Do you value your privacy?

Well, do you? The founding fathers of our country did. That's why the fourth of first ten amendments to the U.S. Constitution (collectively known as the Bill of Rights) addressed this very subject. The fourth amendment states,

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.

Now, you may have already heard about the Justice Department memo recently declassified declaring military interrogators weren't bound by federal laws that prohibited assault, maiming, and other crimes. As the Electronic Frontier Foundation reports, there is a footnote in that memo that states,

... our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

Oh, that's nice. "Oh, by the way, we decided to take away one of your rights granted by the Constitution. Just thought you should know."

So the big question to be answered is, does the administration consider the warrantless wiretapping program a domestic military operation? And what else is considered a domestic military operation?

The fourth amendment is the constitutional right that underpins the requirement for warrants before eavesdropping on private communications of citizens. Based on this legal footnote, which refers to a full memo (not yet released) documenting this decision, a warrant isn't required for domestic surveillance if it's done as part of a military operation. So, what is the distinction between domestic surveillance and military domestic surveillance?

The last time I checked, we weren't at war with anyone in the United States. We're really not at war with Iraq or Afghanistan anymore, we're at war a rogue band of outlaws - Al Quaeda - in Iraq and Afghanistan. Of course, we're also at war with a concept - terrorism.

Is the surveillance we did prior the the war much different than the surveillance we're doing now? Prior to the war, didn't we eavesdrop on the communication between someone in the U.S. and a suspected enemy outside the U.S.? Prior to the war, we got a warrant to do that. It didn't take very long to do so and it was only denied a few times since the 70s.

So, basically the Justice Department concluded that when surveillance is done during wartime, the fourth amendment of the Constitution no longer applies. According to an AP report, the Administration no longer holds that view. Well, that's fortunate but when the country is in a war that could conceivably never end -- our choices are an enemy that can't surrender and a concept -- it's scary that our "Justice" Department ever came to that conclusion.

In one undisclosed memo, the possibility of permanent, warrantless, total surveillance of electronic communications within the U.S. became real. Don't think it's possible? It may have already happened, or is continuing to happen. Think about that next time you pick up the phone, send and e-mail, chat over instant message, place a Voice-Over-Internet Protocol (VOIP) call using Vonage or Skype, or just browse the internet.

4 April 1984

FISA Reform: Spectacular Senate Failure

Yesterday, 12 Feb 08, the U.S. Senate came through with another spectacular failure for the citizens of this country. Our own Senator Mikulski contributed to this problem, while I'm happy to report that Senator Cardin stood with his constituents. If you're not familiar with the issue, I refer you to a summary of the issues prepared by the Electronic Frontier Foundation (EFF).

Basically, the Foreign Intelligence Surveillance Act (FISA) is approaching its sunset clause and needs to be extended to remain a vehicle for the federal government to conduct foreign surveillance. There are numerous contentious points in the legislation, including the warrantless wire-tapping program used by the National Security Agency (NSA). However, the issue I'd like to raise deals with legal immunity for telecommunications companies that cooperated on the warrantless wire-tapping program.

When the details of this program came to light we found out that some of the major telecommunications companies, namely AT&T, didn't question the legality of their actions when turning over vast amounts of information to the NSA. To spare you the geeky details, basically all telephone and internet traffic that ran through major telecommunications hubs operated by these companies was copied and sent directly to NSA computer systems. This information wasn't filtered to ensure that only the information pertaining to those persons the NSA had an interest in was siphoned off and sent to the NSA. Every telephone call and all internet traffic information was copied and sent directly to the NSA -- the NSA had its own computer systems installed in at least one of AT&T's hubs so that it only required running the wires into a secured room.

So what does this have to do with extending FISA? The President has stated he won't approve any FISA extension bill unless it contains full and retroactive immunity to telecommunications companies. Even though the concepts are sufficiently unrelated as to require me to explain the connection, the two ideas are being discussed as inseparable. Not only is this unnecessary, it's irresponsible.

Now, we've yet to find out if or to what extent these companies may have broken the law, but the evidence already gathered is compelling. It's also telling that the telecom companies and the President are both unwaivering in their demand for retroactive immunity. Granting full and retroactive immunity carries enough of a burden that it requires its own debate, separate from the FISA extension. Coupling FISA and telecom immunity together in one bill is a loaded proposition -- of course FISA should be extended (responsibly). But according to the President, Congress can't extend FISA without also granting retroactive immunity.

Whatever chances we have of finding out whether the telecom companies acted illegally and infringed on our constitutional rights will be lost forever by the passage of this one bill granting retroactive immunity.

Luckily, the House of Representatives still remembers to whom it is responsible. Although the Senate version of the bill includes the immunity clause, the version that passed the House's vote doesn't grant immunity. Before the bill can be sent to the President, the Senate and the House must reconcile the differences in the bills. If you are concerned about what Senator Mikulski and the rest of Congress aren't doing on your behalf (in my opinion we should all be concerned), take a moment to let them know your thoughts on the matter.

Phone your Congress-person in the House
Email instead

Check how your Senator voted regarding telecom immunity.