Changes to Wiretap Law Stoke Controversy

Published October 1, 2007

Changes to the Foreign Intelligence Surveillance Act (FISA), the law that governs wiretapping of communications involving parties outside the country, have come under fire from both technology advocates and free-market analysts.

They say the reforms endanger constitutional rights by expanding the government’s extrajudicial power over surveillance of its citizens.

The FISA reforms were part of the Protect America Act of 2007, which President George W. Bush signed August 5 after it passed both houses of Congress. The changes allow the U.S. government to intercept or monitor communications between U.S. citizens and individuals outside the country without seeking advance approval from a special FISA court.

Under the law, telecom service providers are obliged to cooperate and are indemnified against liability. The provisions expire in six months unless Congress votes to extend them. However, any wiretaps authorized during the law’s current 180-day timeframe can remain in place for one year.

Further Controversy

The changes grant broader powers to government agencies seeking to tap phone calls, email, or other voice and data communications between U.S. citizens and parties outside the country as part of an effort to track potential terrorist activity. The judicial test for granting a FISA warrant is less strict than the “probable cause” authorities are required to show for wiretaps and searches under the Fourth Amendment.

That’s why most characterize the constitutional aspects of the FISA debate in terms of limits set by the Fourth Amendment versus the powers granted the president under Article II to protect national security.

Privacy Concerns

Last year AT&T came under fire for providing the National Security Agency (NSA) access to calling records in response to a FISA warrant that later was found not to have been judicially approved. Other telecommunications companies resisted.

The Electronic Frontier Foundation (EFF), a nonprofit organization that promotes the growth and use of telecom technology and electronic media, criticized the FISA changes in an August statement.

“The administration’s latest ‘FISA Modernization’ proposal appears intended to legalize the massive violation of Americans’ rights that the NSA has been perpetrating for over five years and marginalize even the FISA court’s role,” noted the EFF statement.

There is overwhelming evidence–including statements from fully briefed members of Congress, whistleblower evidence from a former AT&T employee, and numerous newspaper reports–that major telecommunications carriers have provided the NSA with unchecked backdoor access to their networks and records databases.

“Under current law this is illegal, but the administration’s proposal could bless this sort of wholesale collection of Americans’ communications. As long as the NSA’s ‘intention’ is to ‘target people believed to be in a foreign country,’ then it could be allowed to filter and scan the domestic communications of all Americans without checks or balances from the judiciary,” EFF continued.

Presidential Powers

Others say FISA falls within the purview of constitutional powers granted the president in a time of war, which Congress implicitly acknowledged in its joint resolution, passed September 14, 2001, that endorsed military action against global terrorism.

“For nearly 200 years it was understood by all three branches that intelligence collection–especially in wartime–was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution,” wrote Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia in The Wall Street Journal in late 2005. “Washington, Madison, Jefferson, Hamilton, John Marshall, and many others recognized that the grant of ‘executive power’ to the president included control over intelligence gathering.”

Judicial Checks

Even while acknowledging the terror threat, FISA critics still say judicial checks are needed. Writing August 9 in Jurist, a publication of the University of Pittsburgh School of Law, Marjorie Cohn, professor at the Thomas Jefferson School of Law, argued new revisions to FISA give the Bush administration too much discretion.

“Indeed, the mad rush to push this legislation through was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his terrorist surveillance program,” Cohn wrote.

Cohn expressed concern that the new rules will be renewed. “In six months, when the ‘Protect America Act of 2007’ is set to expire, there will be even more political pressure on Congress to appear tough on terror in the run-up to the 2008 presidential election. We cannot expect a Congress that so easily caved in to the fears hyped by the Bush administration to stand firm in support of the Constitution,” she wrote.

Steven Titch ([email protected]) is senior fellow for IT and telecom policy at The Heartland Institute and managing editor of IT&T News.