Electronic
Surveillance
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.
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II
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LEGAL RULINGS ON ELECTRONIC SURVEILLANCE
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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
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PASSAGE OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
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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. FISA was meant 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.
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IV
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WARRANTLESS SURVEILLANCE
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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). A criminal statute, FISA
calls for a maximum punishment of a $10,000 fine and five years in prison. 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 had 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. As a result, the battle over the NSA surveillance
program was expected to continue in the courts.
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V
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AMENDING THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
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In August 2007 Congress
passed and President Bush signed into law a sweeping amendment to the Foreign
Intelligence Surveillance Act. Known as the Protect America Act of 2007, the
new law enabled the director of national intelligence and the attorney general
to monitor without a warrant all electronic communications going into or out of
the United States even if the communications involved a U.S. citizen. In
effect, the two executive branch officials were given the authority previously
granted only to the 11-member FISA Court. The amendment required that the
government must have a “reasonable belief” that the target of the surveillance
was outside of the United States. The law also gave the government the power to
compel the cooperation of communication service providers, such as the major
telecommunication companies.
The proponents of the
legislation argued that the law was needed to modernize FISA by taking into
account that many overseas communications pass through telephone and Internet
switches based in the United States. Without the ability to intercept such
telephone or e-mail communications, they argued, the National Security Agency
would lose the ability to eavesdrop on communications between foreign terrorist
suspects. Civil liberties advocates argued that the law was much too broad and
gave the executive branch of government the power to monitor the overseas communications
of U.S. citizens without a judicial review, turning the FISA Court into a
“rubber stamp” of an executive branch program. They also objected that the law
was purposefully vague in stipulating that the surveillance was for the purpose
of acquiring “foreign intelligence information” rather than being limited to
targeting terrorist suspects, the chief reason given by the Bush administration
for seeking the expanded powers. And they said oversight of the program
belonged to the same officials responsible for conducting it.
Concern about the hasty
drafting of the new law led Congress to set an expiration date of six months
for the Protect America Act. However, a provision of the law permitted any
surveillance approved by the director of national intelligence and the attorney
general to continue for a full year from the time of approval. As a result,
although the law expired in February 2008, any surveillance approved before its
expiration could continue until the beginning of 2009.
The law’s expiration resulted
from the inability of the U.S. Congress to resolve conflicts between Senate and
House versions that would have extended the law. In the Senate version of the
new bill retroactive immunity was granted to telecommunication companies that
cooperated with the Terrorist Surveillance Program. The House version did not
include an immunity provision but instead allowed the courts to hear classified
evidence in civil lawsuits against the telecoms. That provision addressed a
complaint by the companies that they were unable to cite possible exculpatory
evidence against claims that they violated the privacy of their customers.
Nearly 40 lawsuits have been filed against the firms.
