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Wiretapping, FISA, and the NSA

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US wiretapping laws, FISA and Presidential powers given to the NSA to intercept communications make for interesting times when coupled with technology. What are the issues surrounding privacy, search, seizure and surveillance?

Whenever a new technology is developed, or a new threat that causes us to deploy these technologies, questions invariably arise about their legality. When the telephone was first developed and used, it was not clear that the constitutional dictates on unreasonable searches and seizures applied to conversations that were neither "searched" nor "seized." The recent revelations that the US Department of Defense, through the National Security Agency, was targeting the international communications of US citizens for interception as part of a classified program raises questions about the constitutionality and legality of the program itself.

NSA targeting US citizens

The first thing to emphasize is that we don't know anything at all about this program. It has been alternatively described as a vacuum cleaner which sits on the main routers and international trunk lines of communication and "sucks up" all data for later analysis; as a "spider" program that starts with leads of phone numbers and email addresses found from interception or by analysis of al Qeada targets that does brief analysis any of these addresses or phone numbers; or most recently by the White House as a narrow rifle shot. As a White House spokesman told The New York Times on 27 December, "[t]his is a limited program. . . . These [intercepts] are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches." So there you have it, according to the White House. The people targeted (even US citizens) are very bad people. And they are calling them very bad people. Which, more than anything else raises the question - why not get a warrant?

Can the President of the United States, during a time of war (albeit a war on terror, or terrorism, or fundamentalism without any end in sight whatsoever) assert plenary executive authority to intercept communications, including emails and other electronic communications originating from the United States and from US citizens without any kind of judicial warrant?

The US Constitution

The first place to start any analysis of privacy, search, seizure and surveillance is with the US Constitution itself. The Fourth Amendment provides that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." So you would read that to mean that you would need a warrant to search for and seize things - including electronic mail messages, right? Wrong. You see, there are two independent clauses there - no unreasonable searches and seizures, and a necessity for warrants. It there is a search without a warrant, but it is reasonable, then it's OK. In fact, there are probably more searches and seizures without warrants than with them. If the search is done with consent (and here is the tough part - maybe with just the consent of the ISP), or because of some imminent harm or exigent circumstance, or to protect the safety of the police, or for a whole host of other exceptions carved out by the Supreme Court (including because it's in a car), then no warrant is necessary.

Balanced against this Constitutional provision is that of Article II Section 2, which designates that the President of the United States is the Commander in Chief. There are certain things that the government has historically done in wartime, which might have been otherwise illegal, but, hey - as General William T. Sherman said: "War is all hell." Indeed, during his famous march on Atlanta near the close of the Civil War, he did not get court orders authorizing the seizure of southern farms, livestock or property - he just took it - cause that's what you do in wartime. If you suspect that someone (back in the Civil war, that meant a US citizen) was working with the enemy, you arrested them. We would hardly expect General Sherman's army to follow the niceties of search warrants or special writs to be able to listen in on telegraph communications between Confederate Generals. That is the nature of the power of the government in time of war. Warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades. The Supreme Court has noted that warrantless electronic surveillance "has been sanctioned more or less continuously by various Presidents and Attorney Generals since July 1946. Warrantless electronic surveillance has been used by the Executive to collect intelligence information since at least the mid-1800s."

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