ACLU History: Wiretapping: A new kind of 'search and seizure'

The ACLU has long believed that the Fourth Amendment right to be free from ‘unreasonable searches and seizures’ applies to electronic surveillance and wiretapping, and has fought to limit the government’s scope to wield this power. The 1940s saw the beginning of an ACLU campaign against government wiretapping that has continued into the present era of digital surveillance and the so-called War on Terror. There have been many milestones along the way:

In 1948, the ACLU successfully challenged requests by the Attorney General and FBI Director J. Edgar Hoover for a federal statute expanding government wiretapping authority. The government dropped its request, although Hoover publicly admitted the FBI was actively engaged in wiretapping.

In the early 1960s, the ACLU led a successful effort to defeat Attorney General Robert F. Kennedy’s request for a federal wiretapping law.

In 1968, the ACLU protested but failed to block enactment of Title III of Omnibus Crime Control and Safe Streets Act authorizing wiretapping by law enforcement. The law was passed in response to various criminal justice reforms as well as recent Supreme Court rulings that individuals had a reasonable expectation of privacy in telephone conversations.

In 1978, following revelations of spying on political and activist groups by the Nixon Administration, the ACLU called for a strict criminal law violation standard in the bill that eventually became the Foreign Intelligence Surveillance Act (FISA). The ACLU argued that there should be no national security exception to the Fourth Amendment warrant requirement. However, Congress adopted a lower standard.

In 2001, following the terrorist attacks of 9/11, Congress made it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism. The ACLU lobbied against passage of the Patriot Act and filed legal challenges on behalf of librarians, Internet Service Providers and others after it was enacted.

In 2008, Congress amended the FISA law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to customer communications without a warrant.

Congressional leadership has promised to address the issues surrounding the FISA Amendments Act before it ‘sunsets’ in 2012. Until then, the ACLU continues to fight the law in court.

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RESOURCES

» Foreign Intelligence Surveillance Act (FISA)
» Testimony From Senate Hearing on FISA
» Amnesty et al. v. Blair: FISA Amendment Act Challenge