Remember The Bush Warrantless Wiretaps?

Legal challenges are still alive.

A long time ago, December 2005, the New York Times broke a story about the Bush Administration monitoring domestic telephone communications without first obtaining a warrant.[1] The affair, which began no later than 2001, became known as warrantless wiretaps.

Flash forward six years. As 2011 came to a close, the 9th U.S. Circuit Court of Appeals “reinstated a closely watched lawsuit accusing the federal government of working with the nation’s largest telecommunication companies to illegally funnel Americans’ electronic communications to the National Security Agency without court warrants.”

The ruling reads, in part:

In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. [Jewel et al v NSA]

Notable (from the ruling): “Jewel sued federal government agencies and government officers in their official and personal capacities.”

The case was filed by the Electronic Frontier Foundation (EFF).

A reminder from 2006:

It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] … into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring)…

Since the Court’s 1967 decision of Katz v. U.S., 389 U.S. 347 (1967), it has been understood that the search and seizure of private telephone conversations without physical trespass required prior judicial sanction, pursuant to the Fourth Amendment…

Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive’s TSP.

Judge Anna Diggs Taylor found the program unconstitutional. Subsequently, the White House appealed; the 6th Circuit Court of Appeals ruled that the plaintiffs did not have standing to sue but made no ruling on constitutionality of the program. That decision regarding standing makes the 2011 ruling all the more important.

Also, see Warrantless Wiretaps: A Timeline

[1] The New York Times sat on the story for a year, thereby assuring that it would not be a factor in the 2004 Presidential election.

Jewel v NSA, 9th Circuit Court of Appeals Decision

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  • http://wideeyedandreal.blogspot.com ProfElwood

    I hope the court can finally get around to it, but how far could they go? There are so many systems in place right now that scan through phone conversations, web sites, and e-mail, that the courts might avoid ruling on the constitutionality.

  • Allen

    Hate to sound cynical, but I think there is no turning back. The government will have to monitor all private lives, communications, and, endeavors in the end just to effectively provide protection of the state.

    The supreme court can have it’s day, but in the famous words of President Andrew Jackson; “Let them enforce it”.

    Of course the Supreme Court can enforce nothing without cooperation from the other branches of government and they know it.

  • merkin

    Prof Elwood, and each type of surveillance would require its own court case following its own torturous path to the Supreme Court, each court on the path looking for grounds to not rule on its constitutionality.

    If I remember correctly the original rational for the warrantless wire taps was the inability of the Justice Department to be able to fill out the 2 pages of fill in the blank forms required for a FISA warrant in a timely fashion. Perhaps hiring biblically trained lawyers from the lowest rated law school in the country had a downside?

  • http://wideeyedandreal.blogspot.com ProfElwood

    @merkin
    If the SCOTUS ruled that warrants were required for telephone wiretaps, and more importantly, that lawsuits could be brought without having to prove direct harm, you can bet that there are groups out there who would get those suits started.

    As it stands, the executive branch effectively has the right to search through private information for 300+ million people, and anything international, without even knowing who they are. Just requiring that the forms be printed would be overwhelming.

    Allen is right: once they get started, it’s almost impossible to turn back.

  • ShannonLeee

    Unlimited detention of uncharged detainees.
    Spying on citizens without a warrant.
    1 Trillion down the rabbit hole of Iraq.
    Afghanistan still a mess.

    is what we call winning the war on terror?
    or maybe just a victory lap for the ghost of bin laden.

    Freedom has its inherent risks. The more we give up in the name of security, the less we will have.

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    Hi, folks – thanks for comments.

    ProfElwood, I think your point about standing is on point. And how to you prove “harm” (ie, convince the court that you have standing) when everything is secret? Talk about a Catch-22.

    ShannonLeee : nice paraphrase of Jefferson

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    Allen – not sure what you mean by this:
    “The government will have to monitor all private lives, communications, and, endeavors in the end just to effectively provide protection of the state.”

    Are you being sarcastic? That is, are you saying that in order to maintain its power base that the gov’t must engage in these activities? Or are you saying that in order to preserve the United States (a more noble goal) that the gov’t much engage in these activities?

  • roro80

    ShannonLee, you’re in Germany, right? I hear that the Germans are a lot more concerned about, and therefore have much greater rights to, their own privacy, because they’ve demanded it. What is legal here in the US as far as getting access to people’s images, information, etc, is just astonishing and scary to me. I think the Germans have the right idea.

