The federal government's electronic eavesdropping continues under the new presidential administration
"Now under the new law, the FISA court is looking at bulk surveillance under which the government doesn't specify who it's going to wiretap, which phone numbers it's going to monitor, or which e-mail addresses it's going to surveil. All the government has to say to the court is that the targets of its surveillance are overseas. Once the government has said that, the court just checks a box and grants permission. So insofar as Americans engage in international communications, this is a law that gives the government carte blanche to monitor those communications," explained ACLU National Security Project Director Jameel Jaffer.
Civil liberties advocates say this unchecked eavesdropping power violates the Fourth Amendment, which protects against unreasonable searches and seizures. Yet the Obama administration is "aggressively defending the FISA Amendments Act," Jaffer said. It is arguing that the courts don't even have a role in evaluating the constitutionality of the government's surveillance activities.
A brief filed by the Justice Department in January 2009 maintains that the FAA "strikes a reasonable balance between the critical intelligence it serves and the privacy interests of Americans it indirectly affects," and that "plaintiffs' arguments from the start have rested on speculation and surmise." In short: trust in the government's good faith for not abusing its power.
Another worrisome aspect of the FISA Amendments Act is the immunity from liability it retroactively granted to telecommunications carriers that assisted the government in carrying out its warrantless wiretapping program before Congress consented to it.
In January 2006, Klein gave EFF critical engineering documents proving that AT&T, his former employer, let NSA access its 611 Folsom St. office building to tap into its Internet data flow to duplicate it and send it to a secret room the agency controlled. That included e-mails, Web browsing, voice-over Internet Protocol (VoIP) phone calls, pictures, and streaming video, be they international or domestic.
Thanks to this installation, anything transmitted on the AT&T network was swept by the NSA. And there were clues that the San Francisco secret room was just one in a series set up all over the country. In his book, available on Amazon, Klein gives an account of his personal protest and involvement in the case spearheaded by EFF against AT&T.
Klein tells how he figured out what the San Francisco room was about, how he struggled to get the story out, and how he tried in vain to inform Congress. But following approval of the FISA Amendments Act, the lawsuit was dismissed in June 2009, along with 32 other similar cases brought by customers against their telecommunications service providers.
"The surveillance system now approved by Congress provides the physical apparatus for the government to collect and store a huge database on virtually the entire population, available for data mining whenever the government wants to target its political opponents at any given moment — all in the hands of an unrestrained executive power. It is the infrastructure for a police state," he wrote. According to his sources, the equipment is still in place. Security even has been beefed up at the Folsom Street building where he used to work: the entrance to the entire floor where the diversion device is inserted is now restricted.
EFF is appealing the dismissal of the AT&T lawsuit, arguing that the communications companies' amnesty is unconstitutional in that it grants to the president broad discretion to block the courts from considering the core constitutional privacy claims of millions of Americans. Officials with the Justice Department told us they wouldn't comment because of the ongoing litigation.