New Challenge to Wiretap Law

By William Fisher

Civil liberties advocates have lost no time in asking a federal court to stop the government from conducting surveillance under the new wiretapping law passed by Congress and signed by President George W. Bush last week.

The American Civil Liberties Union (ACLU) and a coalition of other groups declared that the new law “gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls.”

The ACLU coalition’s legal challenge, which was filed in the U.S. District Court for the Southern District of New York, seeks a court order declaring that the new law is unconstitutional and ordering its immediate and permanent halt.

ACLU Executive Director Anthony D. Romero charged that the new law “not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.”

He added, “Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged."

The wiretapping issue became the center of a storm of criticism after The New York Times revealed that, following the Sept. 11, 2001 terrorist attacks, President Bush had secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the U.S. to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the U.S. without warrants in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.

Criticism at the time came from a wide variety of civil libertarians, including Bob Barr, a former conservative Republican congressman from Georgia and currently the Libertian Party candidate for President. He told IPS that in 2000, Gen. Michael Hayden, then head of the National Security Agency (NSA) and currently Director of National Intelligence (DNI), told a congressional hearing on wiretap targets, "If that American person is in the United States of America, I must have a court order before I initiate any collection against him or her."

Barr’s advice was, “If the president doesn't like the law, the solution should be to amend, not violate it.”

The Bush Administration then called on Congress to pass amendments to the original Foreign Intelligence Surveillance Act (FISA), which was enacted in 1978. The 2008 version emerged as the result of a “compromise” between Democrats and Republicans in the House and Senate. Among its other provisions, the new law granted retroactive immunity to the telephone companies that had assisted the government in the warrantless wiretaps.

The surveillance legal challenge was filed on behalf of a coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work -- which relies on confidential communications- - will be greatly compromised by the new law, the ACLU said.

The FISA Amendments Act of 2008 declares that "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights.” But the ACLU and its coalition claims the new wiretapping law “fails to provide fundamental safeguards that the Constitution unambiguously requires."

Plaintiffs in the suit include The Nation magazine and two of its contributing journalists, Naomi Klein and Chris Hedges; Amnesty International USA; Global Rights; Global Fund for Women; Human Rights Watch; PEN American Center; Service Employees International Union; the Washington Office on Latin America; the International Criminal Defense Attorneys Association; and several individual defense attorneys and journalists.

In its legal challenge, the coalition argues that “The new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.”

Nation magazine writer Naomi Klein said that "As a journalist, my job requires communication with people in all parts of the world -- from Iraq to Argentina. If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised."

She added, "I cannot in good conscience accept that my conversations with people who live outside the U.S. will put them in harm's way as a result of overzealous government spying. Privacy in my communications is not simply an expectation, it's a right."

Human Rights Watch program director Iain Levine said the new legislation “will allow mass government interception of electronic communications, so long as the target is overseas, without meaningful judicial oversight or warrant identifying who or what is to be subject to surveillance.”

“In the course of our work reporting on and defending human rights, we regularly need to be in contact with activists and human rights victims all over the world,” he said. “Knowing that the U.S. government could be monitoring our calls and emails often inhibits our efforts, and causes us to take expensive and delaying measures to keep our communications secure.”

Internet privacy under the new law continues to be a concern to civil libertarians. For example, the San Francisco-based Electronic Frontier Foundation (EFF) has filed a number of Freedom of Information Act (FOIA) requests with the Federal Bureau of Investigation (FBI) and other U.S. Department of Justice (DOJ) offices, seeking the release of documents it says will reveal whether the government has been using the USA Patriot Act to spy on Internet users to collect secret information about their Internet habits without a search warrant.

Kevin Bankston, an EFF attorney, told IPS, “Although Internet users reasonably expect that their online reading habits are private, the department of Justice (DOJ) will not confirm whether it collects or believes itself authorized to collect URLs using pen-trap devices."

Pen-traps collect information about the numbers dialed on a telephone but do not record the actual content of phone conversations. Because of this limitation, court orders authorizing pen-trap surveillance are easy to get; instead of having to show probable cause, the government need only certify relevance to its investigation. The government is not required to inform people that they are or were the subjects of pen-trap surveillance.