  • EEllis

    And how to you prove “harm” (ie, convince the court that you have standing) when everything is secret?

    If everything is a secret then what harm could you have? Even if they caught you talking about bringing in drugs they wouldn’t do anything. The only thing they are looking for is terorist activity, links with active combatants, that type of thing. Right now the 9th is assuming everything in the compaint is true. What happens when jewel has to prove someone “examined” here data? Bye bye just like the ACLU suit.

  • roro80

    “Even if they caught you talking about bringing in drugs they wouldn’t do anything. The only thing they are looking for is terorist activity, links with active combatants, that type of thing.”

    This, in my opinion, is the problem. Right now, they can’t do a whole lot with information they gather if it is not terrorist-related, under most circumstances. However, the laws get more and more lax, as we have seen. We know, for instance, that information gathered in illegal searches of property is very often held. The search was illegal, but the person loses their personal property; if they can’t afford a lawyer, or if they are undocumented, or if they just don’t know their rights that well, that property is gone. Certainly information could be retained in a similar manner, but the victim wouldn’t even know it was taken from them. It could be used to bar people from employment or benefits, could be used as evidence of crimes if future laws change, etc. It’s the searching and gathering that should be illegal, just like it would be with physical property.

    And please don’t tell me the present or future administrations couldn’t expand what they mean by “terrorist”.

  • http://wideeyedandreal.blogspot.com ProfElwood

    Information is often useful in and of itself, as in Watergate, and insider trading.

  • roro80

    “they can’t do a whole lot with information they gather if it is not terrorist-related, under most circumstances”

    You know what, I think even this is incorrect. I believe if it is determined that if the authorities thought the information might lead to terrorist-related information, even if doesn’t lead to that, the information can be used in many circumstance to make other prosecutions, for things like drugs, or just being undocumented, or other crimes.

    ETA: ooh, Prof, those are good examples too.

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    EEllis — your responses never cease to amaze me. Is it OK if I have a camera recording your bedroom antics if you never know about it? Is it OK to have a camera peeping into a women’s bathroom if no one ever knows about it?

    “The only thing they are looking for is terorist activity, links with active combatants, that type of thing.” How do you KNOW this, EEllis? You can’t know that. No one on the outside can.

    The “if you’re not a criminal then don’t worry” mentality that you personify will be the downfall/death of this country.

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    roro80:

    Who says that “they can’t do a whole lot with information they gather if it is not terrorist-related, under most circumstances”? Where’s the proof?

  • Allen

    Kathy-

    When you take on federal employment, you take an oath to; “defend the constitution of the United States against all enemies foreign and domestic”.

    Since the state is essentially the constitution, no part of it can obstinately conflict or seriously hinder any other part, in it’s acts of self preservation. No President and no Government body will ever allow it, regardless of what the Supreme Court says.

    I am simply stating my belief that the only way the federal government can protect the state in these modern times, of insurgent attacks of various internal method, and, deadly medium, is by knowing about, “enemies domestic”, as much as technically possible. Privacy has many times taken a back seat to other issues, especially defense. Everything takes a backseat to defense. Always has and always will. One way or the other.

    One only need to review history for confirmation.

  • roro80

    Kathy, I already modified that statement in a later comment.

  • http://wideeyedandreal.blogspot.com ProfElwood

    Just a side note: most of the terrorism comes from our government meddling in mid-east countries. It would be a lot cheaper to simply stop doing that.

    Just saying.

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    Allen, most of those historical “security trumps privacy” actions have been subsequently criticized. I do not agree with your assumptions that the government either has or needs these powers.

    I agree 100% with ProfElwood: “most of the terrorism comes from our government meddling in mid-east countries”

    We take after our country of origin, England. See my post about England smuggling opium into China (smuggling means “illegally”) and the subsequent opium wars … and what this did to China’s GDP.

    Hi, roro80 — not clear to me that you were recanting. Thanks for the clarification.

  • The_Ohioan
  • Allen

    Kathy-

    Yes Kathy, they are criticized, and, still they are repeated. I’m telling you defense will always win over privacy. My reference to history encompasses all of our history, not just the last dozen decades. The result is always the same, defense wins and I believe defense will always win. Having said that, let me add that I certainly don’t have an answer to the problem either.

    I did read and comment on your opium article. It was a very good article. I already knew those historical events but I had never had a GDP comparison, which I certainly appreciate.

    Regarding the opium/China article, what is your prognosis for China’s world domination? A projected timeline would help common understanding. Please?

