The purpose of this document is to provide you with historical context for the current fight over FISA, and the FISA Amendments Act of 2007 which is scheduled for a vote on Monday, February 4, 2008
Early American History of Civil Rights 1600 - 1875
February 1761 – James Otis’ Speech on Writs of Assistance
November 2, 1765 - Entick v. Carrington
April 6, 1875 – Telephone Patented
20th
Century Law on Wiretapping
June 4, 1928 - Olmstead v. United States
June 19, 1934 – Federal Communication Act of 1934
December 20, 1937 – Nardone v. United States
December 11, 1939 – Nardone v. United States
June 12, 1967 - Berger v. New York
December 18, 1967 – Katz v. United States
June 19, 1968 - Omnibus Crime Control and Safe Streets Act of 1968
January 1970 – The US Government Spies on US Citizens
June 5, 1970 – The Huston Plan
June 17, 1972 – Watergate Break-in
May 9, 1973 – The Family Jewels
May 17, 1973 – Watergate Hearings
August 9, 1974 – Nixon Resigns
December 22, 1974 – “Family Jewels” Becomes Public
1978 – Foreign Intelligence Surveillance Act (FISA)
June 20, 1979 - Smith v. Maryland
October 21, 1986 - Electronic Communications Privacy Act of 1986
21st
Century – A struggle between Security and Civil Liberties
September 11, 2001 – America becomes afraid
September 14, 2001 – Authorization for Authorization for Use of Military Force
October 26, 2001 – USA PATRIOT Act
Early 2002 – Warrantless Wiretaps by the NSA
March 10, 2004 – Late Night Hospital Visit
December 16, 2005 – NY Times article reveals NSA spying
March 9, 2006 – Republican Congress Renews USA PATRIOT Act
August 5, 2007 –Protect America Act
September 27, 2007, Mayfield v. United States
February 4, 2008 – Senate set to Vote on S.2248
1644 – Sir Edward Coke and Common Law
Before there was a
In The Third Part of the Institutes of the Laws of England, Coke had something significant to say on the subject of domestic spying. He said “For a man’s house is his castle, et domus sua cuique est tutissimum refugium; for where shall a man be safe, if it be not in his house?”
In 1760, King George allowed customs officials to search anywhere at any time by using “writs of assistance,” or non-specific warrants. This behavior was such an affront to the American Colonists that they later referred to it in the Declaration of Independence, justifying the Colonists’ desire to become self-governed.
February 1761
– James Otis’ Speech on Writs of Assistance
James Otis was a firebrand of the American Revolution. He was a pamphleteer and orator. In 1761 he gave a public address on the Writs of Assistance. Echoing Sir Edward Coke’s words, James Otis declared:
“A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.”
November 2,
1765 - Entick v. Carrington
Entick is one of the seminal rulings of common law, establishing the right of a person to be safe in his or her home. In his ruling, Lord Camden wrote:
“By the laws of
In short, an individual may do anything they please within their home as long as they do not violate the law. The ruling also limits the rights of the government to take action against an individual unless that action is specifically codified by law.
1791 –
The Bill of Rights
In 1791 the Bill of Rights was ratified, which included the Fourth Amendment:
“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 Fourth Amendment is usually seen as containing two clauses:
1. The first clause provides protection from “unreasonable searches and seizure.”
2. Second clause governs the use of warrants.
a) Upon Probable Cause
b) Issued by independent court (supported by oath or affirmation)
c) Particularly describing the items sought (no fishing expeditions)
April 6,
1875 – Telephone Patented
Though Antonio Meucci had applied for a patent in 1871, Alexander Graham Bell was eventually granted the patent for the telephone. Almost as quickly as there was a telephone, there was wiretapping.
20th Century
June 4, 1928 - Olmstead v.
The Supreme Court ruled that a wiretap did not infringe on the Fourth Amendment since the Fourth Amendment does not apply to conversations, but instead only applies to a person’s physical property. This case was reversed by Katz v. United States in 1967.
