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Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2010-08-31.

Permanent Link: http://ufdc.ufl.edu/UFE0022642/00001

Material Information

Title: Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2010-08-31.
Physical Description: Book
Language: english
Creator: Hughes, Sunny
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Statement of Responsibility: by Sunny Hughes.
Thesis: Thesis (Ph.D.)--University of Florida, 2008.
Local: Adviser: Chamberlin, William F.
Electronic Access: INACCESSIBLE UNTIL 2010-08-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022642:00001

Permanent Link: http://ufdc.ufl.edu/UFE0022642/00001

Material Information

Title: Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2010-08-31.
Physical Description: Book
Language: english
Creator: Hughes, Sunny
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Statement of Responsibility: by Sunny Hughes.
Thesis: Thesis (Ph.D.)--University of Florida, 2008.
Local: Adviser: Chamberlin, William F.
Electronic Access: INACCESSIBLE UNTIL 2010-08-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022642:00001


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FREEDOM OF COMMUNICATION:
BREATHING SPACE IN THE MARKETPLACE OF IDEAS,
THE FIRST AMENDMENT IMPLICATIONS OF ELECTRONIC SURVEILLANCE





















By

SUNNY SKYE HUGHES


A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

2008

































O 2008 Sunny Skye Hughes
































To my mom, Debbie.









ACKNOWLEDGMENTS

I conceived the idea for this dissertation while working with Bill Chamberlin at the

University of Florida. I wish to thank him for his encouragement, advice, expertise and patience

in reviewing the many incarnations and drafts of this document. I also wish to thank the

members of my committee for their guidance and feedback: John Wright, Justin Brown and

Charles Collier.

When I was a child, my mother was a cable splicer, and then lineman, for GTE. I said I

would never grow up to work for the telephone company, but my early exposure to the

telecommunications industry has had the most profound influence on my research. My mother is

not alive to read this work, but I believe if she were, we would have much to debate. Thank you

mom for always being my greatest fan and biggest critic.

Finally, I wish to acknowledge the patience of my friends and family as I worked to

complete this monumental endeavor. Chris, your interest and endless hours discussing the finer

points invigorated my academic pursuits. Forrest and Skyler, my beloved boys, I'm done with

my dissertation now--yes, mom can play.












TABLE OF CONTENTS


page

ACKNOWLEDGMENT S .............. ...............4.....


AB S TRAC T ......_ ................. ............_........8


CHAPTER


1 INTRODUCTION ................. ...............10.......... ......


Purpose .............. ..... .. ..............1
First Amendment Perspective ................. ...............15........... ....
M marketplace of Ideas .............. .....................16
Key Values ..................... ...............17
Individual self fulfillment ................. ...............17........... ....
Attainment of truth .................. ...............19........... ....
Participation in decision-making ................. ...............19........... ....
Balance between stability and change ................. ...............20........... ...
National Security .............. ........ ... ................2
The Wall: The Fourth Amendment and Surveillance ................. ............... ......... ...25
The Shifting Line: Liberty v. Security............... ...............33
Chilling Effect .............. ...............37....
Breathing Space ................... ..... .. ...... ........... .. ...........4
Surveillance Societies (Dystopian and Utopian Visions) ......_._. ......._.. .........._....45
American Public Sentiment ...._ ................. ...............51......
Research Questions............... ...............5
M ethodology ................. ...............57.......... ......
D efinitions .............. ...............58....
Summary of Chapters .............. ...............61....


2 LEGAL HISTORY OF DOMESTIC SURVEILLANCE BY US GOVERNMENT ............63


The Black Chamber ............ ............ ...............63...
The Radio Act of 1912 .............. ...............64....
The Radio Act of 1927 ................. ...............66..............
The Communications Act 1934 ................ ...............67........... ...
National Security Agency ............... ... ....... ....... ......... ...............70.
Title III: Omnibus Crime Control and Safe Streets Act .............. ...............73....
Church Committee............... ......... .........7
Foreign Intelligence Surveillance Act .............. ...............81....
Electronic Communications Privacy Act............... ...............90..
CAL EA ................. .... .......... ............. ...... .........92
The Telecommunications Act of 1996 ................. ......... ...............97. ..
U SA PATRIOT Act............... .. ... .. .. ... .............. ...............9
USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005 ..........................103












USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 ......................... 106
Protect America Act .............. ...............106....

Current Congressional Actions ................. ...............108..._.._ ......
International Law ..........._...__........ ...............113.....


3 FIRST AND FOURTH AMENDMENT COURT DECISIONS ..........._..._ .........._...__...115


The First Amendment Decisions ........._..._.._ ...............115...._._ .....
Schenck v. United States ..........._..._ ...............120...._.._ .....
Frohwerk v. United States ..........._..._ ...............122...._.._ .....
Debs v. United States .............. ...............124....
Abrams v. United States ................. ...............126........ .....
Gitlow v. New York ................. ...............132...._.__ ....

Whitney v. Califomnia .........._.._ ......... ...............136......

Bridges v. California .................. .. ........ ...........14
West Virginia State Board of Education v. Bamnette ........................... ...............144
Dennis v. United States .............. ...............150....
Yates v. United States............... ...............158
New York Times v. Sullivan ................. ...............164......... ....
Dombrowski v. Pfister............... ...............166
Lamont v. Postmaster General .............. ...............168....

Ashton v. Kentucky ................. ...............170........ .....
Stanley v. Georgia ................. ...............172........ .....
Brandenburg v. Ohio .............. ...............173....
Gertz v. Welch............... ...............175.

Breathing Space ................. ...............178................

Virginia v. Black .............. ...............179....
Fourth Amendment Decisions ................. ...............180...............
Olmstead v. United States .............. ...............181....

Lopez v. United States................ ...............19
Griswold v. State of Connecticut ....._.. ................. ...............199 ....

Berger v. New York .............. ...............202....
Katz v. United States ..................... .... .... ..........0
United States v. United States District Court ................. ............_ ..... 213._.._...
California Bankers Association v. Shultz ........_........_...__ .........._ ............2
Zweibon v. Mitchell .............. ...............225....


4 CONTEMPORARY IS SUE S ................. ...............228......... .....


Technological Transition ................. ...............228................
The Terrorist Surveillance Program .............. ...............233....
Contemporary Cases............... ...............242.

Hepting v. AT&T .............. ...............243....
Count one .............. ...............246....
Count two: ...247................
Count three ................. ...............249......... ......
Count four ................. ...............251......... ......











Count five .................. ... ......... .... ...............251....
Hepting v. AT& T: First Amendment issues .............. ...............252....
Hepting v. AT&T: state secrets ................. ...............253........... ...
Hepting v. AT&T: developments ................. ...............257...............
CCR v. Bush ................. ...............265................
ACLU v. NSA .............. ...............267..
ACLU v. NSA: Developments ................. ...............273...............

5 CONCLU SION................ ..............27


Findings ......... ... .. .. ..... ............... ...... ...................27
What is Legislative History Governing the Surveillance of United States Citizens? ...276
What is the Judicial History of the Relationship Between Political Surveillance of
Citizen Communications and Those Citizens' First Amendment Rights? ................281
How Does the Fourth Amendment' s Protection for Privacy Relate to the First
Amendment' s Protections for Free Speech? ........._._.... ........._._. ..........._._........288
Do Current Surveillance Cases in the Courts Show a Trend of Protection for
Emerson's Key First Amendment Values, or a Shift Towards Lasswell's
Garrison State? .........._.... ..... .._.__ ...... ..._._. ........... .. ...... .. .......29
What is the Current Balance Between the Need to Protect Civil Liberties and the
Need to Protect National Security Based on Judicial Interpretations of Federal
Surveillance Law s? ............. .. .. .... ... ... ..... ..... .........9
Does Government Surveillance of Private Communications Create a Chilling Effect
on Free Expression in the Marketplace of Ideas, as Interpreted by the Courts?........3 00
Analysi s of Findings ................. ...............307...............
Future Remedies ................. ...............3.. 13.............
Future Research ................. ...............3.. 16.............

LI ST OF REFERENCE S ................. ...............3.. 20......... ...


BIOGRAPHICAL SKETCH .............. ...............340....









Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy

FREEDOM OF COMMUNICATION:
BREATHING SPACE INT THE MARKETPLACE OF IDEAS,
THE FIRST AMENDMENT IMPLICATIONS OF ELECTRONIC SURVEILLANCE

By

Sunny Skye Hughes

August 2008

Chair: Bill Chamberlin
Major: Mass Communication

The United States government has monitored domestic telecommunications networks since

the early twentieth century, but recent technological advancements have resulted in intelligence

agencies having increased capabilities for monitoring content of communication, as well as the

actual routing information for telephone calls. The monitoring of content through government

surveillance is studied in this research from both a theoretical and legal perspective, tracing the

history of United States surveillance, the development of the theory behind the marketplace of

ideas, the evolution of domestic surveillance law and the potential impact a changing legal

structure will have on citizen's ability to express opinions without experiencing government

censorship or punishment.

This research presents a First Amendment analysis of the changing legal structure of

electronic surveillance, establishing a nexus between First Amendment rights to free speech and

association and Fourth Amendment rights to privacy. This nexus is weighed against a historical

balancing of concerns for protecting national security and concerns for protecting civil liberties.

Contemporary court filings in response to government surveillance programs are evaluated to










explore the existence of a chilling effect on speech in the marketplace that might result from

government monitoring of citizen' s private communications.









CHAPTER 1
INTTRODUCTION

Since September 11, 2001, the government has significantly modified laws governing

electronic surveillance in the United States. The United States Administration and intelligence

agencies have created new policies, such as the Terrorist Surveillance Program (hereinafter

TSP), that governs electronic surveillance of citizen' s phone conversations. In many ways, these

modifications have changed the understanding of how constitutional protections for Americans

are interpreted. These modifications in some ways mimic the increased surveillance and

monitoring engaged in by government agencies during past eras such as the communist scares

during the McCarthy era. Contemporary policies have yielded a new round of suits filed by

citizens and advocates who complain that not only their Fourth Amendment right to privacy, but

also their First Amendment rights to free expression have been violated. Traditionally, judges

have decided cases involving electronic surveillance on Fourth Amendment privacy grounds, but

the new cases highlight a shifting balance between protections for civil liberties and national

security. These new cases also make claims on grounds that there are First Amendment

protections for telephone communications. Already, one judge has issued an opinion citing

judicial precedent for the protection of free expression in private communications.

Although Fourth Amendment rights are the basis of most court decisions involving

electronic surveillance, plaintiffs often invoke First Amendment protections for free speech, free

religion and peaceable assembly. These First Amendment activities are protected not just

nationally by the constitution, but internationally by human rights agreements. The Fourth

Amendment' s guarantee of privacy, although not explicitly stated, insulates these rights by

allowing citizens to develop political ideas and beliefs in private. This "breathing space" enables

citizens to then dialogue in a public forum without government intervention and oversight.










Growing concerns over national security-specifically terrorism--may modify the understood

legal balance between autonomous speech and national security. The purpose of this research is

to examine the connection between Fourth Amendment protections for privacy and First

Amendment protections for free speech and association by exploring the balance between

citizen's protections for civil liberties guarantees and the government's need to protect national

security .

Liberty, as it has developed in the United States, is experimentally Citizens must be able to

discuss ideas freely, even if power holders consider those ideas subversive or dangerous.2

Fundamental to the marketplace of ideas model is the notion that citizens must feel free to

express their ideas--the first step in this process is enjoying the privacy to develop these ideas.3

As John Stuart Mill theorized, reaching an informed political viewpoint that supports the

democratic process may inevitably involve discussions of views that are not condoned or

supported by citizens within the democracy.4 If this step in reaching a informed and well-

thought out opinion is removed, then the resulting idea might not be as fully developed as

possible had it undergone scrutiny and comparison to competing ideologies. In the past,

ideologies such as socialism and communism have acted as foils to democracy, driving national



SIn 1947, the Hutchins Commission discussed this aspect of the marketplace of ideas. In its final report, the
Commission concluded that,

Civilized society is a working system of ideas. It lives and changes by the consumption of ideas.
Therefore, it must make sure that as many as possible of the ideas which its members have are available for
its exanunation.

HUTCHINS COMMISSION, A FREE AND RESPONSIBLE PRESS: A GENERAL REPORT ON MASS COMMUNICATION:
NEWSPAPERS, RADIO, MOTION PICTURES, MAGAZINES AND BOOKS (U. Chi. Press 1947).

2Dombrowski v. Pfister, 380 U.S. 479 (1965).

3Abrams v. United States, 250 U.S. 616 (1919).

SSee generally JOHN STUART MILL, ON LIBERTY (Bartleby.com 1999) (1869), available at
1lutp \ \\ l .bartleby.com/130/.









dialogue and clarifying American policies and ideals. If these political theories had been

censored from the marketplace of national ideas, exploration of socialist and communist

ideology might have been suppressed and eventually emerged as violent political dissent.

Today, terrorism--or more specifically, radical Islamic ideology and opposition to democracy,

as well as opposition to government policies by American citizens--are the foil to American

domestic and foreign policy. Given the parallels with past surveillance activities, the body of

law developing around the above stated security concerns has the potential to threaten individual

civil liberties, even as it protects national security interests of the country.

During the 21st century, the United States government has engaged in increasingly

sophisticated surveillance of citizen' s communications. After September 11Ith, the United States

declared a war on terrorism. One strategy in this war was to update electronic surveillance laws

to defend the nation against this new threat to domestic security. How this initiative will affect

citizen's First Amendment rights has not yet been fully explored. Changes in laws that govern

electronic surveillance could potentially affect the First Amendment rights of free speech, free

assembly and the right to a free press. Expanded technological capabilities and increasingly

sophisticated government controlled telecommunications networks and infrastructure also

influence the laws that govern the electronic monitoring of citizen' s phone and Internet activities.

The Terrorist Surveillance Program could have a potential chilling effect on the First

Amendment activities of United States citizens. This "chilling effect," and its influence over the

"breathing space" citizens need to develop well-reasoned political ideas, represents a changing

paradigm in how government handles the interception of domestic telephone communications.

