The editors at Who Called My Phone decided to research this topic:
From the Bill of Rights to Edward Snowden, there has always been a battle between the right to privacy and the prying eyes of the government. Should privacy be compromised for security, or security for privacy? Following are some key events that took us from the Fourth Amendment to Prism.
1791 – The Fourth Amendment to the Constitution
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
1844 – The invention of the Morse Telegraph
1876 – The invention of the Telephone
1888 – “Strowger Selector” Cuts Out Phone Operators
Invented by funeral parlor owner, Almon Strowger, the “Strowger Selector” replaces telephone operators as first automatic telephone switching system. Almon Strowger was convinced that a rival undertaker’s wife was, in her role as a telephone switchboard operator, transferring calls from his business to her husband’s. The “Strowger Selector” cut the operator out of the connection.
“I am often told that the telephone girls will be angry to me for robbing them of their occupations. In reply, I would say that all things will adjust themselves to the new order of change. … The telephone girls replaced the messenger boy as this machine now displaces the telephone girls. Improvement will continue to the end of time, strike where they may.”
1928 – Olmstead v. United States
During the Prohibition, Roy Olmstead, nicknamed “King of the Puget Sound Bootleggers,” was wiretapped without a warrant and convicted. Olmstead appealed to the Supreme Court, but they ruled against him, stating that the 4th Amendment didn’t apply to private conversations that were legally overheard. So, it permitted the tapping of telephone wires without a warrant as long as there was no trespassing.
“The [4th] amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.”
– Chief Justice Taft
1934 – Federal Communications Act
“…no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communications to any person.”
1967 – Katz v United States
Charles Katz was convicted of gambling across state lines via a telephone booth that the FBI bugged without a warrant. Katz appealed to the Supreme Court which ruled in his favor. So, it overturned Olmstead v. United States and made it illegal to eavesdrop if there is a “reasonable expectation of privacy.”
“…an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and…unreasonable in the absence of a search warrant.”
– Justice Harlan
1968 – Omnibus Crime Control and Safe Streets Act
Title III of the Act, also known as the Federal Wiretap Act declared that “wire” and “oral” communication was protected under the 4th Amendment.
“To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.”
Exception: it also stated that the president has the constitutional power to authorize wiretaps
“to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.”
“But the Congress, in my judgement, has taken an unwise and potentially dangerous step by sanctioning eavesdropping and wiretapping by Federal, State, and local law officials in an almost unlimited variety of situations.”
– Lyndon B. Johnson upon signing The Wiretap Act
1969 – Nixon Listens In
President Richard M. Nixon begins recording within his own office and approves the illegal wiretapping of 17 government officials and reporters to figure out who was leaking information to the press.
1974 – Nixon gets caught
July 27, 1974, the House Judiciary Committee approved its first article of impeachment charging President Nixon with obstruction of justice, within the next three days the committee would finalize the second (Abuse of Power) and third (Contempt of Congress) articles. Before the impeachment begins, Nixon resigns.
1978 – Foreign Intelligence Surveillance Act (FISA)
FISA established procedures for requesting judicial authorization for foreign intelligence surveillance, and created a special court, the Foreign Intelligence Surveillance Court (FISC), to authorize wiretaps against agents of a foreign power. Warrantless wiretapping is approved for spying on “foreign powers” or “agents of foreign powers” (which may include U.S. persons) for foreign intelligence only. A secret court is established to approve the surveillance when U.S. persons are involved.
In 2012 there were 1,856 applications to FISC for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.
From 1979-2012 the FISA court has approved 33,942 cases and disapproved 11 cases “It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person’s communications are concerned, by a court order.”
– Jimmy Carter upon signing FISA
1979 – Smith v. Maryland
Michael Smith robbed Patricia McDonough and then began prank calling her. In order to convict Smith, the police obtained the numbers he dialed from the phone company. He appealed to the Supreme Court saying the numbers he dialed were private, but the court ruled against him. So, it ruled that information given to third parties is not protected under the 4th Amendment.
“This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
– Justice Blackmun
1986 – Electronic Communications Privacy Act
Previously, only “wire” and “oral” communication were protected under the 4th Amendment. Now, in the wake of technological growth, “electronic communication” is protected, including stored communications. However, if it’s stored on a remote server, it’s only protected for 180 days…which remains true today.
– The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act are referred together as the Electronic Communications Privacy Act of 1986 (ECPA).
