Bush Signs Expanded Wiretap Law

By Larry Greenemeier
Scientific American

President Bush signed a bill into law Thursday that broadens the government’s surveillance power. The move came just a day after the Senate passed the legislation, by a 69-to-28 margin, culminating months of political fireworks. The package includes a controversial clause that grants immunity to telecommunications companies that participate in National Security Agency warrantless wiretapping approved after the Sept. 11, 2001, terrorist attacks.

The change is the most sweeping since the Foreign Intelligence Surveillance Act (FISA) was adopted three decades ago to prevent the government from spying on people in the U.S. suspected of engaging in espionage or terrorism without court approval. The new provisions allow the U.S. Justice Department and National Security Agency (NSA) to recruit telephone companies to bug their customers’ phone conversations, and prohibit lawsuits against the telecoms for privacy rights violations. The measure also protects the companies against suits for past wiretaps. That means lawsuits will likely be dropped against AT&T and Verizon that charged they had violated privacy rights by tapping their customers phone lines at the request of the NSA. (Qwest Communications, on the other hand, refused similar requests in 2001.)

In passing the FISA Amendments Act, Congress endorsed Bush’s view that the federal government does not require approval from normal federal courts–whose actions are generally made public–to initiate wiretaps on lines of people believed to be terrorists or foreign intelligence agents. Instead, FISA established the U.S. Foreign Intelligence Surveillance Court (FISC) specifically to oversee requests for surveillance warrants. The federal government is the only party to FISC proceedings, which are presided over by one of 11 federal district judges who serve the court and are chosen by the chief justice of the U.S. Supreme Court. FISC proceedings are closed to the public, FISC records are not available to the public, and the court rarely rejects Justice Department surveillance requests.

The American Civil Liberties Union filed a lawsuit Thursday to stop the government from conducting surveillance under the new wiretapping law, arguing that it violates First- and Fourth-Amendment rights to free speech and privacy. Other privacy advocates also see the law as a dangerous precedent that strips away checks put in place to make sure the government does not abuse its power. Without the normal federal courts requiring the federal government to justify whom it spies on, “we don’t have a way to find out what’s happening,” says Guilherme Roschke, a lawyer with Electronic Privacy Information Center (EPIC), a Washington, D.C., public interest group focusing on privacy rights. “When wiretaps are made easier, there’s a greater chance that they will be abused by the government.”

Similar fears about access to personal information have hounded the Internet as well. Just hours before the Senate’s vote on Wednesday, the Senate’s Committee on Commerce, Science and Transportation held a hearing to address the issue of the private information Internet companies provide about their customers to online advertisers.

“We need to take a closer look, I think, at Internet users’ privacy as the field of online advertising develops,” Sen. Byron Dorgan (D–N.D.) said during a hearing yesterday. “I’m concerned about users’ ability to control [their personal] information.”

Added panel chairman Sen. Daniel Inouye (D–Hawaii):

“Too many consumers spend time on the Internet without knowledge or notice that they are under commercial surveillance. I am troubled by the current state of affairs.”

Companies that stand to profit from online advertising, including Microsoft, Google and Facebook, argued that access to information about who is using the Internet and what they are looking for is crucial to keeping the Web’s wealth of information available to the public at little or no cost. (Online advertising pays for a lot of the Web’s free content.)

“Online advertising has become the very fuel that powers the Internet and drives the digital economy,” Michael Hintze, Microsoft associate general counsel, testified. “Simply stated, the Internet would not be the diverse and useful medium it has become without online advertising.”