SIGINT

In 1968, warrantless tapping of phones was deemed Constitutional by the U.S. Supreme Court. They argued that the Fourth Amendment’s ban against unreasonable searches and seizures (without a judicially-reviewed and approved warrant) did not apply because entry of the physical premises was not involved. Times changed as did the way we lived. The Supreme Court reconsidered, and in the 1967 Katz vs. United States case, they ruled that wiretaps did indeed require warrants.

National security issues, however, continued to plague governmental investigators. “In 1978 the Foreign Intelligence Surveillance Act (FISA) created a ‘secret federal court’ for issuing wiretap warrants in national security cases. This was in response to findings from the [Nixon administration] Watergate break-in, which allegedly uncovered a history of presidential operations that had used surveillance on domestic and foreign political organizations.” Wikipedia.

The 1994 Communications Assistance for Law Enforcement Act (CALEA) required that telephone devices be designed to enable easier tapping. A string of legislative regulatory solutions and judicial interpretations continued to expand the nation’s ability to “intercept communications” in the name of national security. In 2005, the Federal Communications Commission (FCC) interpreted CALEA to cover broadband internet connections and phone calls over the Web. Also in 2005, then-President George W Bush admitted that he over-stepped constitutional bounds in many of the government’s surveillance efforts. In 2007, Congress expanded FISA to allow warrantless surveillance of electronic communications over an entire host of new activities, particularly involving foreign nationals, which was unilaterally expanded by a presidential directive in 2008.

The struggle between terrorist threats and global enemies, on the one hand, and the rather obvious intentions of the Fourth Amendment to protect the sanctity of Americans’ personal space (defined by the courts to cover virtual and actual space) has been anything but comfortable and clear. Governmental agencies have been worming around judicial and statutory mandates with “interpretations” and regulations of questionable constitutional validity to protect its citizenry from very real attacks. While 85% of Americans don’t care what the government does, particularly younger people who don’t expect privacy much anyway, there is a 15% minority who are troubled by these secretive government efforts.

Evidence of the National Security Agency’s (NSA) Prism SIGINT (“signals intelligence”) surveillance program, Congressionally sanctioned seven years ago, surfaced, showing that Verizon (and presumably all of the other U.S. phone and Internet carriers) have been routinely granting the government access to all of its users’ phone and Web-traffic. With support from both sides of the aisle, there have been few Congressional challenges to this program.

Whistleblowers and intentional security leakers – all acting in the name of “democracy and transparency” – range from Watergate era Daniel Elsberg, to more recent disclosures involving Swedish national and WikiLeaks founder Julian Assange,  U.S. Army private Bradley Manning (currently being court martialed) and very recently, a computer specialist, Edward Snowden (and employee of government contractor Booz Allen Hamilton, a company that has been paid billions by the government over the years) who blew open the Prism program noted above. One way or the other, these individuals have leaked specific sensitive and classified information as well as secret programs and their method of operation to the global press. Snowden abandoned his Hong Kong hotel room, where he was undoubtedly wondering whether or not he will be extradited and prosecuted under U.S. law, and elected simply to disappear.

This is an extraordinarily complex area of the law, and it seems pretty clear that the government has a strong feeling that they are overstepping current constitutional limits, but hoping that a very conservative Supreme Court will further crack the protections of the Fourth Amendment. It is interesting to know what the security operations of our government believed was lawful, facts which have come to light in recently de-classified documents from pre-9/11 reviews currently housed at George Washington University.

The government knows and has known for a long time that electronic communications are subject to the Fourth Amendment: “The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today… The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment.” That was then. And the balance between national security and the Fourth Amendment continues to be tested with increasingly frequency. At least the government must know by now that, sooner or later, their most secret programs will be outed, one way… or another. Snowden has leaked documents that clearly define the scope and breadth of the Prism program.

So as you look at the current state of affairs, do you care that some government operative might be listening in on your phone calls or reading your emails, texts, etc? Should you care? Does privacy exist at any level in society today? Why should we remotely care if we are “safe”?

            I’m Peter Dekom, and there is a tipping point where the erosion of democratic principles can slowly blow out the democracy itself as politicians use these techniques for more than “protecting the citizenry.”