Wiretapping & the War on Terrorism
Wiretapping, particularly in the context of the War on Terrorism, has raised significant legal and ethical questions regarding privacy, national security, and civil liberties. Following the September 11 attacks, the U.S. government, under President George W. Bush, authorized the National Security Agency (NSA) to conduct domestic wiretaps without court warrants, aiming to intercept communications related to terrorism. This led to allegations of constitutional violations, as critics argued that such practices undermined protections against unreasonable searches guaranteed by the Fourth Amendment. The debate intensified over the balance between safeguarding national security and preserving individual rights, prompting legislative changes such as the Foreign Intelligence Surveillance Act (FISA) and subsequent amendments. These laws aimed to provide a framework for surveillance while addressing the complexities introduced by modern technology and global communications. Furthermore, the legal standing of wiretapping has evolved through various Supreme Court rulings, which have shaped the requirements for obtaining warrants and the scope of government surveillance authority. The ongoing discussions surrounding wiretapping reflect broader societal concerns about government overreach and the implications for privacy in an increasingly interconnected world.
Wiretapping & the War on Terrorism
Summary: In December 2005, the New York Times reported that President Bush had authorized the National Security Agency (NSA) to conduct domestic wiretaps, without court warrants, of telephone conversations and emails thought to be related to terrorism. The wiretaps involved instances where one party was overseas, and the other was in the United States. Critics alleged that the wiretaps on people in the United States without court authorization violated Constitutional protections against unreasonable searches and specific laws governing wiretapping. The administration defended the surveillance as a necessary and valuable tool in preventing terrorist attacks inside the United States and falling under the President's powers as commander in chief. The revelations also sparked a prolonged debate and demands by critics for a Congressional investigation. In July 2008, two and a half years after the first revelations of wiretapping without warrants, Congress revised the Foreign Intelligence Surveillance Act (FISA), expanding the President's legal powers to wiretap without a warrant for up to a week.
Wiretapping—the act of a government agent secretly listening to a private telephone conversation—has posed a legal dilemma since telephones became ubiquitous in the early decades of the twentieth century. Technology allowed the government to eavesdrop on conversations inside private residences without being present. To advocates of wiretaps, the fact that agents were not physically inside a house meant wiretaps did not violate protections against unreasonable searches granted by the Fourth Amendment to the Constitution. Civil liberties advocates took the opposite view. Gradually, a series of Supreme Court decisions came down to requiring wiretapping warrants.
During the War on Terror that followed the Al Qaeda attacks of September 11, 2001, further questions arose about telephone conversations that included one person outside the United States or even two people outside the United States whose call was linked by circuits that passed through the United States. President George W. Bush secretly authorized wiretaps without warrants as part of the war on terrorism. When this practice was revealed four years later, Bush pointed to his role as commander-in-chief as giving him the authority above and beyond the Foreign Intelligence Surveillance Act (FISA) of 1978, which had established a special court to grant secret wiretap warrants in cases of national intelligence.
At the heart of the controversy is the Fourth Amendment to the Constitution, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." How this constitutional clause should apply to technology not invented when the amendment was adopted forms the basis for a body of Supreme Court cases.
In Olmstead v. United States (1928), the Supreme Court ruled that such wiretaps did not fall under the jurisdiction of the Fourth Amendment, i.e., that wiretaps could be carried out without a warrant because (a) wiretaps did not involve a physical trespass on a citizen's premises (they were placed on telephone equipment physically outside the home) and (b) evidence was obtained by hearing which did not involve seizure of property. Both of these rationales were struck down by later cases.
In Nardone v. United States (1939), the Supreme Court ruled that divulging contents of conversations heard in a wiretap could violate the Federal Communications Act. In that case, revealing a telephone conversation was barred by the Communications Act, not listening per se. Still, the effect of wiretapping without warrants was effectively the same as banning such eavesdropping.
In Goldman v. United States (1942), the Court said that inserting a "spike mike" through a wall so that it came into contact with a heating duct (to help broadcast a conversation in the target location) comprised "trespass" and thereby violated the Fourth Amendment—effectively striking down (without explicitly saying so) Olmstead's rationale approving wiretaps on grounds there was no "seizure" of a conversation.
In Berger v. New York (1967), the Court struck down a state law allowing officers to enter premises to plant wiretapping equipment because the state law only required "reasonable" grounds for issuing such a warrant rather than the "probable cause" required by the Constitution, effectively raising the standard for electronic surveillance to the standard for physical searches.
In Katz v. United States (1967), the Supreme Court held that protections of the Fourth Amendment extended to circumstances involving electronic surveillance of oral communications without physical intrusion. However, this case excluded national security cases. In United States v. United States District Court (1972), referred to as the Keith case, the government argued it had the right to conduct wiretaps without a warrant to guard against the overthrow of the government (the defendants were charged with plotting to bomb CIA offices). Federal district court Judge Damon Keith rejected the government's argument. In upholding the Keith ruling, the Supreme Court ruled that the 1967 Katz case had "implicitly" recognized that "the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards."
Court opinions have subsequently distinguished between cases involving US citizens—including those accused of subversion—and foreign intelligence agents.
The Cold War, Nixon, & FISA
During the Cold War (~1945-1991), many US officials were concerned about the role of American Communists in supporting the Soviet Union. As a congressman from California in the 1940s, Richard Nixon was among those who believed domestic Communists posed a serious threat to American security.
As President (1969-1973), Nixon backed domestic wiretaps—without warrants—against people he labeled "subversives." He ordered the National Security Agency (NSA) to conduct electronic surveillance overseas to spy on domestic opponents of his Vietnam War policies.
