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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.
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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.
2) DOMESTIC SURVEILLANCE BY THE NSA
What's happened: Shortly after 9/11, President Bush signed an executive order that allowed the National Security Agency (NSA), without getting a warrant, to wiretap the overseas communications of people suspected of having contact with Al Qaeda, even if the call ended in the United States. When the story broke in 2005, critics said it was a violation of the Foreign Intelligence Surveillance Act. Passed in 1978, this act established a special court, known as the FISA court, where intelligence agencies could seek approval for wiretaps in national-security investigations. Mr. Bush says that legislation passed after 9/11 gave him authority to supersede the FISA court.
Last year, as result of a suit by the American Civil Liberties Union, a federal district court ruled that the program was unconstitutional. The ruling has been stayed while the government appeals. Although Bush maintains he has the right to order such warrantless wiretapping, the administration announced in January that it was voluntarily putting the program under the FISA court's jurisdiction.
Who's affected: Thousands of people could be involved, but estimates are hard to make because the program is secret.
For it: The administration says the program gives it the speed and flexibility it needs – not only to track suspected terrorists, but also to help establish behavior patterns that could be used in detecting terrorism.
"In this world where bad guys can cross borders in a fraction of a second ... governments need to blow through every barrier to be able to track bad activity really fast," says Jonathan Winer, a terrorism expert who was deputy assistant secretary of State for international law enforcement under President Clinton. "But they also need to do so with rules and oversight and controls."
Against it: In 1967, the Supreme Court ruled that surveillance of communication constituted a "search" as defined by the Fourth Amendment, thus requiring court review.
"The Foreign Intelligence Surveillance Act was passed by Congress in an effort to constrain just the kind of surveillance the president says he's been doing," says Caroline Fredrickson, director of the Washington Legislative Office of the ACLU.
