5 Reasons to Downgrade Back to 3.0.1

This article is the latest in the struggle to protect our privacy in the digital world.  The EFF is central to an ongoing struggle for our rights to privacy.  They are slugging it out against their second (and surprisingly equally secretive) administration and seem to be coming up against a red-tape wall.

In case you’ve been in a hole for ten years or just recently purchased your first telephone, here’s some background:

In July of 2008, congress passed a bill, referred to as the Foreign Intelligence Surveillance Act (FISA) Amendments Act, designed to streamline the collection of intelligence by the National Security Agency (NSA) and to provide oversight for their activities. The act was drafted in response to public outrage resulting in coverage in several newspapers over abuses from 2005 through 2007. Now, in 2009, information has been revealed that many of the same abuses are continuing under the new legislation. A New York Times article published April 16 explains that the NSA continues to conduct surveillance activities in excess of their authority, which was expanded under the FISA Amendments Act ((Lichtblau, Eric, and James Risen. “Scale of U.S. Wiretapping Exceeded Law, Officials Say.” New York Times 16 April 2009, final ed.: A1+.)). This highlights a fundamental flaw in any surveillance program that provides its own oversight. The very concept virtually assures continued abuses. We, as a nation, must abandon warrantless wiretapping as a valid national security strategy.

Many now widely regard the monitoring of email communication, text messages, or any cellular telephone conversation as wiretapping as well. There is no dispute that wiretapping is an invaluable tool for those who protect our borders but the question of how such a tool should be applied causes great friction.

The right to privacy and protection from unreasonable search and seizure has been a fundamental right guaranteed to all Americans under the fourth Amendment of the Constitution since 1791. The protection from unreasonable searches applies everywhere in the United States except at the border and at public schools. The nation has the right to know what is entering and what is leaving the country in order to protect itself. Communication between someone within the United States and someone outside the United States falls under the border exception to the fourth amendment and I do not dispute the government’s authority to monitor this communication. However, the communication between people within the United States should be protected from government monitoring.

There were several changes made to the way the government conducts wiretapping after 9/11. The system already in place to oversee the government’s wiretapping operation, referred to as FISA, was created in 1978 in response to the wiretapping abuses of the Nixon administration. This system was characterized by its inefficiency and after 9/11 congress passed the Patriot Act, one of the provisions of which was designed to streamline the process of obtaining warrants through FISA courts. Then in 2002 President Bush authorized the NSA to conduct electronic surveillance of US citizens and US based foreigners (two groups previously protected from such activities), suspected of having ties to Al Qaida, without warrants from FISA. ((Markels, Alex. “Timeline: Wiretaps’ Use and Abuse.” npr.org 20 Dec. 2005. 14 Apr 2009 <http://www.npr.org/templates/story/story.php?storyId=5061834>.)) Articles from various news agencies strongly suggest that the government enlisted the help of large telecom companies to aid them in intercepting communications from US citizens, including internet traffic, email, text messages, and voice communications (Internet Phones, Landlines, and Cellular Phones). Some reports indicate that the NSA intercepted nearly all telecom traffic, including Internet usage, email, and phone conversations. The public outrage following these revelations led congress to pass the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, more commonly referred to as the FISA Amendments Act. This act asserts itself as the only vehicle for wiretapping activities within the United States and lays out specific guidance requiring a FISA warrant in every case ((Hess, Pamela. “Senate Immunizes Telecom Firms from Wiretap Lawsuits.” nysun.com 9 Jul. 2008. 21 Apr. 2009 <http://www.nysun.com/national/senate-grants-telecom-companies-immunity/81525/>)).

The wiretapping program, in its revised form, continues to cause privacy issues. The NSA is permitted to monitor international communications as they pass through domestic infrastructure without a FISA warrant; however, the monitoring of domestic communication requires a FISA warrant. As part of the FISA Amendments Act, inspectors reviewing the NSA’s wiretapping activities found in April 2009 that the agency continues to monitor domestic communication without warrants. This over-collection, as they call it, was caused by the NSA’s inability to differentiate between international communication and domestic communication. As a result the NSA, perhaps inadvertently, targeted Americans and violated their privacy without first obtaining a warrant to do so ((Lichtblau, Eric, and James Risen. “Scale of U.S. Wiretapping Exceeded Law, Officials Say.” New York Times 16 April 2009, final ed.: A1+.)).

