“Do You Mind If We Listen?” A Short History of Government Surveillance and the Fourth Amendment

This month marks the fifth anniversary of Edward Snowden’s leak of thousands of classified documents that revealed a number of secret surveillance programs run by the U.S. government. They were intercepting Americans’ phone and internet data on a massive scale, without their knowledge and without warrants. Snowden’s actions created a storm of controversy around the legal and ethical issues of government surveillance. How much of our private information are government agencies entitled to?

When the Fourth Amendment became part of the Bill of Rights in 1791, it prohibited “unreasonable” searches and seizures of property without a proper warrant. But as definitions of property and ways to communicate evolved, no one knew for certain how the Fourth Amendment would be affected. When you made a phone call, for example, was the government allowed to listen in?

In 1928, a man was convicted of bootlegging alcohol based on evidence gathered from a tap on his phone line. The case was appealed to the Supreme Court, which decided that the privacy of phone calls wasn’t protected by the Fourth Amendment. Law officers had seized no property, they pointed out. They hadn’t even entered the defendant’s house. The incriminating telephone conversation existed beyond the protection of the home. That ruling stood for nearly 40 years.

By 1967, the Court’s thinking had changed. That year, the justices heard the case of a man convicted of phoning illegal bets across state lines from a public phone booth. They reversed his conviction, deciding that the Fourth Amendment didn’t just prohibit physical intrusion by the government. It was meant to protect people, not property.

The Saturday Evening Post editors took a different position that year, suggesting that worrying about Big Brother was a sign of paranoia, and that the police should be allowed to eavesdrop because it would be likely to lead to “the prevention or solution of crimes.”

But popular and judicial sentiment was going the other way. In 1972, the Supreme Court reaffirmed their earlier decision, unanimously declaring that the Fourth Amendment prohibited the government from warrantless spying on domestic groups, even when they threatened domestic security.  The average citizen was also becoming more aware of the issue, as privacy and wiretaps were in the news that year after the arrest of agents of the Republican Party who were trying to bug the phones in the Democratic Party headquarters at Watergate.

Concluding that government spying had “undermined the constitutional rights of citizens,” the Senate Select Committee on Intelligence was created to regulate surveillance activities. In 1977, the Foreign Intelligence Surveillance Act (FISA) was passed. FISA gave Congress oversight into the surveillance activities of the U.S. government while also maintaining the secrecy needed to carry out these covert operations. A special FISA court was set up to consider requests for surveillance warrants.

Matters might have settled there had it not been for the attacks of September 11, 2001. Congress passed the USA PATRIOT Act that, among other things, expanded domestic surveillance capabilities.

Meanwhile, President George W. Bush authorized a secret intelligence-gathering program through the National Security Agency, circumventing FISA’s authority. In 2005, The New York Times published an exposé of the NSA’s program, which included extensive warrantless tapping of telephones and emails of U.S. citizens. The agency had collected tens of millions of phone records with the help of phone-service providers. In 2007, attorney general Alberto Gonzales told Senate leaders that the NSA program would not be reauthorized.

Two years later, Congress amended FISA with the Protect America Act, which made it easier for government agencies to obtain eavesdropping warrants directed at people “reasonably believed” to be outside the United States. Telecom companies were given immunity from subsequent prosecution for cooperating with the NSA’s program.

In 2013, Edward Snowden, a CIA contractor, leaked classified information about government surveillance. Americans learned that the scope of the government’s electronic spying was far beyond what they imagined. Every day, the NSA received millions of records of phone traffic. It had direct access to Google and Yahoo email accounts, and was connected to the servers of nine major internet firms, including Facebook, Microsoft, and Yahoo.

A federal judge ruled that the NSA’s collection of metadata from phone records violated the Fourth Amendment. He ordered the government to destroy all information gathered, but the action was stayed pending appeal by government attorneys.

Bipartisan reformers, in reaction to these revelations, pushed for a law that limited access to surveillance information. But their efforts failed in January of this year, when the Senate voted for a six-year extension to the NSA’s current surveillance program.

What do most Americans think about the fact that the government might be collecting their internet and phone data? A Pew Research study from 2015 shows opinions are conflicted: 74 percent of respondents said they should not give up privacy and freedom for the sake of safety, while 73 percent said American monitoring of suspected terrorists is okay. Spy on the bad guys, but not on me.

As both threats and technology evolve, we will no doubt continue to wrestle with the balance of privacy versus security, and citizens, lawmakers, and judges will continue to revisit what rights are — or are not — protected by the Fourth Amendment. As scholar Laura K. Donohue expressed it to the Washington Post, surveillance has curious status: “legal  — but it’s unconstitutional.”

Featured image: Shutterstock

The Soul of the First Amendment: An Interview with Floyd Abrams

Without free speech, there is no free society, says Floyd Abrams, a leading constitutional scholar and author of The Soul of the First Amendment. But anti-speech movements are insidious. “No one says, ‘I’m against free speech,’” says Abrams. “In history, totalitarian governments begin with enormous denunciations of the press.” And it’s only when the press has been publicly discredited and repudiated that “they really go after it and try to subjugate it.”

Abrams remembers well the incident that triggered his passionate involvement in protecting the 45 words in the First Amendment dedicated to freedom of expression. “I was a pretty young associate at my law firm, and the Nixon administration started to really crack down on the press. My firm represented NBC, and I got to do some of that work. I met reporters and I learned to understand the level of concern they had about being hauled into court to testify, the problems they had with gathering information if they couldn’t promise confidentiality to sources, and the risk they ran when they did. So I became more and more convinced that greater and greater First Amendment protections were needed.”

