Restoring a Proper Balance on Surveillance
By Jim Arkedis
Over the last six years, the Bush administration has failed to strike a reasonable balance between Americans' right to privacy and the post-9/11 demands of national security. The predictable result has been cratering public confidence in a key part of the president's "war on terror" -- new domestic surveillance programs enshrined in the Big Brother-esque Protect America Act.
Last week, Congressional Democrats took major strides toward legislation that would overturn that act and correct both these problems. The House passed the RESTORE Act ("RESTORE" is an acronym for "Responsible Surveillance That is Overseen, Reviewed and Effective"), and Senate Democrats debated which of two committee-approved versions of a similar bill to take to the floor.
Here is a brief history lesson: In 1978, the Foreign Intelligence Surveillance Act (FISA) established a special court and specific procedures to govern the collection of intelligence inside the United States and against American citizens abroad, who are protected under the Fourth Amendment against domestic intelligence collection. If the government wanted to collect intelligence within the borders of the United States or on American citizens worldwide, it had to make its case to a special FISA court that issued a warrant authorizing the collection.
After 9/11, it became clear that FISA placed too many restrictions on intelligence agencies in the age of the Internet and satellites. For example, if two members of a terrorist network were outside the United States but emailing through a Yahoo or Microsoft server in Seattle or Cleveland, the government still had to apply for a warrant to collect intelligence on them. Cell phone routing presented a similar problem. In short, would-be terrorists could take advantage of the Bill of Rights to exploit technological advances that made concepts like physical location newly ambiguous.
In the wake of the attacks, the Bush administration used its own interpretation of FISA, one that cavalierly eviscerated the spirit of the statute's privacy protections. In December 2005, The New York Times revealed the Bush administration's illegal wiretapping program. This past August, the White House attempted to establish a legal footing for its program by getting Congress to pass the Protect America Act, which effectively eliminated judicial review by permitting sweeping surveillance of anyone reasonably believed to be outside the United States. Furthermore, a literal interpretation of the law meant it could be used against Americans to collect their international email traffic, or to conduct physical surveillance against citizens without the protection of a court-issued warrant.
The RESTORE Act grants intelligence agencies the latitude they need to collect information: It clarifies that the government does not need a warrant for foreign persons' communications regardless of location or transmission; it permits reasonable "umbrella warrants" against foreign persons outside the United States.; and provides for immediate surveillance in the event of an emergency.
However, the bill also "restores" oversight of the process by the courts, Congress, and the Department of Justice. Furthermore, it prohibits warrantless physical searches of Americans, and ensures that warrants are not overly broad.
This represents a sensible compromise, and a necessary advance in the protection of individual liberty. Yet progress on this bill is snagged in the Senate. The controversy centers on a provision that would grant retroactive and qualified immunity from prosecution to telecommunications companies that complied with the Bush administration's request for assistance in collecting American citizens' private information. Civil liberties groups have filed some 40 lawsuits against companies like AT&T and Verizon to protect Americans' right to privacy.
However, it makes little sense to hold up progress on modernizing the FISA bill to punish private companies that responded to White House requests for information. Senator John D. Rockefeller (D-W.Va.) has done yeoman's work as chairman of the Senate Intelligence Committee to forge this compromise, and offered an explanation of his support for an immunity clause in an October 31 Washington Post editorial: "These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland."
In a separate editorial for The Hill on November 8, former senator Bob Kerrey stated, "We cannot hope to achieve such unity of effort (to defeat the enemy) if on the one hand we call upon private industry to aid us in this fight, and on the other allow them to be sued for their good-faith efforts to help."
In sum, since the telecommunications companies had no way of independently verifying the program's legality and were pressured by White House invocations of the national interest, efforts to punish them fail to address the real cause of the problem. Let us be clear: The ultimate fault lies with the Bush administration for skirting Congress since 2001 and fostering an atmosphere of duplicity and coercion -- not with those private companies who were assured by the federal executive branch that their actions were legal. What matters now is strengthening our statutory protections of individual liberty in an age of rapidly changing technology. The immunity question should not divert us from that objective.
Sen. Arlen Specter (R-Pa.) has proposed a compromise that would substitute the federal government as the defendant in the pending telecommunications company lawsuits, but this would shift the cost of needless litigation to the American taxpayer. If Congress wants a fuller inquiry into how the Bush administration carried out its wiretapping program, it should call for the administration to emerge from the veil of executive privilege and divulge details of this program, or use its subpoena powers to investigate the White House's actions. The best way to balance security and privacy is to not engage in retrospective recriminations against private companies, but to pass new legislation that clearly brings future domestic surveillance and intelligence collection under the rule of law and democratic accountability.
Jim Arkedis is the Director for the PPI's National Security Project.