  • EEllis

    Who says that “they can’t do a whole lot with information they gather if it is not terrorist-related, under most circumstances”? Where’s the proof?

    Are you kidding me? Where is the proof for your scenario? You want evidence for mine? OK, how about there has never been a report case of it happening! If they are listening and data trolling and using all this info then why have we never heard boo about it.

    Is it OK if I have a camera recording your bedroom antics if you never know about it? Is it OK to have a camera peeping into a women’s bathroom if no one ever knows about it?

    It isn’t even close to the same thing and I think you know that. But, when I can have sex with someone in my bedroom with someone who at the same time is in another country and has known terrorist links then they can listen in.

    Information is often useful in and of itself, as in Watergate, and insider trading.

    Isn’t that the whole point? It’s never been about prosecutions but info gathering. Of course in this case instead of insider trading it’s stopping terrorists attacks!!!

  • http://wideeyedandreal.blogspot.com ProfElwood
    Information is often useful in and of itself, as in Watergate, and insider trading.

    Isn’t that the whole point? It’s never been about prosecutions but info gathering. Of course in this case instead of insider trading it’s stopping terrorists attacks!!!

    Great way to miss the point, especially after I gave examples. So let me ask it directly: what’s to stop officials from using information for personal or political purposes?

  • zephyr

    Cheering on the trade-off of privacy rights for imagined security is definitely not smart. Going back a few decades the sh!t would have hit the fan if this had been going on, but today’s citizenry is (tragically) more apathetic and less well informed. We all remember what Ben Franklin said right?

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    Hi, Allen:

    RE China — wow, a timeline? :-) I commented to Mike tonight that science fiction writers seem to have a belief in China’s cultural and economic ascendancy and have had for several decades. As I think I wrote over there, but it might have been elsewhere, China seems to be where the US was about 100 years ago re worker rights — but the difference in gov’t structure suggests reform may take longer than it did here. RE pollution, they’re 50 or so years behind. Global pressure will probably make inroads into environmental regulation before human rights.

    RE security v privacy — I think I better understand what you’re typing — you’re acting in a pragmatic role, stating what you think will be the case based on history. This isn’t the same as advocating for security to trump privacy. Am I correct?

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    EEllis – you are the person who suggested the “no harm, no foul” scenario, not me. How can “no harm, no foul” be OK in one place where privacy is expected and not another?

    your bedroom scene makes no sense to me.

    Look. We live in a surveillance society – it’s just that much (most?) of the surveillance is being done by us not by big brother. Heck, some (a lot) of it is self-surveillance, ie, Facebook status/checkins, etc.

    I cannot grok the waving hands declaring that America’s security theatre is “stopping terrorist attacks.”

  • http://wiredpen.com KATHY GILL, Technology Policy Analyst

    Hi, Zephyr – amen.

    To ProfE, you ask:
    “what’s to stop officials from using information for personal or political purposes?”

    if they don’t think they will be found out – nothing. Shall we point to insider trading in Congress? What about J. Edgar — his dossiers didn’t come out until he was no longer head of the FBI. See, for example, http://www.thedailybeast.com/articles/2011/08/02/fbi-director-hoover-s-dirty-files-excerpt-from-ronald-kessler-s-the-secrets-of-the-fbi.html and http://www.boston.com/news/nation/washington/articles/2010/03/29/fbi_cracks_open_door_to_special_file_room/

  • ShannonLeee

    Roro, yes, Germans are very particular when it comes to privacy. They about mauled Google maps for taking pictures of public streets…PUBLIC streets. Europeans have an inherent distrust of government (they have had it for much longer than the US). They realize that they need government, but they also do not trust it when it comes to things such as privacy or information.

  • ShannonLeee

    It is funny how some people will trust the government with their privacy, personal information, and killing people in foreign lands, but won’t trust them when it comes to their tax dollars.

    I think it is sad that many are willing to ship soldiers off to foreign lands to bleed and die for our freedom, but are willing to give up their own freedom at home because of the same threats to their freedom.
    IMHO, it is a very sick form of cowardice.

  • EEllis

    your bedroom scene makes no sense to me.

    Neither did your comparing the two. My “scene” was trying to show that doing so is BS. By the way it was your “scene” I just added the connections needed to make it in any way compatible.

    let me ask it directly: what’s to stop officials from using information for personal or political purposes?

    Umm, the law? That if they did so they would be violating law and no doubt innumerable regulations about the info. If they decide to break the law, well then they could do it anyway regardless of requiring warrants. If you mean whats to stop the pres or Sec of State from using info….. again if someone say reveled an affair of a rival politician it would end up being Watergate II.

