Civil Liberties

They Can Hear You Now

Congress protects America from privacy

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When you talk to your mother on the phone, do you have a reasonable expectation of privacy? I thought I did, but apparently I don't—at least, not anymore, because my mother lives in Jerusalem.

Under the inaptly named Protect America Act of 2007, which President Bush signed into law on Sunday, the federal government no longer needs a warrant to eavesdrop on phone calls or read email messages between people in the U.S. and people in other countries. Unless the courts overturn this law or Congress declines to renew it when it expires in six months, Americans will have no legally enforceable privacy rights that protect the content of their international communications.

Congress rushed to pass the law, which amends the Foreign Intelligence Surveillance Act (FISA), because the Bush administration said it was urgently needed in light of a secret ruling earlier this year by the Foreign Intelligence Surveillance Court. The court concluded that FISA requires warrants to monitor phone calls and email messages routed through U.S. switches, even when both parties to the communication are outside the country.

Although based on a defensible reading of a 1978 law that did not anticipate the details of 21st-century telecommunications systems, the ruling created an arbitrary restriction on monitoring of foreign-to-foreign transmissions, which ordinarily does not require a warrant. But in addition to fixing this problem, Congress gave the executive branch the unilateral authority to approve surveillance of international communications involving people on U.S. soil.

Such spying is not limited to investigations of Al Qaeda or other terrorist groups. The government need only assert that obtaining "foreign intelligence information" is "a significant purpose" of the surveillance. It is also supposed to adopt "reasonable procedures" for determining that the information it seeks "concerns persons reasonably believed to be located outside the United States."

Although the law charges the FISA court with reviewing those general procedures, no one outside the executive branch has to sign off on the selection of targets or of communications to be monitored, even after the fact. Those decisions are left to the director of national intelligence and the attorney general, a man whom several members of the Senate Judiciary Committee, including the ranking Republican, recently accused of deliberately misleading Congress, stopping just short of calling him a liar.

In response to criticism from civil libertarians, the Bush administration sounds a familiar refrain: Don't worry; you can trust us. White House spokesman Tony Fratto said the law was not intended "to affect in any way the legitimate privacy rights" of Americans.

The whole point of judicial review, of course, is to avoid having to put all our trust in the competence, integrity, and good intentions of executive branch officials. If the Fourth Amendment's protection against "unreasonable searches and seizures" means anything, it means that the people doing the searches and seizures don't get to decide which privacy rights are legitimate.

Now that Congress has given its blessing to warrantless surveillance of international communications involving people in the U.S., legalizing what the National Security Agency did without statutory authority for five years after 9/11, the courts may have a chance to address the status of such eavesdropping under the Fourth Amendment. Some legal scholars argue that it might be constitutional under the "border search exception," which allows warrantless examinations of people and things entering the country.

However the courts resolve that issue, do you want every communication you have with someone in another country to be fair game for the government's snooping, based on nothing more than untested suspicion? As you ponder that question, recall that Attorney General Alberto Gonzales claimed the administration had to violate FISA because a Republican-controlled Congress in the immediate aftermath of 9/11 would not have agreed to the changes that a Democrat-controlled Congress has approved by a comfortable margin six years later.

These are the same people who want you to trust them with your privacy.

© Copyright 2007 by Creators Syndicate Inc.

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  1. Everyone should read “The Puzzle Palace” and Mr. Bamford’s other books.

    The NSA is a scary organization. They have all the money in the world, and operate in total secrecy. It’s a given that the people we vote for don’t know even 1% of what’s going on, with the possible exception of the President (but not this President – he’s not the curious type).

  2. Resolved: That every member of Congress who voted for this should be tarred and feathered.

  3. “…his office for listening devices than explains why the House’s cave-in on FISA was a rotten deal for all of us.”

    I don’t normally mention typos, but this is in the headline and it makes me cringe. It should read: “… for listening devices then explains why the…”.

  4. I’m waiting for joe to show up here. Come on, joe, explain to us why Representatives and Senators from your team shouldn’t be dragged out out of their offices and replaced with a mix of LP members and ACLU members.

    This is one of the key issues where Team Blue and Team Blue Man Stan were supposed to be in sync, and your guys screwed us! And they rushed to do it! Reid and Pelosi might have voted against the bill, but they still rushed it to the floor. They should have combined all of their procedure-fu to kill it, while also using all of their powers to maintain some party discipline on this. I realize that the Dems can’t maintain the same party discipline as the Republicans do, but on this of all issues they should have found a way.

    It’s the freaking 4th amendment.