Jeanne Wolf: Cynics say we like to defend the ideas we agree with and oppose the ones we don’t like. You’ve written that it’s essential to defend even the words we hate.

Floyd Abrams: We don’t need the First Amendment to protect speech we agree with. The First Amendment basically says in America there is no wrong side, in terms of what is allowed to be said. That’s an overstatement, but that’s the broad First Amendment lesson: We will not let the government censor speech of any kind. If we didn’t have a First Amendment, we’d really be in a lot of trouble, bringing in the cops and shutting down publications. We remain, at this moment, the freest country in the history of the world in terms of free speech and a free press. However, the fact that the First Amendment protects speech here to a degree that would be unthinkable elsewhere does not mean that all speech is good or appropriate or should be complimented.

JW: Yes, some might say that free speech comes at the expense of fairness and civility.

FA: We have the ability to convey thoughts about anything at any time with very little in the way of sanctions. One of the downsides of that, and it comes with the territory, is that the internet has now become home for child pornographers, for Nazi sympathizers, for potential terrorists. Just as I defend freedom of expression, I would defend the right of the Facebooks of the world not to carry such material.

JW: There is also a spreading fear that a flood of unregulated information can be helpful to our enemies around the world.

FA: In national security, there is information which ought to be secret, and there are risks in certain information being made public. That said, we also live in a society in which overclassification has been the norm rather than the exception. It has been true in every administration — the amount of classified material dwarfs the number of real secrets. What happens is that WikiLeaks or Edward Snowden will come along and release thousands of pages of classified material. This can be harmful to our government, but, as critical as I’ve been of WikiLeaks, it could really be extremely dangerous to prosecute them. I very much hope that the administration does not proceed on that path, but I expect it will.

JW: What can ordinary citizens do to protect free speech?

FA: The most important thing is to use the First Amendment to speak out and to participate in the political process. Whether that’s handing out leaflets or making contributions or trying to persuade their friends. All of these things can be and should be the role of a citizen.

JW: Right now, it seems more frequent that we just indict people for one phrase they say on television or one overheard conversation — even a chance remark out of context. Are we overdoing that?

FA: People are more easily offended now by speech than any time that I can remember. You don’t have to be far off center to get some people angry. That would be okay if the people who were angry simply responded, but the problem is that the responses are often overdone. We hear cries of “Fire him!” Those kinds of responses are anti-speech and violate the spirit of the First Amendment.

JW: In your book, you called the First Amendment “the rock star of the American Constitution.” Why do you feel it’s that essential to our way of life and our country?

FA: I think free speech is the one element that makes us admired abroad and secure at home. Remember, one of the benefits of the First Amendment is that by not suppressing speech, you’re not forcing people to say things privately and in the dark. There’s a value in letting people have their say even if they’re wrong and offensive in what they say. I think that’s pretty well beaten into our fabric as a society in a way that generally serves us very well.

JW: When you watch the news (and I admit that I watch the news as if it’s a football game), how vocal are you and your wife when you see some of the outrageous things people say?

FA: Oh, I’d say that there are a lot of exclamations. I remember a month or two ago that there were crime statistics showing crime had decreased very significantly under President Obama, and President Trump was saying they had increased! The figures are the figures. It’s not a matter of opinion. Now and then, I’ve been heard to scream at the television screen.

—Jeanne Wolf is the Post’s West Coast editor.

An abridged version of this interview will appear in the July/August 2017 issue of the Post. 

Let’s Forget the First Amendment

Not since the Vietnam War have Americans seen such an angry divide, manifested in outspoken resistance to government policies, protests, and the reaction against protests.

The current wave of public protesting began in 2013, when the Black Lives Matter movement began its street demonstrations. Protesting rose sharply after the last election when opponents of the new administration staged massive demonstrations across the country.

Now some state lawmakers are launching counter-protests through new bills. They hope to discourage demonstrations by increasing the criminality and liability of protesting.

• Legislators in Minnesota and Iowa have proposed laws that will raise the fines for freeway protesters.
• A Washington state legislator wants to reclassify civil disobedience that results in “economic disruption” as “economic terrorism” — and a felony.
• Virginia and Michigan lawmakers also want to raise their penalties on protesting, including union-organized picketing. And Michigan and Minnesota legislators want to make it easier for businesses to sue individual protestors.
• North Dakota Republicans introduced a bill that would remove the penalties for running over and killing a protestor blocking a highway if the driver’s actions were “accidental.”

Activists claim the new state laws threaten the free speech protected by the First Amendment. The laws would overturn the tradition of allowing public protests so long as the demonstrators didn’t incite violence, disrupt public meetings of police business, resist arrest, or refuse to disperse when so ordered by police.

Fifty years ago, there was similar talk of restraining protests. Thirty-two state legislatures supported the idea of a Constitutional convention that would rewrite the laws on representation and voting rights.

A Post editorial from June 17, 1967, noted that the attack on Constitutional rights had now spread to the First Amendment. Representative F. Edward Hebert had claimed that the guarantee of free speech allowed black leaders (including Martin Luther King, Jr.) to “incite violation of the law.”

His solution? “Let’s forget the First Amendment.”

He knew the Supreme Court would overrule any measure violating the First Amendment, but he thought Congress and the Justice Department should at least try to clean up this “rat-infested area” of civil protests.

There are more than a few similarities between then and now. If the present state of social conflict develops as it did in 1967, there are more protests to come.

Read the editorial, “Let’s Forget the First Amendment,” from the June 17, 1967, issue of the Post.

Featured image: Mounted policemen watch a Vietnam War protest march in San Francisco, April 15, 1967 (Photo by George Garrigues, author GeorgeLouis, Wikimedia Commons via GNU Free Documentation License)