Privacy advocates fight for ground lost after 9/11

The trade-off was one plenty of citizens and lawmakers willingly made after 9/11: less individual privacy for better national security. Five and a half years later, many are rethinking, even challenging, the government's expanded use of surveillance inside the US, spurred by revelations about the scope and number of new programs.

Among them:

•An FBI finding that agents "misused" their authority to obtain national security letters, which allow the bureau to collect information about someone's telephoning, reading, and buying habits. Congress is considering whether to revoke or limit the FBI's authority.

•News that the New York Police Department created hundreds of secret files on people who planned to protest at the 2004 Republican National Convention. Some protesters have sued the city and NYPD over the matter, and a federal judge is now weighing whether the police must release all those files.

•A lawsuit to halt the National Security Agency's electronic eavesdropping program, which had allowed the NSA to listen in on some Americans' phone conversations without first obtaining warrants.

During times of crisis, from the Civil War to the Vietnam War, the Fourth Amendment right to be free of "unreasonable searches and seizures" has lost some ground. Today is no exception. The 9/11 terror attack created, in the words of former congressman and 9/11 commission vice chairman Lee Hamilton, an "astounding intrusion into the lives of ordinary Americans."

But now, he says, things are beginning to change. "Since 9/11 ... the security folks have won all of the arguments," Mr. Hamilton said during a phone interview. "But now you're beginning to see some push back in the media, the courts, and in Congress."

Below is background on key government programs – at least those that are known – to try to ferret out individuals who may pose security threats inside the US.

1) NATIONAL SECURITY LETTERS

What's happened: In 1978, Congress granted the FBI the authority to send national security letters to companies, asking for information about the spending habits of people suspected of being foreign spies. Cooperation was voluntary. That changed in 1986, when Congress gave the FBI the authority to make companies comply. In 1994, the scope of NSLs was expanded to include anyone who had access to classified material.

After 9/11, the Patriot Act broadly expanded the use of NSLs, this time allowing the FBI to use them to obtain information on anyone – American or not, suspect or not – if the information could be relevant to an investigation on terrorism or espionage. Individuals served with NSLs are also forbidden to tell others they received a letter, although they can appeal.

Who's affected: The number of NSLs increased from 8,500 in 2000 to 147,000 between 2003 and 2005, according to the inspector general of the Justice Department.

For it: The FBI says that NSLs are an indispensable investigative tool that can help identify suspected terrorists. "Through the use of NSLs, the FBI has traced sources of terrorist funding, established telephone and e-mail linkages that resulted in further investigation and arrests, and arrested suspicious associates with deadly weapons and explosives," FBI Director Robert Mueller told the Senate Judiciary Committee last week.

Against it: Civil libertarians say that NSLs give the FBI unconstitutional latitude to obtain a person's private information without getting proper court review. They also the NSL gag orders violate the First Amendment. A recent inspector general's report found that the FBI has misused its authority to issue the letters, has an inadequate system for collecting the requested data, and had underreported to Congress the number of NSLs issued.

"You have a system that's badly broken, where the evidence isn't being collected or used effectively," says Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland.

Where it stands: The American Civil Liberties Union challenged the constitutionality of NSL gag orders and won. The government is appealing the case. Congress is currently holding hearings on the FBI's mishandling of the NSLs.

2) DOMESTIC SURVEILLANCE BY THE NSA

What's happened: Shortly after 9/11, President Bush signed an executive order that allowed the National Security Agency (NSA), without getting a warrant, to wiretap the overseas communications of people suspected of having contact with Al Qaeda, even if the call ended in the United States. When the story broke in 2005, critics said it was a violation of the Foreign Intelligence Surveillance Act. Passed in 1978, this act established a special court, known as the FISA court, where intelligence agencies could seek approval for wiretaps in national-security investigations. Mr. Bush says that legislation passed after 9/11 gave him authority to supersede the FISA court.

Last year, as result of a suit by the American Civil Liberties Union, a federal district court ruled that the program was unconstitutional. The ruling has been stayed while the government appeals. Although Bush maintains he has the right to order such warrantless wiretapping, the administration announced in January that it was voluntarily putting the program under the FISA court's jurisdiction.

Who's affected: Thousands of people could be involved, but estimates are hard to make because the program is secret.

For it: The administration says the program gives it the speed and flexibility it needs – not only to track suspected terrorists, but also to help establish behavior patterns that could be used in detecting terrorism.

"In this world where bad guys can cross borders in a fraction of a second ... governments need to blow through every barrier to be able to track bad activity really fast," says Jonathan Winer, a terrorism expert who was deputy assistant secretary of State for international law enforcement under President Clinton. "But they also need to do so with rules and oversight and controls."

Against it: In 1967, the Supreme Court ruled that surveillance of communication constituted a "search" as defined by the Fourth Amendment, thus requiring court review.

"The Foreign Intelligence Surveillance Act was passed by Congress in an effort to constrain just the kind of surveillance the president says he's been doing," says Caroline Fredrickson, director of the Washington Legislative Office of the ACLU.

