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Privacy advocates fight for ground lost after 9/11

Five years after surrendering privacy for security, many challenge the scope of US government domestic surveillance.

By Staff writer / April 3, 2007


The trade-off was one plenty of citizens and lawmakers willingly made after 9/11: less individual privacy for better national security. Five and a half years later, many are rethinking, even challenging, the government's expanded use of surveillance inside the US, spurred by revelations about the scope and number of new programs.

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Among them:

•An FBI finding that agents "misused" their authority to obtain national security letters, which allow the bureau to collect information about someone's telephoning, reading, and buying habits. Congress is considering whether to revoke or limit the FBI's authority.

•News that the New York Police Department created hundreds of secret files on people who planned to protest at the 2004 Republican National Convention. Some protesters have sued the city and NYPD over the matter, and a federal judge is now weighing whether the police must release all those files.

•A lawsuit to halt the National Security Agency's electronic eavesdropping program, which had allowed the NSA to listen in on some Americans' phone conversations without first obtaining warrants.

During times of crisis, from the Civil War to the Vietnam War, the Fourth Amendment right to be free of "unreasonable searches and seizures" has lost some ground. Today is no exception. The 9/11 terror attack created, in the words of former congressman and 9/11 commission vice chairman Lee Hamilton, an "astounding intrusion into the lives of ordinary Americans."

But now, he says, things are beginning to change. "Since 9/11 ... the security folks have won all of the arguments," Mr. Hamilton said during a phone interview. "But now you're beginning to see some push back in the media, the courts, and in Congress."

Below is background on key government programs – at least those that are known – to try to ferret out individuals who may pose security threats inside the US.


What's happened: In 1978, Congress granted the FBI the authority to send national security letters to companies, asking for information about the spending habits of people suspected of being foreign spies. Cooperation was voluntary. That changed in 1986, when Congress gave the FBI the authority to make companies comply. In 1994, the scope of NSLs was expanded to include anyone who had access to classified material.

After 9/11, the Patriot Act broadly expanded the use of NSLs, this time allowing the FBI to use them to obtain information on anyone – American or not, suspect or not – if the information could be relevant to an investigation on terrorism or espionage. Individuals served with NSLs are also forbidden to tell others they received a letter, although they can appeal.

Who's affected: The number of NSLs increased from 8,500 in 2000 to 147,000 between 2003 and 2005, according to the inspector general of the Justice Department.

For it: The FBI says that NSLs are an indispensable investigative tool that can help identify suspected terrorists. "Through the use of NSLs, the FBI has traced sources of terrorist funding, established telephone and e-mail linkages that resulted in further investigation and arrests, and arrested suspicious associates with deadly weapons and explosives," FBI Director Robert Mueller told the Senate Judiciary Committee last week.

Against it: Civil libertarians say that NSLs give the FBI unconstitutional latitude to obtain a person's private information without getting proper court review. They also the NSL gag orders violate the First Amendment. A recent inspector general's report found that the FBI has misused its authority to issue the letters, has an inadequate system for collecting the requested data, and had underreported to Congress the number of NSLs issued.

"You have a system that's badly broken, where the evidence isn't being collected or used effectively," says Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland.

Where it stands: The American Civil Liberties Union challenged the constitutionality of NSL gag orders and won. The government is appealing the case. Congress is currently holding hearings on the FBI's mishandling of the NSLs.