    Sorry if I seem to be singling you out, joe, but you seem to be a pretty loyal defender of your party. So explain shit to me.

  5. I wonder if Sullum is a real libertarian. Surely it is up to you as an individual to insure the privacy of your own phone calls rather than rely on the federal government. I suspect some sort of encrypted VOIP technology could do the trick.

  6. thoreau,

    Women, children and minorities need to be spied upon too.

  7. THE URKOBOLD WILL ANSWER FOR JOE*: IT WAS NOT POLITICALLY EXPEDIENT AT THIS TIME TO DO THE RIGHT THING. BUT, SOMEDAY, IF YOU KEEP VOTING FOR THE CIVIL LIBERTIES-LOVING DEMOCRATS, THEY WILL FIGHT. FOR SOMETHING. NO, REALLY, THEY ARE DIFFERENT! SHUT THE FUCK UP, JOHN!

    *Disclaimer: The Urkobold? is not recognized by the Food and Drug Administration as a substitute for joe or joe-like products. Please use with caution.

  8. I suspect some sort of encrypted VOIP technology could do the trick.

    Just use Skype.

  9. Excellent post, thoreau. I used to post “Meet the new boss” when shit like this went down, but gave up a long time ago. I don’t even care to know the weak-assed justification for why the Dems would allow something like this to pass.

  10. “””I’m waiting for joe to show up here. Come on, joe, explain to us why Representatives and Senators from your team shouldn’t be dragged out out of their offices and replaced with a mix of LP members and ACLU members.”””

    This kind of surveillance has wide support. Therefore one could argue that they ARE representing their people.

    Many Americans seem so scared shitless, they will agree to anything when you put the “security” label on it. Freedom comes with vulnerability, people do not want to be vulnerable so they are willing to cut back on freedom. But, by repeating land of the free, home of the brave, they think that freedom does not diminish. They are conning themselves at the expense of our national fabric.

  11. It’s 2007, TrickyVic, not 2003.

  12. And that matters how?

  13. “””When you talk to your mother on the phone, do you have a reasonable expectation of privacy? I thought I did, but apparently I don’t-at least, not anymore, because my mother lives in Jerusalem.””””

    I’d bet your privacy has never meant anything to Israeli intelligence.

  14. Certain opinions, and the number of people holding those opinions, have changed since 2003.

    joe has made excuses for things that his team did by pointing to poll numbers from a few years ago.

    joe-

    I know you’re used to getting beaten up here for the fact that your team is Blue. Well, I’m ready to throw down with you over the fact that your team isn’t acting very Blue.

  15. a secret ruling earlier this year by the Foreign Intelligence Surveillance Court

    Can you say Gestapo?

    Once I got to this line, I was too disgusted to read any more.

  16. OMG!OMG!OMG!

    for a second, i thought joe was hier. URKOBOLD, you little scamp!

  17. thoreau,

    Since when did Team Blue ever really fight for civil liberties? Both sides will do so when it is politically expedient, but neither does when it is not. Principles and commitment to Constitutionally limited government play virtually no role in modern politics. At the very best, we get freedom-minded rhetoric from the minority party. Period.

    What’s funny about all this is that I hated the FISC a long, long time before 9/11. Now it’s even worse.

  18. PL-

    Fair points. But we were told in 2006 that Team Blue was going to change things. So far as I can see, they’ve changed squat.

    I’m just pointing out a broken promise, that’s all.

  19. “””Certain opinions, and the number of people holding those opinions, have changed since 2003.”””

    Then why are we, as a nation, still buying into the bullshit? I dare say little has changed since 2003.

  20. Thoreau, the only promise I accept from the government is the promise to expand its power. I know government has never promised that in words, but their actions stand. Regardless of party, those who seek positions of power, have an interest in expanding that power. If person X thinks he/she can use that power to do good things, they think they can do more good things with more power. Good or evil, people who desire power always want more. Ron Paul is the only one running that seems to understand the role of the President within our 3 branch government, and look where it’s getting him.

  21. It is very simple Thoreau, the Democrats think they might be President and responsible for something come 2009. It is one thing to pander to the nutroots when you are out of power, it is quite another thing to do so when you face the prospect of real responsibility. The last thing the Democrats want is to take away exectutive power when they think they might be able to wield that power in just a few short years. Moreover, if they really did do something to stop this and there were a terror attack in say 2009, guess who would be held responsible for it? I said this last November, responsibility has a way of sobering people up. Low and behold, 8 months after the election and there are more troops in Iraq and there is a FISA deal. Go figure.

