I. History and Background of Government Surveillance of Communication
Government Surveillance of Communication in the United States has a very long history. It is not a development of the September 11, 2001 Terrorism attack. The earliest forms of government communication involved wiretapping. Police wiretapping came into being in 1890s however; it was not of much use then. Wiretapping was to be widely used beginning from 1919 following the prohibition of alcoholic drinks. Owing to the popularity of these drinks, it was not easy to counter their brew and consequent consumption. All activities involving these drinks were carried out in deep secrecy. The police then resorted to wiretapping of all communications; this provided them with vast information that they required in order to gather evidence and hence make arrests of those involved. The fact that the police could get the all important information they required through tapping of communication, tapping became a common means of accessing vital information regarding criminal activities in the country. It was easy for the police to use wiretapping to access information instead of having to get search warrants in order to pursue evidence from suspects. This made tapping the most credible means of investigating cases in which gathering evidence was not easy.
Wiretapping was indeed not welcome by everyone in the society. Critics of wiretapping by the government officers argued that it contravened the Fourth Amendment to the U.S. Constitution which protects the citizens from unreasonable searches and seizures. The Supreme court in 1928 was however to read from a different script with the critics of the move to tap communication. I the ruling of the 1928 Olmstead case, the Supreme Court made it clear that wiretapping did not amount to unreasonable search and therefore there was no evidence of violation of the Fourth Amendment.This was indeed a major boost to the use of wiretapping to capture criminals since the evidence acquired could be accepted as binding in the justice criminal system.
Wiretapping received a big blow in 1934, just five years after the Supreme Court’s ruling in its favor. The Federal Communications Act of 1934 outlawed any form of interception and divulgence of wired communication (Diffie & Landau, 2009). This move necessitated a change in the Supreme Court’s ruling on a case that involved the use of evidence from wiretapping. The court went ahead to refuse to accept evidence gathered through wiretapping in a bootlegging case in 1937. This meant that all such evidence became null and void and hence the need to carry out fresh investigation into pending cases where initial evidence provided for prosecution had been gathered through wiretapping of communications involving the suspect.
The 1937 Supreme Court ruling on evidence from wiretapping did not stop to wiretapping’s law enforcement career as the Justice Department narrowly interpreted the Courts ruling. According to the Justice Department, interception of communication was on illegal when divulged outside the federal government. This opened up an opportunity for the FBI who would later use the decision to proceed with wiretapping for another three decades without seeking court orders. A
In 1967, in Kartz decision, the Supreme Court recognized the fact that the Fourth Amendment indeed protected people and not places as might have been erroneously interpreted in the past. This ruling meant electronic privacy was equally important as was the physical privacy. This decision ensured that people’s privacy had to be protected and as such, interception of communication was illegal. The Congress in the same year went ahead to address issues regarding wiretapping and bugging in the Title III of the Omnibus Crime Control and Safe Streets Act. This Act set out the conditions under which wiretap orders could be obtained by legal enforcers. It went ahead to make it tougher to obtain wiretap order than the normal search warrants. This followed the realization of the sensitivity involved when intercepting electronic communication .
IA. Foreign Intelligence Surveillance Act of 1978 (FISA)
Following an increase in complaints from the public on the abuse of U.S. person’s privacy rights by certain components of the U.S. Government, as was revealed in multiple committee hearings, the congress responded by instituting FISA in 1978. The government had argued that the abuses had occurred in its attempt to protect the country and the people from threats from terrorism activities. The government said that countering terrorism was the contributing factor to the continued surveillance of electronic communication. FISA made it clear that non criminal electronic surveillance in the United States was limited to collection of foreign intelligence or foreign counterintelligence. The legislation went further to stipulate that it is only foreign powers and agents of those foreign powers that were to be targeted by electronic surveillance. Thirdly, the act clearly stipulated the conditions under which electronic surveillance would be used. The act also established Foreign Intelligence Courts (FISC). The courts were in fact to have different mandates; one was to be at the district court level for initial review of surveillance application. The second court was be set at the appellate level. The appellate level court would listen to government appeal in the event of denial of an application.
FISA identified two categories of potential targets of surveillance under FISA. The first category includes the following; a foreign government, diplomats or other employees of a foreign government, a faction of foreign nation consisting of people drawn from foreign countries, a body that a foreign nation directly claims its ownership and of course it is run by the foreign nation and finally a group that is discovered to be involved in international terrorism or is identified as having plans to be involved in such activities. The second category of potential targets consists of agents of foreign powers. FISA defined foreign agents as anyone, other than a U.S. person who acts in the United States as an officer or employee of a foreign power or anyone who acts as part of or in support of a foreign power’s effort to clandestine intelligence gathering services in the U.S.
