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In the aftermath of the September 11th terrorist attacks on the United States, an initiative that became known as the Patriot Act saw its creation. Spearheaded by President George W. Bush, the Patriot Act enabled government agencies and agents much looser means of obtaining information and carrying out missions. The FISA courts, clad with concrete walls and windowless rooms deep within guarded government buildings, became the outlet for these actions. Agencies received approval for warrants and wiretaps, among other things, under the federally sealed authority of these courts. These were the channels authorized by the Patriot Act for receiving such approval and warrants. However, as the Patriot Act was set to expire, and members of the United States government sought its re-enactment, an internal investigation was held to gauge the Patriot Act’s effectiveness and legality. Led by Inspector General Fine, government agencies such as the FBI were found to be ignoring the channels provisioned by the Patriot Act in seeking “legal” warrants. Often serving the telecommunication companies with demands for wiretaps sans warrants, civil liberties were put in question and the legality of the governments and the telecommunications actions were beginning to be questioned.

Due to a multiplicity of factors, the major telecommunication companies have long had to comply with and provide access to governmental institutions for wiretaps. Perhaps out of fear or some mutually agreeable terms between the telecoms and the government, the telecommunication companies have allowed access to switchboards, rooms, and equipment. Most notable a few years ago, an ex-AT&T employee who worked out of the San Francisco switching office revealed the truth of a “hidden room” on the sixth floor of the building, a room which was occupied by the United States government, one which required government access to enter, and one filled with routing equipment that fed into the main trunks and switches of public communication lines, directing all traffic to massive main frames within the United States intelligence community for flagging and review. These recent events in the aftermath of the September 11th attacks have created a far more zealous wiretapping campaign both abroad and within the American borders, raising questions as to the legality of such actions and the effectiveness of such intrusions on the fundamental rights to privacy established by the Constitution.

The Patriot Act, FISA Courts, and warrantless wiretappings have been becoming of growing interest and concern to civil liberty groups, Congress, and citizens living within the United States. The actions of the intelligence, surveillance, and policing forces of our government have often been found to infringe on the fundamental rights granted us as American citizens by the Constitution. In internal audits and investigations commissioned by Congress, an Inspector General found that in over 60% of the time a telecommunication wiretap was carried through, no filing had been recorded or permission granted by the FISA court, the channel required by the Patriot Act and various other federal laws to be granted a wiretapping warrant. Telecommunication companies have (be it out of fear, governmental support/funding, or something else) complied for the most part with these federal wiretapping requests. AT&T Wireline department was found to have gone as far to have a secret surveillance room on a floor in their San Francisco switching office that routed all communication traffic through government equipment for post, analysis, storage, recording, and wiretapping. As a result, the government was blatantly recording and having access to any communication traffic they wished, rather than going after, through legal means, one person or phone line of interest or that was under investigation. This clear disregard and apparent illegality is alarming, and raises grave concerns over the operations of this government. Why hasn’t there been more oversight into this facet of government operations. What needs to be done more to protect the freedom of speech and right to privacy? And furthermore, what needs to be done to restore law and order to governmental operations and require legal means of obtaining warrants for wiretappings?

Secondary research material has revealed so far some very interesting points regarding this matter. Some advocates argue that these actions are essential in the ever-present fight on terrorism. Others in disagreement with the practices of the government and telecommunication companies argue that much like the red scare created widespread panic and fear of communistic influence, the war on terror is creating a far too overzealous campaign within the Bush administration and intelligence community of the United States. It took a former AT&T employee of the San Francisco switching office to reveal the installation and operation of this “secret room” that required government granted security authorization to enter (and know of its existence). As a result of this eye opening, news groups have been reporting ever since of the illegal activity as perceived by society of the government. Groups like the ACLU have repeatedly and are continually trying to squash these warrant-less wiretaps and restore civil liberties to Americans.

