. Federal agents also obtained greater authority to listen in on cellular telephones and in cases involving terrorism to monitor e-mail and Internet use with a court’s approval.

IV

Warrantless Surveillance

In December 2005 civil liberties advocates became concerned when the New York Times revealed that President George W. Bush had signed a presidential order in 2001 authorizing a Terrorist Surveillance Program. The order gave the National Security Agency (NSA) authorization to eavesdrop without judicial warrants on the international electronic communications of U.S. citizens and foreign nationals in the United States. Many legal experts believed the order violated FISA because it bypassed FISA’s special court. They argued that the law requires warrants, although in an emergency the law gives the government authority to eavesdrop for up to 72 hours before having to request court approval. Some critics also maintained that the law bars the NSA from any domestic spying and that the NSA program could not guarantee that only international communications were monitored.

Several lawsuits were brought against the federal government claiming that the government had violated FISA and infringed on civil liberties. A lawsuit filed by an Oregon attorney in February 2006 alleged that the attorney had documentary evidence of the electronic interception of privately protected communications between the attorney and his client, an Islamic charity. Also in February the Washington Post reported that the NSA had eavesdropped without warrants on the telephone conversations of 5,000 Americans suspected of terrorist activities and that nearly all of them had subsequently been cleared of suspicion.

In hearings before the U.S. Congress in 2006, Attorney General Alberto Gonzales aggressively countered the claim that the NSA’s electronic surveillance was illegal, citing Bush’s “inherent authority” as president. Gonzales also said the program’s legality was established by a congressional resolution, the 2001 “Authorization for Use of Military Force,” that declared the president could use “all necessary and appropriate force” to prevent future acts of terrorism. Many members of Congress, however, said they never envisioned that the resolution had anything to do with warrantless electronic surveillance. The conflict raised questions not only about Fourth Amendment protections but also about the limits of presidential power and the American system of checks and balances.

In May 2006 USA Today reported that the NSA surveillance program was far more extensive than previously known. The newspaper cited several anonymous sources who claimed that the NSA had secretly entered into contracts with telecommunications firms to obtain the telephone records of nearly 200 million customers, including domestic calls. The practice, known as data mining, allegedly gave the NSA records of the complete telephone calling histories of the firms’ customers along with regular updates on calls made, enabling the NSA to create the largest database ever assembled. The reported purpose of the monitoring was to analyze calling patterns in an effort to detect terrorist activity. The New York Times independently reported that a high-ranking but anonymous government official had confirmed much of the report. According to the official, the NSA had access to records of most telephone calls in the United States, but call records were used only to identify the telephone contacts of known terrorist suspects. Republican senator Orrin Hatch of Utah also asserted that a special court set up under FISA had advance knowledge of the NSA monitoring.

The Bush administration and one of the telecommunication firms—AT&T, Inc.—would neither confirm nor deny the reports. After conducting an internal review, BellSouth denied that it had a contract with the NSA and said that it did not provide bulk customer calling records to the NSA. Verizon initially refused to confirm or deny the report, but later issued a statement saying that it had not provided local phone records. The statement appeared to leave open the possibility that MCI, Inc., which Verizon acquired in January 2006, had turned over records of long distance calls to the NSA. Sources close to the country’s fourth largest telecommunications firm, Qwest Communications, including Qwest’s former chief executive officer, said Qwest had refused to participate in the program because the company doubted its legality. Officially, however, Qwest would neither confirm nor deny whether it was approached by the NSA for customer calling information. Verizon Wireless, a joint cellular phone venture with a British company, denied involvement in the program.

The alleged NSA program reportedly did not intercept the content of conversations, only the records of calls made. Personal information such as customer names and addresses were reportedly not revealed. However, civil liberties advocates noted that other databases would enable the government to match telephone numbers with personal information.

Legal experts differed on whether the program was legal. Some experts said FISA did not prevent data mining. Other experts said the program was illegal under the 1986 Electronic Communications Privacy Act and that the Communications Act of 1934 prohibited telephone companies from giving out information about their customers’ calling habits. That act has been amended to provide for stiff financial penalties for companies that violate customers’ privacy rights. In April 2006 the Electronic Frontier Foundation (EFF), a group that advocates for electronic privacy rights, filed suit against AT&T, based on documents obtained from an AT&T whistleblower, a former employee who said the NSA set up a secret surveillance room at AT&T’s San Francisco office. The EFF lawsuit followed a December 2005 report in the Los Angeles Times that AT&T had given the NSA direct access to a company database that recorded the telephone number and the duration of every call made over its network since 2001. An EFF attorney said the purpose of the monitoring was irrelevant because without judicial oversight the government could do whatever it wanted with the information.

The USA Today disclosure created a bipartisan backlash against the alleged NSA program. The NSA and the three telecommunications firms cited in the USA Today report all said that they were operating within the law. President Bush also came to the NSA’s defense, denying that his administration was “mining or trolling through the personal lives of millions of innocent Americans.” Bush said that the administration’s efforts were “focused on links to al-Qaeda and their known affiliates.”

In August 2006 Judge Anna Diggs Taylor of the United States District Court in Detroit, Michigan, issued her ruling in a case brought against the NSA by the American Civil Liberties Union (ACLU). The president, she wrote, had ''undisputedly violated'' not only the First and Fourth Amendments of the Constitution, but also statutory law, the Foreign Intelligence Surveillance Act (FISA). As a criminal statute, FISA calls for a maximum punishment of a $10,000 fine and five years in prison for violations of the law. The Justice Department appealed the verdict to the Sixth Circuit Court of Appeals in Cincinnati, Ohio, and in July 2007 a three-judge panel of the Sixth Circuit voted 2 to 1 to reverse Judge Taylor’s decision on technical grounds, finding that the plaintiffs had no standing to sue because they could not show they had been harmed by the Terrorist Surveillance Program. Most of the plaintiffs represented by the ACLU were lawyers and journalists.

Although the judges did not rule on the legality of the program, the effect of their ruling was to allow the NSA’s warrantless surveillance to continue. In the dissenting opinion, Judge Ronald Gilman argued that the lawyers in the suit had standing to sue because they could show that they had to change the way they communicated with their overseas clients to assure the confidentiality of the attorney-client relationship. The ACLU argued that they were trapped by a “catch-22” in which they could not demonstrate harm because the program’s surveillance documents were kept secret.

Following the November 2006 midterm elections, which resulted in a Democratic-controlled Congress, Attorney General Gonzales informed the Senate Judiciary Committee that the administration would not be reauthorizing the Terrorist Surveillance Program. In a letter to the committee, Gonzales wrote that the administration had obtained “orders” from the FISA special court that would give it the “necessary speed and agility” it sought. As a result the Foreign Intelligence Surveillance Court would be supervising all anti-terrorism wiretapping and surveillance within the United States, according to Gonzales. Nevertheless, the Bush administration reserved the right to restore the warrantless wiretapping program if the president deemed it necessary.

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