FISA defined international terrorism as activities that involve violent acts or any acts that endanger human life and are a violation of criminal laws of U.S. or any state or would be a criminal offence if committed within the borders of the United States. The definition goes further to include acts of coercion or intimidation of civilians with the intention of influencing government policies; such acts include kidnapping of U.S. citizens, assassinations and such other terrible activities. FISA was careful to include in its definition of international terrorism, the activities that occur in foreign countries with the aim of creating tension or instilling fear to the citizens of the United States.
FISA act has since been amended in response to the needs of the government in order to effectively address issues of terrorism in the country. It should be made clear that terrorist are always changing or employing sophisticated strategies in their attempt to cause harm to the society. For FISA to keep up with the terrorist, it been amended severally. For instance, in 1998, the congress amended the act in order to pave way for the installation and use of pen register and trap and trace devices in the investigation of terrorism activities and clandestine intelligence activities. This amendment requires that before such devices are installed, the legal enforcers who wish to use them get permission to do so from the office of the attorney general. For that permission to be granted, the legal enforcer should be able to prove that there is sufficient need for the installation of the devices and that the results of investigation will be used to bring to justice the culprits of international terrorism (Richard & Haggerty, 2006). The amendment provided for electronic surveillance of not only the telephone calls but also other forms of electronic communication such as e-mails, webs and many more. This amendment however prohibits investigation of U.S. citizens for activities that are protected by the First Amendment of the U.S. constitution.
FISA has since its enactment been effective in combating terrorism activities in the United States and also preventing foreign nations from intelligence gathering aimed at vandalizing U.S. future activities. This has been important since the evidence gathered through VISA investigations has usually been strong and has often managed to curb occurrence of terrorism activities. In events where perpetrators of terrorism activities have managed to implement their ill plans, electronic surveillance has been a critical role in ensuring that such people are arrested and justice meted on them.
Disclosure of information gathered using electronic surveillance has been the major challenge to the implementation of the FISA information. The FBI has often not been willing to publicly share the information gathered using electronic surveillance. They usually prefer to secretly table the evidence they have to the judges for assessment of validity of such information. This indeed leaves other parties quite dissatisfied with the investigation and in most of terrorism cases, the mother countries of the terrorist end up feeling victimized. In addition to this challenge, cases involving American citizens in whom FISA information has been used against the perpetrators of a crime have often been challenged.
IIB Heightened Surveillance since September 11, 2001
Following the September 11, 2001 terrorism attack, the United States came up with the stringent measures to counteract terrorism activities. Among the measures that were put in place in order to beef up U.S. security systems against future attacks from the Al-Qaida and other terrorist group was to increase electronic surveillance of electronic communications emanating from foreign countries or those initiated in the United States by majorly involving foreigners. The United States Patriot Act was quickly enacted by the U.S. Congress and later signed into law by President George W. Bush in October 26, 2001. The title of the act is a ten letter acronyms (USA PATRIOT) which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
The Patriot Act significantly reduced restrictions to electronic surveillance of communication in the United States. The act greatly simplified the procedure of law enforcers acquiring permission to conduct electronic surveillance. Before the introduction of the Patriot Act, an applicant of the FISA order had to certify that the purpose of the surveillance was to obtain foreign intelligence. The Patriot Act lessened this demand on the applicant of a FISA order to merely indicate that there is a significant amount of foreign intelligence involved in the case he/ she is pursuing. It should be understood that the word significant as used in this case is subject to debate since it is relativistic. This puts more power in the hands of administrator of the FISA court in which a FISA order application is made.
The Patriot Act indeed created gaps that could be used by law enforcers to eavesdrop even on communication whose origin was in the United States since with the introduction of fiber optic cables, call inceptors were placed not at the cable heads where calls entered the country but were instead positioned at the switches carrying both internal and transit traffic. This enabled unwarranted government interception of calls and other forms of electronic communication. This meant that even domestic communications were subject to interception by the government.
The September 11, 2011 necessitated the need for the FBI and other security teams to stay informed on technological advancement. This meant that these groups had to work tirelessly in gathering sensitive information regarding technology. This paved way for them to call upon the law makes to formulate policies that would make their work easier by bringing down the walls that existed between them and their efficient discharge of their duties.
Under the ECPA, the Federal Bureau of Investigation (FBI) is required to send only a letter to a communication provider in order to compel the disclosure of the surveillance target’s transactional records and personally identifiable information. The statute only requires that the FBI certify the required information on the target’s involvement in international terrorism. In so doing, the FBI are expected to show that the there is an authorized ongoing case against the individual whose record is being pursued. Once this is established, FBI agents usually have their way into all transactions of the individual and using their professional skills and knowledge are able to gather the evidence they need from those involvements.
