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 - 18751644 – Common Law1760 – Writs of AssistanceFebruary 1761 – James Otis’ Speech on Writs of AssistanceNovember 2, 1765 - Entick v. Carrington1791 – The Bill of RightsApril 6, 1875 – Telephone Patented20th Century Law on WiretappingJune 4, 1928 - Olmstead v. United StatesJune 19, 1934 – Federal Communication Act of 1934December 20, 1937 – Nardone v. United StatesDecember 11, 1939 – Nardone v. United StatesJune 12, 1967 - Berger v. New YorkDecember 18, 1967 – Katz v. United StatesJune 19, 1968 - Omnibus Crime Control and Safe Streets Act of 1968January 1970 – The US Government Spies on US CitizensJune 5, 1970 – The Huston PlanJune 17, 1972 – Watergate Break-inMay 9, 1973 – The Family JewelsMay 17, 1973 – Watergate HearingsAugust 9, 1974 – Nixon ResignsDecember 22, 1974 – “Family Jewels” Becomes Public1975 – The Church Committee1978 – Foreign Intelligence Surveillance Act (FISA)June 20, 1979 - Smith v. MarylandOctober 21, 1986 - Electronic Communications Privacy Act of 198621st Century – A struggle between Security and Civil LibertiesSeptember 11, 2001 – America becomes afraidSeptember 14, 2001 – Authorization for Authorization for Use of Military ForceOctober 26, 2001 – USA PATRIOT ActEarly 2002 – Warrantless Wiretaps by the NSAMarch 10, 2004 – Late Night Hospital VisitDecember 16, 2005 – NY Times article reveals NSA spyingMarch 9, 2006 – Republican Congress Renews USA PATRIOT ActAugust 5, 2007 –Protect America ActSeptember 27, 2007, Mayfield v. United StatesFebruary 4, 2008 – Senate set to Vote on S.22481644 – Sir Edward Coke and Common LawBefore there was a United States, and before there was a US Constitution, there was the
Common Law. To this day the Supreme Court will refer back to the Common Law in setting a precedent. The greatest authority on Common Law was Sir Edward Coke (pronounced Cook). Coke’s writings were seen as the final authority on Common law for over 300 years.
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?”
Top1760 – Writs of AssistanceIn 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.
TopFebruary 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.”
TopNovember 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 England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.”
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.
Top1791 – 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)
TopApril 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.
Top20th Century
June 4, 1928 - Olmstead v. United States
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.
TopJune 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.”
TopDecember 20, 1937 – Nardone v. United States
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.”
TopDecember 11, 1939 – Nardone v. United States
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.
TopJune 12, 1967 - Berger v. New York
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:
There must be probable cause to believe that a particular offense has been or is being committed.
The conversations to be intercepted must be particularly described in a warrant.
The surveillance must be for a specific, limited period of time.
If the warrant is to be renewed, continuing probable cause must be shown.
Surveillance must terminate once the conversation sought has been seized.
Notice must be provided unless a factual showing of exigency is made.
A return must be made on the warrant so the court may supervise and restrict the use of the seized conversations.
TopDecember 18, 1967 – Katz v. United States
Following on the heels of Berger v. New York, this case reversed the court’s earlier opinion in Olmstead v. United States that the Fourth Amendment only applies to property searches. In the majority opinion, Justice Potter Stewart wrote "
The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Justice John Marshall Harlan wrote a concurring opinion wherein he introduced the idea of a “reasonable” expectation of Fourth Amendment protection. This doctrine of a reasonable expectation of privacy was later affirmed through rulings such as
Rakas v. Illinois in which the court used the phrase “legitimate expectation of privacy.”
TopJune 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.”
TopJanuary 1970 – The US Government Spies on US Citizens
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.
TopJune 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.
TopJune 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 Washington, D.C. At the time they were arrested they were setting up a warrantless wiretap on Larry O'Brien, the Chairman of the Democratic National Committee (DNC).
TopMay 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.
TopMay 17, 1973 – Watergate Hearings
Televised hearings on the Watergate break-in begin. The public is outraged as the details of warrantless wiretapping come out.
TopAugust 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.”
TopDecember 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.
Top1975 – 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.
Top1978 – 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 US. The law requires the Attorney General to go before a special FISA court to obtain a warrant for foreign surveillance in which one of the parties is a US Citizen.
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.
TopJune 20, 1979 - Smith v. Maryland
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.
TopOctober 21, 1986 - Electronic Communications Privacy Act of 1986
The
Electronic Communications Privacy Act of 1986 expands on the Wiretap Act in
five significant ways:
It broadens the scope of privileged communications to include all forms of electronic transmissions, including video, text, audio, and data.
It eliminates the requirement that communications be transmitted via common carrier to receive legal protection.
It maintains restrictions on the interception of messages in transmission and adds a prohibition on access to stored electronic communications.
It responds to the Supreme Court's ruling in Smith v. Maryland that telephone toll records are not private and restricts law enforcement access to transactional information pertaining to users of electronic communication services.
It broadens the reach of the Wiretap Act by restricting both government and private access to communications.
Top21st Century
September 11, 2001 – America becomes afraid
With the horrific events of September 11, 2001, America suddenly becomes afraid and demands protection. Public opinion suddenly shifts toward security and away from civil liberties.
TopSeptember 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 United States by such nations, organizations or persons.”
In later public comment, Attorney General Alberto Gonzalez
claimed that the AUMF was the legal basis for warrantless wiretapping.
TopOctober 26, 2001 – USA PATRIOT Act
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.
TopEarly 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.
TopMarch 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.
TopDecember 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.
TopMarch 9, 2006 – Republican Congress Renews USA PATRIOT Act
For a complete discussion on the renewal of the USA Patriot act, go
here.
TopAugust 5, 2007 – Protect America Act
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.
TopSeptember 27, 2007, Mayfield v. United States
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.
TopFebruary 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.
TopRETURN TO RFDBLOG.COMLabels: Bill of Rights, CIA, civil liberties, constitution, FBI, FISA, Fourth Amendment, Intelligence, NSA, USA PATRIOT Act, warrantless spying, warrantless wiretapping, wiretapping
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