It is necessary to understand the complexities of the Patriot Act and its provisions, for most in Congress weren’t even aware of such at the time of its passing. My intention is not to present yet another upset American’s viewpoint regarding the matter. My hope is to uncover the way the government is truly operating, the steps they are taking as compared to the steps they should be taking pursuant to the Patriot Act, the Constitution, and numerous other state and federal laws and regulations. Further research into these procedures and processes is required to attain a real understanding of where things are going wrong, which will hopefully lead to subsequent resolutions to these matters. I hope to engage the history of wiretappings, their inherent necessity in crime fighting, with the proper procedures provided by the laws, and argue for and against certain law that may be, to put it plainly, simply far too overzealous in its true intentions. Former U.S. Senator turned Law and Order District Attorney of New York, Fred Dalton Thompson was given a campaign slogan of “Law and Order.” That is what I intend to engage, a balance between law and order, a balance that has clearly yet to be obtained. Combining actual law with internal audits and Congressional reports will be important in gauging how effective these new anti-terror fighting laws have been, and to what extent they have been followed. Societal response is also very important in issues involving telecommunications and wiretappings. Blogs, news articles and investigative reports will serve to integrate this element into my research. If society weren’t at all concerned with this issue, there would be no news or eyebrows raised at the actions of the government and telecommunication companies. There clearly is a sense of concern publicly and within Congress itself, perhaps realizing their mistake post-Patriot Act.

[image via Review Journal and PureGarlic]

Bare with me as this is a long one. Take it in pieces, take it in strides. What it tells you is of a government program, unethical in nature, that is for the most part, not even followed. The issues at hand are not primarily regarding the FISA courts nor the warrants that they issue for wiretaps. The issue today revolves around one thing – Carnivores.

A system implemented by the FBI, Carnivore is designed to -

monitor email and electronic communications. It used a customizable packet sniffer that can monitor all of the target user’s Internet traffic.

The problem is that these Windows-based workstations are installed at ISP’s and large businesses across the nation. They perform one task, albeit a large one. These systems route a copy of all traffic flowing through them to what has arguably become the world’s largest database, somewhere within the confines of a government, for tagging, analysis, and review. The government no longer has a problem of getting the electronic information from the Internet – it has the problem of trying to find specific information from within the vast array that is our personal communication.

These systems have become of increasing importance in the Bush-era Patriot Act realm as well as in conducting warrantless wiretappings. [see NYTimes article] But as one Los Angeles Times article points out,

As more Americans are watched, fewer cases are made. The trend concerns civil liberties groups as well as some lawmakers and legal experts.

And with full compliance between the government and many of the nation’s ISP’s and telecommunication providers, the issue is becoming of increasing importance. The government, who, just for kicks, controls many of the licenses and spectrums that telecoms use to operate their networks, carries with itself leverage to obtain cooperation with the major telecommunication companies.

Fast forwarding from this article to today, Congress has passed legislation offering retroactive immunity to those telecommunication companies that provided “assistance” to the federal government in these wiretapping programs. It is clear that this topic is far from over. [see also San Francisco Chronicle article]

Anyway, as I digress, below is a research project I completed last year for school. The above is a continuation of my research post-completion. Read it. Enjoy. Divulge and reflect. Or whatever… (and for the lazy in you, I am going to post my prospectus of the assignment next – quick one page summation of the project that grasps the general concepts of the ideas and revelations expressed below)

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A Sleuth of Secrecy

In the aftermath of the September 11th terrorist attacks on the Untied States that took the lives of thousands, an initiative that became known as the Patriot Act saw its creation. Spearheaded by President George W. Bush’s administration, the Patriot Act enabled government agencies and agents much looser means of obtaining information and carrying out missions. The Foreign Intelligence Surveillance Courts, or FISC, (a provision of the Foreign Intelligence Surveillance Act [FISA] which dates back to 1978), clad with concrete walls and windowless rooms deep within restricted Justice Department buildings, became the outlet for obtaining such warrants. Agencies received approval for warrants and wiretaps, among other things, under the federally sealed authority of these courts; the channel which received renewed authority in 2001 by the highly controversial Patriot Act. [NSA image via MWCNews]

