By Cliff Montgomery – Dec. 18th, 2012
In October, the Congressional Research Service – an federal entity that works to provide members of Congress with simple, easy-to-understand reports on matters of legislative concern – released a fascinating overview of the Foreign Intelligence Surveillance Act (FISA) and the Electronic Communications Privacy Act (ECPA).
Together, these two statutes form the U.S. government’s basic definition of your privacy rights (or lack of them). Thus it’s essential for these statutes to be understood by every individual.
Below, The American Spark quotes the study’s quick history of privacy rights in America. It alone is an excellent read:
Introduction
“This is an outline of two federal statutes: the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA). Both evolved out of the shadow of the Supreme Court’s Fourth Amendment jurisprudence. The courts play an essential role in both.
“Congress crafted both to preserve the ability of government officials to secure information critical to the nation’ s well-being and to ensure individual privacy.
“It modeled parts of FISA after features in ECPA. There are differences, however.
“ECPA protects individual privacy from the intrusions of other individuals. FISA has no such concern. FISA authorizes the collection of information about the activities of foreign powers and their agents, whether those activities are criminal or not. ECPA’s only concern is crime.
Background
“At common law, ‘eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet – or are indictable at the sessions, and punishable by fine and finding of sureties for [their] good behavior.’
“Although early American law proscribed common law eavesdropping, the crime was little prosecuted and by the late nineteenth century had ‘nearly faded from the legal horizon.’
“With the invention of the telegraph and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and telegraph operators preserved the spirit of the common law prohibition in this country.
“Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I.
“Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927, but did not immediately reestablish a federal wiretap prohibition.
“By the time of the landmark Supreme Court decision in Olmstead, however, at least forty-one of the [then] forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both.
“Olmstead was a Seattle bootlegger whose Prohibition Act conviction was the product of a federal wiretap. He challenged his conviction on three grounds, arguing unsuccessfully that the wiretap evidence should have been suppressed as a violation of either his Fourth Amendment rights, his Fifth Amendment privilege against self-incrimination, or the rights implicit in the Washington state statute that outlawed wiretapping.
“For a majority of the Court, writing through Chief Justice Taft, Olmstead’s Fourth Amendment challenge was doomed by the absence of ‘an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house or curtilage for the purposes of making a seizure.’
“Chief Justice Taft pointed out that Congress was free to provide protection which the Constitution did not. Congress did so in the 1934 Communications Act by expanding the Radio Act’s proscription against intercepting and divulging radio communications so as to include intercepting and divulging radio or wire communications.
“The Federal Communications Act outlawed wiretapping, but it said nothing about the use of machines to surreptitiously record and transmit face to face conversations. In the absence of a statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds surged and the results began to erode Olmstead’s underpinnings.
“Erosion, however, came slowly. Initially the Court applied Olmstead’s principles to the electronic eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in an adjacent office offended no Fourth Amendment precepts because no physical trespass into the office in which the conversation took place had occurred. Similarly, the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public.
“On the other hand, the Fourth Amendment did reach the government’s physical intrusion upon private property during an investigation, as for example when they drove a ‘spike mike’ into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred.
“The spike mike case presented something of a technical problem, because there was some question whether the spike mike had actually crossed the property line of the defendant’s town house when it made contact with the heating duct. The Court declined to rest its decision on the technicalities of local property law, and instead found that the government’s conduct had intruded upon privacy of home and hearth in a manner condemned by the Fourth Amendment.
“Each of these cases focused upon whether a warrantless trespass onto private property had occurred – that is, whether the means of conducting a search and seizure had been so unreasonable as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had been not those tangible papers or effects for which the Fourth Amendment’s protection had been traditionally claimed, but an intangible, a conversation.
“This enlarged view of the Fourth Amendment could hardly be ignored, for ‘[i]t follows from … Silverman … that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of papers and effects.’
“Soon thereafter the Court repudiated the notion that the Fourth Amendment’s protection was contingent upon some trespass to real property in Katz v. United States. Katz was a bookie convicted on the basis of evidence gathered by an electronic listening and recording device set up outside the public telephone booth that Katz used to take and place bets. The Court held that the gateway for Fourth Amendment purposes stood at that point where an individual should to able to expect that his or her privacy would not be subjected to unwarranted governmental intrusion.
“One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of electronic eavesdropping is the usual attachment of the Amendment’s warrant requirement. To avoid constitutional problems and at the same time preserve wiretapping and other forms of electronic eavesdropping as a law enforcement tool, some of the states established a statutory system under which law enforcement officials could obtain a warrant, or equivalent court order, authorizing wiretapping or electronic eavesdropping.
“The Court rejected the constitutional adequacy of one of the more detailed of these state statutory schemes in Berger v. New York. The statute was found deficient because of its failure to require:
- a particularized description of the place to be searched
- a particularized description of the crime to which the search and seizure related
- a particularized description of the conversation to be seized
- limitations to prevent general searches
- termination of the interception when the conversation sought had been seized
- prompt execution of the order
- return to the issuing court detailing the items seized, and
- any showing of exigent circumstances to overcome the want of prior notice.
“Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe Streets Act of 1968, a comprehensive wiretapping and electronic eavesdropping statute that not only outlawed both activities in general terms but that also permitted federal and state law enforcement officers to use them under strict limitations designed to meet the objections in Berger.
“A decade later another Supreme Court case persuaded Congress to supplement Title III with a judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign intelligence gathering situations.
“When Congress passed Title III there was some question over the extent of the President’s inherent powers to authorize wiretaps—without judicial approval—in national security cases. As a consequence, the issue was simply removed from the Title III scheme.
“After the Court held that the President’s inherent powers were insufficient to excuse warrantless electronic eavesdropping on purely domestic threats to national security, Congress considered it prudent to augment the foreign intelligence gathering authority of the United States with the Foreign Intelligence Security Act of 1978 (FISA).
“The FISA provides a procedure for judicial review and authorization of electronic surveillance and other forms of information gathering for foreign intelligence purposes.
“Two other Supreme Court cases influenced the development of federal law in the area.
“In United States v. Miller, the Court held that a customer had no Fourth Amendment protected expectation of privacy in the records his bank created concerning his transactions with them. These third party records were therefore available to the government under a subpoena duces tecum rather than a more narrowly circumscribed warrant.
“In Smith v. Maryland, it held that no warrant was required for the state’s use of a pen register or trap and trace device, if the device merely identified the telephone numbers for calls made and received from a particular telephone. No Fourth Amendment search or seizure occurred, the Court held, since the customer had no justifiable expectation of privacy in information which he knew or should have known the telephone company might ordinarily capture for billing or service purposes.
“In 1986, Congress enacted in the Electronic Communications Privacy Act (ECPA). ECPA consists of three parts: a revised Title III, the Stored Communications Act (SCA), and provisions governing the installation and use of pen registers as well as trap and trace devices.
“Congress has adjusted the components of ECPA and FISA over the years. It has done so sometimes in the interests of greater privacy, [and] sometimes in the interest of more effective law enforcement or foreign intelligence gathering. [It is] often with an eye to some combination of those interests.
“Prominent among its enactments are:
· the USA [ANTI] PATRIOT Act
- the Intelligence Authorization Act for Fiscal Year 2002
- the 21st Century Department of Justice Appropriations Authorization Act
- the Department of land Security Act
- the USA [ANTI] PATRIOT Improvement and Reauthorization Act, and
- the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (2008 FISA Amendments Act).”