The modification of surveillance laws is a well-recognized threat to privacy, but the effect

these changes will have on citizen's ability to participate in the marketplace of ideas has yet to be










examined at a scholarly level. Increased government monitoring of telecommunication channels

might act as a deterrent to citizens expressing unpopular ideas. If a person believes everything

he or she says is monitored by the government, he or she may be less likely to voice unpopular

opinions that contradict national policy. This potential stifling of the marketplace may have a

negative effect on the democratic processes necessary to produce informed and engaged

participants.

Purpose

Although the government has long monitored domestic telecommunication networks, the

effect of this surveillance on citizen' s expression of subversive viewpoints has not yet been

studied from a theoretical or legal perspective. This research traces the history of United States

surveillance, the development of the theory behind the marketplace of ideas, the evolution of

domestic surveillance law and the potential impact a changing legal structure will have on

citizen's ability to express opinions without experiencing government censorship or punishment.

This topic has become increasingly important, in part, due to developing technologies that

facilitate the government's monitoring of individual citizens without their knowledge. In the

past, government agents would get a warrant or a court order to tap the phone line of a suspect.

In the digital age, technology is in place that allows the same agents to intercept calls without the

physical constraints of having to "bug" an individual phone line. Domestic calls are easily

intercepted and filtered through sophisticated computer programs designed to detect "key words"

and social connections between callers and known subversives.

The advances in the telecommunications infrastructure, coupled with the new terrorism

crisis, mean current laws are outdated. The Bush administration acknowledged this when it

disclosed the existence in 2005 of the Terrorist Surveillance Program, a secret domestic









wiretapping program that operated without warrants or judicial oversight. Neither the current

administration nor scholars have been quick to address the implications an updated surveillance

legal structure would have on citizen's constitutional rights. In the literature, there are many

legal analyses based on the Fourth Amendment right to privacy and how statutory changes would

affect citizen's rights to a secure home and secure correspondence. Although much of the

literature and a few court opinions have acknowledged the First Amendment implications of

these laws, there has yet to be a comprehensive analysis of this issue through legal and

philosophical analysis.

A First Amendment analysis of the changing legal structure of electronic surveillance is

timely and relevant. The Foreign Intelligence Surveillance Act, discussed in chapter two, was

passed almost thirty years ago, at a time when most citizens had analog phone lines. In 2008, cell

phones are common. The Internet is an everyday part of many citizens' personal and

professional life. These advances have created a wired society that is increasingly dependent

upon these lines of communication. The current terrorism crisis has both amplified deficiencies

in the statutory framework of FISA at the same time that it has created concerns among civil

liberties experts who fear this perceived threat might result in limited constitutional protections.

Threats to privacy from an unchecked surveillance program are easy to see, but the threats to the

tangential free speech protections are subtle because they involve the citizen' s perception of the

government' s intentions in monitoring their communications.

The First Amendment has a well-developed body of literature addressing free speech.

Telecommunications research focuses heavily on regulations and technology. However, there

has yet to be a thorough academic discussion of how these two areas relate to each other. By

SJames Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at 1, 22.










examining the First Amendment implications of electronic surveillance, this research seeks to

shed new light on the paradox between protecting national security and protecting individual

rights to free speech and expression.

First Amendment Perspective

Several key First Amendment scholars have addressed concepts that apply to free

expression in the context of electronic surveillance. Although these theories were not developed

as directly applicable to surveillance, they are still theoretically sound principles for analyzing

the impact government intervention can have in the sphere of private communications between

citizens. Freedom in private communications supports the marketplace of ideas by enabling free

expression.6 Freedom of the press is affected by the chilling effect of surveillance. Some of the

forefathers believed that a free press would act as a fourth estate of government monitoring the

actions of elected officials.' John Locke, who was a great influence on America' s founders,

crafted the social contract idea where the individual forfeits some of his rights for the betterment

of society as a whole.8 Locke built on this idea with the concept that the press has an obligation

to monitor official government actions in the interest of the individual, leading to a more

informed electorate and a well-functioning democracy.9







6 See generally Thomas I. Emerson, Toward a General Theory of the FirstAmendment, 72 YALE L.J. 877 (1963).

SSee generally Donald S. Lutz, The Relative Influence of European Writers on Late Ee gi~r.. ,,ll-Century American
Political Thought, 78 AM. POL. SCl. Ass'N 189-97 (1984). Lutz examines the influence of European enlightenment
writers on American political thought. See also Vincent Blasi, The 1,..../* i Value in First Amendment Theory,
AM. B. FOUND. RES. J. 523 (1977).

JOHN LOCKE, Two TREATISES OF GOVERNMENT (1689), available at
http://socserv2. mcmaster. ca/~econ/ugcm/3 113 /locke/government.pdf.

9 d.










Marketplace of Ideas

A free exchange in the marketplace is necessary for truth to emerge over competing

ideas. 10 Public discourse is a necessary component in democracy. John Milton emphasized the

necessity of public discourse in Areopagitica when he argued against government censorship

through the Licensing Order of 1643. 11 Milton wrote "let her [tnrth] and falsehood grapple; who

ever knew Truth put to the worse in a free and open encounter," advancing the idea that

expression--as it informs the citizens-- should be free from prior restraint by the government. 12

Milton was writing at the time of the Star Chamber when the King of England was seen as

beyond criticism. The very act of speaking out against the government was a crime. Milton saw

licensing as "the greatest displeasure and indignity to a free and knowing spirit that can be put

upon him."13

Milton's ideas in speaking out against this early form of censorship would be expanded in

the writings of John Stuart Mill who explored freedom of expression in his book On Liberty/.14

Mill wrote that anyone should be able to express anything, as long it did not harm other

individuals." In his 1859 treatise, On Liberty, John Stuart Mill defended free speech as a

necessary condition for intellectual and social progress. 16 Mill went so far as to advocate letting


10 JOHN MILTON, AREOPAGITICA (Oxford at the Clarendon Press 1882) (1644), available at
http://books. google. com/books?Id. =RGILAAAAIAAJ&dq= milton+areopagitica&pg=PP1&ots= Cwsdll1fygn& sig= L
2Ld0JIwAyRzYyygCTOkfRDxra8&hl=en&prev=http://www. google. com/search%/3Felient%/3Dsafari%/26rlsD
n%/26q%3 Dmilton%/2B areopagitica%/26ie%3 DUTF-8%26oe%3 DUTF-8&sa=X&oi=print&ct=title&cad=one-book
with-thumbnail#PPR3 ,M 1.

11 JOHN MILTON, AREOPAGITICA 21 (E l! ll atten's Library 1927) (1644).

12 MILTON, supra note 10.

13 MILTON, supra note 11. See also Thomas I. Emerson, supra note 6 at 879-80.

14 MILL, supra note 4.
I Id.

1 6Id.










people air false statements and inferior theories so as not to silence elements of trth. Mill wrote

that this approach promoted an open exchange of ideas and forced people to examine their

beliefs through debate. This approach promoted a general understanding of one's own position

by allowing individuals to weigh the facts for themselves. Mill's contributions to free speech

theory primarily focused on printed materials. Other authors have applied these principles to the

American experience of free expression within a legal framework.

Key Values

Thomas Emerson, in his 1963 Yale Law Journal article--and later in his 1970 book The

System of Freedom ofExpression, classified free expression into key values, or rather, reasons to

protect the First Amendment. 17These include: 1) assuring individual self-fulfillment; 2)

promoting discovery of truth; 3) the ability by all members of society to participate in decision

making; and 4) the promotion of social stability through discourse. IsEach of these values can be

abstractly applied to the protection of private discourse as a step towards engaging in free speech

in the marketplace. Ensuring private discourse on unpopular viewpoints allows individuals to

achieve self-fulfillment as individuals by bolstering their own ideas in the way imagined by

Milton. Private discourse on unpopular ideas can also promote the discovery of trth.

Individual self fulfillment

Emerson said, "self-realization commences with development of the mind." l9 Conscious

thought has no limits, as it is an individual process, with every man having a right to form and

express his own beliefs and opinions. Emerson said, "expression is an integral part of the

development of ideas, of mental exploration and of the affirmation of self." The right to

17 Thomas I. Emerson, supra note 6 at 877.

1s THOMAS EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970).

19 Thomas I. Emerson, supra note 6 at 879.










expression is derived from the way that an individual is viewed as a societal member, not only in

influencing culture, but also in being subj ect to societal influences and control.20

Given this role, the individual has a right of "access to knowledge," so he can shape his

views, as well as "communicate his needs, preferences and judgments." Emerson said cutting off

this "search for truth," amounts to "despotic command," where the individual is subj ect to

arbitrary control. In exchange for being a cooperative member of society, the individual is

rewarded with free expression.

Emerson viewed freedom of expression as "good in itself," and essential to promoting

other societal ends such as virtue, justice, and equality.

Hence the right to control individual expression, on the ground that it is judged to promote
good or evil, justice or injustice, equality or inequality, is not, speaking generally, within
the competence of the good society.

Emerson's theory rested on the distinction between expression and action. Expression

includes beliefs, opinions and communication of ideas, while action is synonymous with

conduct. Society can seek to control conduct, but expression must enj oy a "specially protected

position," because it is the "fountainhead of all expression of the individual personality."

Emerson writes, "To cut off the flow at the source is to dry up the whole stream. Freedom at this

point is essential to all other freedoms. Hence society must withhold its right of suppression until

the stage of action is reached." Furthermore, expression is seen as less injurious to social goals

as it has less immediate consequences. The individuals pursuit of self fulfillment, as well as the

balance between security and liberty, discussed in chapter one, is at jeopardy when expression is

restricted for political goals:


20Id. at 880.










the power of society and the state over the individual is so pervasive, and construction of
doctrines, institutions and administrative practices to limit this power so difficult, that only
by drawing such a protective line between expression and action is it possible to strike a
safe balance between authority and freedom.21

Attainment of truth

Emerson believed that human judgment is frail and by nature, incomplete, therefore

freedom of expression is essential to in allowing members of a society to "make full use of

different minds to sift the true from the false."22 Suppression of this expression impedes the

creation of new ideas.

Many of the most widely acknowledged truths have turned out to be erroneous. Many of
the most significant advances in human knowledge-from Copernicus to Einstein--have
resulted from challenging hitherto unquestioned assumptions. No opinion can be immune
from challenge.23

Even opinions that turn out to be false promote discussion and serve the "vital social

purpose," of compelling the "rethinking and retesting of the accepted opinion." Emerson said

that "social judgment is made up of individual judgments," and therefore is dependent upon the

competition of ideas. In the end, the only way that an individual, and society as a whole, can

attain truth is to have open dialogue and discourse on ideas, free from government control.

Participation in decision-making

Open discussion amongst members of the community also promotes decision making. 24

This discussion, when restricted to only the "elite" deemed worth of expression, denies

individual participation by those who may have valuable opinions or facts to contribute to the

community discussion. Although this participation is vital in many community affairs such as


21 Id.

2 2Id.

23 Id.

24Id. at 882.






























































25Id. at 884.


culture and planning, it is vital in the political process because "the state has a special incentive

to repress opposition and often wields a more effective power of suppression." Emerson also said

that "Freedom of expression in the political realm is usually a necessary condition for securing

freedom elsewhere." Political freedom of expression also allows citizens to communicate their

"attitudes, needs and wishes" to a responsive government. Emerson emphasized that this

freedom of expression is not just "politically useful," but "indispensable to the operation of a

democratic form of government." This communication between citizens and their government is

what promotes good representative democracy, with citizens influencing and participating in

democratic governance.

Balance between stability and change

The final key value identified by Emerson is the balance between stability and change,

with "open discussion" as a means for "achieving a more adaptable and at the same time more

stable community."2 Emerson said that suppression of discussion inhibits rational discussion,

prevents social change, minimizes the development of new ideas, and "conceals the real

problems confronting a society." Without free expression, ideas are driven underground, and

"makes resort to force more likely." Emerson said that free expression leads society to "greater

cohesion."

The principle of political legitimation, however, is more broadly fundamental. It asserts
that persons who have had full freedom to state their position and to persuade others to
adopt it will, when the decision goes against them, be more ready to accept the common
judgment. They will recognize that they have been treated fairly, in accordance with
rational rules for social living. They will feel that they have done all within their power,
and will understand that the only remaining alternative is to abandon the ground rules
altogether through resort to force, a course of action upon which most individuals in a










healthy society are unwilling to embark. In many circumstances, they will retain the
opportunity to try again and will hope in the end to persuade a maj ority to their position. 26

Emerson's theory was that "change is inevitable," and "freedom of expression offers

possibilities for rational, orderly adjustment."27

Emerson said that a system of free expression must recognize the "distinction between

expression and action," with expression being "free and unrestrained."28 Emerson concluded by

saying the "natural balance of forces in society today tends to be weighted against individual

expression," and this necessitates a "positive approach, in which law and judicial institutions

play a leading role."

Alexander Meiklej ohn also understood the purpose of the First Amendment as a guarantee

of individual participation in the political decision making process.29 He analogized that free

speech was a town meeting, allowing citizens to come together, proclaim opinions and beliefs,

and reach a consensus based on lively debate.30 Freedom of speech does not indicate a "free-for-

all" where "every individual has an unalienable right to speak whenever, wherever he chooses,"

but rather "it is a group of free and equal men, cooperating in a common enterprise, and using for

that enterprise responsible and regulated discussion."31 Meiklejohn emphasized that in self

government, it is not that "everyone shall speak, but that everything worth saying shall be





26 Id. at 885.

27Id. at. 886.

28Id. at 955.

29 ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1960). See also ALEXANDER MEIKLEJOHN, FREE SPEECH AND
ITS RELATION TO SELF-GOVERNMENT (1948), available at http://digital.1ibrary.wisc.edu/17 11.dl/UW.MeikFreeSp.