II. Pro Side of Government Surveillance
Government surveillance of communication has always been a sensitive issue that has been received with mixed reaction. There are those members of the society, especially the law enforcers who entrench government surveillance as the only way of cracking down sophisticated criminal activities in the society. In the wake of terrorism activities like the November 11, 2011 attack, it becomes important to pay attention to any leads that can enhance narrowing down to the perpetrators of such ill intended acts. Increasing terror attacks have been the major contributor to the call for the government to formulate policies that enhance surveillance of the different forms of communication. In the beginning, attention was given to wiretapping as mentioned earlier. However, with the advancement in technology, electronic surveillance has had to include internet communication. This has meant that suspicious e-mails, websites, social sites like facebook, twitter, and others have also been included in the list.
IIA6. Gain Foreign Incoming Intelligence
In order to assure the citizens of United States of their security, it is crucial that communications involving communications from foreign countries to the U.S. to be well tracked to ensure that the content is free and fair. It is important that the U.S. intelligence officers to know what the foreign governments are planning are against the people of United States. It should be understood that United States has so many friends around the globe; however, to be safe, it crucial that the few enemies also be identified. To understand this, communications involving foreign governments with their agents in the United States should analyzed. It is meaningless to intercept intelligence information and fail to make follow ups.
Gathering incoming intelligence is just but the first step in ensuring that the security of the people of United States is guaranteed. It is vital for the intelligence officer to carry out continuous surveillance on different forms of communication employed by foreign governments and then analyzing it to ensure that the communication does not pose any danger or even carry such thoughts. This way, intelligence information becomes useful in averting any plans from enemy countries. It is true that the usefulness of intelligence information goes beyond protection of the people of the United States of America; it also protects their investments both at home and in those foreign countries. It is the duty of the government to protect its citizens from foreign fraudsters. American business people despite their efforts cannot tell the true nature of foreigners they engage with whenever they carry out international trade. It is for that reason important that intelligence officers carry out surveillance checks on incoming communication in order to provide to business persons the crucial information on the profile of foreign investors. There have been serious drug cases that have involved foreign governments. Trafficking of illegal drugs to United States is one of the heinous crimes that have devastating socio-economic effects in the United States. The government spends a lot of tax payers’ money in prosecuting illegal drug abusers as well as treating the victims of drug abuse. The United States intelligence officers through surveillance of communication are able to establish the roots of drug barons and hence put a stop to the exportation of those drugs to the country. The intelligence officers should stop at nothing in ensuring that they fight these crimes in the society.
IIB. Censor International Outgoing Communications
Censoring International Outgoing Communications is very important as far as protection of important information regarding the state is concerned. Before the government thinks of fighting threats to insecurity emanating from foreign countries, it is vital that it ensures that its intelligence information is not leaked to foreign countries. This implies that there is the need to begin with fighting the enemy from within. By employing surveillance of all communication originating from the country to foreign nations, intelligence officers are able to identify any groups or individuals trying to send out vital information regarding the state.
U.S. technology is an important asset of the state. There are individuals who might wish to illegally export this important resource to foreign countries. It is very important that the intelligence department keep a watchful eye on the communication systems to ensure that such information as regards the state of technology is not leaked out. This can only be achieved when the intelligence officers are given powers to intercept communication channels whenever they suspect that a given channel is used in sending out information which is not supposed to go beyond the U.S. borders.
IIC. Anti-terrorism preparation
The war against corruption has proved to be more involving than it might have been expected by anyone. It has cost the U.S. tax payer a lot of money but it is far from being won. Events of September 11, 2001 are still fresh in the hearts of most of the Americans. The promise of zero tolerance to terrorism is yet to be fulfilled. It should be realized that the war against corruption requires support from everyone in the society. The intelligence officers need to be accorded all the support they need whenever they request for it. The support includes surveillance of communication from time to time. International terrorist rely on communication in order to keep in touch. By carrying out frequent surveillance on communication systems, the government is able to establish the minutest links relating to international terrorists. It is this information that the intelligence officers require in order to prevent terrorists from implementing their plans. This cannot be achieved in an environment where laws prohibit law enforcers from carrying out surveillance on communications even in situations where the communication involves key suspects.
Terror groups are today using advanced technology in carrying out terror attacks. It is hard to stop such attacks once they are launched. It is therefore important that the intelligence services pay more attention in intercept terrorism activities in their initial stages of planning before they get to implementation stages. This can only be achieved where intelligence officers are able to get the information they need from communication service providers regarding the transactions of identified terror suspects. At times it may be necessary that the intelligence officers be able to intercept communication in real time; an example of a situation like this is where terror groups involve themselves in kidnapping of citizens. Activities of pirates, kidnappers and many more can only be adequately dealt with when the intelligence officers are able to intercept the communication of the terrorists in real time. This enables them to use their professional skills and knowledge to identify the location of those criminals and hence rescue the victims and arrest the terrorist.
