I. Introduction
Ever since National Security Agency (NSA) contractor Edward Snowden leaked a cache of documents detailing the NSA’s comprehensive electronic reconnaissance program in June 2013, mass electronic surveillance and the ability of the government to intercept and access communication around the world have been of the hottest public policy topics in the nation. The focus of the debate centers on the tension between privacy and security. On the one hand, privacy advocates argue that while the Founding Fathers had not explicitly stated that Americans had a “right to be left alone,” various rights at common law and provisions in the Constitution should be read to form a general right to privacy (Warren & Brandeis, 1890). Moreover, one of the foremost enemies to a right to privacy is the combination of “curiosity and technology” (Warren & Brandeis, 1890). On the other hand, security advocates argue that society’s interests require protection from physical, financial and virtual threats and crimes; and that the best way to ensure protection is to allow the police and state authorities access to the electronic surveillance tools they need to monitor and gather information on suspects so that they can stop criminals before they can act. The most recent illustration of this clash of ideas occurred during debate this week in the Senate over the USA Freedom Act (USAFA). The USAFA presented a number of reforms to the NSA as a response to the Snowden leaks. Proponents for the bill argued that it was needed to stop the substantial threats to privacy that unwarranted electronic surveillance entails; while opponents of the bill argued that it would limit the intelligence community while helping our enemies.
II. Political History
The history of electronic surveillances in America dates back to at least the Civil War. At that time the most advance electronic communications of the day was the telegraph which transmitted messages across the country via electric wire. Soon after the introduction of the telegraph people learned that you could listen to messages being transmitted by connecting into the electric wires that were conveying the message. This action was became known as “wiretapping.” Later, with the invention and popularization of the telephone in 1876, the act of wiretapping was extended to phone lines which, like the telegraph lines before it, were quite easy to connect into to allow for the unauthorized listening of conversations. This became known as phone tapping.
The first nationwide attempt by the government to regulate electronic surveillance occurred in 1918, when Congress passed a bill outlawing the unauthorized tapping of “any telegraph or telephone line” (OTA, 31). Congress’ prohibition of electronic surveillance, however, was not in the interests of protecting citizen’s privacy. Rather it was a temporary effort to protect the nation’s security during World War I. Prior to Congress’s 1918 proscription, the regulation of electronic surveillance was completely up to the individual states. As early as 1860, some states had outlawed wiretapping but regulation, where it was available, was not strictly enforced. However, by the late 1920s, unauthorized electronic surveillance in the majority of states was illegal (). In 1927 Congress, updated federal electronic surveillance law, which was allowed to lapse after the end of the War, with the passage of the Radio Act (Doyle, 2). While the Radio Act, made the public and private interception of radio waves illegal it did not reintroduce prohibitions against wire and phone tapping (Doyle, 3).
The state of electronic surveillance changed, however, with the 1928 Supreme Court case, Olmstead v. United States (OTA, 24). The issue in Olmstead was whether evidence obtained against the defendant, Roy Olmstead, through phone-taps installed by federal agents without judicial approval was legal. According to the Court, the evidence was legal. Under the Court’s analysis, installation of a wire or phone tap was not a search under the Fourth Amendment because they did not require a physical examination of a person or their effects but rather an examination of intangible conversations. Furthermore, the Court found that the electronic surveillance performed by the agents did not violate the Fifth Amendment because no one was forced to speak or disclose information but rather entered into the conversations voluntarily. Finally, the Court reiterated that Congress had the power to more strictly regulate electronic surveillance but up until that point had not.
Congress’ response to the Supreme Court was the Communications Act of 1934 which updated the Radio Act and that the Court interpreted in Nardone v. United States to include a prohibition against wire and phone tapping without judicial approval in federal cases (OTA, 24). While the Communications Act increased governmental regulation of electronic surveillance, it was not without its faults. First, it did not prohibit the use to wire and phone taps in state cases. Second, it did not prohibit the electronic recording or “bugging” of face-to face conversations, and finally, it did not extend to domestic cases involving national security. Accordingly, widespread state sponsored domestic electronic surveillance continued after 1934.
The Supreme Court stepped in to address the issue again in the 1967 case Katz v. United States (OTA, 24). In Katz, federal agents suspecting that Katz was involved in intra-state gambling placed a “bug” outside the phone booth he often used. The information recoded using the bugs were subsequently used against Katz at trial. Katz appealed his conviction arguing that the use of the bugs violated his Fourth Amendment right against “unreasonable searches and seizures.” The Court of Appeals, relying on Olmstead’s requirement of a “physical trespass” in order bring in the Fourth Amendment sided with the state. However, the Supreme Court overturned Olmstead and found in favor of Katz. According to the Court, a physical trespass was no longer required in order for a person’s Fourth Amendment rights to be violated by electronic surveillance. Instead, when analyzing the legality of electronic surveillance, the Court would consider what a person’s reasonable expectation to privacy was; and if that expectation was violated by the surveillance. From now on, the Court stated, the Fourth Amendment “protects people, not places” (Hussey, 8).
A year later, with passage of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), Congress finally updated the Communications Act of 1934 to tighten up it regulation of electronic surveillance. Under Title III, all wire and phone taps (federal, state and private) were brought under congressional jurisdiction. Title III also requires the issuance of a warrant before the installation of any wire and phone taps. As with past electronic surveillance regulations, Title III allowed for exceptions for national security reasons.