30 MEIKLEJOHN, POLITICAL FREEDOM, supra note 29 at 23-24.
31Id










said."32 Even with this restraint, participants in self governing democracies must meet ideas

"with their eyes open. Meiklejohn said, "To be afraid of ideas, any idea, is to be unfit for self-

government. Any such suppression of ideas about the common good, the First Amendment

condemns with its absolute disapproval.33

The guarantee given by the First Amendment is not, then, assured to all speaking. It is
assured only to speech which bears, directly or indirectly, upon issues with which voters
have to deal--only, therefore to the consideration of matters of public interest. Private
speech, or private interest in speech, on the other hand, has no claim whatever to the
protection of the First Amendment. 34

Meiklej ohn reconciled the competing interests of society and the individual by making five

observations on the relationship between government and citizens: 1) the public interest is made

up of "individual desires and intentions," and must combine all concerns; 2) given that human

interests are in "constant conflict with one another, they cannot all be realized." The common

good is not a collection of concerns, and often one interest is sacrificed for another; 3)

government judgments should be based upon "general principles" such as "unity, justice,

tranquility, defense, welfare, equality, liberty." This might require the sacrifice of individual

rights; 4) the government must balance protection of collective and individual rights; 5) the

constitution shows no preference in the balancing of collective and individual rights, but rather

"the American Way of Life is free because it is what we Americans freely choose--from time to

time-that it shall be."35







32 Id. at 24.

33 Id. at 27.

34Id. at 94.

35 Id. at 96-98.










National Security

Harold Lasswell, in his 1950 book National Security and Individual Freedom, developed

the communication theory of interacting systems, said that individuals should have an increased

role in controlling the governing process.36 This individual control is a response to what

Lasswell described as a "central nervous system" controlling the country's communications.37

Lasswell said that civilian supremacy is a "characteristic of democratic government" evident in

the intentions of the forefathers to protect individual freedom against "arbitrary official action."38

Lasswell said that the First Amendment is most the most essential protection of the

political process because it guarantees free expression.39 During Lasswell's time, courts used the

"clear and present danger" test to evaluate First Amendment protections for speech tempered by

national security concerns.40 Lasswell said that the application of this test required an

"independent estimate of the necessities of the situation."41 This estimate is only possible if the

courts have all the information about the programs may be limiting constitutional rights.42

Lasswell urged continued judicial review of such information through the "National Security

Council" in order to limit security threats.43 Lasswell said that relying upon judicial


36 HAROLD LASSWELL, NATIONAL SECURITY AND INDIVIDUAL FREEDOld 141-42 (1950).

37Id.

38Id. at 65.

39 Id. at 141-42.

o0 See Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616, 624 (1919); and Gitlow
v. New York, 268 U.S. 652 (1925). See full discussion of these in~fra, pp. 120-132.

41LASSWELL, supra note 36, at 142.
42Id.

43Id. According to the White House, the National Security Council was established by the National Security Act of
1947, and amended by the National Security Act Amendments of 1949. See Nat'1 Security Act of 1947, Pub. L. No.
235, 61 Stat. 496 (1947) & Nat'1 Security Act Amendments of 1949, 63 Stat. 579 (codified as amended at 50 U.S.C.










interpretation would limit the abuse of power by a garrison state.44 Lasswell said that when

intelligence agencies are allowed to operate beyond judicial review, civil liberties may be

threatened by political agendas.45

Lasswell introduced four principles to generally govern national security programs46

I. Is there a threat to the principle of civilian supremacy in the U.S. system of government?

II. Does the policy involve a threat to freedom of information and disclosure of government
activities?

III. Is there danger to the civil liberties of the individual?

IV. Does the policy violate the principle of a free--as opposed to a controlled--economy?

Lasswell said that an affirmative answer to any of these questions triggers a "potential loss

of freedom," which can be avoided or reduced by changing the national security program in

question. Lasswell said reducing the reach of government security programs might preserve the

American goal of individual dignity.47



401 et seq. (2000)). Later in 1949, as part of the Reorganization Plan, the Council was placed in the Executive
Office of the President. According to the Whitehouse:

The National Security Council is chaired by the President. Its regular attendees (both statutory and non-
statutory) are the Vice President, the Secretary of State, the Secretary of the Treasury, the Secretary of
Defense, and the Assistant to the President for National Security Affairs. The Chairman of the Joint Chiefs
of Staff is the statutory military advisor to the Council, and the Director of National Intelligence is the
intelligence advisor. The Chief of Staff to the President, Counsel to the President, and the Assistant to the
President for Economic Policy are invited to attend any NSC meeting. The Attorney General and the
Director of the Office of Management and Budget are invited to attend meetings pertaining to their
responsibilities. The heads of other executive departments and agencies, as well as other senior officials,
are invited to attend meetings of the NSC when appropriate. The National Security Council is the
President' s principal forum for considering national security and foreign policy matters with his senior
national security advisors and cabinet officials. Since its inception under President Truman, the function of
the Council has been to advise and assist the President on national security and foreign policies. The
Council also serves as the President's principal arm for coordinating these policies among various
government agencies s. See National Security Council, http://www .whitehouse. gov/nsc/.

I4d. at 143.

45Id.

46 Id. at 57.

47Id.










The Wall: The Fourth Amendment and Surveillance


The "Wall" between foreign intelligence gathering and criminal law enforcement is a common

theme in the literature on the topic of FISA surveillance. Richard Seamon and William Gardner

discussed the wall in their 2005 HarvardJournal ofLaw/ and Public Policy article, "The

PATRIOT Act and the Wall Between Foreign Intelligence and Law Enforcement."48 Attorney

General Janet Reno adopted procedures requiring Justice Department officials to construct "a

wall" to prevent "sloppy" compliance with the primary purpose test in 1995.49 This wall mainly

consisted of three provisions including

1. prohibiting the DOJ's Criminal Divisionso from giving the Federal Bureau of Investigations
(FBI) advice that would "result in either the fact or appearance of the Criminal Division's
directing or controlling foreign intelligence or foreign counterintelligence,

2. requiring that the FBI and the Justice Department's Office of Intelligence Policy and
Review (OIPR) notify the criminal division of any FBI surveillance investigations that
yielded evidence reasonably indicating that a "significant federal crime has been, is being,
or may be committed," and

3. requiring that the OIPR act as a gatekeeper controlling information flow between the FBI
and the Criminal Division regarding intelligence or potential prosecutions."




48Richard Henry Seamon & William Dylan Gardner, The Patriot 4ct and the Wall Between Foreign Intelligence
and Law Enforcement, 28 HARY. J.L. & PUB. POL Y 3 19 (2005).

49 Id. at 367.

"0 According to the website for the Department of Justice Criminal Division,

The Criminal Division develops, enforces, and supervises the application of all federal criminal laws except
those specifically assigned to other divisions. The Division, and the 93 U.S. Attorneys have the
responsibility for overseeing criminal matters under the more than 900 statutes as well as certain civil
litigation. Criminal Division attorneys prosecute many nationally significant cases. In addition to its direct
litigation responsibilities, the Division formulates and implements criminal enforcement policy and
provides advice and assistance.

The division also advises the Attorney General, Congress, the Office of Management Budget and the White House
on matters of criminal law, providing legal advice and assistance to federal prosecutors and investigative agencies
(such as the FBI). U.S. Department of Justice, Criminal Division, b1lip nu \\ \ usdoj .gov/criminal/ (last visited June
22, 2008).

51 Seamen & Gardner, supra note 48 at 368-71.










Seamen and Gardner suggested that the 2001 PATRIOT Act changed the nature of the

FISA wall by removing the original requirement that surveillance be conducted for the "primary

purpose" of obtaining foreign intelligence.52 Post PATRIOT, the wall was eroded by the

requirement that foreign intelligence gathering need only be a "significant purpose" in the order

seeking a FISA warrant. 53 For example, in a criminal investigation into drug trafficking, warrant

requests would normally be made under Title III of the federal electronic surveillance statutes,

discussed in chapter two. With the change in purpose discussed above, federal agents

investigating drug traffickers who were also suspected of terrorism, could apply for a less

restrictive FISA warrant. The authors conclude by calling for Congress to amend FISA and

clarify the wall between foreign intelligence gathering and criminal law enforcement

investigations.54

Senator Orrin Hatch (R-Utah) clarified the change in the primary purpose test when he

spoke before the Senate Judiciary Committee in 2002. Hatch said Congress intended to enable

the gathering of foreign intelligence as a "significant purpose," even when the primary purpose

of the intelligence was a criminal investigation." The primary purpose of the surveillance would

be foreign intelligence if intelligence investigators managed the surveillance. 56 The primary


I2d. at 376.

53Id. at 376-77.

54Id. at 463. See also William C. Banks, 4nd The Wall Came Twnbling Down: Secret Surveillance 4fter The
Terror, 57 U. MIAMI L. REV. 1147 (2003). Banks says the Wall might prevent an effective response to terrorism and
result in "grave harm to the nation." The author explores the argument that "The Wall" led to the September 11Ith
attacks by preventing the free flow of information between government authorities. Banks discusses a nx
paradigm" of prevention at the Justice Department where intelligence and law enforcement activities are blended to
best combat terrorism. Banks also explains how the May 2002 order authorizing surveillance by the Foreign
Intelligence Surveillance Court modified the Justice Department's March 2002 procedural changes to the FISA
Wall, diminishing the minimization principle. The author says that "piecemeal changes" to the law have come about
in hasty attempts to "match developments in technology and in terrorists' techniques for evading detection."

55 148 CONG. REC. S9109-S9110 (daily ed. Sept. 24, 2002) (statement of Sen. Hatch).

5 6Id










purpose would be a criminal investigation if criminal investigators managed the surveillance."

If the primary purpose is a criminal investigation, then the government must honor Title III' s

stricter requirements for surveillance so the search would not violate a domestic target's Fourth

Amendment right against unreasonable search and seizure.' Title III and FISA both require the

government to establish probable cause for the court to issue an order for the use of electronic

surveillance. 59 Title III requires the court to find probable cause on the "basis of the facts

submitted" that an individual is, has or is about to commit, a crime. FISA requires the court to

find probable cause "on the basis of the facts submitted that the individual is a foreign power or

agent of a foreign power. Whereas, Title III requires facts substantiating a crime, FISA requires

only an association with a foreign power.

Given the recency of the disclosure of the Terrorist Surveillance program, few authors

other than journalists have had an opportunity to study the issue. Barbara Bergman offered a

notable exception in her February 2006 column for Champion, a magazine that informs criminal

defense lawyers of developments in search and seizure laws. Bergman said that Congress never

gave the executive branch permission to conduct electronic surveillance without wiretaps, even if

it was informed in a limited manner.60 Bergman's comparison looked at the Administration's

claim that Congress was informed of the surveillance program, therefore it cannot be found

illegal. She likened Bush's actions to one of her clients basing a defense on the fact he told his





57Id.

58Id.

59Supplemental Brief for the United States, at Appendix, In re Sealed Case No. 02-001, 310 F.3d 717 (U.S. Foreign
Intell. Surveil. Ct. filed Sept. 25 2002), available at httpl w\ il \t .fas~org/irp/agency/doj/fisa/092502sup.htl

60 Barbara E. Bergman, When the Government Breaks the Law, CHAMPION, Jan./Feb. 2006, at 4.










friends he was going to commit a crime. 61 Bergman cited the Supreme Court's ruling in U.S. v.

United States District court to say that judicial approval is required, in addition to informing

Congress.62 Bergman said that Congress passed FISA, discussed in chapter two, as a means to

monitor domestic individuals who might be working for foreign powers.63 She did not endorse

FISA, but said that it has been severely crippled by the PATRIOT Act--specifieally Congress'

modification to the primary purpose requirement for foreign intelligence.64 Bergman concluded

by calling for Congressional hearings to investigate the change and its effect on American civil

liberties.65

Bergman's piece is representative of existing information on the latest FISA developments,

but most of the literature available does not focus specifically on the President' s terrorist

surveillance program. Rather, the literature available discusses general problems with electronic

surveillance. Literature in this area focuses on three major themes: the legislative history of

FISA, "the wall" established to separate foreign intelligence and law enforcement activities

across government agencies, and the need to reform current surveillance provisions. An

undercurrent in all of the literature reviewed is the need for balance between security and liberty.



J. Christopher Champion, in his 2005 Vanderbilt Law/ Review article, analyzed FISA' s

legislative history. Champion also reviewed the Foreign Intelligence Surveillance Court' s


61 Id. The Champion is a magazine published by the National Association of Criminal Defense Lawyers that covers
issues of concern to criminal defense lawyers and the "latest developments in search and seizure laws."

62 United States v. U.S. District Court ("Keith"), 407 U.S. 297, 323-24 (1972). (holding that "prior judicial approval
is required for the type of domestic surveillance involved in this case and that such approval may be made in
accordance with such reasonable standards as the Congress may prescribe.")

63 Bergman, supra note 60.

64 Bergman, supra note 60. For further discussion of primary purpose test, see infra pp. 29 & 99.

65 Bergman, supra note 60.










(FISC) 2002 role in reinterpreting FISA based on the PATRIOT Act' s 2001 amendment of the

primary purpose test. 66 Pre-PATRIOT, FISA warrants only allowed collection of information

related to "foreign intelligence crimes."67 In 2002, the FISC emphasized the separation of

foreign intelligence and criminal law enforcement investigations, despite language in the

PATRIOT Act aimed to dissolve this "wall" between the two distinct surveillance purposes.68

The court, in denying the Department of Justice' s request to involve criminal law enforcement in

FISA surveillance, relied on the 1980 case of United States v. Truong Dinh Hung. In this case,

the Fourth Circuit of the U. S. Court of Appeals upheld the warrantless surveillance of agents of

foreign powers, including U.S. citizens when they are acting as foreign agents as long as the

primary purpose of the surveillance was foreign intelligence.69 The FISC of review overturned

the 2002 FISC ruling reasoning that the Truong case misinterpreted the minimization procedures

outlined in FISA.70 Minimization is a term that refers to the principle that intelligence agencies

should minimize the "collection, retention, and dissemination of information" on U.S. citizens





66 J. Christopher Champion, The Revamped FISA: Striking A Better Balance Between The Government's Need To
Protect ItselfAnd The 4th Amendment, 58 VAND. L. REV. 1671 (2005). See also Designation of Judges,
50 U.S.C. # 1803 (2000). The United States Foreign Intelligence Surveillance Court (FISC), a federal court
authorized by FISA, reviews and grants applications for electronic surveillance warrants by federal agencies. The
court originally had seven federal district judges, but the PATRIOT Act changed that number to eleven requiring at
least three of the judges to be within twenty miles of Washington, D.C. The chief justice of the United States
Supreme Court appoints the judges. The FISC hearings are closed to the public and court records are classified. The
FISC of review can grant, deny or modify requests for warrants. The federal government is the only party in the
court's proceedings, and denials for orders are appealed to the United States Foreign Intelligence Surveillance Court
of Review.

