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Chapter: 

II. Surveillance policy

Communications surveillance

Surveillance of wire, oral, and electronic communications for criminal investigations is governed by the Omnibus Safe Streets and Crime Control Act of 1968 and the Electronic Communications Privacy Act of 1986 ("Title III").1 Police are required to obtain a court order based on several legal requirements before capturing the content of a communication. Surveillance for national security purposes is governed by the Foreign Intelligence Surveillance Act of 1978 (FISA), whose requirements are less rigorous than those of the other two statutes, requiring only that the surveillance target be a "foreign power."2 In 2004, the so-called Lone Wolf amendment extended FISA's coverage to include any non-United States person who "engages in international terrorism or activities in preparation therefore."3 No probable cause to believe in a connection between the surveillance target and any particular nation or group need be shown, nor need the Court find probable cause to believe such a connection exists.4 The number of FISA orders reached an all-time high in 2006, with the secret FISA Court approving 2,181 applications for physical search, electronic surveillance, or both. The Court denied five applications submitted by the federal government in 2006.5

In December 2005, the New York Times reported that President Bush had issued an order in 2002 allowing the National Security Agency unprecedented authority to conduct domestic surveillance.6 The President contended that he has the authority to "order foreign intelligence surveillance within the United States" and "[t]he President’s constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF [Authorized Use of Military Force resolution], passed by Congress, September 18, 2001."7 The documents supporting this proposition have not been revealed, despite a federal court ruling ordering the Department of Justice to either process and release documents related to the Bush Administration's warrantless surveillance program or explain why it is justified in withholding them.8

In August 2007, the Congress amended FISA in a way that significantly weakens the FISA court, which is the only institutional safeguard that stands between the power of the executive and the privacy rights of Americans.9 The amendments go beyond what the Director of National Intelligence had said earlier was necessary to address specific problems with a ruling of the FISA court earlier this year, permitting warrantless surveillance of American citizens when one party to the conversation may be outside of the United States. It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing. However, the amendments will sunset in 180 days, which will provide an opportunity for further debate in Congress.10 The opinion that gave rise to this sweeping change in federal wiretap law is secret.

The Foreign Intelligence Surveillance Court of Review (FISCR) convened for its first controversy in 2002 and broadly expanded the DOJ's surveillance authority under FISA. The court held that the DOJ could use looser foreign intelligence standards to conduct criminal investigations in the United States. In doing so, the Court of Review reversed a unanimous lower opinion that revealed a pattern of FBI misrepresentations and cast serious doubt on the veracity and accuracy of claims made by the DOJ and the FBI in support of requests for approval of national security and anti-terrorism surveillance.

The lower court found that DOJ and FBI officials had submitted erroneous information in more than 75 applications for search warrants and wiretaps and had improperly shared intelligence information with agents and prosecutors handling criminal cases on at least four occasions.11 Because of these problems, the lower court refused to give DOJ the broad new surveillance powers it sought to employ after the September 11, 2001 terrorist attacks. Nevertheless, the Court of Review reversed the earlier decision, and permitted the government to remove the separation that has long existed between officials conducting surveillance on suspected foreign agents and criminal prosecutors investigating crimes.12

The use of electronic surveillance under Title III has more than tripled in the last 10 years. In 2006, 1,839 federal and state wiretaps were completed. About three quarters of the wiretaps were authorized for narcotics investigations. The agency also reported that federal officials requested 461 intercept applications in 2006, a 40 percent decrease over the number requested in 2004.13

The federal wiretap laws were amended in 1994 by the Communications Assistance to Law Enforcement Act (CALEA), which required telephone companies to redesign their equipment to facilitate electronic surveillance.14 The Federal Communications Commission (FCC) issued regulations in November 1998 implementing the law.15 The regulations include several additional provisions, including a requirement that all mobile phone companies facilitate location tracking of users. Privacy groups challenged the implementation of the law in federal court and telecommunications companies, who argued that the regulations give the government more power than authorized under the law and the Constitution.16

The USA PATRIOT Act

The USA PATRIOT Act, which was passed in the wake of the September 11, 2001, attacks, and renewed in March 2006, significantly weakened privacy protections in federal wiretapping statutes.17 The act extended the "pen register" portions of federal wiretapping law, allowing Carnivore to be used to collect traffic data based solely on a prosecutor's certification that such information was relevant to an ongoing investigation.18 The law made computer crimes and terrorism predicate offenses for initiation of a federal wiretap.19 The law also authorized national application of a wiretap order, that is, a court in one jurisdiction can issue a warrant that could apply anywhere in the country.20 Under the PATRIOT Act, courts can issue roving wiretaps, giving law enforcement the ability to monitor many different devices that a suspect may use.21 Although supporters of the PATRIOT Act claimed that a sunset provision in the bill would limit police power, only some of the new surveillance provisions will expire. Also, several states followed suit by passing state legislation that loosens protections against wiretaps.22

The USA PATRIOT Act gave the FBI the power to issue National Security Letters (NSLs), an extraordinary search procedure to compel the disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others.23 The number of NSLs issued has grown dramatically since the PATRIOT Act expanded the FBI's authority to issue them. In March 2007, the Department of Justice Inspector General determined that the FBI abused its National Security Letter authority in 22% of the cases examined. Also, the FBI did not report the actual number of issued Security Letters to Congress.24 The FBI acknowledged that there has been "inadequate auditing and oversight" of National Security Letter authority.

The FBI produced updated guidelines for the use of National Security Letters (NSLs).25 The new guidelines continue the practices of allowing field offices to issue NSLs, as opposed to the pre-PATRIOT Act system of only headquarters issuance. FBI field offices also continue issuing NSLs under the lowered standard of "relevance to an ongoing investigation" permitted by the PATRIOT Act.