US and FISA: be careful with the mails you send
The new securities measures aim to protect the U.S., but offer no protection to its citizens’ privacy rights while giving the authorities carte blanche to spy on citizens without any Congressional or Judicial oversight.
U.S. SENATE APPROVES DOMESTIC SURVEILLANCE. In August, the U.S. Senate passed the Protect America Act of 2007, amending FISA (The Federal Intelligence Surveillance Act) and essentially giving the U.S. Executive Branch carte blanche to spy on all email correspondence and listen into phone calls of U.S. citizens when communicating abroad. All this can be done without first obtaining a judicially approved warrant as proscribed by the U.S. Constitution, its jurisprudence, and both state and federal law.
Don’t email me! As a U.S. citizen living abroad, these measures permit the authorities to scrutinize every communication I have with friends and family back home whenever we send each other an email or pick up the telephone to relay details about our personal lives or even our feelings about the upcoming elections. In other words, if you are U.S. citizen and want to tell me something, and don’t think it is any of the government’s business, then don’t contact me. Write me off as part of your past.
No Citizen Immune. Not only would these communications apply to communicating with me, but would also include the following: an email sent from a U.S. soldier in Iraq to his girlfriend back home; a phone call from a U.S. study abroad student to her parents in the U.S; a US doctor traveling abroad who calls a patient in the U.S.; a communication between a between a lawyer and her client, either of whom may be abroad.
IN DEFIANCE OF U.S. TRADITION
This all contrasts with the U.S.’s long legal and cultural traditions of freedom from excessive governmental intervention into citizens’ private lives. Over two hundred years of jurisprudence require the government to obtain a search warrant from a judge for any search of property (including wire taps) that details the nature and scope of the search. Of course, there are exceptions allowing for warrantless searches under exigent circumstances, but none of these apply to wire tapping.
State of Emergency. After 9/11, President Bush declared a state of emergency and both the Congress and Judiciary have agreed that the U.S. is at war. This state of war gives the President (be it Bush or the next president) incredibly broad and unchecked powers to act without Congressional or Judicial oversight. Because it is so difficult to precisely define exactly who the U.S. is at war with, the Administration is having a field day of unfettered war powers. The problem is that a theoretical war against terror is theoretical and can theoretically last ad infinitum.
Technical Loopholes In the meantime, the government gets a free looksie into emails and phone calls. Furthermore, there are technical and legal loopholes in the process of surveillance. From a technical standpoint, emails that are sent using web-based email providers can easily be tapped into by the U.S. government regardless of whether they are sent between the U.S. and a foreign country, between two foreign countries, or solely within the U.S. Users often have email accounts that are registered and stored in servers located within the U.S (or abroad) regardless of where the users reside or are sending the email from. In this sense, it is not far fetched to imagine a scenario whereby the U.S. government spies on purely domestic email traffic and then claims that it did so because it was unable to distinguish whether the communication was international or domestic.
If the government ends up spying on purely domestic email traffic, there is little that a citizen can do to remedy the invasion of her privacy. This is because, generally, citizens have limited legal remedies when the government has violated their privacy rights and they have been subjected to an unlawful search.
The Exclusionary Rule protects citizens when they are facing criminal proceeding and the evidence against them was the fruit of an unlawful search. In these cases, a citizen’s recourse is to have that evidence suppressed. Unfortunately, this is only relevant when the government is using the improperly obtained evidence against the individual at trial. Because the average person who has her email read by the government will not be put before a criminal court, the individual is afforded no protection under the Exclusionary Rule.
The only other possibility is to bring a civil suit against the government agent who has illegally perpetrated the search, but governmental officials and their agents have qualified immunity from civil suits. They only lose this immunity when acting beyond their reasonable scope of duty, and this is an almost insurmountable hurdle for the citizen at trial.
The New American Way. The authorities think they shouldn’t have to stop listening for terrorists because they may end up overhearing our personal conversations. They claim that when they receive correspondence, for example, between a grandson abroad and his grandmother back home, they will isolate that information, not pay attention to it, and destroy it. With the new FISA, we can only take their word for it. It’s the new American way.