67 Id

68In Re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (U.S. Foreign
Intell. Surveil. Ct. 2002), available at http://www.cnss.org/FISA%/20court%/20opnonpf

6 9Id

70In re Sealed Case No. 02-001, 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. 2002), available at
ht11 \p wil i .cnss.org/FISCR~opinion.pdf.










who are subjects of FISA authorized wiretaps.n1 One aspect of minimization is an "information-

screening wall" that allows information to be passed to law enforcement officials only when

relevant evidence is discovered.

Champion said the courts need to strike a better balance between FISA and the Fourth

Amendment. 72 Champion' s called for a better balance reflecting the complex nature of the issue

and a possible need to reevaluate the line between security and privacy in light of the changes

made by the PATRIOT Act and the FISC's 2002 ruling.73 The FISC of review said a "wall"

could not necessarily separate criminal law enforcement and foreign intelligence activities since

investigations often involved both activities.74 Essentially, the FISC ruled that FISA was never

meant to be limited to foreign intelligence collection." This 2002 FISC ruling further eroded the

wall between foreign intelligence and criminal law enforcement.


71 Executive Order 12333, issued in 1981 by President Reagan, required that intelligence agencies "use the least
intrusive collection techniques feasible within the United States or directed against U.S. persons abroad." Exec.
Order No. 12333, 3 C.F.R. 200 (1981 Comp.).

72 Champion, supra note 66 at 1703.

73 See also David. S. Jonas, The Foreign Intelligence Surveillance Act Through The Lens Of The 9/11commission
Report: The Wisdom Of The PatriotActAmendmeentsAnd The Decision Of the Foreign Intelligence Surveillance
Court OfReview, 27 N.C. CENT. L.J. 95 (2005). Jonas takes an approach similar to Champion in his article on the
post-PATRIOT-Act FISA; however his remedies and conclusions differ greatly. Jonas' article reviews FISA
legislative history and amendments. He looks at the implications of terrorism on domestic surveillance before
concluding that the PATRIOT Act's amendments to FISA were necessary given the circumstances surrounding 9/11
and national sentiment following the attacks. He suggests that instead of limiting the tools needed to fight the War
on Terrorism, there should be harsher penalties for those in the executive branch who abuse power. Jonas bases his
recommendations on the idea that terrorists pose a great threat to U.S. national security. Jonas suggests that the
preservation of the United States democratic system is dependent upon defending against the terrorist threat. He
states "insecurity threatens liberty." The author discusses the national security pendulum that shifts constantly
between individual rights and national security. Jonas says that the 9/11 Commission has suggested that nlo\\ is the
time for the pendulum to swing towards national security." He says the key to realizing that shift is effective
intelligence, which does not punish cooperation between agencies for the purposes of national security.

741In re Sealed Case No. 02-001, 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. 2002), available at
hop11 w il i .cnss.org/FISCR~opinion.pdf.

75The primary purpose test developed as a Fourth Amendment restriction on warrantless electronic surveillance.
After the 1967 Katz ruling, discussed in chapter three, electronic surveillance conducted by the government was
viewed by the Supreme Court as search and seizure that activated Fourth Amendment protections. A line of case law
developed from this ruling indicating warrantless electronic surveillance was legal if conducted for the primary
purpose of obtaining foreign intelligence information. In United States v. Brown, 484 F.2d 418 (1973), the Third










Heath H. Galloway, in his 2002 Wa~shington and Lee Law/ Review article, saw the erosion

of the FISA wall as the latest in a series of attacks on American' s privacy. 76 He said the attacks

are more common when the government has increased power." Galloway said changes to FISA

are not necessarily evil, but that "evil has made them a necessity." The September 11Ith attacks

reinforced the idea of "terrorism" as an "evil" that required a reevaluation of existing statutes

related to electronic surveillance.

Jennifer M Hannigan used a 2004 Houston Law/ Review Comment to boldly state "toying

with civil rights post-9/11 may ironically help terrorists accomplish their goals by impacting the

American ideals of freedom and liberty."79 She discussed the cycle of U.S. civil liberties

violations by analyzing Supreme Court Justice William J. Brennan's factors for infringement of



Circuit of the U.S. Court of Appeals found that warrantless wiretaps were constitutional because they were
authorized by the Attorney General "for the purpose of gathering foreign intelligence." In United States v. Butenko,
318 F. Supp. 66 (D.N.J. 1970), aff'd, United States v. Butenko, 494 F.2d 593 (3d Cir. 1974), the U.S. Court of
Appeals for the Third Circuit found that the Fourth Amendment did. not require a warrant for wiretapping when the
primary purpose of the surveillance was gathering foreign intelligence. In United States v. Truong, 629 F.2d 908
(4th Cir. 1980), the Fourth Circuit suppressed evidence under what would be frequently cited as the first use of the
"primary purpose test."

76 Heath Heath H. Galloway, Don 't Forget What We're F,ghtisr, For: Will the Fourth Amendment BeA Casualty of
the War on Terror, 59 WASH. & LEE L. REV. 921 (2002). See also Robert N. Davis, Striking the Balance: National
Security vs. Civil Liberties, 29 BROOK. J. INT'L L. 175 (2003). Davis provided a look at the history on intelligence
gathering since the 1947 National Security Act, outlining the national defense strategy from 1947-2003. He
discusses how the PATRIOT Act amended FISA and offers recommendations to remedy the erosion of "the Wall."
Davis, in his conclusion, focused on the National Emergencies Act of 1976, Pub. L. No. 94-412, 90 Stat. 1255
(1976) (codified as amended at 50 U.S.C. #1601-1651) (2000), which gave Congress a statutory basis for
monitoring the President' s declaration of a national emergency. He said President Bush used the terrorist attacks as a
justification to declare a state of national emergency. This state of emergency governs the War on Terrorism, where
the U.S. seeks to "destroy terrorists and those who support them wherever they may be." Davis said the country has
come "full circle." Whereas the Church Committee (1975-1976) was motivated to constrain intelligence activities
based on national events, terrorism might be a cause to "untie the hands of the intelligence community." Davis said
that the balance between national security and the Fourth Amendment is at the center of the issue. Davis added that
civil liberty protection relies upon the survival of the nation--if a nation is not secure, civil liberties are threatened.
He used this reasoning to establish the idea that the nation must be preserved in order to preserve freedom.

77Galloway, supra note 76.

78Id. at 974.

79 Jennifer M. Hannigan, Playing Patriot Games: National Security I hall1.~ ig. Civil Liberties, 41 Hous. L. REV.










civil rights during a time of crisis. Under this model: 1) the crisis creates a national fervor, 2)

security risks are exaggerated and 3) the perceived risks result in a forfeiture of civil liberties

until the risk subsides.so Hannigan said decision makers' difficulties in identifying true security

risks, amongst perceived risks that might never manifest to true security threats, perpetuate the

cycle. slHannigan said the real threat of terrorism is that it provokes "democratic regimes to

embrace and employ authoritarian measures.82 She concluded by suggesting that the nature of

the 9/11 attacks have resulted in a new crisis with no definable end.83

The existing literature not only explores FISA, the PATRIOT Act and related statutes, but

also includes review of possible changes that might be made to current intelligence practices in

order to update methods to protect American's constitutional rights and the country's interests.

In discussing the "wall" between law enforcement and foreign intelligence, the authors discussed

above take different approaches regarding the best remedy. What emerges as a common lens is

the shifting line between security and liberty. Whereas some authors, such as Galloway in the

Wa~shington and Lee Law/ Review, see the erosion of the wall between foreign and domestic

surveillance as necessary to preserve national security, others, such as Hannigan in the Houston

Law/ Review, see it as a threat to liberty. The War on Terrorism is one reason for the erosion of

the wall between foreign intelligence and criminal law enforcement, but it is not the only factor

involved in the changing nature of electronic surveillance. Telecommunications technology is

changing at a rapid pace. Legislators struggle to keep laws current with technological



so Id. at 1375. See William J. Brennan, Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Times of
Security Crises, Speech at the Law School of Hebrew University, Jerusalem, Israel, at 1 (Dec. 22, 1987).

si Hannigan, supra note 79 at 1375.
82 Id. at 1390.

83 Id. at 1405.










advancements and new threats to security. The convergence of a growing terrorist threat and a

rapidly changing telecommunications industry are at the root of the paradigm shift that is forcing

the reexamination of the line between national security and privacy. The shifting balance

between these two concerns has a direct impact on First Amendment protections for American

citizen's free speech.

The Shifting Line: Liberty v. Security

Liberty is a central theme in the founding principles of the United States of America.8s4 One

interpretation of "liberty" is freedom from the arbitrary exercise of authority." This has been

called a "negative liberty," because the protection is not explicitly stated in the Constitution.

Liberty--from government actions that interfere with a person's ability to do what they

choose--is then derived from the Fifth Amendment's protection from self incrimination, and the

Fourteenth Amendment' s due process and equal protection clauseS86 As in John Locke' s social

contract theory, citizens frequently--and willingly--accept intrusions on their "negative liberty"










We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with
certain unalienable rights, that among these are life, liberty and the pursuit of happiness." THE DECLARATION OF
INDEPENDENCE (U.S. 1776).

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic
tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this Constitution for the United States of America." U.S. CONST.
prmbl.

85BLACK S LAW DICTIONARY 930 (7th ed. 1999). See also U.S. CONST. amend. V, which says no one "shall be
compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without
due process of law" See also U.S. C CONST. amend. XIV, which says the state should not deprive "any person of
life, liberty, or property, without due process of law." See also AM/. JUR. 2D Const. Law #562 (2008) (citing
Ingraham v. Wright, 430 U.S. 651 (1977)).

86 ISAIAH BERLIN, LIBERTY (2002).










as a necessity of government trying to protect the "positive liberties" of freedom of the mind,

freedom of action, choice and equal protection."

Citizen concerns over national security influence how the concept of liberty is interpreted

and applied. For example, the National Security Strategy of the United States--the official

policy of the Executive Branch in protecting national security--defines liberty as the use of

power to maintain the integrity of the state. ssThis relationship between liberty and national

security is very different than the one between liberty and personal security. This is reflected by

John Jay's assertion in the Federalists Papers

Nothing is more certain than the indispensable necessity of Government, and it is equally
undeniable, that whenever and however it is instituted, the people must cede to it some of
their natural rights, in order to vest it with requisite powers.89

This assertion shows the constitutional framer' s reliance on the ideas of British

philosophers, such as John Locke, in recognizing the willingness of citizens to cede protection of

personal liberty for the purpose of protecting national security. This voluntary forfeiture of

liberty reflects the "line" that marks the balance between the two realms of security. 90 British

philosophers such as Locke and Hobbes defined this line as the boundary between the zones of

personal liberty and government authority.91




87That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of
the governed. U.S. CONST. prmbl. See also JOHN LOCKE, Two TREATISES OF GOVERNMENT (1689), available at
http://socserv2. mcmaster. ca/~econ/ugcm/3 113 /locke/government.pdf.

88National Security Strategy of the United States, http://www.whitehouse.gov/nsc/nssall.html (last visited June 22,
2008).

89 THE FEDERALIST NO. 2 (John Jay).

90 British philosophers such as Locke and Hobbes defines this line as the boundary between the zones of personal
liberty and government authority. See generally HOBBES AND BRAMHALL ON LIBERTY AND NECESSITY (Vere
Chappell ed., Cambridge U. Press 1999).

91 Id.










Former NSA Director Michael Hayden mentioned the "line" between liberty and security

in his testimony before the Senate Select Committee on Intelligence in 2002.92 Hayden said

"free people must draw the line between their liberty and their security."93 Hayden suggested the

September 11Ith attacks would drive the nation more toward security.94 He then challenged the

NSA to keep America free through a renewed feeling of safety.95 Hayden said the "line

drawing" affects the NSA' s activities including surveillance standards, data collection and

dissemination. 96 Hayden suggested the attacks were cause for reevaluation of where the line was

drawn.97 After the attacks of September 11Ith, the theme of protecting "national security" became

commonplace in political rhetoric, media accounts and public sentiment.98






92 General Michael Hayden was the Director of the National Security Agency from 1999-2005. The line Hayden
refers to is a shifting boundary on a hypothetical spectrum between security and liberty. This line represents the
balance between the two in the minds of the American people. Critics suggest that the Constitution doesn't establish
a line, therefore Congress and the courts must help "free people" evaluate where that line should be. See generally
Bob Deans, Bush Test Limits of Presidential Powers, Cox News Service, Dec. 28, 2005, available at
1lutp \\ \\ \\.coxwashington.com/news/content/reporterstoi/PEO RSTLD CX2.ml See also
Press Release, White House, Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden,
Principal Deputy Director for National Intelligence (Dec. 19, 2005)
http://www.whitehouse.gov/news/releases/20512201219-1.html. See also Opinion Column, Giving up freedom
is too high a price to pay for security, GAINESVILLE TIMEs (Georgia), Jan. 3, 2006, available at
http://archive.gainesvilletimes.com/news/sois/06103/opinion/54027. shtml.