III. Con Side of Surveillance
Government surveillance of communication has received criticism from some members of the society. Most of the people opposed to surveillance are civilians who believe that the government uses security as an excuse to frustrate their constitutional rights. Court cases cited earlier provide more insight to the views of the anti-government surveillance of communication campaign. There are a number that this campaign addresses as discussed here.
IIIA. Considered Invasion of Privacy
Wiretapping or any other form of surveillance of electronic communication does not affect only the target groups. It is generally understood that the main motive behind the government’s interception of communication is to deal with security issues and related matters. However, tapping of communication does not stop at gathering information regarding the suspects only. The legislations formulated to give guidelines to surveillance of communication do clearly state that the target for such surveillance is communication originating from foreign nations. There is evidence that this has not been the case. The NSA has often gone further to tap domestic communication. The claim that was made by the FBI in 1990 regarding the advancement in switching technology that it threatened their effectiveness in wiretapping enabled them to have more access to whichever information they needed from communication service providers.
The information that was revealed by a former technician at AT & T informed the United States’ public on what NSA was doing. People usually entrust their privacy in communication service providers. It is worrying to discover that the NSA have had their way by establishing their own communication centers in conjunction with communication service providers as seen in the AT & T’s Folsom Street Facility. This is intrusion of privacy of individuals and not a war against international terrorism as the NSA would like to make people understand the move. Privacy of persons is very important and should be respected at all times. It is improper law enforcers to go tap communication of innocent people without their information. People are not sure on where the secretly gathered private information on their ends or how it is eventually used. Surveillance of communication should not be embraced and in any case if need be, the affected people should be informed of what is to happen and why it is necessary that the government get such information and lastly, the duration that this surveillance would.
The Government undermines privacy of people by formulating policies like the Obama Internet Policy. Policies like this one introduce government surveillance of communication while hiding the truth in other issues that they claim to have interest in. It makes people to be uncertain of what will happen to them once their confidential information is revealed.
IIIB. Infraction of Civil Liberties
The United States Justice Department has often given poor interpretation of the Fourth Amendment to the United States Constitution. This amendment protects the people from any form of unreasonable search from law enforcers. The Justice System has over time failed to address the issue of surveillance of electronic communication as an unwarranted search and hence prohibited. The interpretation for many years limited unwarranted search to physical search of an individual’s residential area or business premises. The Congress passed the FISA Act in 1978 with the intention of regulating government surveillance of communication. This act has not served to protect the liberties of U.S. citizens. FISA has often been amended and has made it easy for the law enforcers to tap communication of individuals even without the FISA search order.
The continued use of evidence gathered through surveillance of communication is an infraction of the constitutional rights of the people. The FISA act clearly outlines the circumstances under which surveillance of communication is to be used. The target of FISA was not U.S. citizens but rather to curb international terrorism and foreign agents’ clandestine activities in the United States. Over time, FISA has often been used in prosecution of ordinary cases involving U.S. citizens.
IIIC. Harassment of Activists
The NSA has often used FISA to harass activists especially after the September 11, 2011 attack. President Bush’s administration heavily used communication surveillance to suppress any complaints from human rights activists and other activist groups. NSA during this administration always defended its actions by alluding to protection of the people’s security from further terrorism activities. Fighting terrorism is not a reason for undermining the rights of citizens; it is supposed to be carried out in a manner that respects human rights. U.S. citizens have the right to exercise their constitutional rights without fear or favor. It is the duty of the government to provide security to activist groups since they play a crucial role in shaping the dynamics of a country.
Government Surveillance of Communication has a positive thought behind the action and should be accorded the support it requires from the people and the most importantly the communication service providers. Crime in the society is becoming more technological and the government cannot afford to sit back and watch as terrorists continue causing unrest in the society. It is the duty of government to protect the people and it has to do so at all costs. Critics of government surveillance are worried about the information gathered through surveillance of communication; it is important that they realize the importance of securing the country against any attack. Intelligence officers can only perform their duties when they have access to all the information they require. Imposing strict procedures for their access of information from communication service providers would only give criminals a chance to stay ahead of the law enforcers. Effective security measures require gathering and analyzing the leads to terrorism activities during the early stages as opposed to waiting for suicidal bombers to land on American soil; this can only be enhanced when the government is able to intercept suspicious communication links.
U.S. citizens who are not involved in any form of criminal activities have nothing to fear. Government surveillance is not a fight of establish superiority between the state and the people but rather a move to enhance the security of U.S. citizens.