However, as the Patriot Act was set to expire, and members of the United States government sought its re-enactment, an internal investigation was held to gauge the Patriot Act’s effectiveness and legality. Led by Inspector General Fine, government agencies such as the FBI were found to be ignoring the channels provisioned by the Patriot Act in seeking “legal” warrants. Often serving the telecommunication companies with demands for wiretaps sans warrants, civil liberties were put in question and the legality of the governments and the telecommunications actions were beginning to be questioned. These actions raise several important questions. Do the NSA and various other intelligence communities/agencies have explicit rights to simply go into a switching office and re-route all traffic to government recording equipment, essentially recording any traffic it wishes, then passing that traffic on to the other end of the communication circuit? Where do the big name telecommunication companies stand with regard to these issues? Do they have the ability to, as communication companies, decline a FISA court decision mandating government access to this communication traffic? In efforts to protect the telecoms and preserve a future of relations, the President has begun an initiative that would grant legal immunity to these corporations. What is the status of the President’s actions to grand this legal immunity? What sorts of immunity will this create, and how will it impact America and its citizens? The various actions of both the United States Government and the major telecommunication companies have raised numerous ethical, constitutional, and legal questions. In engaging the history of wiretappings, their inherent necessity in crime fighting, with the proper procedures provided by the laws and Constitution of this country, there is an inability to fight for the actions and laws briefly outlined, both of which are the foundation for what has become a far too overzealous anti-terrorism fighting campaign.

The Patriot Act, FISA Courts, and warrantless wiretappings have been becoming of growing interest and concern to civil liberty groups, Congress, and citizens living within the United States. The actions of the intelligence, surveillance, and policing forces of our government have often been found to infringe on the fundamental rights granted us as American citizens by the Constitution. It took Mark Klein, a retired AT&T communications technician, to reveal the secret installations the government was installing and using in eavesdropping across American telecommunication networks, including voice and Internet installations. [pictured at right is the controlled access door to the secret routing room, via Wired] According to Klein’s affidavit in the Electronic Frontier Foundation’s lawsuit filed shortly thereafter, AT&T provided the National Security Agency with “full access to its customers’ phone calls, and shunted its customers’ Internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center.” (Singel n.p.) In doing such, AT&T is alleged to have violated federal and state laws by surreptitiously allowing the government to monitor phone and Internet communications without warrants.

As a result, the government was blatantly recording and having access to any communication traffic they wished, rather than going after, through legal means, one person or phone line of interest or some entity that was under investigation. This clear disregard and apparent illegality is alarming, and raises grave concerns over the operations of this government. Why hasn’t there been more oversight into this facet of government operations. What needs to be done more to protect the freedom of speech and right to privacy? It is not that there are no satisfactory means of obtaining legal warrants, but rather that the intelligence agencies find the warrants inhibitive; ironic as warrants are just that, they offer a check and balance in the search process so as to protect the Constitutional rights of American citizens.

Various legal issues arise from this AT&T secret room, one which Klein soon found to not be unique in its existence, as several similar installations existed across numerous other major metropolitan cities’ switching offices throughout the nation. But does the NSA have explicit rights to go in and re-route all traffic to these government eavesdropping equipment? The Bush administration seems to think so, maintaining that “the authorized intercepts are not domestic but rather ‘foreign intelligence’ integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF),” a document that interestingly enough, lacks any mention of surveillance. (Figliola 1-17 and U.S. DOJ 1-42) Senators Lindsey Graham and Arlen Specter, both conservative Republicans, find the Bush administration’s use of the AUMF for justification to be ludicrous.

Scholars similarly tend to disagree, rejecting the Bush administration’s position, unanimously concluding the illegalities of the warrantless wiretapping program. Philip B. Heymann, a Deputy Attorney General in the Clinton administration and current professor of law at Harvard University argues against claims by President Bush and former Attorney General Alberto R. Gonzales that NSA spying is constitutional and that surveillance warrants are “often too cumbersome to obtain.” (Eggen n.p.) Heymann argues, “The only reason to do what they’ve been doing is because they wanted a lower standard than ‘probable cause.’” The probable cause clause references a requirement in the FISA warrant application process. Yet, despite various avenues of legal acquisition for these wiretapping warrants, the Bush administration continues along the same path, similarly rejecting a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.