June 19, 1934 –
Federal Communication Act of 1934
The first federal regulation that dealt with wiretapping was The Federal Communications Act of 1934. In part, it stated that “…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.”
December
20, 1937 – Nardone v.
In Nardone (1937), the Supreme Court ruled that the Federal Communications Act of 1934 meant that “evidence obtained by federal agents by tapping telephone wires and intercepting messages is not admissible in a criminal trial in the federal district court.”
December
11, 1939 – Nardone v.
In the 1937 case, the court ruled on whether or not evidence obtained through a warrantless wiretap could be submitted as evidence. In Nardone (1939) the issue was whether Nardone's lawyer should have been allowed to question the prosecution on whether it had used information obtained in the wiretap.
The Court ruled that, once a defendant has established that evidence was illegally seized, the court "must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree."
This established the doctrine of “fruit of a poisonous tree,” which says in essence that evidence obtained through any illegal means, including warrantless wiretapping cannot be used to obtain a conviction.
June 12, 1967 - Berger v.
In Berger, the Supreme Court affirmed that "conversation" was within the Fourth Amendment's protections, and that the use of electronic devices to capture it was a "search" within the meaning of the Amendment.
The court provided the following seven guidelines for wiretapping:
December 18,
1967 – Katz v.
Following on the heels of Berger v.
June 19,
1968 - Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 was the first bill since the Federal Communications Act of 1934 to attempt to clarify rules around wiretapping. Title III, known as The Wiretap Act states in part:
“To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.”
The law goes on to define the major crimes under which a wiretap may be authorized and the procedure for obtaining a warrant for a wiretap.
The law gives the President exemptions to protect the national security:
· “…to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities…”
· “…to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.”
January 1970 –
The
In January, 1970 Washington Monthly published an article titled “CONUS Intelligence: The Army Watches Civilian Politics.” In the article, Christopher H. Pyle set off a firestorm when he reported “nearly 1,000 plainclothes Army investigators keep track of civilian political activity across the country...” This revelation, along with the Watergate scandal would eventually spark the formation of the Church Committee.
June 5, 1970
– The Huston Plan
President Richard Nixon asked for a plan for obtaining better information on domestic dissenters, and asked the intelligence community to determine whether US citizens were subject to foreign influence.
A Whitehouse Aid named Tom Charles Huston put together a plan to spy on those Nixon arbitrarily labeled “dissidents.” It was called the Huston Plan. Huston had been assigned as White House liaison to the Interagency Committee on Intelligence (ICI), which was chaired by none other than J. Edgar Hoover. The plan included burglary, illegal electronic surveillance and opening the mail of “dissidents.” Some of the so-called dissidents included Martin Luther King, Jr., Eldridge Cleaver, the Southern Christian Leadership Conference and anti-war protesters.
June 17,
1972 – Watergate Break-in
Five men are arrested after breaking and entering into the
Democratic National Committee headquarters at the Watergate hotel complex in
May 9,
1973 – The Family Jewels
CIA Director James R. Schlesinger signed a directive asking for a complete accounting of activities that fell outside of the CIA’s charter. The resulting report, called the Family Jewels is a treasure trove of sins on the part of the CIA, including wiretapping. You can read a six page summary of the Family Jewels here.
May
17, 1973 – Watergate Hearings
Televised hearings on the Watergate break-in begin. The public is outraged as the details of warrantless wiretapping come out.
August
9, 1974 – Nixon Resigns
Ten days after being forced to provide tape recordings that clearly showed that Nixon had ordered the warrantless wiretaps; Nixon was forced to resign in shame. After being sworn in, Gerald Ford said “My fellow Americans, our long national nightmare is over.”
December 22,
1974 – “Family Jewels” Becomes Public
Seymour Hersh published an article in the New York Times detailing CIA spying on Americans during Nixon years. The article titled “Huge CIA Operation Reported in US Against Antiwar Forces, Other Dissidents in Nixon Years,” reveals some of the details of the CIA Family Jewels report. The article detailed how the CIA had illegally spied on Americans.
