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Marc Rotenberg Harvard Law School
By President, Electronic Privacy Information Center
Special to msnbc.com
updated 10/16/2006 5:07:17 AM ET 2006-10-16T09:07:17
COMMENTARY

After the November election, Congress will return to Washington for a "lame duck" session and take another look at the president's domestic surveillance program. One bill has passed the House and others are pending in the Senate. The administration has appealed a court decision which said that the program violates federal privacy law and the Constitution. And the Supreme Court's end of term opinion in Hamdan makes clear that the president's claims of unlimited authority will be a non starter.

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This is an important debate for Congress and the public but critical information about the effectiveness of the wiretap program, the cost, and the impact on privacy is simply not available. As the administration has expanded its monitoring of the American public, it has pulled a shroud of secrecy around its own surveillance activities.

It was not always this way. When Congress passed the law that permitted phone taps in the United States it set in place an elaborate system of oversight. Lawmakers understood that a search of electronic communications, unlike a physical search, was much more intrusive. Evidence of a crime – the gun, the drugs and the forged documents -- can be described with precision in a warrant. But communications interception is the opportunity to listen in on many people talking about many different subjects, much of it unrelated to any criminal activity. Congress set out to ensure that this power would not be misused and it described electronic surveillance as “an investigative method of last resort.”

In exchange for the authority to conduct wiretaps, Congress required the police to complete detailed applications and testify that other investigative techniques, such as interviewing witnesses or gathering physical evidence, would fail. Agents had to name the target of the investigation, the type of communication that would be intercepted and the suspected crime. Agents were also required to throw out any communications that were not specifically related to the investigation. And targets were eventually notified that they had been subject to legally authorized surveillance.

Extensive reports required
Congress also required extensive annual reports. Every federal judge who authorized a warrant for a bug or a tap had to provide a report about the reason for the wiretap and the outcome. Judges reported on the duration on the surveillance and whether extensions were granted. Those reports were collected and made available to the Congress and the public. A typical wiretap report is about 200 pages.

None of these requirements jeopardized individual investigations. In fact, with clear legal rules for collecting electronic communications, prosecutors could present evidence in a court without fear that a judge would toss it out. (Before passage of the federal law, the police could wiretap but the evidence was not admissible.)

Back in the 1990s, we made a point of posting these reports on the Internet so that lawmakers, academics and advocates would be able to evaluate the various wiretap programs. There was, for example, a debate about whether telephone companies should be required to make networks wiretap friendly. The FBI claimed that wiretapping was a critical investigative tool in certain cases such as kidnapping. The public was understandably concerned. But a quick review of the published wiretap reports made clear that the police hardly ever used wiretaps in kidnapping cases. The annual wiretap reports also helped reveal an interesting trend in the 1990s toward increasing surveillance by the federal government as compared with the states.

And when law enforcement contended that encryption was placing new obstacles to electronic surveillance, a reporting requirement was added to test that proposition. According to the most recent report, “In 2005, no instances were reported of encryption’s being encountered during a federal wiretap.” As for the wiretapping authorized by state courts, the report noted there were “13 instances in which encryption was encountered in wiretaps terminated in 2005; however, in none of these instances did the encryption prevent law enforcement officials from obtaining the plain text of communications intercepted.”

No meaningful debate
Since 9-11, it has been virtually impossible to have a meaningful debate in the United States about the effectiveness of electronic surveillance or the cost to privacy. The administration has turned to specialized laws, national security letters and other means that prevent public scrutiny.

The Foreign Intelligence Surveillance Act, a narrow law passed in 1978 to address the specific problem of Soviet spies in the United States, has become the primary legal basis for the administration’s domestic surveillance. FISA, unlike the original wiretap law, lacks many of the critical safeguards. Even the FISA court has expressed frustration about sloppy applications. And the public report is little more than a one-page fax simply announcing the number of warrants approved.

In 2002, for the first time, more warrants were issued under the Foreign Intelligence Surveillance Act than under the traditional wiretap law. The trend has continued. In 1995, there were 1,058 warrants issued under the traditional wiretap standard and 697 FISA warrants. By 2005 there were 1,773 traditional warrants, but more than 2,000 FISA warrants.

Beyond FISA, the administration has issued thousands of national security letters and undertaken wiretapping without any judicial oversight. It was such a program that a federal judge recently concluded violated federal law and the Constitution.

A wall around a shroud
Other surveillance programs, including the widely reported data-mining of telephone toll records, will not even be considered by some judges because the administration asserts a state secrets privilege, which is essentially putting a lead wall around a shroud of secrecy.

Under these circumstances, Congress might be excused for some frustration. Still, a proposal to leave the FISA Court, a secret tribunal that issues secret orders, with the ultimate decision over the president’s wiretap program is a bad idea. Lawmakers need to do the hard work of assessing the program and ensuring oversight. And part of oversight is making available to the public information about the scope of the government’s surveillance activities.

Surveillance and secrecy are a dangerous mix for democratic government. Without the means to assess the effectiveness of government investigations, all activities become equally tenable. Those that violate privacy and those that don’t. Those that keep the country safe and those that don’t.

The Congress that created the federal wiretap laws understood this. It will be interesting to see whether the Congress that is considering changes to those laws remembers that surveillance without oversight provides neither privacy nor security.

Marc Rotenberg is president of the Electronic Privacy Information Center ( www.epic.org ) and coauthor of "The Law of Information Privacy" (Aspen 2006). He is a former counsel to the Senate Judiciary Committee.

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