    It is kind of funny. The only thing that we know is that the info has never been used in any domestic prosecution, heck we don’t know of any cases where there has even been any domestic use at all. Reportedly following the guidelines released they only listen to calls with an international connection which has some terrorist connection. Somehow that is supposed to equate with a camera in every bedroom and toilet? I understand if more is going on that may, depending on what it is, be more of a concern. Right now we have no evidence that more is going on. If we find it we should deal with it but screw spazzing out over made up crap.

  • http://wideeyedandreal.blogspot.com ProfElwood

    Umm, the law?

    What law? Some department head listens in on a corporate meeting, or a CEO talking with his wife, or any number of other conversations that would influence a stock price, and makes a bundle on the trade. What law did he break? How would we even find out?

    How could there even be a Watergate II if there’s no evidence?

    Made up stuff? Here’s a few conspiracy theories to ponder.

    A. That the CIA would sell drugs to raise money for an operation that isn’t authorized by congress.
    B. An administration would bypass a legal embargo to sell arms to a foreign country.
    C. An elected official would listen in on his opponent’s campaign to help his own.
    D. An administration would foment a revolution in a foreign democracy in order to secure assets for private companies.
    E. An administration would sell illegal firearms knowing that they would probably end up in the hands of organized crime.

    What do all of these have in common: they’re all real, and they were all shrouded in secrecy. How can you be so trusting after we have so many known (and who knows how many unknown) examples of that trust being violated?

  • Allen

    Kathy-

    I think there may come a day when government real-time data collection and individual privacy are incompatible. It may be, that in order to preserve our very lives, we may need to entrust our privacy to government. We may need to do so by a degree determined by government, not by our own choosing.

    In favor of government data collection, with law enforcement in mind, you might consider the billions of dollars lost by individuals like Michael Milken, Key Lay, Carl Icon, Frank Lorenzo, Bernie Madoff, ect., should our government had the authority and resources to keep closer observations on investment dealings.

  • http://wideeyedandreal.blogspot.com ProfElwood

    @Allen
    The SEC had that information. Plenty of people were screaming about those scandals, but the administrations shut them up. The SEC has been destroying information for decades, making it even harder to sue.

    How is giving those people even more information going to help?

    If you want to stop that kind of scandal, make people liable for their own mistakes, stop giving them privileges that other companies can’t get, and make government officials liable (subject to lawsuits) for NOT enforcing the law.

  • EEllis

    What law? Some department head listens in on a corporate meeting, or a CEO talking with his wife, or any number of other conversations that would influence a stock price, and makes a bundle on the trade. What law did he break? How would we even find out?

    Insider trading for one. The wiretap law doesn’t allow listening in on any of the situations you mention without there being much more going on. Honestly you are not even talking about the wiretap law anymore just “what if people do bad things”. Well what do we do now if they do bad things?

    How could there even be a Watergate II if there’s no evidence?

    The info is the evidence. The scenario was what if the administration used the info to bomb a opponent. Well rumors do nothing and revealing details often reveals sources. That assumes that no one involved and knows what happened talks, remember deep throat.

    What do all of these have in common: they’re all real, and they were all shrouded in secrecy. How can you be so trusting after we have so many known (and who knows how many unknown) examples of that trust being violated?

    And they are all illegal. What you want to make the super duty double illegal? Then what is your point? That people break the law? that is why there are jails.

  • http://wideeyedandreal.blogspot.com ProfElwood

    @EEllis
    The law does not stop anyone. It never has. That’s not its purpose.

    Its purpose is to deal with the people after they’ve been caught, and to make sure that the victims don’t start a cycle of vengeance or retaliate against the wrong people.

    How about this: would you trust a private company with these powers, or is the CIA the only that can be trusted?

  • roro80

    EEllis — There are no circumstances under which I, a private citizen, would be allowed to break into your home and go through your private letters looking for information. Very similarly, I am not allowed to hack into your computer and riffle through your files and electronic documents and emails. The police are allowed to do so if they can prove to a judge that there’s probably cause that they will find illegal activity. Without that warrant to look into your things, they cannot and could not use any of the information they find to prosecute you. However, given that there is no prior probably cause, having them not search in the first place is much more desirable to a citizen, because maybe you don’t need folks on the police force know your personal internet viewing habits, or anyone having access to your bank account number.