1975
– The Church Committee
After years of lax oversight, Congress became increasingly concerned about activities by the Intelligence community. Senator Frank Church (D-ID), chairman of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, conducted a series of investigations into the illegal activities by the CIA and FBI. The Church Committee eventually produced 14 reports, the most comprehensive look at the activities of the Intelligence committee.
1978 –
Congress passed the Foreign Intelligence Surveillance Act (FISA)
In the wake of the Watergate scandal and the findings of the
Church Committee, Congress passed the Foreign Intelligence
Surveillance Act or FISA in 1978.
This act restricts the right of the intelligence agencies to intercept
communication that involves US Citizens or long-term residents of the
Hardly draconian, the law offered several exceptions, allowing for much leeway for the Intelligence community. The law allowed a 15-day grace period for warrantless wiretapping during times of war. Wiretap warrants could even be obtained retroactively, after the fact, should a crisis occur.
June 20, 1979
- Smith v.
Without a warrant, the police installed a pen register to record the phone numbers dialed from a suspects’ house. The court ruled that an individual should not have a reasonable expectation that the numbers that he or she dials are private. This was changed under the Electronic Communications Privacy Act of 1986.
October 21,
1986 - Electronic Communications Privacy Act of 1986
The Electronic Communications Privacy Act of 1986 expands on the Wiretap Act in five significant ways:
21st Century
September 11, 2001 –
With the horrific events of September 11, 2001,
September 14,
2001 – Authorization for Authorization for Use of Military Force (AUMF)
In a show of bipartisan cooperation after September 11, Congress quickly passed the Authorization for Use of Military Force. It says the following:
“That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or persons, in
order to prevent any future acts of international terrorism against the
In later public comment, Attorney General Alberto Gonzalez claimed that the AUMF was the legal basis for warrantless wiretapping.
October
26, 2001 –
Not learning their lessons from history, the American people demand protection, even if it cost them their civil liberties. Congress obliged. Hardly a whimper of dissent is heard from any politician or mainstream media outlet as Congress passed the USA PATRIOT Act. Key provisions of the act are set to expire, but are renewed in 2006.
Early 2002 – Warrantless
Wiretaps by the NSA
George W. Bush illegally authorized the National Security Agency (NSA) to spy on Americans without a warrant, in clear violation of FISA.
March 10,
2004 – Late Night Hospital Visit
According to testimony by James B. Comey, a senior official at the Justice Department, on March 10, 2004 Alberto Gonzales, who was then White House Counsel went to the hospital bed of critically ill John Ashcroft, who was then Attorney General, to try to persuade him to sign an order extending the warrantless spying program. Ashcroft, who in fact had transferred his powers to Comey, refused to do so. On March 11, 2004 the program was reauthorized without consent from the Justice Department.
December
16, 2005 – NY Times article reveals NSA spying
The New York Times revealed the existence of the warrantless spying program. This is quickly followed by several other revelations including the existence of a massive database of American phone calls.
March
9, 2006 – Republican Congress Renews
For a complete discussion on the renewal of the USA Patriot act, go here.
August 5, 2007
– Protect
Caving to political fear-mongering, Congress passed the Protect America Act, which allows for massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts. Fortunately, the act was set to expire in six months. As of February, 2008, the renewal is being argued in Congress. For a good overview of the Protect America Act, go here. For a running conversation on the topic, go here.
September
27, 2007, Mayfield v.
As would be expected, the FBI, given the broad powers of the USA PATRIOT Act, eventually abused the power in the case of Brandon Mayfield. When the case went to trial, key provisions of the USA PATRIOT Act were found to be unconstitutional by U.S. District Judge Ann Aiken. The case is currently under appeal.
February 4,
2008 – Senate set to Vote on S.2248
Congress has continued to let the NSA spy without warrants and is considering letting the telephone companies off the hook for spying on Americans illegally. The FISA Amendments Act of 2007 is scheduled for a vote on Monday, February 4, 2008.