(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.