93 Statement for the Record, Hearing Before the Joint Inquiry of the Senate Select Committee on Intelligence and the
House Permanent Select Committee on Intelligence (Oct. 17, 2002) (statement of Lieutenant General Michael V.
Hayden, Director, National Security Agency), available at http://www.nsa.gov/releases/relea00064.pd

94 Id

95 Id

9 6Id

97 Id. Specifically, the NSA Director said "We need to get it right."

98 See Bennie G. Thompson, The National Counterterrorism Center: Foreign And Domestic Intelligence Fusion And
The Potential Threat To Privacy 10 U. PITT. J. TECH. L. & POL'Y 3 (2006); Brett Schumate, New Rules for a New
War: The Applicability of the Geneva Conventions to Al-Qaeda and Taliban Detainees Captured in Afghanistan, 18
N.Y. INT'L L. REV. 1 (2005). The Bush administration argues that the "War on Terrorism" is a new kind of war that
requires new rules. See President's Remarks at Indiana Victory 2006 Rally, 42 WEEKLY COMP. PRES. Doc. 1908
(Oct. 28, 2006), available at http://www.whitehouse.gov/news/releases/20610201028-3.html.










In December of 2005, The Terrorist Surveillance Program drew national attention to the

line between liberty and security.99 JUSt days after the disclosure of the Terrorist Surveillance

Program, Attorney General Gonzales, in a press conference, explained how the National Security

Agency managed its mission to protect Americans in the "spectrum" between liberty and

security

Across the board, there is a judgment that we all have to make -- and I made this speech a
day or two after 9/11 to the NSA workforce -- I said, free peoples always have to judge
where they want to be on that spectrum between security and liberty; that there will be
great pressures on us after those attacks to move our national banner down in the direction
of security. What I said to the NSA workforce is, our j ob is to keep Americans free by
making Americans feel safe again. That's been the mission of the National Security
Agency since the day after the attack, is when I talked -- two days after the attack is when I
said that to the workforce. 100

National security concerns influence how the line between security and liberty is drawn.

Laws such as FISA have been passed to specifically protect the civil liberty interests of

American citizens. Furthermore, changes in the telecommunications industry have resulted in

technological advancements enabling carriers to better assist the government in capturing and

filtering private communications. Gone are the days of government agents requesting copies of

telegrams; now, sophisticated computer software can filter comprehensive databases looking for

suspicious patterns or key words.










99 Risen & Lichtblau, supra note 5. In December of 2005, Congress met to negotiate extending the powers of the
USA PATRIOT Act of 2001, a statute largely concerned with demolishing the historical wall between intelligence
and law enforcement.

10 See Press Release, White House, Press Briefing by Attorney General Alberto Gonzales and General Michael
Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)
http://www.whitehouse.gor/news/releases/20512201219-1.html.










Chilling Effect

The chilling effect was first mentioned in a 1951 Vanderbilt Law/ Review article by Paul

Freund exploring a double standard in the judicial treatment of civil liberties. 101 Freund

reasoned that a judicial rule against vagueness or over breadth should depend on the moral

quality of the conduct, so as to not "chill" constitutionally protected conduct that might have

"genuine social utility." This differentiation of activities based on morality protects the public

interest in freedom of expression by providing for a rational exploration of political ideaS. 102

Freund argued that the "chilling" of constitutional protections can be just as bad as "prohibiting"

them in the cases of monitoring subversive phone conversationS. 103

When government intervenes in the marketplace of ideas, regulations can have a "chilling

effect" on free speech and open dialogue. 104 Frederick Schauer, in a 1978 article for the Boston

Law/ Review, wrote that the chilling effect doctrine was a combination of two legal principles.

First, the legal process is uncertain because it involves "people-made rules" and it is difficult to

have a high degree of confidence in predicting outcomes. 1os Second, the legal system is wrought

with errors, which, in the context of free speech, poses greater comparative harm to an individual

and the legal proceSS. 106 Schauer suggested that the government imposition of restrictive laws of





101 Paul A. Freund, The Supreme Court and Civil Liberties, 4 VAND. L. REV. 533, 539 (1951).

102Id. at 540, 549.

103 Michael N. Dolich, Alleging a First Amendment "C 1,,1linis Effect" to Create a Plaintiff s Standing: A Practical
Approach, 43 DRAKE L. REV. 175, 175-76 (1994).

104 Frederick Schauer, Fear, Risk and the FirstAmendment: Unraveling the 1 Italinis Effect, 58 B.U. L. REV. 685
(1978).

1os Id. at 687.

106 Id. at 687-88.










free expression does not create "benign" deterrence, but "invidious" deterrence of protected

activities. 107

The very essence of a chilling effect is an act of deterrence. While one would normally say
that people are deterred, it seems proper to speak of an activity as being chilled. The two
concepts go hand in hand, of course, in that an activity is chilled if people are deterred
from participating in that activity. Although an individual's decision not to engage in
certain behavior may be influenced by a wide range of stimuli, in law the acknowledged
basis of deterrence is the fear of punishment-be it by fine, imprisonment, imposition of
civil liability, or deprivation of governmental benefit. 10s

Schauer said that the chilling effect is a "subset of the inhibitory effect created by any

regulatory enactment and creates no independent constitutional difficulties." The chilling effect

is implicated when any Constitutional safeguard is "unduly discouraged," including activities

protected by the First Amendment. 109 First Amendment protections provide an "affirmative

value" protecting a right to speak. 110 Schauer said that this affirmative right has the positive

social value of promoting the public exchange of ideas and information. 1 Schauer said that the

government must evaluate interference in the "positively advantageous" sphere of free speech, as

it is a constitutionally protected realm.112

Schauer said that the chilling effect is not dependent upon altering specific behaviors,

rather it is based on the "comparative nature of the errors that are bound to occur," in regulating

activities that are bound up with constitutionally protected activities. This comparative effect--

107 Id. at 690. Historian Howard Zinn mentioned a "chill" on free speech in the chapter of his book on American
ideology. In discussing the First Amendment, he envisioned a scenario where "all of the restrictions on freedom of
speech" are suddenly removed. Zinn said this would result in a "chill on free speech caused by the secret
surveillance of citizens." See generally HOWARD ZINN, DECLARATIONS OF INDEPENDENCE: CROSS-EXAMINING
AMlERICAN IDEOLOGY 182-230 (1991).

'os Schauer, supra note 104, at 689.

109 Id. at 690.

110 Id. at 691. This would be in addition to the negative ban on government abridgement.

111 Id.

"1Id. at 692.










where citizens must evaluate whether an expression or action treads too close to prohibited

speech--rather than altering specific behaviors, is the real indicator of the chilling effect. 113

Raymond Shih Ray Ku, in his 2002 M~innesota Law/ Review article, argued that in order for

free expression to survive, citizens understand a "reasonable expectation of privacy" in

developing their personal beliefs. 114 Ku said the Fourth Amendment does not just protect

privacy: it is a "means of preserving the people's authority over government." 1 With

electronic surveillance, this expectation is always shifting because rare technologies quickly

become commonplace before the average citizen is familiar with their existence and

implementation. 116

In his 2007 New York University Law/ Review article, Daniel Solove argued that the First

Amendment should protect against the government gathering information on citizens' First

Amendment activities. Solove said First Amendment protections should restrict government

information gathering if there is a "discernible" chilling effect on constitutionally protected

activities.ll Solove said, however, that it is difficult to establish an actual chilling effect

because it is "hard to measure the deterrence caused by a chilling effect." He said this is because

"it is impossible to determine with certainty what people would have said or done in the absence





113Id. at 731.

114 Katz v. United States, 389 U.S. 347 (1967).
" t Raymond Shih Ray Ku, The Founders' Privacy: The Fourth Amendment and the Power of Technological
Surveillance, 86 MINN. L. REV. 1325, 1326 (2002).

116 See Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo 's Rules
Governing Technological Surveillance, 86 MINN. L. REV. 1393 (2002).

117Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV. 112 (2007).

Its Id. at 154.










of the government activity."11 Solove said the only evidence of a chill would be the "person' s

own assertions that she was chilled." If the Court accepted this claim at face value, Solove said

it would allow anyone to establish a chilling effect in any situation. 120

Katherine Strandburg, in a 2007 Boston College Lent Review article, argued that the First

Amendment' s protections for freedom of association provide a "framework" for regulating

"relational surveillance."121 Strandburg used the term "relational surveillance" to refer to the

computer analysis of "noncontent traffic data to map networks of associations."122 Strandburg

was concerned with threats to association, as opposed to the government "listening in" on

communication content. 123 Strandburg said that there is a "potential chilling effect" when the

government uses relational surveillance to monitor citizens. 124 She said the First Amendment' s

guarantee for freedom of association must be seen as a unique consideration in evaluating

relational surveillance programs -separate from the Fourth Amendment' s protections from

unreasonable search and seizure. 125 Strandburg said government mining of databases--

containing information on communication pattemns-might reveal citizens' "exploratory

activities" in Intemet search patterns. She said this could "mark an individual" as a member of

an association before they ever officially joined it. 126 Strandburg concluded that the First


"1Id. at 155.

120Id~

1 Strandburg, Freedom of~ssociation in a Networked World: First 4mendinent .>;,/,I ,.-?, ofRelational
Surveillance, 49 B.C. L. REV. 741 (2008), available at
http://papers.ssrn.com/sol3/papers.cfm?absrcd=136624.

122 Id. at 741.

' Id. at 749, n. 9.

I24d. at 747.

1 Id. at 748.

I26d. at 752.










Amendment' s right to freedom of association should limit relational surveillance by the

government if it "amounts to disclosure of expressive associations."127

Matthew Lynch, in his 2007 First Amendment Lent Review article, creates a hypothetical

"Orwiellian Act" to evaluate the constitutionality of government restriction on a speaker' s right to

choose his or her audience. 128 Lynch's "Orwiell Act" is an imagined "extraordinary legislative

response to public demand for greater security" in response to the 9/11 terrorist attacks. The

Orwiell Act would allow the government, in the name of national security, to monitor "every

communication by verbal or technological means."129 Lynch identified this action as an

"Orwiellian loophole" where the government could monitor speech between the speaker and his

or her private audience. 130 He called the loophole a "widening crack between Fourth

Amendment, First Amendment, and right-to-privacy protections."131

Lynch identified one of the issues in "chilling-effect" claims by plaintiffs in court cases.

He said that in order for plaintiffs to successfully argue their speech was concretely chilled, they

must show that they were afraid to speak out against the government because of fear of

punishment. However, this fear is invalidated as a claim if they are speaking out in court. 132

Lynch said that in order to prove a "chill" plaintiffs would need to show the chill resulted from

actual government surveillance, not just perceived potential surveillance. 133 Lynch called for a


127 Id. at 819-20.

128 See generally Matthew Lynch, Closing the Orwellian Loophole: The Present Constitutionality of Big Brother
and the Potential for a First amendment Cure, 5 FIRST AMlENDMENT L. REV. 234 (2007).

129 Id. at 239, 242.

130 Id. at 236.

131 Id. at 240.

132 Id. at 267.

133 Id. at 272.










new approach to where "government surveillance is an act directed at speech itself, rather than

its secondary effects or its time, place, and manner."134

Lynch discussed the nature of anonymous speech and how it creates new theory of

relationships between speaker, the contents of the speech, and the intended audience. 135 Lynch

used sociology studies from the 1950's to argue that a speaker will change his or her message

depending upon who they believe the recipient of the communication will be. 136 Lynch applied

the Hawthorne Effect--a psychological term referring to the result of 1920's research on

Chicago factory workers showing that when workers knew they were being watched, their work

output improved--to surveillance to argue that government surveillance can change speakers

communications. 137 He said, "Years of expression subj ect to known observation may

subconsciously condition speakers toward a pattern of behavior designed to please the full

audience." 138 This would include the uninvited observer, as well as the intended audience. 139

Lynch concluded his article by calling on the Supreme Court to "recognize that a speaker's

choice of audience is as fundamental to speech as the speaker' s choice of words, choice of

medium, and choice to speak at all."140







'3 Id. at 289.

135 Id

13 Id. at 289-90.

137 Id. (citing D. Michael Risinger et al., The Daubert Kuinho Implications of Observer Effects in Forensic Science:
Hidden Problems of Expectation and cl.... .r. ,.. 90 CAL. L. REV. 1 (2002)).

138 Id

139Id~

140Id~










Breathing Space

William Banks, in his 2000 American University Law/ Review article on national security

surveillance, said that the idea of "breathing space" as a First Amendment concept arises from

the need for privacy in group association. 141 When a group "espouses dissident beliefs," it is

more likely to be the target of government surveillance due to national security concerns. 142

Banks recognized the development of the "breathing space" concept in case law:

The idea that associational privacy provides an individual "breathing space" has often been
an issue in national security surveillance case law since the late 1950s, albeit not always
the basis for overturning government surveillance. 143

Banks said that any use of domestic surveillance has the potential to "chill" First

Amendment expression.144 Banks said this intersection of domestic security and freedom of

expression is balanced by two "analytic devices": 1) the courts isolate certain categories of

expression as having "little or no value" such as "incitements to violence" and "publication of

information likely to cause irreparable harm to the national security" and 2) the courts ask

whether "expressive interests" were targeted or only an "incidental by-product" of government

operations.145 He referred to this latter analytic device as a "purpose or effect"' analysis that

creates a "subj ective inquiry" when surveillance activities are chall enged.146






141 William C. Banks & M.E. Bowman, Executive Authority For National Security Surveillance, 50 AMl. U.L. REV. 1
(2000).
142Id.

143 Id. at 45.

144 Id. at 6.

145 Id.

146Id.









Banks said that the First Amendment should not be "a barrier to government surveillance

activity" unless the intention of surveillance is the "chilling" of "protected excpression."l47 He

said that surveillance might also be challenged when there is a "confluence of interests"

protected by the First and Fourth Amendments:

Problems arise, however, at the intersection of First and Fourth Amendment interests,
where protected expression may be chilled by surveillance of groups or individuals
selected on the basis of advocacy of unpopular views, or where individuals are associated
with a terrorist group on the basis of religious, ethnic, or national affiliation.14

He gave the example of "intrusive surveillance... alleged to have chilled the exercise of

protected expressive activities."l49 Hill said that whether or not surveillance occurs, the

existence of "surreptitious recording... of individual communication" can create suspicion,

which chills free excpression.150

J.L. Hill, in his 2004 Boston College Lent Review article on constitutional thought,

identified three political values -privacy, autonomy and self-expression-which give life to the

concept of breathing space as a political value in Democracy.ls Hill said

Privacy provides the self shelter from the storm; it gives the nascent self the breathing
space to develop, and the developed self a personal realm to exist as it is, free from the
prying eyes and corrosive influences of society. 152

The right to unrestricted expression in private discourse allows the private citizen to

develop fully. 153 Autonomy acts as a catalyst in the development of individual choice. When


1 Id. at 6.

1 Id. at 6. 122.

'49 d. at 7.

