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Secret Court Ruling Sparks Heated Government Surveillance Debate

By Katherine Noyes
Aug 2, 2007 10:56 AM PT

After a special court made a secret ruling sometime in the last few months limiting the government's authority to eavesdrop on phone calls and e-mails, the Bush administration and Congressional Democrats are now at odds on how best to protect the privacy of Americans while maintaining national security.

Secret Court Ruling Sparks Heated Government Surveillance Debate

Citing a heightened terrorist threat, President Bush and Attorney General Alberto Gonzales have both spoken in recent weeks about the need to modernize the Foreign Intelligence Surveillance Act (FISA) of 1978 to reflect changes in technology, such as the ubiquity of cell phones.

FISA dictates procedures for authorizing electronic surveillance and physical search of suspected terrorists or spies working on behalf of a foreign power. Decisions are made by the specially appointed Foreign Intelligence Surveillance Court.

'Sophisticated Terrorists'

"Today we face sophisticated terrorists who use disposable cell phones and the Internet to communicate with each other, recruit operatives and plan attacks on our country," Bush said in his Sunday radio address. "Technologies like these were not available when FISA was passed nearly 30 years ago, and FISA has not kept up with new technological developments. As a result, our nation is hampered in its ability to gain the vital intelligence we need to keep the American people safe."

However, privacy advocates assert that it was the secret ruling -- not any heightened threat -- that has sparked the move to alter FISA. In that undisclosed ruling, which was partially uncovered Wednesday by the Los Angeles Times, the Foreign Intelligence Surveillance Court apparently denied a request for a generalized warrant to conduct surveillance on a large group of people, Tim Sparapani, senior legislative council with the American Civil Liberties Union (ACLU), told TechNewsWorld.

Fourth Amendment

Such a request violates the fourth amendment, which dates all the way back to the Revolutionary War and requires that surveillance warrants may only be issued when there is probable cause and a specific individual named, Sparapani noted. Such warrants are required only when a U.S. person is involved, he added -- not for intercepting foreign-to-foreign communications.

"We've been asking for months now why Bush has been pushing for revisions to FISA at this time," Sparapani said. "Until that piece of news yesterday about the secret ruling, no one had an answer. Now it's clear the administration wanted to wipe out more than 200 years of history and get a generalized warrant for a group of people."

The administration's proposal reportedly involves giving the attorney general and director of national intelligence increased authority to intercept without a court order any international phone call or e-mail between a suspect outside the United States and someone in the United States. It would also allow for the granting of broad warrants aimed at a group of people, in case a U.S. person ends up being involved, Sparapani said.

Congress is being urged to approve the measure quickly, before it breaks next week for its August recess.

Bad Timing

At a time when Attorney General Gonzales is being scrutinized for his role in National Security Agency (NSA) wiretapping efforts, the limited oversight and rushed approach of such a plan doesn't sit well with privacy advocates.

"Our key concern is that the White House proposal fails to provide adequate oversight, particularly with respect to the FISC," Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC), told TechNewsWorld. "That oversight is critical because the surveillance in question involves people in the United States. If it isn't enforced, there could be routine data mining of all calls and e-mails made by U.S. citizens," he added.

"Why should Americans give Gonzalez one more iota of authority, when he has willfully broken and lied about the current laws?" Sparapani said.

Democrats' Proposal

Congressional democrats reportedly outlined a temporary measure on Wednesday to increase in a more limited way the government's ability to conduct surveillance, but even that measure -- and particularly the rushed nature of the effort, given the impending break -- met with only mixed approval.

"We need to wiretap terrorists, and we should address the problem that has been identified with FISA with respect to foreign-to-foreign communications," said Sen. Russell Feingold, D-Wis. While the Democrats' proposal is "better" than the administration's, it still "does not have adequate safeguards to protect Americans' privacy," Feingold said. "The bill should also include a 90-day sunset to ensure Congress has the chance to identify and fix any problems with this new proposal."

'Highly Premature'

"It would be highly premature to take this hasty action," Derek Slater, activism coordinator for the Electronic Frontier Foundation, told TechNewsWorld. "Let's not forget that for the last five years, the administration and NSA have been blatantly violating FISA through NSA's spying. Congress shouldn't take any action until it has the full truth about what's going on--how FISA has been violated, and what, exactly, has been happening. It shouldn't be legislating in the dark."

No changes are even needed to FISA to tap foreign-to-foreign communications without a warrant, Slater added, since they are already allowed under that law. "This is not about foreign-to-foreign intelligence, or some supposed gap in the law," he said.

Indeed, "there is no reason to rewrite FISA," Sparapani said. "The existing version has worked well since 1978, and the independent ruling is good evidence of that."

Any modifications made must be narrow and targeted as specifically as possible, making sure to afford maximal protection to the private e-mails and phone calls of Americans, he said: "This needs a specific response to a specific problem, and nothing more."


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