Electronic Surveillance

NACDL aims to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual in this age of electronic surveillance. Through a combination of litigation and public advocacy, NACDL is working to reform unconstitutionally broad surveillance laws, including provisions of the USA PATRIOT Act and the FISA Amendments Act, and challenge government policies that violate the right to privacy and freedom of expression such as warrantless GPS tracking and suspicionless border searches of electronic devices.

Background

On July 10, 2008, President George W. Bush signed into law the FISA Amendments Act of 2008 (FAA). The law drastically modifies the Foreign Intelligence Surveillance Act of 1978 (FISA), granting the government largely unfettered access to all communications flowing in and out of the country without meaningful judicial review. The FAA also grants complete retroactive immunity to telecommunication companies who were complicit in President Bush’s unconstitutional and illegal domestic spying program.

NACDL’s mission is to ensure justice and due process for persons accused of crime, including the right to attorney-client confidentiality, which is essential to the criminal justice system. The FAA impairs the ability of defense attorneys to confer with clients and witnesses both inside and outside the United States.

In 2005, the New York Times revealed that shortly after September 11, 2001, President Bush secretly authorized the National Security Agency (NSA) to begin intercepting the telephone and email communications of American citizens and others inside the United States, without a warrant and in violation of the First Amendment, the Fourth Amendment, and FISA.

ACLU v. NSA

In 2006, NACDL joined with the ACLU, the Council on American-Islamic Relations, and other named plaintiffs in the first federal challenge to the president’s domestic spying program. The complaint sought declaratory and injunctive relief to force the NSA to cease and desist warrantless interception of American’s electronic and telephone conversations. NACDL Past President Nancy Hollander and NACDL member-plaintiffs Joshua Dratel and William Swor testified that the NSA program cast a pall over the investigation and preparation of any defense by subjecting lawyers’ candid and confidential conversations with their clients, with their experts, with other lawyers, and with potential witnesses to warrantless eavesdropping without any judicial or other independent oversight.

In August 2006, U.S. District Court Judge Anna Biggs Taylor agreed with NACDL and held the NSA program unconstitutional under the First and Fourth Amendments and separation of powers doctrine, and unlawful under FISA and the federal Wiretap Act (Title III). Judge Taylor found that, “[t]he ability to communicate confidentially is an indisputable part of the attorney-client relationship,” and that the secret program “creates an overwhelming, if not insurmountable, obstacle to effective and ethical representation.”

In July 2007, however, the 6th Circuit overturned Judge Taylor’s decision. The court found that none of the named plaintiffs had standing to challenge the warrantless spy program since the NSA could not be compelled to divulge which Americans it had illegally spied on. NACDL and the ACLU petitioned the U.S. Supreme Court to consider the 6th Circuit decision, but in February 2008, the Court denied certiorari.

The Protect America Act

On August 5, 2007, President Bush signed the Protect America Act of 2007 (PAA) into law. The Act amended FISA to remove the protection against domestic warrantless surveillance provided the surveillance is “directed at” a person overseas, effectively allowing the NSA to scoop up all communications coming into or out of the United States without meaningful oversight. NACDL strongly opposed the PAA, which contained virtually no protections for the U.S. end of the phone call or e-mail, leaving decisions about the collection, mining and use of Americans’ private communications up to this administration.

Working with a broad collation of organizations, NACDL repeatedly petitioned Congress to allow the PAA to expire and hold the telecommunication companies responsible for breaking the law:

The FISA Amendment Act of 2008

In 2008, Congress passed the FISA Amendments Act of 2008 (FAA), signed into law by President Bush on July 10. The FAA renewed many of the controversial and unconstitutional provisions of the PAA, permanently gutting privacy protections and weakening court checks on government spying. Like the PAA, the FAA expanded executive authority to approve – without a warrant – the wholesale, untargeted electronic surveillance of U.S. citizens, regardless of whether they have a suspected connection to terrorism. In addition, the Act provides retroactive immunity to the telecommunication companies that participated in President Bush’s illegal domestic surveillance program.

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