"I0d. at 38.

15 J.L. Hill, The Five Faces of Freedoin in 4merican Political and Constitutional Thought, 45 B.C. L. REV. 499


15 Id. at 575.










citizens can privately engage in interpersonal communication on meaningful issues, they are free

to explore ideas that fall outside the bounds of accepted doctrine. Alternative ideas are born

from these private interactions--once developed, they can be introduced into the marketplace

through public self-expression. Hill identified self expression" as the "soul" of freedom. 154

Therefore, the political values of privacy, autonomy and self-expression enable democratic

citizens to manifest their personal beliefs as political values. 5

Surveillance Societies (Dystopian and Utopian Visions)

As discussed in the previous two sections, scholars have suggested that government

surveillance programs may have a chilling effect on free speech in the marketplace when it

restricts citizen's perceived breathing space for expressing socially unpopular political ideas.

Surveillance may also have the potential to undermine citizen' s assessment of the privacy of

their communications when they may not be certain of the extent of programs and technologies

employed by the government. Fictional surveillance societies can be used as a model to explore

the First Amendment theories on the "chilling effect" and the marketplace of ideas. Many

authors have explored scenarios of governance where citizens do not enj oy protections for

democratic values such as free speech and privacy. These examples from literature share the

common theme of an oppressive regime, which restrains citizens' speech through surveillance

practices that undermine political expression by intimidating citizens who have unpopular or

subversive viewpoints.

Surveillance societies are often based on the idea that widespread monitoring will limit

subversive activities and promote lawfulness among citizens. Although this idealized goal in

153 Id

154Id~

155 Id.










monitoring individual's communications is often motivated by government' justification that it

improves society, monitoring may also have a negative effect, destroying the political principles

that foster freedom and Democracy. This approach, often meant to quiet revolutionary

movements and promote domestic security, has been most thoroughly explored by philosophers

and novelists. John Stuart Mill is notable for introducing the word "dystopia" to characterize a

society that falls from the classical Democratic ideals for governance. Although Mill lived in a

time when mass surveillance was technologically impossible, his ideas are directly applicable to

the erosion of liberty and free expression in a surveillance society.

In an 1868 speech on Ireland before Parliament, Mill used the phrase "dystopian" to

characterize the antithesis of Utopia as envisioned by St. Thomas More. 156 More's Utopia

represented an idealized fictional society with a perfect legal and social system. 1 Mill's play on

the Latin word "utopia" was a commentary on the social ills of the day. Coupled with his

advocacy of the open exchange of ideas, it is likely that Mill would see government suppression

of the marketplace of ideas as a dystopia. Fictional surveillance societies can be characterized as

dystopian in nature, straying from their idealistic visions in their real-world application. 158 This

struggle over whether surveillance creates a utopian or a dystopian society is the key difference

between Bentham' s Panopticon and Nineteen-Eighty/-Four by George Orwell.




156 190 Parl. Deb. (3d ser.) 1517 (1868). THOMAS MORE, UTOPIA (1516), available at
http://www.gutenberg.org/etext/2 130.

1 MORE, supra note 156.

1 Matthew Beaumont, Cacotopianism, the Paris Commune, and England's Anti-Communist Imaginary, 1870-1900,
73 ELH 465 (2006). A synonym for dystopia is an even older word first used by Jeremy Bentham in 1818:
"cacotopia."










Jeremy Bentham published Panpticon~~~~PPPP~~~~PPPP in 1787.159 The panopticon was a prison that

would allow all prisoners (pan) to be watched (opticon) without ever giving the appearance that

they were being observed. 160 In this way, the prisoners could never tell when they were being

watched. In Bentham's Panopticon, it would seem that the prisoners were always being watched

and therefore they would be less likely to engage in deviant acts because they would be deceived

by a "sentiment of an invisible omniscience." Although Bentham volunteered to pay for the

prison and serve as an unpaid warden, his design was never adopted by Parliament.

George Orwell's 1949 book Nineteen-Eighty/-Four is a fictional account of Winston Smith,

a man who lives in a totalitarian society called Oceania. 161 In the novel, a totalitarian regime--

Big Brother--operates as a surveillance society using a security elite known as the "thought

police" to detect and punish critical views, or "thought crimes." Smith is a middle class

bureaucrat who struggles with his existence in a surveillance society under a dictator known as

Big Brother. In the book, Oceania is always at war and the "inner party" maintains tight social

controls to limit dissent. Smith keeps an illegal secret diary of his thoughts that are critical of

Big Brother.

Even though all citizens are monitored in their homes by telescreens, Smith strategically

positions himself in a corner of the room where he is beyond the sight of the screen when writing

in his diary. These cameras--connected to telescreens--along with hidden microphones, are

monitored by the thought police, a secretive law enforcement organization that tortures and kills

any person found to threaten the Big Brother through departure from official government


159 JEREMY BENTHAM, THE PANOPTICON WRITINGS 29-95 (Miran Bozovic ed., 1995), available at
http:.//cartome. org/panopticon2. htm.
1 601)d

161 GEORGE ORWELL, 1984 (Signet Classics 1977) (1949).










positions. Smith and his heroine, Julia, operate under the false assumption that they have

privacy. In the end, they realize that this is just an illusion and they are detained and tortured by

the thought police.

Bentham envisioned a surveillance society, at least in a penal system, as a beneficial

arrangement that would promote better behavior. Orwell portrayed omnipresent surveillance as

oppressive to citizen behavior. In both stories, the characters obey the government because they

are aware that they are being watched at all times. 162

Contemporary scholars use the Orwell vision in Nineteen-Eighty/-Four to produce

commentary on modern surveillance practices. David Lyon, in his 1994 book, The Electronic

Eye, traced social and academic reflection on the Nineteen-Eight-Four scenario since the early

1970s in his book on surveillance societies. 163 Lyon is a professor of sociology at Queens

University. He is also the Director of The Surveillance Proj ect, a policy research group that

studies surveillance from an interdisciplinary approach. 164 Lyon concludes that a "total

surveillance society" as envisioned by Orwell would be limited only by technological

capabilities. 165




162 Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083,
1101-02 (2002). See also NANCY CHANG, CENTER FOR CONSTITUTIONAL RIGHTS, THE USA PATRIOT ACT:
WHAT's So PATRIOTIC ABOUT TRAMPLING ON THE BILL OF RIGHTS? (2001) (on file with the author). Beyond
metaphorical comparisons, authors have consistently linked First Amendment protections of free expression to
Fourth Amendment privacy protections. In the post-PATRIOT era, changes in surveillance laws can be seen in the
light of an assault on privacy rights. Nancy Chang suggests that there has been a three-prong assault that challenges
not only privacy, but First Amendment protections for political association and the freedom to dissent: 1) The
government has unprecedented surveillance power; 2) In the name of national security, law enforcement is allowed
to monitor the Internet and use wiretaps; 3) Information is freely exchanged between criminal and intelligence
agencies.

163 DAVID LYoN, THE ELECTRONIC EYE: THE RISE OF SURVEILLANCE SOCIETY 57 (1994).

164 The Surveillance Project, http://www.surveillanceproject.org/ (last visited June 22, 2008).

165 LYoN supra note 163 at 57.










Lyon said that the Nineteen-Eight-Four scenario has been supercededd technologically" by

globalization of surveillance activities. He argued that Bentham's Panopticon is the dystopian

prophecy that most accurately reflects how modern surveillance societies truly operate. 166 Lyon

said Bentham believed that the Panopticon would have a positive effect on the prisoners who

were being monitored. 167 This is a far cry from the Big Brother surveillance imagined in

Nineteen-Eighty/-Four.

Lyon suggested that it is important to pay attention to both the Orwellian and Panoptic

models in order to understand surveillance and find possible "alternative models" for controlling

subversive behaviors. The Panopticon is a very elegant, yet antiquated approach to surveillance.

Orwell's vision incorporates "information technology" to collect and store data on individuals. 168

Both models are based on the unperceivable surveillance that creates uncertainty among the

observed. 169 In both Bentham and Orwell's scenarios, the observed must know that someone is

watching them in order for citizen' s to alter their behavior as part of the chilling effect. In

Bentham's Panopticon and Orwell's Big Brother society both rely on citizens being aware of

surveillance, but being unable to judge the extent of the secretive surveillance beyond the

technological devices they can see--such as the cameras in watching Winston Smith in Orwell's

story. As Lyon said bluntly, "You simply comply, because you never know when "they" might

be watching.""7 Lyon also linked Orwell's handling of surveillance societies to a degradation of

human dignity. It is not just privacy that is at issue; it is the loss of the essential human right to



166Id.

1 6 Id.

168 Id.

169Id.

1o Id.










self-respect through the exercise of critical thinking in evaluating conflicting information and

points of view. 7

The literature on surveillance is rife with metaphorical comparisons to Orwell's extreme

scenario. Authors have linked contemporary surveillance practices to the creation of a "Big

Brother" totalitarian regime. Most of these links, at least recently, focus on Internet and

commercial data collection as tools for governments and corporations seeking to more closely

monitor citizen' s economic and social activities. James Nehf s 2003 Washington Law Review

article on information privacy compared modern data collection systems to the tactics of the

fictional authoritarian regime in Nineteen-Eighty/-Four. People often fear a negative consequence

from data collection, even when the information collected is "mundane and harmless."172

Modern data collection systems "limit freedom by tightening the government's hold over various

aspects of citizens' private lives." Nehf used the metaphor of Jeffrey Bentham' s Panp ticon,~PPP~~~PPP~~~PPP

suggesting that mass surveillance "curtails free will."173

Stan Karas, in his 2005 Albany Law Journal of Science and' Technology article, evoked

images of "telescreens" as depicted in Nineteen-Eighty/-Four. 174 He said this sort of "all-seeing

eye of the state" creates a privacy problem by encouraging citizens to abandon their privacy in

exchange for the "favor of disclosure." Karas narrowly examined the surveillance and disclosure

of personal data as it relates to identity theft. He said that data collection--the electronic

monitoring of consumer' s financial records--by private corporations has a negative impact on


171 Id

172 James P. Nehf, Recognizing the Societal Value in Inforination Privacy, 78 WASH. L. REV. 1 (2003).

173 See also Margaret Raymond, P,......<,,; Totalitarianisin: T; ,I,,; 4,lr, s the Guarantees of Constitutional Criminal
Procedure, 76 N.C. L. REV. 1193 (1998). Margaret Raymond said that totalitarian regimes collect private
information to create fear in the populous resulting in a chilling effect on free expression.

174 Stan Karas, Loving Big Brother, 15 ALB. L.J. Sel. & TECH. 607 (2005).









the democratic process. Karas' article focused on surveillance by businesses, which has only

recently begun to be seen by scholars as a threat to the democratic process. m7 However, Karas'

reasoned that when citizens complacently go along with this monitoring, there is a climate

created where there is a "favor of disclosure" and citizens no longer expect strong privacy

protections from monitoring of their personal data.

Surveillance can be interpreted by a society as a valuable tool for protecting security or a

harmful strategy for suppressing human rights and political involvement. Often, a society's view

of surveillance--and consequently its interpretation of the legality of such a program--depends

entirely upon contemporary circumstances. In the United States of the 21st century, the

September 11Ith attacks and the War on Terror were circumstances that demanded the country's

attention.

American Public Sentiment

One factor influencing the balance of protections for electronic surveillance is public

sentiment. If the public is willing to accept executive programs, then may be less pressure for

representatives in Congress to investigate or update surveillance laws. When there are public

concerns over government programs, there may be pressure for intelligence investigations or

updated legislation. Little polling data is available for public opinion on electronic surveillance.

The first polling data from the communist era of the 1950's and 1960's will be presented,

followed by a collection of polling data collected after the 2005 revelation of warrantless

wiretapping by the American government.







"'5 The Chilling Effect Clearinghouse, http://www.chillingeffects.org/ (last visited June 22, 2008).










Thomas Emerson, in his 1963 Yale Law Review Journal article, discussed a 1953 Gallup

poll of public support for freedom of expression. 176 In relating the poll data to his theory of key

values in protecting the First Amendment, Emerson said the results revealed "an alarmingly high

proportion of the population who are unwilling to apply the basic principles of the theory in

practice."" In the Gallup poll, sixty-seven percent of respondent thought that a person "known

to favor communism" should not be allowed to make a speech in their city of town. Emerson

said that just twenty-nine percent thought that a person "known to favor communism" should be

permitted to speak.

Emerson also cited a 1955 study by Samuel Stouffer that found "the willingness to grant

freedom of speech to Communists was a function, less of political views or economic status, than

on the degree of education." 7

More polling data is available for assessing the 21"t century sentiment of Americans in

regards to current government surveillance programs. Many polls relating to the Terrorist

Surveillance Program were commissioned after the 2005 revelation of the domestic wiretapping

program. It is important, in each of the polls, to remember the political agenda of the

organization that commissioned the poll, as well as limited samples.

A poll conducted by Zogby International in January of 2006 interviewed 1,216 United

States adults. 179 In TOSponse to the statement, "If President Bush wiretapped American citizens

without the approval of a judge, do you agree or disagree that Congress should consider holding

'76 Thomas I. Emerson, supra note 6. (citing Gallup Poll, WASH. POST, Dec. 5, 1953, at p. 16, col. 6).
177 Id

1 Id. (citing SAMUEL STOUFFER, COMMUNISM, CONFORMITY, AND CIVIL LIBERTIES 89-90 (1955). See also
SEYMOUR MARTIN LIPSET, POLITICAL MAN 109-11 (1960).

