A Brief History of Government Surveillance

Many people, when confronted with outrage on the issue of government spying, immediately say something like "That's nothing new, the government has been spying on citizens forever". This marginalizes the issue and downplays how awful this problem has become. It also gives the culprits in today's surveillance society a free pass. That's not how we roll at nationofcriminals.com, so let's look at the history of spying, where we are now, and where things could go if the current trends continue.

Let's go back a bit, before the days of the cell phone. In the early days of the telephone, back when it first started coming to widespread use, the government had only a single recourse for spying on some individual American citizen. Since there were actual wires running between your phone and the phone company, and the phone company and the call destination, the government had to literally tap the wires between the phone company and the citizen's home or office. This is quite a bit of work and requires physical space and at least one person working there to listen and maintain the equipment.

Abusing that system was difficult but not impossible. First of all, there was no "Foreign Intelligence Surveillance Act", which despite the name actually does give the government the power to spy on citizens under some circumstances. More on that shortly. In order to do this in secrecy, someone in power simply needed to convince the phone company to do it, and keep it quiet. Difficult but not impossible. It meant the abuser needed a high level of access to top people at the phone company and perhaps some justification like "patriotism".

So, the main barrier to widespread spying back in the golden age of wiretapping was technological: it simply was not practical to abuse it on a large scale and spy on many people at one time. Abuses were curtailed simply by technology.

Prior to 1967 the government position on wiretapping of telephones was unclear. Before this, abuses were possibly common, since there was no official government stance on the subject. In that year, the Supreme Court decided in Katz v. United States to protect phone conversations under the Fourth Amendment.

After this wise Supreme Court decision, in order for the government to listen to any American citizen's private conversation, several things needed to happen first.

1. There must have been some kind of justifiable suspicion upon the person in question.
2. A judge must know about the situation and declare that it is suspicious enough to justify the breach of civil liberties. This protected your fourth amendment rights which prevent unreasonable searches.
3. The warrant is issued to the phone company.
4. Equipment is installed at the phone company if necessary, or the calls were forwarded.

Later in the twentieth century, the advent of high speed switching technology allowed those in power to simply forward the communication to a third party. Monitoring phone conversations became as simple as asking the phone company to forward calls of a target phone number to some government facility.

Abuse of power became easier and it was left up to the phone companies themselves to make sure each instance of listening was warranted by the US Justice department. Early on, the phone companies were well regulated monopolies and closely tied to the government. As long as the phone company executives were willing to "play ball", nobody would ever know about abuses of this system.

Abuses in the latter half of the twentieth century were still somewhat limited in power though. In order for information gained by wiretapping to be used in a court of law, it must have been obtained legally. However, this wouldn't stop someone abusive in power from actually doing it, they would simply have to look for other evidence to convict their target.

So, in 1978 congress passes FISA. Right at the height of the cold war with the USSR, this law grants the government the power to do the monitoring in advance and then get the warrant retroactively up to seven days later. The warrants are issued by a secret court which to date has only ever turned down two requests for a surveillance warrant. Technology drives the law. Technically, it was very easy to tap someone's conversation but the legal system was slowing down law enforcement. So this law attempts to prop up the law enforcement system a bit, make them more agile.

Between 1978 and 2003, the following steps were necessary to tap a conversation between a US citizen and a foreign person:

1. Call the phone company and tell them to tap under FISA.
2. Get a warrant later.

This clearly reduces the rights our government grants to both US citizens and foreign nationals. Ignoring for a moment that our constitution says "all men are created equal", let's just focus on the lost rights to the American.

The potential for abuse was there in the FISA years. Someone could casually leave off step 2, and just never get a warrant. As long as the conversation wasn't going to be used in a court, nobody need ever know.

So, we have a pretty clear erosion of the fourth amendment. Before FISA, there were no circumstances where the government could listen to a private conversation without reasonable suspicion. With the secret judges deciding on reasonable suspicion after the fact, it is possible that the outcome is tainted by the evidence gained. In fact, the percentage of warrants granted (above 99%) seems to support this conclusion. So in addition to premeditated abuse, there is also a sort of unintentional abuse. The secret court seems to always come out on the side of the prosecution.

The attacks of September 11, 2001 appear to give the government in power an excuse to go on a massive unparalleled power grab. FISA, with its broad reaching implications and secret court, although possibly flawed, leaves plenty of room for snaring international terrorists. This, however, was not enough for the George W. Bush administration. A former AT&T employee named Mark Klein realized what he had seen and broke the story to the New York Times.

Without warning, without discussion in congress, the executive branch of government, via the NSA, installed facilities in US phone companies to do broad sweep surveillance of everybody all the time. The switching technology by now is using fiber optics and a massive amount of phone conversations and huge amounts of personal and business data are transferred over relatively small fiber optic wires. Technology literally had to be invented to do this new surveillance. With copper wires, you can just split the signal in 2, even by just stripping a pair of wires and attaching another pair, splitting the connection off in a third direction. Fiber optics doesn't work this way. It was designed to communicate between two points using light in a tube. Light doesn't just "split" like electricity does.