  22. thoreau,

    In fairness to the Blues, they have held an awful lot more hearings into administration misconduct than the Reds would’ve. That’s gotta count for something!

  23. responsibility has a way of sobering people up.

    Then what the hell happened to Bush? He campaigned on fiscal responsibility and a humble foreign policy in 2000, and then proceeded to spend like a drunken sailor and jump on the nation-building bandwagon.

  24. John-

    If you think the repeal of the 4th amendment is sobering up, then sure.

  25. thoreau,

    Understood. Soon your turn to the Cynical Side will be complete. With each posting, you become more and more the Censor’s servant. Oops, sorry.

    The last time I had any hope for an internal change was 1994. Didn’t take long for the new boss to start resembling the old boss, did it?

  26. PL-

    I never really believed the promises, I just wanted to point out that they were broken so that others could be disillusioned as quickly as possible.

    Some day we WILL convert joe. Oh yes, we will.

  27. I blame joe’s too-strong faith in the Democrats on his being a Red Sox fan.

  28. Note that joe has completely avoided this thread.

  29. Well, given the abuse that was being promised for him, I guess I can’t blame him for staying away.

  30. Crimethink, don’t you understand the world changed after 9/11? Thats why we needed Medicare Part D! 9/11 9/11! /sarcasm

  31. “You’re my boy BLUE!”

  32. Full roll call vote is here

    http://clerk.house.gov/evs/2007/roll836.xml

    Most of the Democrats voted against it, all but 2 of the GOP voted for it.

  33. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

    One could argue that the 4th does not apply to electronic communication as it is not part of any of the PHYSICAL things mentioned in the amendment

  34. ThePlumber,

    But, by that logic, content of communication by radio, TV, and the Internet can be regulated by Congress, since it’s not technically speech.

  35. Crimethink,

    Not at all. Speech is still speech no matter how you transmit it. However it is a big twist of logic to turn electronic communication into “persons, houses, papers, and effects”. The closest you could get would be papers. I can see this covering the contents of your harddrive, but not a verbal conversation that is transmitted between two locations.

  36. “””Not at all. Speech is still speech no matter how you transmit it. However it is a big twist of logic to turn electronic communication into “persons, houses, papers, and effects”””””

    I disagree. Electronic communication is the “papers” of the 21 century. I doubt the founding fathers envisioned a country where new technology would render their values moot. They did say that we must keep government in check when it comes to our rights. We are tragically inept at that task.

    “””I can see this covering the contents of your harddrive, but not a verbal conversation that is transmitted between two locations.””””

    Forgive me if I’m wrong, but the conventional wisdom is that the content of a phone call between two U.S. citizens within the U.S. requires a warrant. The Bush admin seems to, at least, pretend that’s true publicly. Bush does call the information ABOUT the call as being fair game for data mining. The fact that the Bush admin is using the umbrella of war means they know it wouldn’t stand in peace time. In order to spy they way they want, they must keep beating the drum of war.

  37. So what about internet transmissions from one domestic location to another and just happen to go through a server in canada/mexico/row (rest of world). And declare that server is owned/controlled by “a suspected terror creature” or just declare the server suspect. I bet they can come up with some legal logic dodecahedron to monitor that.

  38. TrickyVic,

    That might be the conventional wisdom, but keep in mind that it is also the conventional wisdom that growing pot in your backyard for your own personal medical use somehow qualifies as interstate commerce. The 4th clearly talks about personal items in or on your person or your property. That’s why they included communication or “speech” in the 1st amendment.
    You can’t pick and choose which amendments you want to be originalist or Living Document on. If we want privacy of communication we have to provide it ourselves, not wait for the legislature or judicial branches to provide it for us, as I believe was mentioned earlier. You could even argue that since communications travel over equipment owned by comm companies, they belong to the company and not you.

  39. “effects”

    That word could be construde to include whatever you want.

  40. “It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristics of the late Revolution. The freeman of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.”

    -James Madison

    Of course, we’re way past the “first experiment”, but may be it’s not too late to do something.

  41. jbinmo
    Effects
    pl. Goods; movables; personal estate; — sometimes used to embrace real as well as personal property; as, the people escaped from the town with their effects.

    Physicality is inherent in the meaning.

  42. Plumber

    A good justice department attorney will find a definition they like more, you may be right, that dosen’t mean you will prevail in a courtroom.

  43. The fact that a “libertarian” organization can’t even mention in their article that FISA is an unconstitutional abomination in itself goes to show just how far we’ve fallen in this country.

    1791:

    “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.”

    Today:

    ” people shall be seized.”

    Scott

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