FISA Warrants; PRISM Data Mining; NSA Security Letters; Executive Orders Authorizing Wiretaps: Is Big Brother Watching Us?

Based on the recent revelations published in the Guardian concerning the U.S. Government’s massive data collection efforts as part of its “war on terror,” many Americans are beginning to wonder if the government is not in fact engaging in a “war on privacy.”

On the one hand some people are decrying the current state of Orwellian affairs, and others assert that this is nothing more than civil libertarian belly aching, and that leakers such as Edward Snowden, the source for the Guardian’s disclosures, should be prosecuted as traitors. Even for the relatively informed news junkie, this is a complicated topic with respect to which only limited information has so far been made public. The purpose of this article is to provide a dispassionate summary for non-lawyers and outsiders to the U.S. government’s intelligence gathering operations.

First, a little history lesson will provide perspective. Until 1967, when the Supreme Court ruled that the Fourth Amendment, which protects the citizenry against warrantless and unreasonable searches and seizures, precludes the government from violating its citizens’ “reasonable expectations of privacy,” the U.S. government could wiretap the telephone of anyone of interest. In part as a response to the Supreme Court ruling, in 1968 Congress passed a law that permitted warrantless wiretaps in cases of national security or that involved the hostile acts of a foreign power. In 1972, in a case involving the use of warrantless wiretaps on a group planning to blow up the local CIA recruiting office, the Supreme Court held that the government could not employ warrantless wiretaps in investigations involving “domestic” threats to national security. In 1978 Congress passed The Foreign Intelligence Surveillance Act (FISA) created a warrant procedure for foreign intelligence investigations.

FISA created a court to review secret government requests for subpoena authority. In order to get a warrant the government has to show probable cause that a foreign power is seeking to harm U.S. interests. Unlike normal subpoenas, the party being served with subpoena cannot challenge the subpoena in court and is ordered to keep the subpoena secret under penalty of criminal sanctions.

After the 9/11 attacks Congress passed the Patriot Act. One of its provisions removed the probable cause requirement for a FISA subpoena, enabling the government to use the subpoena power simply for intelligence gathering purposes involving a foreign power or counter terrorism.

Also, after the 9/11 attacks the Bush administration invoked its “inherent powers” pursuant to its “war powers” to employ electronic surveillance without FISA or other court authorization, targeting international communications. The National Security Administration (NSA) conducts these data gathering activities. Although this program is secret, based on whistle blower evidence and the confidential sources for the New York Times, it appears that the NSA has been conducting vast data-mining operations. Because the data being mined generally has been understood to involve a foreign component, most observers have believed it to be outside the purview of the Fourth Amendment.

In light of the revelations about the extent of the data mining, and the lawsuits that civil libertarians brought against the telecommunication providers, in 2007 Congress passed legislation authorizing the targeting of communications of people outside the U.S. without the approval of the FISA court for intelligence gathering purposes only. In other words, the government did not have to show a link to terrorism. In addition, the law immunized the telecommunication providers from civil liability for complying with government data requests.

In addition to FISA warrants and NSA “foreign” surveillance, the FBI employs what are known as National Security Letters. These are letters issued by the FBI to an entity requesting documents or records that are not subject to any oversight or court authorization. These letters order the recipient to maintain the secrecy of the request for documents. Several courts have rules this “gag” order provision to be unconstitutional.

The latest controversy involves a FISA court order authorizing a subpoena on Verizon ordering it to provide all of its “meta-data,” that is the routing information, originating and terminating telephone numbers, and time and duration of calls, international and domestic. In other words, Verizon must essentially provide the government with an electronic copy of every one of its customers’ phone bills. There is no reason to suspect this is limited to Verizon or limited to any particular time.

In addition, the Guardian disclosed that the NSA is employing a software program known as PRISM. Although it is unclear exactly how this program works, it appears to be able to gather Internet search history, the content of emails, file transfers and live chats. In other words the government appears to be able to monitor the flow of nearly all information over the Internet for surveillance purposes. At this point in time it is unclear whether Internet content providers such as Google and Facebook are complicit in this surveillance program or whether the government is operating PRISM without cooperation of the content providers. The legal basis for this surveillance, and the extent it is examining strictly domestic communications, is unclear.

If these massive data-mining efforts are being limited to counter-terrorism, I think reasonable minds can differ as whether they constitute an intolerable violation of privacy in the name of security. However, what guarantees that these broad powers will not eventually be used for the purely political motive of maintaining power? Aren’t the same Senators who support these programs in the name of national security decrying the I.R.S.’s scrutiny of right wing political organizations’ application for tax-exempt status? If, we as a nation do not trust the I.R.S. not to abuse its powers, why should we trust the NSA?

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.