Electronic Surveillance, Privacy and Technology 

Electronic Surveillance, Privacy and Technology

I've been forced back to the American Con Law text I used last year.

It seems that since 1968, for normal, non-national security criminal cases, there is a procedure for federal or state authorities to be allowed to "[eavesdrop] on telephone conversations, face-to-face conversations, or computer and other forms of electronic communication." They must be investigating specific serious, covered offences; and they must apply to a court for a Title III warrant.

"This is the most stringent level of protection."

"On a lower tier, with respect to any criminal offence, federal law allows warrant-based access to telephone records, email held in third-party storage, and (after the Patriot Act) stored voice mail."

"Still more relaxed procedures apply to the government's use of trap-and-trace devices and pen registers that capture the source and destination of telephone calls (but not their contents). Those can be put in place on the government's certification alone, rather than the probable cause finding of a court, that the information will be relevant to a criminal investigation."

There was a debate as to how the 1968 Omnibus Crime Control and Safe Streets Act applied to national security cases. In 1978 the Foreign Intelligence Surveillance Act was passed by Congress. The special
FISA or FISC court "hears requests by the executive branch for warrants to conduct secret physical searches and electronic surveillance of [people working for a foreign power]."

All quotes from Mason and Stephenson.

Glenn Greenwald points out that while the President can authorize a surveillance of Americans, for national security purposes, for up to a year with no warrant, "the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4)." (Link from Atrios). So far no one has pointed to legislation which would have authorized what Bush says he did.

Of course, Bush and his defenders will say this points to the larger problem they faced after 9/11: how to take action against amorphous international organizations, as opposed to "foreign powers"--meaning more or less sovereign governments?


The early "electronic surveillance" cases had to do with telephones, and show a now touching naivete about technology. In Olmstead v. U.S. (1928), the Court upheld the use of wiretapping in investigating federal crimes. Since telephone wires were "not part of [a person's] house or office," they were not included in areas to be protected by the Fourth Amendment. (Taft for the 5-4 majority). Brandeis, who had famously published on "privacy" and even a "right to privacy" in relation to search and seizure, wrote for the minority:

The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect....They conferred, as against the Government, the right to be let alone--the most comprehensive of all rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

(Shades of O'Connor in Casey, and Kennedy in Lawrence: "mystery of life" in support of privacy).

In Katz v. U.S. (1967), the Court ruled against evidence gathered by an electronic listening device attached to a phone booth. "...the Fourth Amendment protects people, not places."

In this connection, I think it is helpful of Julian Sanchez (Hit and Run) to raise the question of how FISA applies with new technology.

A second, slightly more abstract question is what, exactly, counts as an "international" communication these days. Previously, we're told, the NSA had only spied on wholly foreign conversations. They still (say they) don't do any wholly domestic surveillance. What's new is the intereception of phone calls and e-mails where one party is based in the U.S. and the other overseas. Except... how do we know?

Servers can be in the U.S., or not, regardless of whether participants in a conversation are Americans or not. Internet phones might use phone numbers with virtually any area code.

Can the NSA really restrict itself to conversations in which at least one participant is located outside the U.S.? Is it even trying? Do the critics of the new espionage have a better solution?


Bush's defenders are pointing to the Echelon program, which for many years has carried out electronic surveillance of communications all over the world, whether Americans are involved or not. Clinton, among others, supported this program. How is what Bush did any different?

I guess Bush wanted to go beyond the FISA warrant provisions, even though a warrant is easy to get. The reason may involve the fact that two requests for warrants by the Bush administration in 2003 were turned down--rejections that remain practically unique. What was Bush requesting? (See Josh Marshall, linked in earlier post).

Also, the reference to foreign powers is not quite right.

Kevin Drum (link in later post):

FISA, which was specifically enacted in 1978 to clear up some of the questions left unresolved by the Supreme Court, allows warrantless surveillance of conversations between "foreign powers" (and their agents) only if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." We don't know all the details of how the NSA bugging plan operated, but it seems pretty clear that tapping conversations of "United States persons" was not only a substantial likelihood, but practically the whole point of the program.

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