Agentless Backup is Not a Myth

Opponents of the Bush administration's controversial warrantless wiretapping program have suffered a pair of defeats in their efforts to rein in the scheme.

In a 2-1 decision, the Sixth Circuit Court of Appeals last week dismissed a legal challenge to the warrantless surveillance program brought by the American Civil Liberties Union (ACLU).

The plaintiffs said their concerns were well founded but the Wisconsin appeal court dismissed the case because none of the plaintiffs knew for sure whether or not their communications had been placed under surveillance.

The ACLU said it was disappointed by the ruling which "insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails". The organisation said it was reviewing its legal options following the ruling, including the possibility of taking its challenge to the US Supreme Court.

In a separate ruling, also delivered on Friday, a California appeal court ruled federal agents are entitled to monitor the web sites a suspect visits or the email addresses he exchanges messages with. The Ninth US Circuit Court of Appeals in San Francisco compared surveillance of internet activities to "pen register" devices, which were used to track the phone numbers suspects called rather than monitor the content of a conversations. Such devices were ruled legal by the Supreme Court in 1979, which ruled that numbers transmitted electronically between a suspect and a phone company do not enjoy any expectations of privacy.

Searches on suspects' surfing activities are no more intrusive than obtaining a list of phone numbers dialed or examining the outside of a mailed package, Judge Raymond Fisher said in the 3-0 ruling. The court made the ruling in considering a drug case referred to it by a lower court in the San Diego area. Dennis Alba was jailed for 30 years after he was convicted of running a lab manufacturing Ecstasy. Part of the evidence against him came from monitoring his activities on the net. He challenged the legality of this evidence gathering on appeal, an application the appeal judges rejected in confirming his earlier sentence, the San Francisco Chronicle reports.

The practice of so-called warrantless wiretapping came to light after the New York Times reported in December 2005 that the president had authorised the National Security Agency (NSA), the US government's signals intelligence agency, to intercept communications inside the US as part of the "War on Terror".

The ACLU's action is only one of several lawsuits launched in the wake of reports that AT&T and other telcos turned phone records over to the NSA without judicial authorisation. The NSA's "massive and illegal program" to wiretap and data-mine Americans' communications remains the subject of an ongoing lawsuit by the Electronic Frontier Foundation (EFF) and numerous others.®

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