– Effectively, EPCA was an update to the Federal Wiretap Act of 1968, which was written with telephone hard-lines in mind.
– The ECPA was designed to protect the digital and electronic communications rights in an ever evolving world of technology.
– Title I of the ECPA prohibits the intentional, actual or attempted interception, use, disclosure, or “procure[ment] [of] any other person to intercept or endeavor to intercept any wire, oral, or electronic communication,.”
– Exceptions: made for service providers “in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service” and for “persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act (FISA) of 1978.”
1994 – Communications Assistance for Law Enforcement Act (CALEA)
CALEA was designed to ensure that law enforcement agencies would, in the face of growing technology, be able to continue electronic surveillance practices. CALEA required telecommunication carriers to ensure that their equipment and services were capable of the necessary surveillance capabilities as communications network technologies evolved.
“…to make clear a telecommunications carrier’s duty to cooperate in the interception of communications for Law Enforcement purposes, and for other purposes.”
1998 – Tripp Tapes Aide Clinton Impeachment
Former Pentagon worker Linda Tripp secretly records her phone conversations with Monica Lewinsky, revealing her relationship with President Bill Clinton. The tapes later become key evidence used to impeach Clinton
9/11 and its aftermath
2001 – Congress passes the Patriot Act
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
– Just six weeks after 9/11, President George W. Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, The USA PATRIOT Act.
– Title II: Enhanced Surveillance Procedures, of the Patriot Act granted law enforcement and nationalsecurity agencies increased powers of surveillance, and broad authority to share “electronic, wire, and oral interception information” in an attempt to prevent future terrorist attacks.
– Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism
– Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses.
– Sec. 203. Authority to share criminal investigative information
– Sec. 204. Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral and electronic communications.
– Sec. 205. Employment of translators by the Federal Bureau of Investigation.
– Sec. 206. Roving surveillance authority under the Foreign Intelligence Service Act of 1978.
– Sec. 207. Duration of the FISA surveillance of non-United States persons who are agents of a foreign power.
– Sec. 208. Designation of judges.
– Sec. 209. Seizure of voice-mail messages pursuant to warrants.
– Sec. 210. Scope of subpoenas for records of electronic communications.
– Sec. 211. Clarification of scope
– Sec. 212. Emergency disclosure of electronic communications to protect life and limb.
– Sec. 213. Authority for delaying the notice of the execution of a warrant.
– Sec. 214. Pen register and trap trace authority under FISA.
– Sec. 215. Access to records and other items under the Foreign Intelligence Surveillance Act.
– Sec. 216. Modification of authorities relating to use of of pen registers and trap trace devices.
– Sec. 217. Interception of computer trespasser communications.
– Sec. 218. Foreign intelligence information.
– Sec. 219. Single-jurisdiction search warrants for terrorism.
– Sec. 220. Nationwide service of search warrants for electronic evidence.
– Sec. 221. Trade sanctions
– Sec. 222. Assistance to law enforcement agencies.
– Sec. 223. Civil liability for certain unauthorized disclosures.
– Sec. 224. Sunset
– Sec. 225. Immunity for compliance with FISA wiretap.
Sneak & Peek Warrants
– Court orders no longer need the “when” of searching.
– Court orders no longer need the “what” and “where” of tapping.
FISA Bar Lowered
– Allows the FISA court to issue warrants if the purpose is SIGNIFICANTLY about gathering foreign information, instead of the ONLY reason.
– Agents no longer have to prove that a target is a non U.S. citizen or an “agent of a foreign power”.
Easier Access to Things and Records
– Allows for seizure of tangible objects, not just records.
– Authorities can now demand disclosure of customer records from carriers.
– Allows for the use of “pen registers” and “trap & trace” devices for e-mail as well as phone.
– Makes it easier for authorities to access voicemails.
– Operators of a “protected computer” can give authorities permission to intercept communications on the machine.
Easier Information Sharing
– Sharing information between authorities is easier, regardless of need.
– National Security Letters (NSL’s) are the FBI’s requests for information. Recipients of NSL’s are prohibited from speaking about it.
CARNIVORE Officially known as the Digital Collection System 1000 (DCS-1000), Carnivore was a Digital surveillance system developed by the Federal Bureau of Investigation to capture data traffic that flows through an Internet service provider (ISP).