1 9 Bob Fertik, Poll: 4mericans Support Bush Impeachment for Wiretapping, Democrats.com, Jan. 13, 2006,
lut \\ \\ ldemocrats.com/bush-impeachment-poll-2 (last visited June 22, 2008).
The poll had a 2.9% margin of error.










him accountable through impeachment," Eifty-two percent of respondents agreed, while forty-

three percent disagreed and six percent didn't know or declined to answer. Just over half of

respondents favored impeaching the President for his actions.

A January 2006 poll conducted j ointly by the Associated Press and Ipsos found that fifty-

six percent of respondents agreed that the government should get a court warrant before

eavesdropping on calls and e-mails of U. S. citizens overseas who are believed to be linked to

terrorism. Iso Of those polled, forty-two percent did not believe court approval is not necessary.

This data reflects the split in public sentiment toward the program found in the Zogby poll on

impeachment. A large percentage of respondents are in favor of warrantless domestic

surveillance programs.

NBC and the Wall Street Journal commissioned a poll through Hart/McInturff, which was

released in late January of 2006. I When asked if they approved or disapproved with the Bush

Administration's approach to wiretapping without court order, fifty-one percent of respondents

approved of the approach, forty-six percent disapproved and three percent were not sure. This

supports the AP-Ipsos polling data on warrantless surveillance. In regards to the wiretapping of

American citizens with suspected terrorist ties, forty-one percent of respondents said they

believed the administration should be able to conduct wiretaps without a court order, while fifty-

three percent said that a court order should be required (four percent said it "depends," two

percent were unsure.) When asked how concerned they were that the Bush administration's

unwarranted wiretaps could be "misused to violate people's privacy," thirty-one percent of



1so Poll: Mlajority Wants Court OK for Wiretaps, FoxNews.com, Jan. 8, 2006,
bli w\ il itfoxnews.com/story/0,2933,18101 1,00.html (last visited June 22, 2008).

181 Hart/McInturff, Study #6060: NBC News/Wall Street Journal Survey (Jan. 2006), available at
http://msnbcmmedia msn. com/i/msnbc/sections/new s/060 1 30_NBC-WSJPoll.pdf. The margin of error for 1,01 1
interviews is +3.1%.










respondents were "extremely concerned," twenty-Hyve percent "quite concerned," twenty-two

percent "not really concerned," twenty-one percent "not concerned at all," and one percent were

unsure. American sentiment in regards to valuing privacy, at least as indicated by this poll,

seems to reflect only mild concern for violation of statutes requiring warrants for surveillance.

A CNN/USA Today/Gallup poll of 1000 American adults was released in February of

2006 revealing that about a fifth of Americans think federal agents have listened in on their

phone calls.182 It is interesting that given the media coverage, and executive branch

acknowledgements of widespread surveillance dragnets, that only a fraction of citizens

acknowledge they may have been targets. The poll also showed that respondents were split as to

whether President Bush' s Terrorist Surveillance Program was legal--forty-nine percent felt the

president had "definitely or probably broken the law by authorizing the wiretaps," while forty-

seven percent said he "probably or definitely had not." This split was mirrored in the question

asking whether the program was right or wrong, with forty-seven percent saying it was right and

fifty percent saying it was wrong.

A Harris Interactive poll commissioned by the American Bar Association in February of

2006, asked participants "In the fight against terrorism, which of the following reasons, if any,

would justify the government eavesdropping on your personal communications, including phone

calls or emails, without a search warrant or court order?"18s3 Of the respondents, forty-eight

percent felt the government was justification in monitoring communications. Breaking down the

forty-eight percent, respondents felt the following reasons were justification: twenty-two percent


182 Poll: Fifth ofAmericans think calls have been monitored, CNN.com, Feb. 14, 2006,
bli w\ il itcnn.com/2006/POLITICS/02/14/poll.wiretapsidxhm (last visited June 22, 2008). The sampling
error for those questions was plus or minus 5 percentage points. 1,045 adults were polled by phone.

183 Harris Interactive, American Bar Association's Presidential Power Datasheeted Questionnaire (Feb. 7, 2006),
available atll! htt u\ \\ .abanet.org/media/docs/surveillancepoll06pf 1,045 completed interviews with adults 18+,
plus or minus 3 percent.










said an anonymous tip of helping to plan a terrorist attack was justification, twenty-one percent

said suspicion of sending money to a terrorist organization was justification, eight percent felt

membership or support of an organization publicly criticizing the president was justification,

while thirteen percent said that the "government does not need to give any special reason to

monitor your personal communications." Of the respondents, forty-five percent said that the

government was never justified in eavesdropping on personal communications without approval

by a court of Congress (five percent responded they didn't know or were not sure, while two

percent declined to answer). Again, the data from this poll mimics the results from the other

polling organizations.

A February 2006 Pew Research Center Poll found that fifty-four percent of American

believe it is "generally right for the government to monitor communications of Americans

suspected of having terrorist ties without first obtaining permission from the courts."18s4 Of the

respondents, fifty percent felt that the government hadn't yet gone far enough in protecting the

country against terrorism, while just thirty percent felt concerned about government restriction of

civil liberties.

An outlier in the collection of polls can be found in data collected from a study

commissioned by the ACLU, one of the organizations that filed a case against the government

program. In January of 2008, the American Civil Liberties Union commissioned the Mellman

Group to conduct a poll on domestic surveillance. l Of those polled, sixty-three percent favored


184 Pew Research Center for The People & the Press, 85% See U.S. Addicted to Oil 50% Say We Can Quit: Iran a
Growing Danger, Bush Gaining on Spy Issue (2006), available at http://people-press.org/reports/pdf/269.d. The
survey was conducted Feb. 1-5 among 1,502 Americans.

I The Mellman Group, Voters Vigorously Oppose Warrantless Wiretaps, Blanket Warrants, And Immunity For
Telecom Communities (Jan. 18, 2008), available atll! hop un \\.aclu.org/pdfs/safefree/mellmansurvey jan208pf
1,000 "likely voters" in the 2008 general election were interviewed, with a 3.1 percent margin of error.










"requiring the government to obtain a warrant from a court before wiretapping the conversations

U.S. citizens have with people in other countries. Of those polled, fifty-five percent strong

support warrant requirements, while just thirty-three percent support warrantless wiretapping of

Americans' international conversations. When asked whether they opposed allowing courts to

issue blanket warrants for wiretapping American citizens without naming a specific individual,

fifty-eight percent of respondents strongly opposed blanket warrants, while thirty-three percent

supported them. Of the respondents, fifty-seven percent "reject immunity for phone companies

that may have violated the law by selling customers' private information to the government,

preferring to let courts decide the outcome of any case." This data is unique in that it was

collected in 2008, after Congressional investigations into domestic surveillance, yet it must be

considered carefully given the potential bias of the sponsoring organization.

Cumulatively, the data collected from these polls indicates that the American public is not

very concerned about the government' s use of electronic surveillance on American citizens.

Most citizens seem to trust the government' s intentions in carrying out surveillance. Whether

this is based on a faith in compliance with statutory requirements, or rather, a sense of Patriotism

in protecting national security is unclear. The attitude does seem significant given the strong

suspicion of government search and seizure that was prevalent during the American Revolution

and the drafting of the Constitution.

Research Questions

Research was conducted to evaluate the connection between electronic surveillance and

free speech in an age of terrorism. The proposed questions for this research are:

1. What is the legislative history governing the surveillance of United States citizens?

2. What is the judicial history of the relationship between political surveillance of citizen
communications and those citizens' First Amendment rights?










3. How does the Fourth Amendment' s protection for privacy relate to the First Amendment' s
protections for free speech?

4. Do current surveillance cases in the courts show a trend of protection for Emerson' s key
First Amendment values, or a shift towards Lasswell's garrison state?

5. What is the current balance between the need to protect civil liberties and the need to
protect national security based on judicial interpretations of federal surveillance laws?

6. Does government surveillance of private communications create a chilling effect on free
expression in the marketplace of ideas, as interpreted by the courts?

Methodology

This dissertation uses the methodology of legal research. Primary resources, including

primarily federal statutes, cases, executive orders, as well as agency policies, rules and

regulations regarding the First Amendment and surveillance were examined.

Search Strings for online sources such as Lexis/Nexis, the FCC's website, and Google

included :

* "electronic surveillance"
* "domestic spying"
* "electronic surveillance" and "free speech"
* "electronic surveillance w/10 chilling effect"
* "domestic spying" and "chilling effect"
* "electronic surveillance w/10 First Amendment"
* "domestic electronic surveillance"
* "chilling effect w/10 free speech"
* "surveillance society "
* "marketplace of ideas" and "surveillance"
* "First Amendment" and "marketplace of ideas"
* "breathing space"
* "Foreign Intelligence Surveillance Act"
* "Terrorist Surveillance Program"

Federal statutes were reviewed looking for laws that govern electronic surveillance of the

telecommunications networks, as well as laws that suppress or punish political speech. From this

initial list of statutory law, cases were identified that involved the issues of electronic

surveillance, free speech or the marketplace of ideas. Executive orders pertinent to past and










current surveillance initiatives were also identified. Statutes, cases and executive orders were

accessed using the Lexis-Nexis Database.

Case names and names of secondary source authors were added as research progressed..

Law reviews published before 1960 were reviewed using printed copies, as they are not available

on the Lexis/Nexis database.

Additionally, secondary sources such as seminal works on the First Amendment,

bibliographies from recognized experts such as Leonard Levy, as well as historical texts and

accounts of the National Security Agency were examined. The history of the telecommunications

network providers was examined. Theses sources were identified using key word searches in the

University of Florida library database.

In this way, the dissertation research process allowed the researcher to summarize the legal

framework, explore current issues related to this framework and review theoretical connections

between the ideas of free speech and national security. The legal sources were also used to

explore a new theoretical construct explaining how the nation's shift towards protecting security,

paired with society's expanding technological capabilities, has created a new sort of citizen-

government relationship that could modify the application of constitutional protections. These

changes will be analyzed using constitutions, statutes and case law.

Definitions

The definitions in this section come from Black' s Law Dictionary. They are provided to

give the reader a starting point in understanding the laws governing electronic surveillance,

which will be discussed in the next chapter. The definitions will also be a starting point for

interpreting the language of the court decisions presented in chapter three.










Bugging:


A form of electronic surveillance by which conversations may be
electronically intercepted, overheard, and recorded, usually]
covertly; eavesdropping by electronic means.18s6

1. Constitutional law. The result of a law or practice that seriously
discourages the exercise of a constitutional right, such as the right to
appeal or the right of free speech. 2. Broadly, the result when any
practice is discouraged. s

Freedom from undue governmental interference or restraint. This
term usu[sually] [r]efers to freedom of speech or religion. s

An agreement by two or more persons to commit and unlawful act; a
combination for an unlawful purpose. In criminal law, conspiracy is
a separate offense from the crime that is the obj ect of the
conspiracy.ls

1. Of or relating to one's own country . 2. Of or
relating to one's own jurisdiction. 190

The act of secretly listening to the private conversations of others
without their consent. 191


Chilling Effect:




Civil Liberty:


Conspiracy :




Domestic:


Eavesdropping:


Electronic surveillance:


references definition of eavesdropping.


Espi onage:


The practice of using spies to collect information about what another
government or company is doing or plans to do. 193

1. A warrant issued by the English Secretary of State for the arrest
of the author, printer, or publisher of a seditious libel, without
naming the persons to be arrested. 2. A warrant that gives a law-
enforcement officer broad authority to search and seize unspecified
places or persons; a search or arrest warrant that lacks a sufficiently


General warrant:


186 BLACK)S LAW DICTIONARY 189 (7th ed. 1999).

1s' Id. at 233.

1ss Id. at 239.

189 Id. at 305.

190 Id. at 529.

191 Id. at 529.

192 Id. at 537.

193 Id. at 565.













Liberty: 1.


Marketplace of ideas:






Natural liberty:


Negative Right:


Pen register:



Penumbra:




Personal liberty:



Political liberty:


particularized description of the person or thing to be seized or the
place to be searched.194

Freedom from arbitrary or undue external restraint, esp. by a
government. . 2. A right,
privilege, or immunity enjoyed by prescription or by grant; the
absence of a legal duty imposed on a person by the Constitution>. 195

A forum in which expressions of opinion can freely compete for
acceptance without governmental restraint. Although Justice Oliver
Wendell Holmes was the first jurist to discuss the concept as a
metaphor for explaining freedom of speech, the phrase marketplace
of ideas dates in American case law only from 1954.

The power to act as one wishes, without any restraint or control,
unless by nature. 196

A right entitling a person to have another refrain from doing an act
that might harm the person entitled. 197

A mechanical device that logs dialed telephone numbers, without
overhearing the telephone conversation, by monitoring electrical
impu ses. 9

A surrounding area of periphery of uncertain extent. In
constitutional law, the Supreme Court has ruled that the specific
guarantees in the Bill of Rights have penumbras containing implied
rights, esp. the right of privacy. 199

A person's freedom to do as one pleases, limited only by the
government' s right to regulate theopoublic health, safety, and welfare.
---Also termed individual liberty.20

A person' s freedom to participate in the operation of government,
esp. in the making and administration of laws.201


194 Id. at 1579.

195 Id. at 931.

196 Id. at 930.

197 Id. at 1323.

198 Id. at 1155.

199 Id. at 125.

2 Id. at 1164.










Positive Right:


Prior Restraint:





Spy:


A right entitling a person to have another do some act for the benefit
of the person entitled. 202

A governmental restriction on speech or publication before its actual
expression. Prior restraints violate the First Amendment unless the
speech is obscene, is defamatory, or creates a clear and present
danger to society.203

One who secretly observes and collects secret information or
intelligence about what another government company is doing or
plans to do; one who commits espionage.204

A privilege that the government may invoke against the discovery of
a material that, if divulged, could compromise national security.
Also termed national-security privilege.20

Close observation or listening of a person or place in the hope of
gathering evidence.206

A writ directing or authorizing someone to do an act, especially]
one directing a law enforcer to make an arrest, a search or a
seizure."

