13 Aug Technological change at the heart of new wiretapping law
Madison, Wis. – Modern communications like e-mail and text messaging, and the reality that many foreign communications are routed through the United States, are among the stated reasons for the passage of a controversial new federal surveillance law, but is technological change simply being used as an excuse to violate civil liberties?
To the dismay of civil libertarians (and rank-and-file Democrats), Congress has given the executive branch the authority to intercept, in the course of a terrorism investigation, communications involving foreign nationals, even if they are conversing with American citizens, without judicial review. The bill essentially leaves the call of whether to eavesdrop – without seeking a warrant – up to the attorney general and the director of national intelligence.
The legislation has a six-month sunset provision, meaning it will expire early next year and the debate will be revisited as the presidential primaries either heat up or come to an early conclusion.
Passage of the bill angered supporters of Congressional Democrats, who felt the party’s leadership knuckled under to Republican pressure. Meanwhile, Republicans cheered its passage because they believe it addresses a gap in the nation’s defenses.
The expansion of executive branch power was pursued in part because many communications that are purely or partially external to the United States are routed through U.S. servers. The Bush Administration, noting that authors of the nation’s Foreign Intelligence Surveillance Act (FISA), enacted in 1978, could not have anticipated these technologies, had pushed for an updated law.
The Administration’s position was summed up in testimony delivered May 1 to the U.S. Senate’s Select Committee on Intelligence by Kenneth Wainstein, an assistant attorney general in the Department of Justice’s national security division.
Wainstein said most Americans would be surprised and dismayed to discover that intelligence agencies routinely use scarce resources to make a showing of probable cause, a Fourth Amendment requirement, and obtain a court order before acquiring the communication of overseas terrorist suspects. In certain cases, Wainstein said, this process slows and in some cases may prevent the government’s efforts to conduct surveillance of communications that are “potentially vital” to the national security.
Rather than focusing on how a communication travels or where it is intercepted, Wainstein said FISA’s scope instead should be defined by who is the subject of the surveillance, which would provide the intelligence community with much needed speed and agility.
Attorney Daniel J. Vaccaro, a partner in the Litigation Practice Group of Michael Best & Friedrich, said the nation’s general wiretap law was amended through the Patriot Act, allowing the government to change the focus from the manner in which information is collected to the person it is trying to collect information from. The caveat there is that it still required judicial intervention and court review.
“This expansion within FISA that allows them to focus on the individual reasonably believed to be outside the United States does not require that particular court intervention,” Vaccaro noted, “and that’s, in my mind, what upsets civil libertarians the most.”
In his testimony, Wainstein went on to label as “infeasible” requirements that FISA be invoked each time a foreign target overseas communicates with a person inside the U.S.
Donald Downs, a professor of political science, law, and journalism at the University of Wisconsin-Madison, would take issue with that. Downs acknowledged that some FISA reforms are needed, but the issue is whether the new law goes too far.
FISA, enacted in 1978, allowed the government to more readily and efficiently eavesdrop on the conversations and correspondence of foreigners who posed a national security threat to the U.S. The U.S. Supreme Court has upheld that distinction between foreigners and U.S. citizens, but the court also has made it clear that presidential administrations cannot conduct warrantless wiretaps on domestic national security threats based solely on executive orders.
Downs said the Supreme Court has made a distinction between foreign threats to national security and internal threats to law and order. The latter are covered by the normal procedures of the Bill of Rights, including Fourth and Fifth Amendment protections.
When it comes to a national security issue involving foreign intelligence, the national security powers of the president are stronger, but to maintain some judicial oversight, Congress set up a special kind of court – the FISA Court. Under FISA, if the government has reason to believe that a foreign threat to security was under way, and the primary purpose of the eavesdropping is deal with that, then the executive branch could get a warrant from the FISA Court.
The court is comprised of seven judges selected by the Chief Justice of the Supreme Court, and they are to provide some Constitutional constraints on the executive. The hurdles are not as high as they are for a normal criminal investigation, but Downs said it’s a way of balancing national security with the Bill of Rights.
Originally, there was one exception to the need for a warrant. If the conversation or the correspondence was purely between two people not inside the United States, the government did not need a warrant because the Fourth Amendment only protects against unreasonable search and seizure within the United States.