2002 – Bush Approves Wiretaps Without Warrants
President George W. Bush issued an executive order (Terrorist Surveillance Program) that authorized the National Security Agency to collect signals intelligence from communications involving U.S persons within the United States, without obtaining a warrant or court order, in contrast to the Federal Intelligence Surveillance Act (FISA). The Bush administration used the recently passed Authorization for Use of Military Force (AUMF) to supersede the FISA requirements to obtain a warrant.
2005 – Warrantless Wiretapping Revealed
The New York Times broke the story on December 16, 2005 after the Bush administration was seeking a court injunction to block its publication.
“President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the courtapproved warrants ordinarily required for domestic spying, according to government officials.”
– The New York Times, 12/16/2005
The Bush administration began hunting down the leaks with 25 FBI agents and 5 prosecutors.
2006 – The Patriot Act is Renewed
2006 – NSA Mass Call Data Collection Revealed
USA Today reported that since 2001
“The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth…”
– USA Today, 5/11/2006
The metadata collected (Call logs, time references, geographic location) is used to analyze calling patterns in an effort to detect terrorist activity.
2007 – Warrantless Wiretapping ceased
Terrorist Surveillance Program ceased to be renewed due to pressure from the public after its revelation. “Although, as we have previously explained, the Terrorist Surveillance Program fully complies with the law…the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires.”
– Alberto R. Gonzales, Attorney General
2007 – Protect America Act of 2007
The Protect America Act expired after 180 days despite Bush’s attempts to make it permanent. It removed the warrant requirement in FISA and the “foreign agent” requirements, opening the door for domestic spying.
2007 – The Birth of PRISM
Born out of the Protect America Act of 2007, PRISM is an “internal government computer system used to facilitate the government’s statutorily authorized collection of foreign intelligence information from electronic communication service providers”
Recruits its first partner, Microsoft.
2008 – FISA Amendments
The FISA Amendments Act of 2008 was designed to “amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.”
Part of the act is the protection of telecommunications companies from lawsuits for “past or future cooperation with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists.”
“…a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community…”
2010 & 2011 – The Patriot Act Renewed again… and again.
In 2010, President Obama signed a temporary one year extension for elements of the Patriot Act, Obama does so again in 2011 when the previous extension is set to expire.
June 5th 2013 – Verizon Call Data Collected
News breaks that the NSA is collecting telephone records of millions of Verizon customers. The Foreign Intelligence Surveillance Court granted a court order to the FBI on April 25th, allowing the government to obtain data for a three month period ending July 19th. The order dictates that Verizon share the metadata with the NSA on an ongoing and daily basis. At no point are the contents of phone conversations recorded or shared.
Telephony Metadata shared
– Originating and terminating telephone number
– International Mobile Subscriber Identity (IMSI) number
– International Mobile station Equipment Identity (IMEI) number
– Trunk identifier
– Telephone calling card numbers
– Time and duration of call.
“Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C 2510(8), or the name, address, or financial information of a subscriber or customer.”
June 2013 – PRISM Uncovered
On June 6th, 2013 The Guardian and The Washington Post released a story covering the top-secret program PRISM. Detailed in a leaked PowerPoint presentation from April 2013, PRISM is a program centered on the collection of various data from some of the biggest internet brands in the world.
Company and when they joined PRISM
– Microsoft – 2007
– Yahoo – 2008
– Google – 2009
– Facebook – 2009
– PalTalk – 2009
– YouTube – 2010
– Skype – 2011
– AOL – 2011
– Apple – 2012
– Chat – video, voice
– Stored data
– File transfers
– Video Conferencing
– Notifications of target activity – logins, etc
– Online Social Networking details
– Special Requests
Edward Snowden: Whistleblower, Patriot, or Traitor?
June 9th, 2013: The Guardian released an article in which 29-year-old Edward Snowden, a contract employee of the NSA , came forward publicly as the whistle-blower who leaked the information to the press.
“They (the NSA specifically) targets the communications of everyone, it ingests them by default. It collects them in its system, and it filters them, and it analyzes them, and it measures them and it stores them for periods of time simply because that’s the easiest, most efficient and most valuable way to achieve these ends. So while they may be intending to target someone associating with a foreign government or someone that they suspect of terrorism, they’re collecting your communications to do so”
– Edward Snowden in an interview to The Guardian.
“I do not want to live in a world where everything I do and say is recorded. That is not something I am willing to support or live under.”
– Edward Snowden
When dealing with his contacts at the newspaper, Edward Snowden used the code name “Verax,” truth-teller in Latin.