Wiretaps and Electronic Surveillance Research Proposal

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Wiretaps and Electronic Surveillance

Wiretapping and electronic surveillance

A recent scandal erupted in the media involving Democratic congresswoman Jane Harman, who was purportedly overheard on a National Security Agency (NSA) wiretap discussing a deal regarding a suspected Israeli agent. This highlights the pervasiveness and also the controversies inherent in the use of wiretapping and electronic surveillance by law enforcement agencies and national security agencies such as the FBI, CIA, and NSA. Harman called the wiretap an 'abuse of power' when it was brought to light, although her critics contended that the matter had been concealed for as long as it had because Harman was a supporter of then-President Bush's controversial domestic wiretapping program of suspected terrorists. "The FBI tried to open an investigation of Harman, but then-Attorney General Alberto Gonzales pulled the plug because he wanted Harman's help defending the controversial domestic warrantless wiretapping program, which she supported" (Congresswoman calls alleged wiretap 'abuse of power,' 2009, CNN).

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However, it is important to remember that both wiretapping and electronic surveillance have played valuable and legitimate roles in law enforcement investigation, including the prosecution of organized criminals and in subverting acts of espionage on American soil. At its most basic, the technology of wiretapping "involves the use of covert means to intercept, monitor, and record telephone conversations of individuals. Electronic eavesdropping may involve the placement of a 'bug' inside private premises to secretly record conversations, or the use of a 'wired' government informant to record conversations that occur within the informant's earshot. Both wiretapping and electronic eavesdropping enable the government to monitor and record conversations and activities without revealing the presence of government listening devices" (Maclin 2009).

Research Proposal on Wiretaps and Electronic Surveillance Assignment

Although the technology that enables wiretapping has grown vastly more sophisticated in a relatively short period of time, the ability to wiretap suspects and engage in electronic surveillance stretches back to the First World War. Wiretapping has always been extremely controversial from a legal perspective given that the Fourth Amendment protects against unreasonable governmental searches and seizures. The Founding Fathers, of course, had no idea that wiretapping technology would be developed in the far future, thus the courts have struggled to deal with the constitutionality of the issues surrounding wiretapping: "The Supreme Court first considered the constitutionality of wiretapping in the 1928 case of Olmstead v. United States, 277 U.S. 438 (1928). The Court ruled that governmental wiretapping of telephone conversations fell outside the protection of the Fourth Amendment. The Court based its conclusion upon a narrow, textual reading of the amendment. First, the Court found that words spoken into a telephone were not tangible things and thus could not be subjected to a search or seizure. Second, it reasoned that because wiretapping could be accomplished without a trespass, there was no physical invasion of property to justify invoking the Fourth Amendment. Finally, the Court assumed that one who uses the telephone 'intends to project his voice to those quite outside'" and thus had no reasonable expectation of privacy when using the device (Wiretapping and Eavesdropping - early restrictions on electronic surveillance, 2009, Law Library).

This 5-4 decision by the Supreme Court was hotly debated at the time, and condemned in many constitutional law circles. But later, during the height of the Cold War in Lee v. United States, 343 U.S. 747 (1952), the court would expand this ruling to include 'wired' informants working on behalf of law enforcers. Despite subsequent liberalization of many former restrictions upon civil liberties, during the 1960s, the court continued to uphold the idea that when an individual was willingly admitted into the home, even if he or she was wearing a clandestine listening device, this meant that the person being wiretapped had waived his or her right to privacy. For example, when using wiretapping to investigate organized crime, a "government informant, who was also a member of union leader Jimmy Hoffa's entourage, reported to the F.B.I. incriminating conversations made by Hoffa in his hotel suite and other places. Hoffa argued that the informant's actions infringed his Fourth Amendment rights. The Court upheld Hoffa's conviction, ruling that Hoffa had effectively forfeited his right to rely on the security of his hotel suite by allowing the informant to enter it and to hear and participate in the incriminating conversations" (Wiretapping and Eavesdropping - early restrictions on electronic surveillance, 2009, Law Library). By admitting the informant into his hotel room, Hoffa had effectively waived his right to privacy.

