NSA Wiretapping

U.S. District Court Judge Vaughn Walker rejected arguments initially offered by both the Bush and Obama administrations, ruling that the National Security Administration's (NSA) warrantless wiretapping broke federal law. Walker determined that the program violated the 1978 Foreign Intelligence Surveillance Act (FISA) which requires warrants that the NSA failed to obtain.

Rather than mounting a legal defense of the NSA's program, the Obama administration only argued that the state-secrets privilege required the court to block the suit. Judge Walker bucked the administrations' invocations of the privilege, which he characterized as amounting to "unfettered executive-branch discretion" bearing "obvious potential for governmental abuse and overreaching." Walker's 45-page opinion made no mention of the Bush administration's argument that the NSA acted within the president's war time powers to override FISA.

Writing at Wired's "Threat Level" blog, David Kravets called the ruling "a landmark decision."

"It's the first ruling addressing how Bush's once-secret spy program was carried out against American citizens," Kravets reports. "Other cases considered the program's overall constitutionality, absent any evidence of specific eavesdropping."

The surveillance powers authorized by the USA PATRIOT Act endanger civil liberties, but their impact pales in comparison to that of the FISA Amendments Act (FAA) passed by Congress last summer. That law eviscerated Americans’ protections against domestic spying by intelligence agencies and granted immunity to telecommunications companies that illegally assisted in the National Security Agency’s warrantless wiretapping. The PATRIOT renewal debate offers the first, best, and perhaps last meaningful opportunity to reform that law, and the Electronic Frontier Foundation (EFF) urges members of the Senate Judiciary Committee to support any amendments to the FAA offered by Senator Feingold when it considers PATRIOT renewal tomorrow morning.

Last week, Greg Nojeim of the Center for Democracy & Technology (CDT) ably introduced ACSblog readers to the current state of the USA PATRIOT debate: how three provisions related to PATRIOT are set to expire at the end of the year; how Senators Leahy and Feingold have introduced bills that would renew most or all of the expiring provisions but that also contain critical new privacy protections; how the Senate Judiciary Committee is set to consider those bills tomorrow; and how, in CDT’s opinion, “reform of NSL authority should be at the top of the congressional agenda for the Patriot Act.” EFF wholeheartedly agrees with CDT’s conclusion that the FBI's authority to issue National Security Letters is the PATRIOT power that poses the most clear and present danger to civil liberties. However, the PATRIOT debate is also a critical opportunity—perhaps the only opportunity—to significantly reform the much more worrisome surveillance powers granted by the FAA.

From a civil liberties perspective, focusing on reforming the PATRIOT Act without also considering FAA reform is like rearranging deck chairs on the Titanic. Although objectionable in the extreme, PATRIOT did not fundamentally change the structure of federal surveillance law; rather, it was a collection of nips and tucks to current law that favored Executive authority over personal privacy, which when taken together constituted a significant new threat to civil liberties. On the other hand, the FAA was a radical facelift to the law, which broadly expanded the government’s warrantless wiretapping authority and reduced Americans’ protections against interception of the content of their phone conversations and emails. Admittedly, NSLs authorized by PATRIOT have been used to obtain the sensitive phone, internet and credit records of hundreds of thousands of Americans. The FAA, however, is being used to intercept and store millions upon millions of private telephone calls and internet communications, including purely domestic communications.

This assertion is borne out by the investigative reporting of the New York Times, a leader when it comes to covering surveillance issues. The Gray Lady first reported back in April that in its attempts to implement the FAA, the National Security Agency (NSA) had engaged in “significant and systemic” “overcollection”—i.e., illegal interception—of large volumes of domestic email traffic. The Times’ follow-up reporting indicated that the “overcollected” emails likely numbered in the millions, and that those millions of illegally intercepted emails were being kept by the NSA in a database code-named “Pinwale”.