What's at Stake in the Surveillance Debate in Congress

[babylonsister]

What's at Stake in the Surveillance Debate in Congress
By Jennifer Granick Email 10.23.07 | 12:00 AM

Over the next few weeks and months, civil libertarians and consumer advocates will wage a battle against the telecommunications companies and the Bush administration to preserve some semblance of privacy rights in Americans' communications.

Congress will be considering several versions of bills that will, one way or another, expand government access to phone calls and e-mails. These legislative proposals are complex and in flux, but there are two main issues at the center of the debate that citizens can focus on. One is whether eavesdropping on millions of Americans simultaneously is acceptable. The second is whether communications companies should get a free pass for breaking the law by allowing illegal warrantless surveillance of all Americans' communications.

In the 1960s and '70s, several Supreme Court cases held that citizens can reasonably expect that the government will not eavesdrop on their personal communications without first demonstrating to a court the need for this privacy invasion. Congress passed the Wiretap Act of 1968 to regulate eavesdropping for law enforcement purposes, and added the Foreign Intelligence Surveillance Act (FISA) of 1978 to establish procedures for the president to follow when conducting surveillance for national-security purposes. FISA established a "secret court" -- the Foreign Intelligence Surveillance Court, or FISC -- to review applications for national-security warrants. These could be obtained merely by showing that the target was an agent of a foreign power.

Targeted surveillance was the order of the day for two primary reasons. First, the Fourth Amendment prohibits "general warrants," those which do not specify the names of people to be observed, the inventory of things to be seized, or otherwise fail to narrow the discretion of the officer performing the search. Second -- and it turns out, more importantly -- it was prohibitively expensive to perform mass surveillance. Eavesdropping required paying someone to sit and listen to calls, because storage and voice-recognition technology were not available.

By 2001, things had changed. Digital networks, vast storage and powerful computer processing meant that it was now economically feasible to monitor entire networks -- including the phone network -- using computers, voice recognition and other modern technologies. The government began pushing to use these new technologies for wide-scale mass surveillance.

The Sept. 11 terrorist attacks also occurred in 2001. But while the attacks may have raised the American public's tolerance for privacy invasions, it was not the sole impetus for mass spying. The National Security Agency (NSA) was pressuring telcos to give it unfettered access to customer calling records seven months before the attacks. Regardless, Sept. 11 inspired Congress to modify FISA to give national security officers more leeway in hunting down terrorists. The USA Patriot Act modified FISA in several important ways, but none of them would have allowed the wholesale surveillance of American communications networks the NSA was pushing for behind the scenes.

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http://www.wired.com/politics/onlinerights/commentary/circuitcourt/2007/10/circuitcourt_1023

[rurallib]

1. I'm buying tin cans and strings for my terrorists