Surveillance Law and Telephone Companies

The U. S. has been on heightened threat since the 9/11 incident that struck the country. Amidst the threat of possible terrorist attacks, the President vowed to carefully examine and rely on the recommendations of the 9/11 Commission in its Report. (NBC, 2004). The Commission Report of the 9/11 Commission which was a product of a twenty-month investigation into the 9/11 tragedy cited the findings and recommendations, i. e.“unifying strategic intelligence and operational planning against Islamist terrorists across the foreign-domestic divide with a National Counterterrorism Center;” a recommendation to have a single National Intelligence Director so that the intelligence community may be unified; “unifying the many participants in the counterterrorism effort and their knowledge in a network-based information-sharing system that transcends traditional governmental boundaries;” (9/11 Commission , 2003).

These recommendations were sought to be used as guidelines in harnessing government resources and efforts towards protecting the Americans.

Thus, President Bush declared “we will carefully examine all the commission’s ideas on how we can improve our ongoing efforts to protect America and to prevent another attack” (NBS, 2004). The legislative body had in fact, focused on immediate legislative proposals to carry into effect the recommendations of the 9/11 Commission Report. It is very evident from the Commission Report that the 9/11 attack came into being through a long period of study, planning and movement of terrorist within and outside the U. S. which was facilitated by communications and collation of information which the U. S. government failed to take into account. It was this failure that the terrorists exploited. In order to address this, among others, the President demanded the urgent and immediate amendment of the Foreign Intelligence Surveillance Act of 1978 (FISA).

This paper shall seek to identify the circumstances surrounding the amendment of the Foreign Intelligence Surveillance Act of 1978 and the passage of the Protect America Act; the salient elements and points of the legislation, and its strengths and weaknesses.

Foreign Intelligence Surveillance Act of 1978 In retrospect, prior to the passage of the FISA in 1978, the courts have ruled on cases which involved certain abuses to the privacy rights of citizens. For instance in 1972, the court ruled that the Fourth Amendment of the Constitution proscribed surveillance of a U. S. citizen without a warrant for national security purposes notwithstanding the fact that it has been authorized by the Attorney General [United States v. United States District Court, 407 U. S. 297 (1972)].

The court suggested that legislation on the matter of “applicable to electronic surveillances conducted for national security purposes” so that the courts may have standards and guidelines to follow and apply (McAdams III, 2007). The issue of electronic surveillance and physical search began to resurface during the Watergate scandal. There were violations of privacy rights through the electronic surveillance and physical search of U. S. elected officials and their staff (McAdams III, 2007). As a legislative response to the abuses against citizens of their privacy rights by certain government officials, FISA was enacted and was passed in 1978.

The main features of this law are: 1) it provided for the allowance of electronic surveillance only for the purpose of collecting information for “foreign intelligence and/or foreign counterintelligence;” 2) it identified the targets of these surveillance as those “foreign powers and their agents;” 3) it laid down a guideline and standard to be satisfied before surveillance can be permitted; 4) creation of the “Foreign Intelligence Surveillance Courts (FISC)” both at the district and appellate level; and 5) it enumerated and limited the cases under which surveillance can be conducted, i.

e. “pursuant to an order issued by the FISC; or in emergency circumstances, pursuant to Attorney General approval, so long as an application is thereafter made to the FISC within 24 hours” (McAdams III, 2007). The FISA was amended to include physical searches and electronic surveillances in 1995 subject to the requirements of the law on probable cause and other requirements (McAdams III, 2007). In 1998, the FISA was again amended to include and allow the use of “pen register and trap and trace devices” for covert activities and international terrorism (McAdams III, 2007).

Upon satisfaction of all the requisites of the FISA, the tracking may be done not only of telephone calls but also electronic communications, i. e. e-mails. It is important to discuss and stress that the purpose of the wiretaps and surveillances under the FISA is for foreign intelligence and counter intelligence. Thus, use of the evidence obtained through these wiretaps and surveillances in criminal prosecutions are not allowed because they offend the Fourth and Fifth Amendments (McAdams III, 2007).

By reason of this, the Department of Justice developed a policy that the ‘primary purpose’ of the surveillance and wiretaps are for foreign intelligence and counter intelligence. This became a written policy later called ‘the wall’ and information in applications for wiretap included statements that the evidence sought will be used primarily for foreign intelligence and counter intelligence (McAdams III, 2007). As a result of this practice, there is great difficulty for the foreign counterintelligence groups and law enforcement officers to share information between them.

By reason of the 9/11 attack, the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act or the USA PATRIOT Act was enacted in October 2001 (McAdams III, 2007). The passage of this law amended some provisions of federal statutes. The law sought to encourage the sharing of intelligence information from the federal government, strengthen laws on terrorism, removing impediments and barriers to addressing terrorism as a problem, and updating the law to be in keeping with the recent changes in technology (McAdams III, 2007).

In 2002, the ‘wall’ policy was weakened and clarified by the Court of Review when it established that both criminal and intelligence components of government must share information and that either of these two components may take an active role in an investigation for purposes of the FISA but without losing sight of the fact that it should not be used in ordinary crimes which are not enmeshed with foreign intelligence violations.

It also eliminated the ‘primary purpose’ test and substituted it with the ‘significant’ purpose which is obtaining foreign intelligence. This removed doubts relative to the use of FISA obtained information from FISA related operations in criminal proceedings and prosecutions (McAdams III, 2007).