However, later decisions did question this notion of electronic surveillance as an unregulated tool of the government. A majority of the Berger Court concluded that a New York statute was facially unconstitutional because "the statute did not require that a judge find probable cause before issuing an electronic surveillance warrant, and the statue failed to limit the nature, scope, or duration of the electronic surveillance" (Wiretapping and Eavesdropping -- contemporary legal status, 2009, Law Library). Support for electronic surveillance and wiretapping further eroded in the 1970s, when the full extend of the spying on civilians during the height of the Cold War was revealed: "as a result of a Senate investigation of intelligence community activities, it had been revealed that NSA had been conducting two programs of questionable propriety. One, SHAMROCK, originated in the days just after the conclusion of the Second World War. It involved U.S. communications companies giving NSA access to the cable traffic passing through the companies' facilities. The second, MINARET, created a watch list of U.S. persons-including military deserters and those involved in civil disturbances and antiwar movements and demonstrations-whose communications were to be monitored. Included on the watch list were a number of anti-war activists, including Joan Baez, Jane Fonda and Dr. Benjamin Spock" (Blanton 2006). These individuals (a singer, an actress, and a noted baby doctor, amongst others) were clearly targeted as enemies of the state purely for their political views and acts of dissent regarding U.S. government policies, not because they posed a serious security threat.

To ensure that such baseless surveillance did not occur again coupled with more general concern over NSA's domestic intelligence activities and lack of regulation the Foreign Intelligence Surveillance Act (FISA) was passed in 1978. "The Act established the three-judge Foreign Intelligence Surveillance Court to review applications for monitoring the communications (at the time, almost exclusively conventional telephone communications) of U.S. persons suspected of involvement in espionage or terrorist activities. It also created a review process in the event the U.S. government was displeased with the court's decision" (Blanton 2006). This was supposed to introduce some accountability in terms of the U.S. government's use of wiretapping and electronic surveillance.

However, there was one clear exception to the FISA that made it easy to circumvent, namely that the NSA could intercept communications of Americans without a wiretap when they were communicating with a non-U.S. person outside of the United States "an activity whose legality survived a challenge before the Supreme Court" (Blanton 2006). Still, this was a notable improvement upon how things had been in the past, and the "NSA operated under restrictions concerning how much information about the American participating in the intercepted conversation could be incorporated in intelligence reports or employed for law-enforcement purposes," as the "name or other identifying information would have to be removed and replaced by a term such as 'U.S. person'" (Blanton 2006).

But the 'War on Terror' provided a justification, or a convenient excuse, for ignoring the requirement that a warrant be obtained for domestic wiretapping. "President George W. Bush formally authorized the National Security Agency to monitor telephone conversations and e-mails of Americans and other individuals, originating in the United States, without the court-approved warrants usually required for domestic surveillance. The monitoring program was reported to consist of targeting the telephone and e-mail communications of hundreds and perhaps thousands of people inside the United States "(Blanton 2006). The extent of this program was revealed by the New York Times in a 2005 feature article.

Ironically, the accused Representative Harman, along with major Bush Administration officials, attempted to convince the Times not to run the piece condemning the use of domestic warrantless wiretapping. "One of the very few members of Congress with broad access to the most sensitive intelligence information, including aspects of the Bush Administration's wiretapping that were disclosed in December 2005, Ms. Harman was inadvertently swept up by NSA eavesdroppers who were listening in on conversations during an investigation" and heard employees of a prominent pro-Israel lobbying group asking Harman to intervene with the Justice Department on the part of Americans accused of espionage for Israel (). In return, "the caller promised her that a wealthy California donor...would threaten to withhold campaign contributions to Representative Nancy Pelosi, the California Democrat who was expected to become House speaker after the 2006 election, if she did not select Ms. Harman for the intelligence post" (Lewis & Mazzetti 2009). The Bush Administration, it is alleged, did not act on the matter to retain Harman's support for silence on its domestic wiretapping program. Supposedly, Harman ended her conversation… [END OF PREVIEW] . . . READ MORE

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