Wire Tapping: Privacy vs. Security

WIRETAPPING PRIVACY VS. SECURITY From the Bill of Rights to Edward Snowden, there has always been a battle between the right to privacy and the prying eyes of the government. Should privacy be compromised for security, or security for privacy? Following are some key events that took us from the Fourth Amendment to Prism. The 4th Amendment established an individual's right to privacy and required "probable cause" in order to obtain a warrant for searches and seizures. "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." - The 4th Amendment Olmstead v. United States permitted the tapping of telephone wires without a warrant as long as there was no trespassing. 1923 During the Prohibition, Roy Olmstead, nicknamed "King of the Puget Sound Bootleggers," was wiretapped without a warrant and convicted. Olmstead appealed to the Supreme Court, but they ruled against him, stating that the 4th Amendment didn't apply to private conversations that were legally overheard, "The (4th] amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants." Chief Justice Taft 1934 The Federal Communications Act made it illegal to intercept radio and wire communications but said nothing about secretly recording face-to-face conversations. "..no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communications to any person." - The Federal Communications Act In 1935, Roosevelt granted Roy Olmstead a full presidential pardon, restored his constitutional rights, and remitted him $10,300 in costs. Katz v. United States overturned Olmstead v. United States and made it illegal to eavesdrop if there is a "reasonable expectation of privacy." 1967 TELEPHONE Charles Katz was convicted of gambling across state lines via a telephone booth that the FBI bugged without a warrant. Katz appealed to the Supreme Court which ruled in his favor. "...an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and...unreasonable in the absence of a search warrant." Justice Harlan The Federal Wiretap Act 1268 declared that "wire" and "oral" communication was protected under the 4th Amendment. It did, however, give the government plenty of room for abuse; especially the President who could "take such measures as he deems necessary. "But the Congress, in my judgement, has taken an unwise and potentially dangerous step by sanctioning eavesdropping and wiretapping by Federal, State, and local law officials in an almost unlimited variety of situations." - Lyndon B. Johnson upon signing The Wiretap Act Nixon spied. 1962 1974 Nixon resigned. Nixon is not alone. The FBI has a long history of illegally wiretapping "subverters" including Martin Luther King, Jr., Vietnam War protesters, Women's Rights organizations, & even Albert Einstein. Foreign Intelligence Surveillance Act laid out the rules for spying on foreign powers in order to curb wiretapping abuses in the name of "National Security. 1978 Warrantless wiretapping is approved for spying on "foreign powers" or "agents of foreign powers" (which may include U.S. persons) for foreign intelligence only. A secret court is established to approve the surveillance when U.S. persons are involved. "It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person's communications are concerned, by a court order." - Jimmy Carter upon signing FISA Since the FISA Court is secret, no one knows how FISA is interpreted or implemented. The public can only know how many cases are approved and disapproved. FROM 1979-2012 THE FISA COURT HAS... APPROVED DISAPPROVED 33,942 11 CASES CASES 1972 Smith v. Maryland ruled that information given to third parties is not protected under the 4th Amendment. Michael Smith robbed Patricia McDonough and then began prank calling her. In order to convict Smith, the police obtained the numbers he dialed from the phone company. He appealed to the Supreme Court saying the numbers he dialed were private, but the court ruled against him. "This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Justice Blackmun The Electronic Communications Privacy Act updated The Federal Wiretap Act to include electronic communication. 1986 Previously, only "wire" and "oral" communication were protected under the 4th Amendment, Now, in the wake of technological growth, "electronic communication" is protected, including stored communications. However, if it's stored on a remote server, it's only protected for 180 days. which remains true today. The Communications Assistance for Law Enforcement Act made surveillance easier for Law Enforcement. CALEA required telecommunication carriers to modify their equipment for built-in surveillance capabilities. This allowed the government to monitor all telephone, broadband internet, and VolP "...to make clear a telecommunications ASSISTAN UNICATION carrier's duty to cooperate in the CALEA LAW ENFORCEMENT ACT interception of communications for Law Enforcement purposes, and for other purposes." traffic in real-time. - CALEA The USA PATRIOT Act weakened restrictions for the gathering of intelligence 2001 in the wake of 9/11. