The Federal Bureau of Investigation illegally collected thousands of telephone records between 2002 and 2006, a Jan. 20 Justice Department report revealed. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) publicly scolded FBI Director Robert Mueller for the transgression, but the practice of secretly spying on Americans’ international communications has become standard practice, even under the new presidential administration.
In late 2005, The New York Times exposed how the George W. Bush administration authorized the National Security Agency (NSA) to spy on Americans’ e-mails and phone calls without then-required court orders. The scoop prompted retired AT&T technician Mark Klein to reveal the existence of a NSA-controlled secret room at a San Francisco AT&T facility, providing undisputed proof of this public-private spy operation and the extensive amount of personal data that is collected.
Not only was no one held accountable, but the Democrat-controlled Congress legalized the operation after the fact by passing the Foreign Intelligence Surveillance Amendments Act (FISA Amendments Act) in 2008. Klein responded last year with the self-published book Wiring Up the Big Brother Machine … And Fighting It to narrate his version of the civil liberties and privacy battle.
The creeping intrusion on Americans’ privacy continues unabated under the Obama administration, according to government watchdog groups and media pundits. “Things have changed slightly — for the worse,” said Rebecca Jeschke from the Electronic Frontier Foundation (EFF).
Barack Obama, while still a Senator, hinted what his later inclination might be when he voted for the FISA Amendments Act, arguing that it was needed to foil terrorist plots (after having previously stated his intention to oppose the bill). Now that the legislation is law, his administration is using the same rationale as its predecessor to fend off attempts to repeal it, namely that it is crucial to national security.
Yet the EFF and the American Civil Liberties Union (ACLU) deem the practice and the legislation that authorized it to be unconstitutional. They’re challenging it in courts but having a difficult time in light of executive branch opposition and national security claims.
The 1978 Foreign Intelligence Surveillance Act (FISA) was originally crafted to constrain and oversee the government’s spying activities on Americans after the Nixon administration abused its power to eavesdrop on Vietnam War protesters and political adversaries.
FISA required officials to obtain from a judge individual warrants with specific named individuals or specific phone numbers before it wiretapped phone calls or read e-mails in the U.S. Outside the borders, spying remained unrestricted. The FISA Amendments Act subtly blurs those lines and leaves loopholes whereby the government can intercept U.S. residents’ communications without having to notify the FISA court.
Under the new protocols, the FISA court can authorize NSA to conduct surveillance on U.S. soil as long as the target isn’t American and is “reasonably believed” to be located abroad, no matter who the interlocutor may be, foreigner or American. When information is incidentally collected on American citizens, “minimization procedures” are designed to prevent the unnecessary retention or dissemination of such information.
“Now under the new law, the FISA court is looking at bulk surveillance under which the government doesn’t specify who it’s going to wiretap, which phone numbers it’s going to monitor, or which e-mail addresses it’s going to surveil. All the government has to say to the court is that the targets of its surveillance are overseas. Once the government has said that, the court just checks a box and grants permission. So insofar as Americans engage in international communications, this is a law that gives the government carte blanche to monitor those communications,” explained ACLU National Security Project Director Jameel Jaffer.
Civil liberties advocates say this unchecked eavesdropping power violates the Fourth Amendment, which protects against unreasonable searches and seizures. Yet the Obama administration is “aggressively defending the FISA Amendments Act,” Jaffer said. It is arguing that the courts don’t even have a role in evaluating the constitutionality of the government’s surveillance activities.
A brief filed by the Justice Department in January 2009 maintains that the FAA “strikes a reasonable balance between the critical intelligence it serves and the privacy interests of Americans it indirectly affects,” and that “plaintiffs’ arguments from the start have rested on speculation and surmise.” In short: trust in the government’s good faith for not abusing its power.
Another worrisome aspect of the FISA Amendments Act is the immunity from liability it retroactively granted to telecommunications carriers that assisted the government in carrying out its warrantless wiretapping program before Congress consented to it.
In January 2006, Klein gave EFF critical engineering documents proving that AT&T, his former employer, let NSA access its 611 Folsom St. office building to tap into its Internet data flow to duplicate it and send it to a secret room the agency controlled. That included e-mails, Web browsing, voice-over Internet Protocol (VoIP) phone calls, pictures, and streaming video, be they international or domestic.
Thanks to this installation, anything transmitted on the AT&T network was swept by the NSA. And there were clues that the San Francisco secret room was just one in a series set up all over the country. In his book, available on Amazon, Klein gives an account of his personal protest and involvement in the case spearheaded by EFF against AT&T.
Klein tells how he figured out what the San Francisco room was about, how he struggled to get the story out, and how he tried in vain to inform Congress. But following approval of the FISA Amendments Act, the lawsuit was dismissed in June 2009, along with 32 other similar cases brought by customers against their telecommunications service providers.
“The surveillance system now approved by Congress provides the physical apparatus for the government to collect and store a huge database on virtually the entire population, available for data mining whenever the government wants to target its political opponents at any given moment — all in the hands of an unrestrained executive power. It is the infrastructure for a police state,” he wrote. According to his sources, the equipment is still in place. Security even has been beefed up at the Folsom Street building where he used to work: the entrance to the entire floor where the diversion device is inserted is now restricted.
EFF is appealing the dismissal of the AT&T lawsuit, arguing that the communications companies’ amnesty is unconstitutional in that it grants to the president broad discretion to block the courts from considering the core constitutional privacy claims of millions of Americans. Officials with the Justice Department told us they wouldn’t comment because of the ongoing litigation.
In the meantime, the current judicial and legal gridlock is barring the public from reviewing what took place under the Bush administration and what is going on right now. Can our communications channels be trusted? Klein says he won’t be appeased unless the equipment is torn out.