Government Interception of Communications: Legal or Not?

According to the Omnibus Crime Control and Safe Streets Act of 1968, the government cannot legally intercept communications without a court order. However, the OCCSSA also makes plain that it should not be allowed to limit the power of the President to use communications intercepts in order "to protect the nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities" (Omnibus Crime Control and Safe Streets Act, §2511(3)). It also does not restrict the President's ability "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" (ibid., §2511(3)).

These limitations meant that all government wiretapping had to have a court order, with the possible exception of that done for foreign intelligence purposes, and that done to track terrorists that would attempt to overthrow the government. The Foreign Intelligence Surveillance Act of 1978 clarified the legal framework for these activities, and imposed limits on how they could be carried out. Because these first two acts referred mostly to analog telephone and radio communications interception, there were some problems when computers began to become widespread. The advent of new communications methods and associated legal cases in which the government potentially overstepped its bounds in regards to these, led to the passing of the Electronic Communications Privacy Act of 1986. This act clarifies the restrictions previously imposed on government interception of communications, and applies many of them to electronic (i.e. digital as well as analog) methods of communication.

The Communications Assistance for Law Enforcement Act of 1994 was a regression to some extent from the strong precedent that had been previously set. It required communications device manufacturers and communications providers to assist law enforcement in executing legal court orders by making it so that law enforcement can easily access communications. This act basically required device manufacturers and service providers to place a "backdoor" into their systems that would allow law enforcement to access the stream of communications.

More recently, the PATRIOT Act of 2001 contained provisions to make it easier for the government to access communications when in pursuit of the two exceptions mentioned in §2511(3) of the OCCSSA. This included making it easier to pursue court orders for interception, and re-defining the definitions of several important terms used in OCCSSA and other privacy acts. The purpose was to allow the government to more easily pursue terrorists and their backers.

Taking all of this into account, I would say that it depends whether or not the interception of communications (i.e. wiretapping) by the government is legal without a court order. The provisions of the PATRIOT Act and its predecessor, CALEA, seem to indicate that there are indeed cases where the wiretapping of communications by the government is legal without a court order. However, the great body of legislation prior to 1994 seemed more concerned with making it harder for the government to intercept communications without a court order. Now, I would have to say, it varies on a case-by-case basis.

The Constitution of the United States contains several provisions to protect the privacy of the people, including the Fourth Amendment. Though recent decisions have said otherwise, any law that disagrees with the Constitution is not allowable, by default. The recent trend (since 1994) has been toward laws that violate the provisions in the Fourth Amendment that protect the privacy of the citizen. Therefore, were I a Supreme Court justice, I would have to say that said laws are unconstitutional, and morally not allowable. Furthermore, I would have to remind people of something one of the Founding Fathers said, and which many of the Founding Fathers held to be true. Benjamin Franklin once said, "He who would give up the slightest freedom to obtain a little temporary safety deserves neither liberty nor safety." It is impossible for the fundamental rights granted by the Constitution to be guarded too jealously.

Therefore, I would say that government wiretapping, except that which is done via the permission of a carefully-considered court order, is patently illegal in any and all cases. This is because of the fact, established by the men who founded this country, that the Constitution is the final arbiter of what laws are correct and what laws are not. The Fourth Amendment, and other provisions for privacy in the Constitution, therefore, are the last word on whether or not the CALEA and the PATRIOT Act are even permissible in the United States.