This latest development has reignited the ongoing debate over the government’s, specifically the NSA’s, wiretapping program. The FISA Amendments Act allows the government to eavesdrop upon anyone’s conversations or read anyone’s email for seven days before needing to file for a warrant. After obtaining a warrant, the NSA can monitor all of an individual’s electronic communications with minimal oversight for a year before having to renew the warrant. This is enough to remind most people of the classic Orwellian dystopia of 1984. The broad powers and minimal oversight granted to the NSA by the FISA Amendments Act combined with the recent revelation of the NSA’s routine over-collection indicate a serious flaw in the domestic wiretapping program. The assertion by the Department of Justice that the government cannot be held liable for any violations of privacy as long as they do not disclose any of the information they obtain ((Greenwald, Glenn. “New and worse secrecy and immunity claims from the Obama DOJ.” Salon.com 6 Apr. 2009. 12 Apr. 2009 <http://www.salon.com/opinion/greenwald/2009/04/06/obama/>.)) turns this flaw into an invitation for abuse. Keith Olberman likened this claim to a thief saying, “I could go steal your money, if I don’t spend it, I’m not guilty of anything,” on his April 7 broadcast ((Turley, Jonathan.  Interview with Keith Olberman. Countdown. MSNBC. 7 Apr. 2009.)). Clearly there are serious flaws in both the reasoning for and the execution of the domestic wiretapping program.

Over-collection of information (wiretapping without a warrant, outside of the parameters set by the FISA Amendments Act) severely violates a key freedom of the American people and should not be tolerated regardless of whether the information is disclosed. Accountability for individual actions through proper oversight and prosecution of offenders is the only way to ensure that continued abuses of power do not continue. In the current system of self-regulation and retroactive immunity from prosecution, there is no motivation for the NSA and its agents to follow the law. Our governmental system depends on checks and balances of power. The domestics surveillance program is a function of the executive branch, loosely regulated by the legislature. The FISA “court” created by congress is not a valid substitute for true judicial review.

The issuance of retroactive warrants must stop. It is as if the police had authority to search the residence of any citizen, and if they found anything remotely illegal, they could then get a warrant to come back as many times as they want. The fact that the NSA finds out that someone has ties to a terrorist organization after violating that person’s privacy rights is not a valid reason to obtain a warrant. In a criminal proceeding, all evidence resulting from wiretapping of this kind would be called fruit of the poisoned tree; basically stating that evidence gathered as a result of evidence discovered during an illegal search in tainted and inadmissible ((“Fruit of the Poison Tree.” The Free Dicitonary. 20 Apr. 2009  <http://legal-dictionary.thefreedictionary.com/Fruit+of+the+poison+tree>.)). We should hold intelligence-gathering activities to the same or higher standards as we do law enforcement activities. The fact that they are not building cases for criminal prosecution does not mean that they can disregard the constitution. The protection against unreasonable search and seizure guaranteed to individual Americans in the fourth amendment promises that “[The] interest of the individual is weighed against the interest of the public” ((qtd. in “FISA + EO 12333 + [redacted] procedures = No Fourth Amendment.” Empty Wheel 18 Jan. 2009. 19 Apr. 2009 <http://emptywheel.firedoglake.com/2009/01/18/fisa-eo-12333-redacted-procedures-no-fourth-amendment>.)). This is simply not the case where the government has carte blanche to conduct surveillance at will and ask permission to do so later.

Those conducting the wiretapping operations may feel that they are doing so in the best interest of the country. However, in this case, the best interest of the country and the best interests of its citizens are not in agreement. The recent reports of the NSA’s over collection of information show the potential for abuse within a system that is accustomed to working without oversight and highlight a need for true oversight of the NSA’s wiretapping program. In addition, expediency should never be the reason to deprive citizens of their rights. A warrant showing probable cause, issued by a judge, before any surveillance begins should be the only instrument that allows the NSA to eavesdrop on citizens within the United States. The domestic wiretapping program was flawed in its conception and is infuriating in its execution. The U.S. must replace the program with one more in keeping with the nation’s conscience.