(FISA), which established a basis for wiretapping quite different from that of Title III wiretap orders intended to collect evidence of a crime and require probable cause to believe that the suspect is involved in serious illegal activity. FISA wiretaps are intended to collect intelligence and require that the suspect be an agent of a foreign power or terrorist group.

Title III wiretaps are summarized in an annual Wiretap Report produced each year by the Administrative Office of the U.S. Courts. It lists the prosecutor, judge, crime, number of intercepted conversations, and number of incriminating conversations. By contrast, except in rare cases in which the evidence they yield is presented in court, only the annual number of FISA wiretaps is made public. There are currently about 2,000 Title III and another 2,000 FISA wiretap warrants each year.

Eavesdropping practices vary from country to country, and since many nations release no information about electronic surveillance, a comprehensive view is difficult to attain. Britain did not pass a wiretap law until 1985 when a European Court ruling faulted the country’s lack of a clear warrant procedure. A similar European Court ruling in 1990 led to a French wiretapping law in 1991. Both Britain and France report having significantly more wiretaps than the U.S.

Not all wiretaps are a result of official or acknowledged government action. When SMS messaging went awry in Athens in 2005, an investigation found that for 10 months someone had been wiretapping senior members of the Greek government. The eavesdropping appears to have been stopped after it was discovered. Although no information has surfaced about who did the wiretapping, a good bit is known about how it was done. The 1994 CALEA law requiring telephone systems to be wiretap ready applies only to switches installed in the U.S., but since manufacturers try to have as few versions of their products as possible, it has had worldwide impact. When the Greek Vodaphone network purchased a switch from Ericsson, it didn’t order wiretapping capabilities; wiretapping software was present in the switch but was supposed to be shut off. In particular, auditing software that would have

the future of
privacy will depend
on a combination of
legal and technical
measures by which
device-to-device
communications
are protected.

been operating if the wiretapping feature had been ordered was not present. When unknown parties turned some of the wiretapping features on, their actions went unrecorded.

Wiretapping without a
Legal foundation

The Greek case wasn’t the only warrantless wiretapping uncovered during that period. In 2005 the New York Times revealed that the U.S. government had been wiretapping communications to and from the U.S. without a warrant. After the passage of FISA, NSA ( National Security Agency), America’s foreign-intelligence eavesdroppers, had been forbidden to listen in on radio communications inside the U.S. without a warrant unless at least one end of the communication was outside the country and the internal end was not a targeted “U.S. person.” Interception of purely domestic communications within the country always required a warrant. As more messages came to travel by fiber-optic cable and fewer by radio, NSA was forced to turn to other, not necessarily legal, approaches.

The vast American investment in communications infrastructure makes it economical for parties in other parts of the world to route their calls through the U.S., and this transit traffic seems a reasonable foreign intelligence target. When transiting communications were in the form of a radio signal that could be intercepted from U.S. soil, it was not difficult for NSA to determine what was transit traffic. When traffic moved to optical fibers and IP-based communications, separating out the transit traffic that could be eavesdropped upon without a warrant became more difficult. That was one concern. There was another.

In the post-9/11 anti-terrorist climate, some government elements wanted a substantive change, permitting warrantless interception of communications in which one end was “reasonably believed to be located outside the United States,” regardless of the status of the U.S. end. Interception was placed not at the cable heads where calls entered the country, but at switches carrying both internal and transit traffic. This meant that purely domestic calls were likely to be intercepted as well.