Foreign Intelligence Surveillance Act (FISA)
In light of the Nixon wiretaps, Congress in 1978 passed the Foreign Intelligence Surveillance Act (FISA). It established a special court specifically authorized to issue secret warrants for wiretapping suspected foreign agents. FISA also recognized the need for intelligence agencies to act "in hot pursuit" by authorizing wiretaps without FISA warrants for seventy-two hours, giving the Justice Department time to obtain a warrant after installing wiretaps. Between 1978 and 2007, the special FISA court received 18,742 requests for wiretap warrants. It denied only four, all in 2003.
USA PATRIOT Act of 2001
The attacks on the World Trade Center and Pentagon on September 11, 2001, sparked a new concern about domestic security. The month after the attacks, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). This law modified some aspects of the earlier FISA, notably expanding the number of judges on the Foreign Intelligence Surveillance Court, providing for roving or multipoint electronic surveillance under a single warrant, and amending some technical aspects of FISA to facilitate electronic surveillance of suspected terrorists.
The Patriot Act also amended technical aspects of FISA related to "pen registers" designed to record numbers dialed by telephones and" trap and trace" devices, effectively pen registers, that record information about incoming communications. The act was amended several times until 2015, when the USA Freedom Act was passed. In 2020, the law expired.
The Bush Executive Orders
In 2002, President Bush signed the first of a series of executive orders authorizing the NSA to conduct domestic wiretaps without obtaining warrants from the FISA court. In defending his actions after these warrantless wiretaps were reported by the New York Times on December 16, 2005, Bush pointed to his authority under the Authorization for Use of Military Force Against Terrorists of 2001, passed by Congress in the immediate aftermath of 9/11, and on his constitutional authority as commander in chief. The administration did not cite the USA PATRIOT Act for warrantless wiretaps. The warrantless wiretaps were strongly defended by Attorney General Alberto Gonzales and NSA Director General Michael V. Hayden. Officials declined to say precisely how many Americans were affected by NSA wiretaps. Some news reports put the number at about 5,000.
"Protect America Act of 2007"
The warrantless wiretaps created a political dilemma: whether to hold the administration to the letter of the old law or to acquiesce in greater leeway in using wiretap technology to combat international terrorism. The dilemma was complicated by advances in computer-controlled telecommunications switches since the 1978 FISA legislation, including the fact that many global communications passed through switches physically located in the United States.
In August 2007, Congress passed the Protect America Act of 2007. The law authorized the attorney general and the director of the National Security Agency to conduct wiretaps without FISA warrants for up to 120 days, pending continuation of the Congressional debate over longer-term legislation. The Protect America Act also exempted eavesdropping on Internet or telephone communications "directed at a person reasonably believed to be located outside of the United States" and authorized the NSA to conduct wiretaps without warrants on communications between two people outside the United States even if their communications passed through switches inside the US.
The 2007 act expired after six months but was extended pending the passage of a new law. It became the subject of a partisan battle between the White House, which insisted the amendment was necessary to protect against future terrorist attacks, and Democrats, who resisted giving more discretionary power to the Attorney General. Civil liberties advocates such as the ACLU also strongly opposed the new law.
The reason behind the administration's insistence on a new law was classified. Still, it rested on a secret ruling by the FISA court that barred surveillance without warrants in cases where communications were thought to pass through switches inside the United States. The Washington Post reported that the secret court ruling had banned NSA surveillance of many international emails routed through the United States.
FISA Amendments Act of 2008
Another source of controversy was the role of major American telephone companies in facilitating wiretaps without warrants. The companies were named in lawsuits, and the Bush Administration insisted that any new, modified FISA contain a provision granting immunity to the companies. Some Democrats and civil liberties groups strongly opposed such immunity, which nevertheless was included in the FISA Amendments Act of 2008, which passed the House on June 20, 2008, and the Senate on July 9, 2008. President Bush signed the legislation the next day.
The 2008 bill allowed the National Security Agency to seek wiretap warrants for broad groups of foreigners rather than just individuals. It also expanded the period during which wiretaps on Americans may be conducted without warrants from three days to seven days on certification of the attorney general of probable cause to believe a target has links to terrorism. The bill explicitly required that warrants be required to wiretap conversations by Americans who are overseas. The 2008 law also stated that it was the "exclusive" means for conducting intelligence wiretaps. To prevent future presidents from evading court surveillance, as happened in 2001.
The 2008 bill was set to expire in December 2012, but just before the deadline, it was renewed for five additional years. It was extended again in January 2018 for six more years.
Bibliography
Fein, Bruce. "Presidential Authority to Gather Foreign Intelligence." Presidential Studies Quarterly, vol. 37, no. 1, Mar. 2007, p. 14. search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=23857441&site=isc-live
Hochman, Brian. The Listeners: A History of Wiretapping in the United States. Harvard University Press, 2022.
"NSA Surveillance." The Congressional Digest, International Databases Archives, vol. 11, no. 6, Sept. 2013, congressionaldigest.com/issue/nsasurveillance. Accessed 5 Oct. 2023.
"The Foreign Intelligence Surveillance Act of 1978 (FISA)." Bureau of Justice Assistance, bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286. Accessed 5 Oct. 2023.
Thomas, Evan, et al. "Full Speed Ahead." Newsweek, vol. 147, no. 2, 9 Jan. 2006, p. 22. search.epnet.com/login.aspx?direct=true&db=tsh&an=19298247