Electronic Privacy Movement

Digital technologies such as cell phones, the Internet, and other electronic communications are a ubiquitous feature of everyday American life. Many of these new technologies have exponentially increased the ability to observe, record, and map personal information about the daily activities of American citizens. Increasingly sophisticated electronic surveillance systems can now track who Americans call and e-mail, what they buy, and even what they search for on the Internet. Although the collection and sharing of personal information by governmental and corporate [Page 516]entities has become a routine part of life in the Information Age, these practices inevitably raise serious questions about privacy rights and civil liberties for all American citizens.

Recent events in the news media demonstrate the import of the electronic privacy issue for lawmakers, concerned citizens, and organizations charged with protecting American civil liberties. Increasingly concerned with anticipating, deterring, and managing terrorist threats, the U.S. government has invested billions of dollars in digital technology initiatives to surveil and eavesdrop on potential terrorists. Despite governmental assertions that its increased electronic surveillance applies only to suspected terrorists and their activities, many of the technologies initially implemented in the name of national security, such as public video surveillance and data mining, are having a deleterious impact on the privacy rights of the citizenry they were designed to protect. After the 9/11 attacks on the United States, resistance to governmental intrusion into the private electronic communications of American citizens was muted because homeland security was of the highest priority. Since that time, however, revelations that the government secretly engages in widespread, warrantless surveillance of the phone records and Internet activities of thousands of ordinary American citizens have fueled a powerful backlash by the electronic privacy movement.

Historically, there has always been an intrinsic conflict between the need to protect Americans from possible threats versus the requirement for restrictions on governmental surveillance. Identity and surveillance infrastructures in the United States date back to colonial times, when indentured servants and slaves were inventoried and tracked in the same way that land, tools, and animals were recorded and catalogued. Today, the Fourth Amendment to the Constitution states that an American's privacy may not be invaded without a warrant supported by probable cause. The 1967 U.S. Supreme Court case U.S. v. Katz found that Fourth Amendment privacy protections specifically include wiretapping by the government and that privacy may not be invaded without a search warrant. Regarding electronic surveillance, Congress has legislated only three laws authorizing any exceptions to the prohibition on eavesdropping by the government, stating that these three laws are the exclusive means by which domestic electronic surveillance can be legally conducted. They include the statutes Title III and the Electronics Communications Privacy Act, which govern domestic criminal wiretaps, and the Foreign Intelligence Surveillance Act (FISA) of 1978, which requires that a special Foreign Intelligence Surveillance Court oversee government wiretapping and surveillance to ensure that Americans without ties to foreign terrorist organizations are not the targets of spying. The interception and disclosure of wire, oral, or electronic communications is strictly prohibited by FISA unless a warrant is obtained beforehand or the court is notified within 72 hours. Despite these legal restrictions, officials at the highest levels of the George W. Bush administration contend that domestic electronic surveillance, including that conducted without a warrant, is constitutional, effective, and necessary to protect Americans from terrorist attacks. The Justice Department contends that its spying activities are legal, pointing to legislation such as the USA Patriot Act of 2001, the Congressional Authorization to Use Military Force against those responsible for the 9/11 terrorist attacks, and the Communications Assistance for Law Enforcement Act (CALEA) of 1994, which requires telecommunications carriers to cooperate in the interception of communications for law enforcement purposes. Civil liberties organizations and proponents of electronic privacy counter that secret, warrantless eavesdropping by the government inside the United States is a clear violation of Fourth Amendment safeguards against illegal search and seizure and of the surveillance provisions explicated by FISA.

...