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Sneak & Peek Warrants • Court orders no longer need the "when" of searching. Roving Wiretaps • Court orders no longer need the "what" and "where" of tapping. FISA Bar Lowered • Allows the FISA court to issue warrants if the purpose is SIGNIFICANTLY about gathering foreign information, instead of the ONLY reason. • Agents no longer have to prove that a target is a non U.S. citizen or an "agent of a foreign power". Easier Access to Things and Records • Allows for seizure of tangible objects, not just records. • Authorities can now demand disclosure of customer records from carriers. • Allows for the use of "pen registers" and "trap & trace" devices for e-mail as well as phone. • Makes it easier for authorities to access voicemails. • Operators of a "protected computer" can give authorities permission to intercept communications on the machine. Easier Information Sharing • Sharing information between authorities is easier, regardless of need. Gag Orders • National Security Letters (NSL's) are the FBI's requests for information. Recipients of NSL's are prohibited from speaking about it. The NSA begins building a massive database of Americans' phone calls. Terrorist Surveillance Program 2002 was a top-secret executive order authorizing the NSA to monitor phone and internet communications without a warrant. VE VONT BACK DOWN This secret program allowed the NSA to wiretap, without a warrant, any party believed to be outside the U.S., even if it involved U.S. The Bush administration used the recently passed Authorization for Use of Military Force (AUMF) to supersede the FISA requirements to obtain a warrant. citizens within the U.S. Terrorist Surveillance Program ALDES was leaked to The New York Times. The New York Times broke the story on December 16, 2005 after the Bush administration was seeking a court injunction to block its publication. "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." The New York Times, 12/16/2005 The New York Times The Bush administration began hunting down the leaks with 25 FBI agents and 5 prosecutors. The USA PATRIOT Act is renewed. 2006 AOVOThe NSA's massive database is revealed. USA TODAY "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth..." - USA Today, 5/11/2006 Terrorist Surveillance Program I0F ceased to be renewed due to pressure from the public after its revelation. "Although, as we have previously explained, the Terrorist Surveillance Program fully complies with the law...the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires." Alberto R. Gonzales, Attorney General Protect Anmerica Act of 2007 The Protect America Act expired after 180 days removed the warrant requirement in FISA and the "foreign agent" despite Bush's attempts requirements, opening the door for domestic spying. to make it permanent. PRISM is born in secrecy APRISM from the Protect America Act, allowing the NSA once again to wiretap without a warrant. FISA Amendment of 2008 2008 continued provisions similar to the Protect America Act of 2007 and granted retroactive immunity for service providers against lawsuits. "...a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community..." - FISAA The USA PATRIOT Act 2010 2011 is renewed again in 2010 and again in 2011. URITY AGE FISA's secret court order for Verizon 2013 to give the NSA their customers' communication records UNITED was leaked to The Guardian. Verizon disclosed Telephony Metadata: • Originating and terminating telephone numbers • International Mobile Subscriber Identity (IMSI) numbers • International Mobile station Equipment Identity (IMEI) numbers • Trunk identifiers • Telephone calling card numbers • Time and duration of calls veri on PRISM is revealed PRISM outlining warrantless surveillance on live communications and stored information through the participation of top technology companies. Data Collected by PRISM: When they joined PRISM • E-mail • Chat - video/voice • Videos • Photos • Stored data • VolP • File transfers • Video conferencing • Notifications of target activity - logins, etc • Online social networking details • Special requests Microsoft 9/11/2007 3/12/2008YAHO! Google 1/14/2009 Edward Snowden revealed himself to The Guardian and The Washington Post as the source of the leaks while hiding out in China. facebook 8/03/2009 paltalk; 12/07/2009 You Tube 9/24/2010 skype AOL O 2/06/2011 3/31/2011 10/122012 "...the NSA specifically targets the communications of everyone. It ingests them by default...I do not want to live in a world where everything I do and say is recorded. That is not something I am willing to support or live under." - Edward Snowden Brought to you by: www.whocalledmyphone.net DESIGNER: ERIC PHILLIPS.NET Sources http://www.americanbar.org/content/dam/abaladministrative/litigation/materials/sac_2012/29-1_history_and_law_of_wiretapping.authcheckdam.pdf http://www.guardian.co.uk/world/video/2013/jun/09/nsa-whistleblower-edward-snowden-interview video http://www.washingtonpost.com/wp-srvispecial/politics/prism-collection-documents/?hpid-z1 http://www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone data-court-order http://www.fcc.govlencyclopedialcommunications-assistance-law-enforcement-act#RWS http://www.guardian.co.uk/world/2013/jun/06/nsa-phone-records-verizon-court-order http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy http://www.aclu.org/national-security/surveillance-under-usa-patriot-act http://www.nytimes.com/2005/12/16/politics/16program.html?_r=0 http://www.npr.org/news/specials/patriotact/patriotactdeal.html http://supreme.justia.com/cases/federal/us/442/735/case html http://archives.cnn.com/2002/LAW/08/23/patriot.act.explainer/ http://www.nytimes.com/2010/06/12/us/politics/12leak.html http://www.nacua.org/documents/PatriotAct_Outline.pdf http://en.wikipedia.org/wiki/Olmstead_v_United_States http://epic.org/privacylecpa/ http://www.fas.org/irp/crs/RS21203.pdf http://en.wikipedia.org/wiki/COINTELPRO http://www.fas.org/sgp/crs/misc/R41733.pdf http://www.fas.org/sap/crs/intel/RL34600.pdf http://www.fas.org/sgp/crs/intel/m010506.pdf http://news.bbc.co.uk/2ihilsci/tech/2033324.stm http://www.presidency.ucsb.edu/ws/?pid=28939 http://www.presidency.ucsb.edu/ws/?pid-30048 http://epic.org/privacy/wiretap/stats/fisa stats.html http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/ http://www.govtrack.us/congress/bills/110/hr6304/text http://it.ojp.gov/default.aspx?area=privacy&page=1285 http://it.ojp.gov/default.aspx?area-privacy&page=1284 ISTANC NERICA