In 1986, Congress amended Title III through the passage of the Electronic Communications Privacy Act (ECPA). The key upgrade that ECPA provided to the regulation of electronic surveillance was the inclusion of electronic (wireless and data) communications to the types of communications (wired and oral communications were already regulated under Title III) that were protected under the law. ECPA also extended protection not only to communications in transmission but also: (1) communications that have been stored such as saved e-mails, (2) metadata such as telephone numbers dialed or received. While protections provided by ECPA depend on the type of communication and the means in which it is trying to be obtained but generally, the law requires a court order before the electronic surveillance can be initiated.
While ECPA provided broad protections against unwarranted electronic surveillance, Congress has also acted to place limits on just how far the protections go. In 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA). Under CALEA, telephone companies and later Internet service providers were required to design their network infrastructure to facilitate the ability of law enforcement officials to tap digital phone calls when authorized by a court. Additionally, after the attacks of September 11, 2001, Congress passed the USA Patriot Act (USAPA). USAPA made a number of amendments to ECPA that allows government authorities more flexibility in how they perform electronic surveillance. Some of the more notable amendment include Section 214 which allows the recording of telephones numbers dialed and received from a phone without a court order so long as it is “relevant to an ongoing terrorist investigation” (USAPA, 286-289). Likewise Section 216 allows for the recording of metadata from the Internet and e-mails including the IP address to websites visited or the address of a sent e-mail (USAPA, 286-289).
It is important to note that federal electronic surveillance laws operate in addition to any constitutional prohibitions such as those states in Katz and other cases. In some instances, federal laws more strictly regulate electronic surveillance that any constitutional prohibitions. However, whereas the Court made clear in Olmstead, when the state does not regulate, the Constitution will step into the vacuum.
Most recently, private industry has become more vocal in its support of limiting unwarranted electronic surveillance by the state. Over the last several months, Apple, Google and Facebook’s WhatsApp, along with a number of other Internet and technology companies have announced plans to implement end-to-end encryption on their devices. Theoretically, what this does is automatically encrypt customers information so that even if required, by a court order to allow the government access to a customer’s data, Apple, Google and other companies will only be able to hand over information that is unreadable.
III. Analysis and Recommendation
1. Unwarranted electronic surveillance is illegal
As the history has shown, unwarranted electronic surveillance has been illegal since at least the mid-1800s. While in the past, enforcement of electronic surveillance laws was inconsistent, the fact of the matter seems to prove that generally speaking the state and the public questioned its use in domestic investigations. These concerns became clearer in the early 1900s and by the late 1960s both Congress and the Supreme Court made clear statements that unwarranted electronic surveillance was prohibited. Today, except for cases of national security unwarranted electronic surveillance is illegal under contemporary law. Executively, in a January 2014 speech on electronic surveillance, President Obama acknowledged the importance of information privacy and the need to limited unreasonable electronic surveillance (OPS, 2014). Legislatively, even with the loosing of restrictions made under CALEA and the USAPA, Congress has upheld the basic framework of regulations which outlaw unwarranted electronic surveillance except in the most extreme cases. Most important, however, is the stance of the Supreme Court on unwarranted electronic surveillance. Since Katz, the Court has consistently found that unwarranted electronic surveillance was unconstitutional. For instance, in the 2012 case United States v. Jones, the Court found unanimously that the installation of a GPS device on the car of Jones violated the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” In its analysis, the Court held that placing the device on the care was a physical trespass. Interestingly, in his concurrence, Justice Alito argued that the Court erred by tying its analysis to physical trespass. Under Alito’s theory, the better basis for the ruling was Katz’s reasonable expectation of privacy principle. The implication that Alito’s concurrence raises is that contemporary electronic surveillance can be done without a physical intrusion and therefore the person rather than the place needs to be protected.
2. Unwarranted electronic surveillance is subject to widespread abuse
Over the course of its use, unwarranted electronic surveillance has been abused and used for purposed other than ensuring the safety and security of society. Indeed, the Church Committee’s investigations into electronic surveillance after the Watergate break-ins revealed widespread abuse by the NSA (Hussey, 13). More recently, a 2009 FISA court opinion that has been recently declassified similarly found the abuse of electronic surveillance by state authorities is rampant even when there are restrictions put on how it is implemented and preformed (Weiss, 2013). Accordingly, unwarranted electronic surveillance risks the wholescale abuse of the authority.
3. Unwarranted electronic surveillance is bad policy
Unwarranted electronic surveillance is bad policy that adversely affects a broad range of connected issues in politics, business and the trust of the public. The Snowden leaks revealed a number of embarrassing aspects of state electronic surveillance policies that continue to cause problems. First, unwarranted electronic surveillance has led to a drop in respect for at home and abroad to the idea that the US respects people’s personal freedoms (Greenwald, 2014). Second. There has been a broad increase in the number of people that are demanding that Internet and technology companies protect their privacy and vocal campaigns against those that refuse (Greenwald, 2014). The implication raised here is that companies are being forced to choose between their customers and the government with more and more choosing to side with their customers. Finally, and perhaps most importantly, unwarranted electronic surveillance has caused the popularization of encryption and other surveillance limiting technologies (Greenwald, 2014). If or when these technologies become ubiquitous, then electronic surveillance may become moot as the labor and expense of trying to access encrypted information may prove too much for the state to do effectively.
While it is clear that electronic surveillance is a useful and necessary tool in the investigation of criminal activity and in the protection of the nation’s security and interests, it equally clear that it cannot be applied without regulate. Current requirements for court authorization strike a good balance between the right of the people to be let alone and the responsibility of the state to keep us safe. Accordingly, existing statutory and constitutional demands that electronic surveillance only occur after a warrant is issued should remain. In addition, recent loosening of the warrant requirements should be periodically reviewed to see if they are still necessary. If they are deemed unnecessary, the rules should return to the strict warrant standard. Even when flexibility is needed, arguments should still be made for why flexibility should trump the warrant requirement.
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