“Hypothetically, in the case of a terrorist in Germany talking to another terrorist in France, the government can eavesdrop on that conversation without seeking a warrant before the FISA court,” Downs said.
Levels of surveillance
Up until the recent change and the enactment of the Patriot Act, there were three different levels of surveillance:
• First, if the surveillance involved a normal criminal case within the United States, the executive branch had to get a warrant based on probable cause, and the usual Fourth and Fifth Amendment protections applied.
• Second, if the government was eavesdropping on a national security or foreign espionage conversation, and part of it was taking place in the United States, it was required to go to the FISA Court.
• Third, if the government was eavesdropping on purely external conversations, including ones involving national security, it did not have to go to the FISA Court and secure a warrant.
The problem is that, in the modern age, with e-mails and cells phones and new technologies and servers, a lot of conversations that are purely external to the U.S. get routed through servers here. A recent court decision said that as long as the conversation, even it’s purely outside of the country, gets routed through the U.S., the government has to seek a warrant from the FISA Court.
The Administration and even some Democrats who consider themselves civil libertarians agree that this is too problematic for national security, and that the government should have more leeway to act on those communications.
Except the more extreme libertarians, Downs said most would agree that this is a reasonable accommodation. In his view, the problem with the new law is that with a conversation between someone outside the country and someone who is located in the United States, an American citizen, the new law doesn’t require the government to seek a warrant.
This expands the power that the national security agency has to “get around” FISA, Downs said. “Everyone agrees that if it’s a purely foreign conversation between two people overseas, outside the country, then the Fourth Amendment really doesn’t apply,” he explained, “but what if it’s with someone from overseas talking with someone in the United States? In the past, you had to go to FISA to get a warrant for that. Now you don’t necessarily have to.”
The importance of securing a warrant and getting some judicial overview is to have a public record to evaluate the actions of the executive branch, Downs said. Otherwise, the public is left with trusting a presidential administration. Part of the problem, Downs said, is the credibility problems the current Attorney General, Alberto Gonzalez, has with Congress. With a more trusted AG, he said the new exception would still be controversial, but probably gain more acceptance.
Both Vaccaro and Downs noted that the FISA Court hardly ever denies a warrant, making it in effect a rubber stamp. Every year, the Department of Justice has to report to the leaders of Congress and to the leaders of the intelligence committees within Congress about applications for electronic surveillance under the FISA Act. Of the 2,181 applications to the FISA Court in 2006, all but five were approved.
They said reforming FISA and making it more efficient would be a better approach than circumventing its original intent. Increasing the resources available to the FISA Court could improve its ability to more expeditiously review applications for these types of surveillance activities, Vaccaro said. Even if there isn’t an immediate judicial authority, there can be mechanism that provides judicial review in 24 hours or less.
“I’m not trying to suggest that in a situation of dire emergency, what is truly a dire emergency, somebody may have to do something immediately and make that kind of life-or-death determination to do something immediately,” he said, “but there still should be an opportunity for judicial review afterwards.”
Six-month show down
Although several Democrats, including Wisconsin Senator Russ Feingold, have vowed to dismantle the new executive power, Downs believes the Democrats caved on the recent vote because the administration played the terrorism card, warning that if there was another attack between now and the 2008 presidential election, it would point to their votes against this expansion as a reason for the attack.
Downs said a reasonable compromise would be to view a purely foreign conversation routed through the United States as a happenstance of technology. The conversation still is between two or more people who are not inside the country, so the Fourth Amendment doesn’t apply in that case.
However, if the conversation involves someone that is in the United States, it would be appropriate to have a record of that and, if necessary, tinker or modify the procedures involving the FISA Court so that the government isn’t bogged down.
“I think that’s an acceptable thing to do,” Downs said, “but I still think the FISA Court should be involved in those cases.”
Unless Congress and the Administration find a way to delay implementing a permanent solution until after the 2008 presidential election, Downs and Vaccaro expect a vigorous debate when the six-month sunset goes into effect.
“It’s going to be the same thing all over again,” Downs said, “unless it’s shown that the Administration has really abused its power on this.”
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