United States Supreme Court Chief Justice John Roberts recently identified technology as one of the most difficult challenges for the Court, both now and in the future. During a recent informal discussion at Rice University, Chief Justice Roberts said, “What is the fundamental protection offered by the Constitution when applied to new technology and situations? It’s a question that comes along all the time.”
The issue of applying the law to new technologies is one which is especially prevalent in privacy-related matters. Whether it is electronic eavesdropping devices, thermal imagers, GPS tracking devices, or even drones, technology will continue to play a role in how the government could potentially invade the privacy of an American citizen. While the concern may seem most apparent in the means used by a government official to obtain private information, the everyday use of technology creates, perhaps disconcerting, opportunities for Americans’ privacy to be intruded upon.
A not-so-secret policy of obtaining phone records without a warrant.
In late 2005, the New York Times reported that shortly following the attacks of September 11, 2001, President George W. Bush signed a secret presidential order authorizing the National Security Agency (NSA) to monitor international calls and emails without obtaining a warrant. The purpose of the program was to discover any continuing terrorist elements within the United States.
While the administration felt confident that the proper safeguards were in place to protect Americans’ civil liberties, there was much concern among those involved. One of those safeguards for just this type of situation was, and continues to be, the Foreign Intelligence Surveillance Court. This special court oversees clandestine national security issues – primarily when the government seeks to obtain a warrant for covert surveillance. The primary issue with the wiretapping program was that prior to the presidential order, the NSA strictly focused on foreign phone calls originating outside the United States. Now, however, those searches were including phone calls from American citizens (potentially) made within the United States’ borders – without a warrant.
Much of the wiretapping program was then codified by the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008. 4 FISA focuses on the interception of foreign communications, but the government must still obtain a warrant if intentionally monitoring American citizens. The contention arises in the situations where an American, who is not a target of government surveillance, communicates with a suspected foreign state or terrorist agent located abroad. The communication goes from being considered incidental to the surveillance, to being relevant foreign intelligence information. As long as a person on either end of the call is located outside of the United States, then the call has the potential to fall under the purview of the law.
While the constitutionality of the law itself is currently being challenged (the Supreme Court heard oral argument in Clapper v. Amnesty International on October 29, 2012, focusing on whether the plaintiffs have standing to challenge the law), an interesting question also arose as a result of the disclosure of the wiretapping program – what about the telecom carriers caught in the middle between the government’s overwhelming need to protect Americans from a terrorist attack and the telecom carriers’ loyalty to their customers? Should the telecoms provide protection for their customers’ privacy rights, or should they be held liable for assisting the government’s surveillance?
The Supreme Court’s denial of certiorari protects the telecommunications carriers.
The 2008 FISA amendment, recently renewed by the House of Representatives, contained a controversial section providing retroactive immunity for those telecoms who complied with the warrantless wiretapping conducted under the presidential order. The amendment provides immunity from civil action for the telecoms if the Attorney General certifies the access provided as responsive to a request by the intelligence community. The immunity provision was included after the clandestine wiretapping program was revealed when lawsuits were filed against various telecom carriers, such as AT&T, Verizon Wireless, and Sprint.
The lawsuits, focusing on the fact that the telecom carriers provided the means to carry out the wiretapping program, were consolidated in August of 2006 in the Northern District of California. The plaintiffs were represented by two large, well-known organizations: the ACLU and the Electronic Frontier Foundation (EFF). The ACLU is a staunch supporter of civil rights, and the EFF is a leader in rights involving technology – evidenced by its support of net neutrality, among other things. The cases were bolstered by evidence produced by a former AT&T technician, who asserted that the NSA was monitoring electronic communications at a switching center in San Francisco. The United States intervened in the consolidated case and moved to dismiss the action under FISA. The government’s primary defense of the provision was that without the cooperation of the telecoms the national security measures were simply not possible. The District Court granted the government’s motion to dismiss. 5
On appeal, plaintiffs challenged the facial constitutionality of the immunity provision – focusing primarily on a separation of powers argument. The U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s ruling in December of 2011 and upheld the constitutionality of the immunity provision. 6 In Judge McKeown’s published opinion, the court held that the provision did not violate the constitutional principles of bicameralism and presentment, did not violate the nondelegation doctrine, and was not a legislative incursion upon the judicial branch’s power of adjudication. Furthermore, the court stated that the plaintiffs’ due process rights were not violated because they still maintained another independent claim against the government for the actual program. Finally, the court concluded that the plaintiffs’ due process rights, in terms of the deprivation of their property right – the ability to file a lawsuit, was not infringed because of the strict requirements that must be satisfied by the government to protect the telecoms and the overwhelming national security interests involved.
The United States Supreme Court, without comment, denied the plaintiffs’ petition for certiorari on October 9, 2012. While the ACLU and EFF were obviously disappointed in the Court’s decision, both President Obama and Congressional supporters of the law were pleased with the decision, having previously voiced their opinion that the Supreme Court should not take on the case. Advocates for FISA are naturally hoping for a similar outcome in the case challenging the law directly and believe the Court should hold that plaintiffs’ do not have standing to even challenge the law as a whole.
Americans’ expectation of privacy will continue to decrease as technology advances.
The Fourth Amendment to the United States Constitution provides the general rule for privacy and the requirement of a warrant for a search, stating:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
However, there are exceptions to this rule of requiring a warrant, largely depending upon the circumstances under which the search is conducted. What is considered an unreasonable invasion of privacy today, which would require a warrant, may be considered normal practice in the future. Such is the nature of society, and technology will only continue to push the bounds of what is seen as a reasonable expectation of privacy.
President Obama, who has been somewhat of a technological hawk in his foreign policy objectives, has continued the warrantless wiretapping program. Even if President Obama is not reelected the policy will remain, as Mitt Romney has also voiced his support for the law. Additionally, it was recently revealed (and officially denied) that the NSA is building a $2 billion spy center in Utah for the purpose of intercepting and analyzing communications all over the world. Americans’ expectation of what is, and is not, private will continue to change.
For now, it may be well to remember that just like in George Orwell’s classic 1984, “If you want to keep a secret, you must also hide it from yourself.”