Despite all of the negative press clouding this issue, there are some scholars that raise legitimate arguments for the government’s actions. Nola Breglio, a contributor to The Yale Law Journal argues that the FISA courts sealed warrants create a “conceptual mess.” From a crime-fighting standpoint, Breglio is dead on; obtaining sealed warrants, often for an individual or group that spans multiple jurisdictions and localities, hampers legal procedures. But are these actions even legal? The Patriot Act explicitly grants the authority to issue warrants to the FISC, with probable cause stipulations and safeguards. Breglio’s argument for the continued warrantless wiretappings seems convincing from a crime-fighting stance, but cannot be justified by any legal precedence. Wiretaps must be subjected to the rigorous review process of Department of Justice officials in all FISA applications. (Breglio 26-30)

These warrantless wiretaps have sparked a fierce political and legal battle over the NSA monitoring program. In internal audits and investigations commissioned by Congress, Inspector General Fine found that in over 60% of the time a telecommunication wiretap was carried through, no filing had been recorded or permission granted by the FISA court, the channel required by the Patriot Act and various other federal laws to be granted a legal wiretap. (Committee on the Judiciary 1-26) Due to a multiplicity of factors, the major telecommunication companies have long had to comply with and provide access to governmental institutions for wiretaps, though they may not be so willing to admit such actions. Company installation and monitoring records that have surfaced through various ACLU and EFF lawsuits reveal that these government-monitoring systems are not something new; in fact, they existed pre-September 11th, 2001. Records show that SBC (which has since merged with AT&T) had government eavesdropping installations installed sometime in early 2000. (Cauley n.p.) These pre-9/11 installations raise questions to the way the intelligence agencies and the United States government have been operating. It seems they may be using the terrorist attacks and war on terror to justify their eavesdropping operations, operations that have long been the norm for conducting wiretappings and gathering information and intelligence domestically. [pictured to the right are Sen. Christopher Bond (R-Mo.)and Sen. Mitch McConnell (R-Ky.) speaking to reporters about the chamber's expansion of the surveillance via Washington Post by AP]

Investigative reporters for Bloomberg News and USA Today also uncovered that the NSA has secretly been collecting the phone call-detail records (or CDR’s) of millions of Americans, using data provided by AT&T, Verizon and BellSouth. These CDR’s came with a price, a major incentive the NSA offered the telecommunication companies in exchange for the CDR logs, which contain inbound and outbound connection numbers, day and time of call, as well as duration. This program was independently verified through multiple sources (all of whom remained anonymous due to the highly sensitive nature of the information) to have begun seven months before the September 11th terrorist attacks in 2001. (Harris n.p.)

Chip Pitts, a member of Stanford’s School of Law, has long been in opposition to the illegalities committed by both the government and the telecommunication companies. He argues that “telecommunication companies like AT&T have long and profitably assisted the NSA, and as technology has shifted…[the telecoms] have helped the NSA exploit these [new trends].” (Pitts 1-3) The telecoms are receiving financial, legal, and judicial support from the government in exchange for this transfer of information to NSA mainframes for data mining and analysis, and as such, telecommunication companies have no incentive to protect the information traveling through its trunk lines and fiber optics. This poses quite possibly the largest threat to the preservation of civil liberties, one in which the major telecom corporations of this country may use and abuse for economic gains. With no oversight programs in place, these monitoring installations inherently will be abused. When probed about these allegations, telecommunication companies are unanimous in their responses. AT&T answered saying, “We do not comment on matters of national security, except to say that we only assist law enforcement and government agencies charged with protecting national security in strict accordance with the law.” Verizon, the number two telecom company in America behind AT&T, gave the following statement: “We do not comment on national security matters, we act in full compliance with the law and we are committed to safeguarding our customers’ privacy.” And BellSouth responded by saying, “BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority.” (Cauley n.p.) What law is it that all three companies are referring to? It is clear that both the Bush administration and the major telecoms are referencing false standards of legal authority that they believe grants them the power to issue warrantless wiretaps.