Where it stands: The Bush administration has asked the appeals court to throw out the ACLU case, saying the issue is moot since the program is now under FISA review. The ACLU says the suit is still relevant because the president maintains he has the right to conduct warrantless surveillance. A ruling is expected in the next few weeks. Congress is considering three bills that would reform the FISA system.

3) SURVEILLANCE OF POLITICAL ACTIVISTS

What's happened: Some 1,800 protesters were arrested in New York during the 2004 Republican National Convention (RNC). Some have filed a suit against the city and the New York Police Department (NYPD), claiming wrongful arrest and violation of their First Amendment free-speech rights.

Two weeks ago, a federal judge said their case is "of great public significance" because it concerns "the proper relationship" between protesters' rights and police efforts to maintain public order.

As a result of the suit, it became public this month that in the year before the convention, the NYPD sent undercover officers around the US, Canada, and Europe to learn how many protesters were coming and whether any planned violent acts. The officers went to political meetings, befriended activists, and scoured the Web for information about protesters' plans.

At the same time, the FBI also worked with local and state Joint Terrorism Task Forces to investigate protesters to learn if any planned violent acts at either political convention.

Who's affected: The NYPD collected hundreds of files on potential protesters.

The FBI identified 74 individuals, contacting 60 for interviews. The ACLU is seeking more information about FBI activity, on behalf of 150 groups who think they've been spied on.

For it: Police and the FBI say surveillance is crucial to investigating threats and potential criminal behavior. In New York, Mayor Michael Bloomberg and Police Commissioner Raymond Kelly defended the NYPD's actions. The commissioner noted that the officers' work helped prevent disruptive violent protests like those at World Trade Organization meetings in Seattle, Genoa, and Montreal. "Eight hundred thousand people here protested ... peacefully," the commissioner said last week.

Against it: Civil libertarians say some NYPD actions are blatant violations of a local 1971 accord that restricts police surveillance of political groups. "People will be less likely to exercise their protected right to lawful protest if they have to worry about 'big brother' spying on them," says Donna Lieberman of the New York Civil Liberties Union (NYCLU).

Where it stands: The wrongful arrest suit brought by the NYCLU is being litigated. The court is weighing whether to force the NYPD to release its RNC files.

At the US Justice Department, an internal investigation of the FBI's preconvention surveillance found, in April 2006, that the probe "did not substantiate the allegations that the FBI improperly targeted protesters ... in an effort to chill the exercise of their First Amendment rights...."

Other controversial security initiatives:

Pentagon Domestic Intelligence Units

In 2002, the Pentagon established the Counterintelligence Field Activity office which is charged with protecting military installations within the US. It keeps an extensive database on potential terrorist threats and criminal activity that could affect local military bases. But it has also collected data on domestic political groups engaged in lawful protests. After that was made public two years ago, the Pentagon says it purged its files of inappropriate data. The Pentagon has also increased its use of National Security Letters, which ask private institutions for an individual's personal data, such as bank records. Unlike the FBI, it does not have the authority to compel such information to be turned over. Still, critics say this expansion of military intelligence may create a dangerous intrusion into Americans rights because the Pentagon does not have to operate with the same statutory checks and balances as the FBI and local law enforcement.

REAL ID Act

In 2003, Congress passed a law that requires all states to issue what are essentially national identify cards that would be used as driver's licenses and for other activities that require identification. To get the card, the government may collect information such as home address, social security number, immigration status, tax records, and banking records. It would be held in a state-maintained database which would be shared with other states and the federal government.

Advocates contend that establishing a secure identity card is essential to fighting terrorism. Opponents claim it would create a huge national database that included constitutionally protected information that could be easily accessed by local, state, and federal authorities without a proper warrant. They also say it would make identity theft much easier since the database could be compromised by hackers or unethical government employees.

Three states, Maine, Arkansas, and Idaho have already passed legislation calling for the repeal of the REAL ID act.

Department of Homeland Security's Automated Targeting System

Since the mid-1990s, the federal government has collected data on individuals who fly internationally. It includes the person's destination, how they paid for the ticket, and whether it was a one-way or roundtrip flight. Originally, the program was designed to ferret out drug traffickers, who often paid in cash and bought one-way tickets. After 9/11, the system was expanded to include searches for possible terrorists.

Advocates claim that data collection comes from a publicly available source – the airlines and travel agencies – and is not intrusive in any way. They also contend that it's vital not only to track potential criminals, but also as a way to determine behavior patterns that could in the future be used to identify potential terrorists.

Opponents claim the program is an unconstitutional invasion of a traveler's personal information that was implemented without congressional approval.

Senator Patrick Leahy (D) of Vermont has said he plans to hold hearings on the system.

Bush mail-opening signing statement

In December, President Bush added a "signing statement" to the Postal Accountability and Enhancement Act. It asserts that the executive branch has the authority to open sealed mail without a warrant for "foreign intelligence collection."

Proponents contend that the president was simply reasserting authority he already had. Critics, including Sen. Susan Collins, (R) of Maine, contend the signing statement "does absolutely nothing to alter the protections of privacy and civil liberties provided by the Constitution and other federal laws." She's introduced a bill that would reinforce that.