    In the case where I or the police are looking into your home or computer, there are means of investigation, and there are punishments, and there is the ability to write about and request information on it. That’s to protect you from me, and from the police, to make sure nobody is taking your stuff or riffling around in your information without the burden of getting a warrant to do so. It’s kind of the whole point of one of our Constitutional amendments. The government cannot come into your home and look for information just because they suspect you might be doing something wrong.

    If they can now do so with no warrant, without telling anyone, with no means of recourse, and then turn around and use that information against you by simply saying afterwards “we thought he might be a terrorist”, how in the world is that ok with you? Why do you trust them to look under your skirt but only giggle if they find something terrorist-related?

  • EEllis

    The law does not stop anyone. It never has. That’s not its purpose.

    So? Here is my point. The program that this thread is about has no effect on anything you complain about. It’s like complaining about a law that allows motorcycles to make a left on a red if the light goes thru several cycles with the sensor not recognizing the bike. You then start complaining about 10 different traffic violations. Guess what none where motorcycles turning left and none of the stuff you brought up is acceptable under the warrentless wiretap program. What the heck man! It was illegal and guess what it is still illegal! So what the heck are you going on about? “Well people break the law.” Yep, and they would brake it before the wiretap program. So?

    If they can now do so with no warrant, without telling anyone, with no means of recourse, and then turn around and use that information against you by simply saying afterwords “we thought he might be a terrorist”, how in the world is that OK with you? Why do you trust them to look under your skirt but only giggle if they find something terrorist-related?

    Well here is something funny, they can’t do the crap you are saying under the warrentless wiretap program. So what are you talking about because I thought this thread was about the warrentless wiretap program. You might as well talk about the CIA randomly shooting people on the street. Yes that would be bad but it still has nothing to do with the warrentless wiretapping program. Not the warrentless look up your skirt program or the warrentless make up spooky shit program, but again the warrentless wiretapping program.

  • roro80

    “Well here is something funny, they can’t do the crap you are saying under the warrentless wiretap program.”

    Well here is something funnier. Uh, yes they can.

    (Just so you know, “look up your skirt” was a metaphor, generally meaning to look into your business without cause and just because they can. Unless you’re at an airport, of course, in which case such intrusions are quite literal.)

  • EEllis

    Well here is something funnier. Uh, yes they can.

    Well lets see.

    information can be used in many circumstance to make other prosecutions

    Has never happened. Never. Not once. Name one time. It has been used not as evidence in court but to help decide if someone should be investigated.

    It could be used to bar people from employment or benefits,

    How? Maybe if you needed a security clearance but I’m not even sure about that. It is currently illegal for this info to be distributed to anyone so how could it effect anyone’s employment? You say “if the law changed” well then it wouldn’t be “this” program would it. You are talking about some possible future program as the reason for being against this one.

    insider trading

    Would still be insider trading. Overhear something at Starbucks or a warrentless wiretap and use it to commit insider trading and you would be braking law. You would also be breaking the law if you did it with a FISA wiretap.

    hack into your computer and riffle through your files and electronic documents

    Not allowed under current or previous program rules

    break into your home and go through your private letters looking for information

    Not allowed under current or previous program rules

    The government cannot come into your home and look for information just because they suspect you might be doing something wrong.

    Not allowed under current or previous program rules

    Do you know what the guidelines are for the program? Because you haven’t even got close to anything that is actually authorized in that program. The big constitutional issues are really not the main issues as to the legality of the program. The reason warrants need to be issued is not because of the constitution but rather the FISA legislation. Can your mail be searched with out warrant? Yes if it is sent internationally. It’s constitutional to do so and reasonable to assume that as such when a call goes international it may also be surveilled. Heck since we are just about the only country with these concerns about wiretapping by calling into countries with open surveillance you have little to no expectation of privacy anyway. The constitution doesn’t protect stupidity. In USA v. Osama bin Laden, the Second Circuit noted that “no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States.” So that gets the constitutional aspect out of the way so really it’s just FISA that’s the issue. Well their answer to FISA is the use of force authorization. Now the legal merits aside it’s basically a balance of powers pissing match.

    This program was only authorized to surveil conversations with at least one party out of the country and with some ties to terrorists and log calls made outside the US so if they turned up a phone number in Iraq they could check and see every US call made to that number. That was pretty much all that was authorized for the program.

  • Allen

    Prof-

    I’m not asking, I’m telling. It’s not me that wants that kind of intrusion. I already know a republican will never prosecute a coporate whore. I’m just telling you what I think is coming.