Revised Surveillance Measure Becomes Law

Some degree of conflict between privacy/civil liberties concerns and terrorism prevention and deterrence is inevitable. This comes to the surface because protections for personal privacy and freedom from government intrusion into our privacy (or freedom from intrusion by telemarketers or identity thieves for that matter) is something we all cherish. Privacy and civil liberties must be reasonably safeguarded even in a heightened homeland security environment.

On July 9, 2008, after prolonged Capitol Hill deliberations and dealmaking, President Bush signed HR 6304, the FISA Amendments Act of 2008 (also known as Public Law 110-261), into law after it finally won approval by both houses of Congress. The law, which overhauls the technologically primitive 1978 FISA Act, was passed in the nick of time for national security officials, since many of last year’s authorized wiretaps were due to expire in August, which could have put the intelligence community back to square one in terms of ongoing operations. The law is said to be the most significant expansion of the government's surveillance powers in a generation.

The FISA law is by no means your light summer reading. As the National Journal said in a very helpful tutorial, "it is a dense, often opaque, and patchworked set of new authorities that has puzzled even the few people who can actually call themselves FISA experts."

In the July 10 signing ceremony, the president commented that:

The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home. The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people...Last year Congress passed temporary legislation that helped our intelligence community monitor these communications. The legislation I am signing today will ensure that our intelligence community professionals have the tools they need to protect our country in the years to come...this law will protect the liberties of our citizens while maintaining the vital flow of intelligence. This law will play a critical role in helping to prevent another attack on our soil.

Some civil liberties groups and privacy advocates have been less than sanguine about the new law. They have vigorously insisted that the legislation violates the 4th Amendment’s prohibition against unreasonable searches and seizures.

For example, the Electronic Frontier Foundation, a proponent of digital freedom, claimed the law is a “full frontal assault on the Constitution,” and that it “betrays the spirit of 1776 by radically expanding the president’s spying powers and granting immunity to the companies that colluded in his illegal surveillance program.” The ACLU and other groups expressed like-minded sentiments.

Similarly, The New York Times editorial board argued that the law will serve to “wrench American’s civil liberties back to where they were in the days before Watergate, when the United States government listened to our phone calls whenever it wanted.”

In general, it feels inappropriate to dismiss these concerns out of hand, especially since there is always potential for abuse, particularly in the hands of an unscrupulous future administration. And virtually very law (even those seemingly benign or mundane) has loopholes and unintended consequences, let alone subject to "unique" court interpretations from sometimes grandstanding judges.

But doesn’t it seem that a lot of the opposition--to this point anyway--has more of a theoretical flavor to it as it applies to the ordinary, law-abiding citizen? One of the senators who supported the legislation said that the average American has nothing to fear from this broadening of the executive branch’s surveillance powers unless “you have Al Qaeda on your speed dial.”

And if the civil liberties absolutists are concerned about personal privacy, what about all the people walking through airports or down the street voluntarily giving up intimate details of their lives as they shout into their cell phones in public?

Separately, the last thing the court system and the overall economy really needs is for tort lawyers to move beyond class-action lawsuits against e.g., McDonalds, Starbucks, and Sears among others, for their real or imagined commercial sins, and set their sights on telecommunications carriers. When the trial lawyers get involved in a big way, it may be less about the Constitution and pen register and more about the cash register.

Most wiretaps (certainly an old-school term in the wireless era) will still have to be approved by the FISA court, and the authorities will still need a court order to listen in on a U.S. person, regardless of that person's location. Certain additional oversight mechanisms within all three government branches are incorporated into the new law. For what it's worth, one of its provisions states that the program “may not intentionally target any person known at the time of acquisition to be located in the United States.”

The law also allows for warrantless listening with the probable-cause approval of the U.S. attorney general for up to seven days in an emergency when intelligence officials are in hot pursuit of foreign intelligence information. After that, homeland security officials must petition the FISA court for a warrant. As a check on future administrations, the law reaffirms that the FISA process is the “exclusive” or only means by which electronic surveillance for intelligence purposes and the domestic interception of electronic communications can be conducted.

Critics of the surveillance program often cite the famous Ben Franklin quote that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” in support of their point of view, although they often leave out the key words essential and a little temporary.

However, putting aside this use of editorial license, let’s remember that the contemporary threat comes from those with highly sophisticated technology and weaponry rather than flintlock muskets, and therefore these legal measures, and whatever trade-offs might be required, seem to be necessary for homeland security. As flawed as the legal system often is, the law needs to attempt to keep pace with changing technology. And as the National Journal points that FISA does not apply to domestic criminal surveillance, only to foreign spies and terrorists

As an Associated Press article explained:

The original FISA law required that the government to get wiretapping warrants for each individual targeted from inside the United States, on the rationale that most communications inside the U.S. would involve Americans whose civil liberties must be protected. But technology has changed. Purely foreign communications increasingly pass through U.S. wires and sit on American computer servers, and the law has required court orders to be obtained to access those as well.

Opponents of the measure will be challenging the constitutionality of its provisions in federal court, so it still remains to be seen to what extent the new law will be fully implemented. Who knows--the court challenges might still be pending when the FISA amendments expire on December 31, 2012.

[originally posted 8/8/08, 6:49 a.m. Reposted 8/9/08]