The truth is, that under Presidential directive, a corporation may issue falsified statements regarding ongoing operations of national security measures, protocols, and issues. Bringing this into perspective, it is estimated that there have been over two trillion call-detail records generated since 2001, the majority of which reside in what has become the largest database ever created, worldwide. (Schmitt n.p.)

In response to the growing spotlight on the telecommunication companies, President Bush has been working on creating an extension to the Communications Assistance for Law Enforcement Act of 1994 (CALEA) earlier this year to offer full judicial immunity to the telecoms in their “assistance in national security matters.” Congressional response to Bush’s proposal to revise the Foreign Intelligence Surveillance Act has not issued such approval. The revisal would grant retroactive immunity to telecom companies from lawsuits stemming from alleged surveillance activities. The U.S. House of Representatives passed a bill in March of 2008 without the immunity provision sought by the Bush administration. James X. Dempsey, Executive Director for Democracy and Technology argues along parallels to the Houses’ bill. Enough damage and misuse already exists within the Patriot Act that granting immunity towards its provisions accomplishes nothing more than creating a larger mess. (Baker and Kavanagh 18-22)

It appears that for the time being, Congressional consensus is not in favor of granting immunity to those parties involved in the Bush administration’s policies and actions. Were retroactive immunity to be established, no party would be held liable for issuing and permitting warrantless wiretaps, and Americans would be living in a country with a clear absence of Amendment I and IV to the United States Constitution. Through political and economic pressure, citizens could revolt against the government and telecoms if immunity were ever granted by ceasing telecom service. Perhaps switching exclusively to VoIP services, which still are susceptible to interception and eavesdropping depending on the Internet service provider’s compliance policies, would threaten the revenue of the major telecoms to a point that would cease their involvement with the Bush administration’s eavesdropping tactics. The looming possibility of an upcoming change of political party in the oval office may offer substantial changes to policy and operations as well. The Bush administration has certainly created a divide within the Republican Party, splitting support not along party lines but within party boundaries as well. Will these eavesdropping and surveillance programs continue post-Bush administration? Presidential Candidate and Senator John McCain just this week issued a statement reserving the right to run his own warrantless wiretapping program against Americans, citing political theory that a president’s wartime powers supersede federal criminal statutes and most importantly, court oversight, an element that President Bush avoided during a five-year end-run around the FISA courts. (Singel, n.p.) This new statement is a stark reversal of his previous criticism of the Bush administration’s program, raising many questions with regards to domestic and foreign monitoring programs post-Bush administration. Change is likely eminent once a new administration enters office; how drastic depends on the President elected. [image via Review Journal]

It is necessary to understand the complexities of the Patriot Act and its provisions, for most in Congress weren’t even aware of such at the time of its passing. My intention was not to present yet another upset American’s viewpoint regarding the matter, but rather to uncover the way the government is truly operating, the steps they are taking as compared to the steps they should be taking pursuant to the Patriot Act, the Constitution, and numerous other state and federal laws and regulations. Further research into these procedures and processes has revealed several missteps and illegal operating procedures.

Despite vast legal precedent established and channels of authorization available to law enforcement officials to seek warrants for wiretappings of American switchboards, it has become clearly evident that this is a problem that has grown rapidly and exponentially. Breaking the First and Fourth Amendments of the United States Constitution, it has no longer become just a matter of unethical practices. The Bush Administration has elicited the cooperation of the telecom companies in practices that have grown to infringe upon and invade the civil liberties of billions of people, worldwide. The collective actions between the intelligence departments, the United States government, and the telecommunication corporations make for the potential of a problem that evolves from more than just a legal and civil liberties debate. Social ramifications are quickly becoming a facet of the social Web 2.0 sphere that the government, among others, is taking a keen interest in.

Much like the red scare a few decades ago and the subsequent panic and fear of communistic invasion, the war of terror is a result of a far too overzealous campaign within the Bush administration and supported for economic and business reasons by the major telecommunication corporations. There clearly has yet to be a balance of law and order established, a problem that roots to capitalistic corporations and misguided legal precedent by leadership and government agencies.