So now technology is in place to watch everybody's communications all the time, and cherry pick where to take action based on the content of those conversations.

As of this writing, in June 2008, this is what the government needs to do to listen to any conversation between a US citizen and a foreign national:

1. Nothing.

So we're down to terms. The content of your conversation is what matters. Recently, a piece of technology called "deep packet sniffers" has been invented that can handle millions of simultaneous connections. "Deep packet sniffer" is a fancy way to say "a way to look at all communications in a huge number of internet connections and sniff for certain patterns."

Today, our government says they use this power to search for terrorists. There is no way to check. Think how easy it would be to make it search for drug dealers. Then drug users. Then anyone with criticism of the government.

In 2008, it has been a point of contention between the executive branch of government and the people of the United States who mostly oppose this latest spying program. The executive is fighting to shield telecommunications companies from civil lawsuits because well, what they did is horribly illegal and stomps on normal people's rights. Congress appeared at first to listen to their electorate and seemed ready to allow the lawsuits to proceed. The issue stalled in congress in January of 2008 until June 2008 when congress now seems to be willing to pass a "bipartisan compromise" which actually still grants immunity to all telecommunication companies. The new law is as useless as a bag of hammers. It simply requires the company to show proof that The President asked them to spy. Show us your get out of jail free card and you, well, get out of jail free. The law does absolutely nothing for American citizens. Worse than nothing, it legitimizes this spying program.

Fourth amendment rights protecting search and seizure are now completely irrelevant. In addition to simply skirting their way around the law, the current Executive branch has also significantly weakened the Judicial branch of our government thorough a series of appointments of people who "tow the party line", politicizing the Judicial. The problem here is that traditionally, the Judicial has been the last line of defense in the rule of law and our constitution. By putting itself above the law and installing judges who put party loyalties above the constitution, the current administration has cleared the way for mass spying with no oversight. It may be hard to get our fourth amendment rights back in this climate.

Because of the Patriot Act of 2001, between the advent of the spying program in 2003 and June of 2008, it was possible for the government to do this:

1. Catch something they don't like in any random phone or internet conversation.
2. Pick up the citizen and hold them indefinately as an "enemy combatant" without any rights.

Fortunately, the Supreme Court restored the right of Habius Corpus to such detainees in June, 2008. This forces the government to justify their position and any such person asserting this right would put a spotlight on any illegal spying.

The technology front is currently very interesting. The packet sniffing software mentioned above can be defeated by commonly available encryption techniques. This only helps someone who the government does not already suspect, since if you are a suspect the government can likely get the private encryption key if they really want it.

As of this writing, it would be technically impossible to actually store all the traffic flowing through these new spying systems, so the government has to at this point only store data which it thinks is currently interesting. Hard-disk sizes keep increasing exponentially though, so at some future point it may actually be possible to store literally everything flowing through those facilities for later perusal. Imagine that. Every word you've transmitted across the internet, every website you've visited, sitting in a massive archive constantly being data mined. It's not a pretty picture.

So what does the future hold? It's hard to say. On the technical side, we know that the ability of the equipment will only increase with time. More communications over smaller lines and more storage of the data.

On the social and political side we must ask, despite all the problems, does this program actually catch terrorists? The answer is: we don't know. Knowing exactly what the program is doing is supposedly a threat to national security. And that is the whole problem in a nutshell. If the government says "it's working", we're just supposed to take that at face value without proof or consequences of lying. There is nobody on the planet Earth with the power to audit this program.

There are no more barriers to government spying. It now rests upon the Executive, the President of The United States, whether or not to abuse this power. The problem is that he is not really the one doing the spying. Even if we trusted him completely, there are a lot of other people in this loop. CIA agents and NSA agents who ostensibly work for the president might be a source of abuse. If the old saying is right, and power corrupts, it is hard not to come to the conclusion that we are on the road to disaster.

Note: this article has been updated to correct some historical inaccuracies. All mistakes will be corrected when found.

Update #1: The house and senate have both passed H.R. 6304 (Foreign Intelligence Surveillance Act of 1978). The fourth amendment right against unreasonable search is dead. This is a prime example of the weakening of the Judicial branch of our government. What business is it of Congress or the Executive branch what cases judges can hear and how they can rule? It's their job to decide if something violates peoples rights. Someone will need to bring a case before the Judicial before they have any power at all. Perhaps the ACLU will take up this cause.

Update #2: It appears that H.R. 6304 will not in fact be fast-tracked through the senate. According to The Hill, "Objections by Sen. Russ Feingold (D-Wis.) will push back an overhaul of the Foreign Intelligence Surveillance Act (FISA) until after lawmakers return in July". We will keep this article updated as the news develops.

Update #3: Interesting evidence has come to light about a particular case of abuse back in 1969. This is in the era of high speed switching, but before FISA was passed. It's an example of someone abusing the earliest system, the hardest one to abuse. Abuses in the modern system will be much harder to trace than this one was, since less people are in the loop and more communications are being watched.

Update #4: H.R. 6304 has passed. Read about future scenarios here.