The electronic or mechanical eavesdropping, usually] done by law-
enforcement officers under court order, to listen to private
conversations.208 Wiretapping is regulated by federal and state law,
and is often shorted to "tapping.


State Secrets privilege:



Surveillance :


Warrant:



Wiretapping:


Summary of Chapters

Chapter two provides a comprehensive overview of the legislative history of electronic

surveillance in the United States beginning with the Radio Act of 1912 through the current


201 Id. at 1179.

202 Id. at 132.

203 Id. at 1212.

204 Id. at 1411.

205 Id. at 1418.

206 Id. at 1459.

207 Id. atl579.

20s Id. at 1594.










legislative actions to update the Foreign Intelligence Surveillance Act. Chapter two also

provides a history of electronic surveillance as it has operated outside of the legal framework,

beginning with military surveillance programs in the early part of the 20th century. The chapter

looks at each law chronologically, with special emphasis on how the statute modified definitions

of terms, warrant requirements and other provisions governing surveillance.

Chapter three provides a case-by-case look at the maj or judicial decisions involving First

Amendment principles such as the "chilling effect" and "breathing space," as well as Fourth

Amendment cases interpreting the application of surveillance law. Chapter three also highlights

cases decided on Fourth Amendment grounds, which have implications for First Amendment

protections.

Chapter four discusses the Bush Administration's Terrorist Surveillance Program and court

cases Eiled since the disclosure of the Terrorist Surveillance Program. The chapter looks at three

cases, selected for their relevance to the discussion of the relationship between First and Fourth

Amendment protections for surveillance.

Chapter Hyve is the conclusion. In chapter Hyve, each of the research questions are answered

based on the data collected. Findings are offered answering the research questions. Chapter five

concludes with considerations and recommendations for remedies and future research.









CHAPTER 2
LEGAL HISTORY OF DO1VESTIC SURVEILLANCE BY US GOVERNMENT

The legal background of electronic surveillance by the government spans almost a century,

dating back to World War I. The first United States intelligence operation, the Black Chamber,

was initiated before The Radio Act of 1912 codified telecommunications regulation. Since that

time, a complex body of statutes has been written and revised to address changing technologies

and concerns over government acquisition of telecommunications content. This chapter will

look at the history of the Black Chamber during World War I, The Communications Act of 1934,

the creation of the National Security Agency, the Omnibus Crime Control and Safe Streets Act

of 1968, the Foreign Intelligence Surveillance Act of 1978, the Electronic Privacy

Communications Act of 1986, the Communications Assistance for Law Enforcement Act of

1994, The Telecommunications Act of 1996, The USA PATRIOT Act of 2001 and subsequent

updates to the PATRIOT Act. Each of these laws will be looked at in a chronological analysis,

introducing the act and its effects as it modifies existing electronic surveillance law at the time of

its passage.

The Black Chamber

U.S. intelligence traces its roots back to 1917 when the country entered World War I

(WWI).1 At that time, the U.S. War Department began intercepting coded messages across

international lines.2 This operation became known as the "American Black Chamber" and it was

maintained by first the State Department, and then the War Department, beyond the end of the

WWI.3



SHERBERT O. YARDLEY, THE AMERICAN BLACK CHAMBER (1931).

2 Military Intelligence Section 8 (MI-8).

3 YARDLEY, supra note 1.










In 1919, the Black Chamber set up offices in New York City under the name of The Code

Compilation Company. The program lasted for ten years before Secretary of State Henry B.

Stimson ended it in 1929. At that time, Osborne Yardley, a key player in the Black Chamber,

rebelled against Stimson by writing a tell-all book. The book reveals that government agents

visited the maj or telegraph companies and requested copies of all foreign government cables. 4

The legality of the Black Chamber surveillance operation would not be decided until the Church

Committee investigated U.S. surveillance activities in the late 1970's. This will be discussed

later in this chapter.

The Radio Act of 1912

The Radio Act of 1912 was the first Congressional action to regulate federal wireless

communication. It was passed in response to the sinking of the Titanic, as well as to address

problems caused by amateur radio operators interfering with commercial and military messages.

The Act went into effect four months from its passage on August 13, 1912.5 The Radio Act



SThe Radio Act of 1912 outlawed "eavesdropping" on radio or cable traffic although this prohibition was suspended
during the war. The major telegraphic companies were the Western Union Telegraph Company and the Postal
Telegraph Company. Yardley's account suggests that agents requested copies of all domestic cables. YARDLEY,
supra note 1. See SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE
ACTIVITIES, 94TH CONG., SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE
RIGHTS OF AMERICANS, BOOK III, FINAL REPORT AT thereafter "CHURCH COMMITTEE FINAL REPORT") (1976),
available at http: www ,,.6. ,...;; --11ari..it... 1 .1~ ~1.111 I p ,. .Here../ It, .ll,..'l r/lle.htm. The report discusses intelligence
activities and operations during the 20th century. The report states that the FBI used 519 wiretaps and 186
microphone surveillances during 1945. It also states that until 1972, "the Bureau used wiretaps and bugs against
both American citizens and foreigners within the United States-without judicial warrant--to collect foreign
intelligence, intelligence and counterintelligence information, to monitor "subversive" and violent activity, and to
determine the sources of leaks of classified information." The report states that the CIA targeted 57 individuals with
telephone wiretaps and microphones between 1947 and 1969. The report does not disclose numbers for the NSA,
but states that it has been intercepting electronic communications since the 1950's. The report states that the 1928
Olmstead decision (217 U.S. 438), discussed in chapter three, resulted in the FBI engaging in the "unrestricted use
of wiretapping in both criminal and intelligence investigations." Although the Radio Acts prohibited
"eavesdropping," on private communications, it wasn't until the passage of the Communications Act of 1934, that
the Supreme Court had an opportunity to extend this prohibition on eavesdropping to federal agents. Nardone v.
United States, 302 U. S. 397 (1937); 308 U. S. 338 (1939). When Congress did restrict wiretapping, the report
states that the Justice Department successfully argued that only the divulgence of contents of communications was
prohibited, not the use of intercepted materials as evidence.

5 The Radio Act of 1912, Pub. L. No. 264 (1912), 19.










mandated licensing requirements for amateur radio operators and assigned channels for

commercial, military and civilian transmissions. Licenses were required to specify 1)ownership

and location of the station, 2) identification of station, 3) estimated wave length and range of

transmissions, and 4) hours of station transmission. Responsibilities for licensing requirements

and punitive fines were assigned to the United States Department of Commerce and Labor. 6

The Radio Act of 1912 allowed the government to commandeer station equipment or

control in times of national crisis:

Every such license shall provide that the President of the United States in time of war or
public peril or disaster may cause the closing of any station for radio communication and
the removal therefrom of all radio apparatus, or may authorize the use or control of any
such station or apparatus by any department of the Government, upon just compensation to
the owners.

The nineteenth regulation of the Radio Act prohibited the disclosure of the contents of

communications:

No person or persons engaged in or having knowledge of the operation of any station or
stations, shall divulge or publish the contents of any messages transmitted or received by
such station, except to the person or persons to whom the same may be directed, or their
authorized agent, or to another station employed to forward such message to its
destination, unless legally required so to do by the court of competent jurisdiction or other
competent authority.

Violation of this regulation was punishable by monetary fines or a prison sentence. The

Radio Act defined "radio communication" as "any system of electrical communication by

telegraphy or telephony without the aid of any wire connecting the points from and at which

radiograms, signals, or other communications are sent or received."9



6 d.

I1d.

"Id.

9 d.










The Radio Act of 1927

The Radio Act of 1927 updated the statutes to include broadcasting, and assigned private

radio communication to the AM band. 10 The Radio Act of 1927, approved February 23, 1927,

repealed the Radio Act of 1912. 1 "Radio communication" was defined as "any intelligence,

message, signal, power, pictures, or communication of any nature transferred by electrical energy

from one point to another without the aid of any wire connecting the points from and at which

the electrical energy is sent or received and any system by means of which such transfer of

energy is effected."12

The Radio Act of 1927, much like the Radio Act of 1912, allowed the President to

commandeer stations during times of war, public peril, disaster, or national emergency. Like the

1912 Radio Act, this act prohibited divulging the contents of transmissions or receptions to "any

person other than the addressee," or his agent. 13 The Act prohibited censorship of radio

communications by prohibiting regulations that interfered with "free speech by means of radio

communications" except in the case of "obscene, indecent, or profane language."14

The 1927 Radio Act also created the Federal Radio Commission to replace the Commerce

and Labor Department in regulating the United States' radio spectrum in the public convenience,

interest or necessity. 1 The Federal Radio Commission was composed of five commissioners,

appointed by the President, with Senate confirmation. The commission members elected the


'o The Radio Act of 1927, Pub. L. No. 632 (1927). An Act for the regulation of radio conununications, and for other
purposes. See also ERIK BARNOUw, A TOWER IN BABEL (1966).

11 Radio Act of 1927, at 29.

'12 d. at 32.

'13 d. at 27.

14 Id. at 29.
1 Id.










FRC chairman. The FRC was charged with the responsibilities of: 1) classifying radio stations,

2) prescribing the nature of service for each station class, 3) assigning bands of frequencies or

wavelengths for each station class, 4) determining station locations, 5) regulating station

apparatus, 6) preventing interference between stations, 7) establishing zones of station service, 8)

regulating chain broadcasting, 9) regulation station record keeping, and 10) holding hearings to

enforce regulations of the Act. 16

The Communications Act 1934

The Communications Act of 1934 was the first comprehensive legislation to address the

rapidly developing United States communications industry since the passage of the Radio Acts. 1

Enacted on June 19, 1934, the Act's purpose was enabling a "rapid, efficient, nationwide, and

worldwide wire and wire radio communication service" for all people. IsThe Act had six

sections: 1) Title I established the Federal Communications Commission, outlining the agency's

divisions and powers; 2) Title II established common carrier regulations; 3) Title III outlined

broadcast station requirements; 4) Title IV addressed judicial review of the communications

industry; 5) Title V established guidelines for enforcement of the Act; and 6) Title VI addressed

miscellaneous concerns such as amendments, cable television regulation and emergency war

powers of the president. 19





'16 d. at 4.
'7 The Radio Act of 1927 established the Federal Radio Commission.

1s Commc'ns Act, 47 U.S.C. # 151 (1934). "For the purpose of regulating interstate and foreign commerce in
communication by wire and radio so as to make available, so far as possible, to all the people of the United States a
rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at
reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property
through the use of wire and radio communications." Id.

19 Id. Common carriers are defined as "telephone and microwave communications."










In the Communications Act, common carriers are defined as entities that offer telephone

and microwave communications service. The Communications Act defines several key terms

relevant to understanding the framework of electronic surveillance that will be discussed in

subsequent sections of this chapter:

1. Wire communication: "transmission of writing, signs, signals, pictures, and sounds of all
kinds by aid of wire, cable, or other like connection between the points of origin and
reception of such transmission, including all instrumentalities, facilities, apparatus, and
services (among other things, the receipt, forwarding, and delivery of communications)
incidental to such transmission."20

2. Interstate communication (transmission): "communication or transmission (1) from any
State, Territory, or possession of the United States (other than the Canal Zone), or the
District of Columbia, to any other State, Territory, or possession of the United States (other
than the Canal Zone), or the District of Columbia, (2) from or to the United States to or
from the Canal Zone, insofar as such communication or transmission takes place within the
United States, or (3) between points within the United States but through a foreign country;
but shall not... include wire or radio communication between points in the same State,
Territory, or possession of the United States, or the District of Columbia, through any place
outside thereof, if such communication is regulated by a State commission." 21

3. Foreign communication (transmission): "communication or transmission from or to any
place in the United States to or from a foreign country, or between a station in the United
States and a mobile station located outside the United States."22

4. Common carrier: "any person engaged as a common carrier for hire, in interstate or
foreign communication by wire or radio or interstate or foreign radio transmission of
energy, except where reference is made to common carriers not subj ect to this chapter; but
a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be
deemed a common carrier.23

5. Telephone exchange service: "service within a telephone exchange, or within a connected
system of telephone exchanges within the same exchange area operated to furnish to
subscribers intercommunicating service of the character ordinarily furnished by a single
exchange, and which is covered by the exchange service charge."24


20 Id. at 153(a).

21 Id. at 153(e).

22 Id. at 153(f ).

23 Id. at 15 3(h).

24 Id. at 153(r).










6. Telephone toll service: "telephone service between stations in different exchange areas for
which there is made a separate charge not included in contracts with subscribers for
exchange service."25

The Communications Act of 1934 was the first law to define lawful and unlawful actions

for common carriers. The Communications Act addresses discrimination and preferences by a

common carrier, making it "unlawful" for a carrier to unjustly or unreasonably discriminate in

regards to

charges, practices, classifications, regulations, facilities, or services for or in connection
with like communication service, directly or indirectly, by any means or device, or to make
or give any undue or unreasonable preference or advantage to any particular person, class
of persons, or locality, or to subj ect any particular person, class of persons, or locality to
any undue or unreasonable prejudice or disadvantage.26

Although large parts of the Communication Act are not relevant to a discussion of modern

electronic surveillance, the act does address government and carrier cooperation in regards to

communications service in its mandate for "franks and passes," essentially free service provided

by common carriers to governmental agencies in connection with national defense.27 The act

authorizes common carriers to issue, give or exchange "franks and passes" with other carriers for

the use of "their officers, agents, employees, and their families."28 The act also authorizes

common carriers to render free service to any government agency in "connection with the

preparation for the national defense."29







25Id. at 153(s).

26 Id. at 202(a).

27Id. at 210(a).
28Id

29 Id. at 210(b).









National Security Agency

In 1945, the U.S. entered World War II and all telegraph messages were intercepted under

a government program known as Operation Shamrock. 30 This program, which grew out of the

Black Chamber operation discussed earlier in this chapter, was not legally authorized by any

statute or executive action, but rather was a military intelligence operation.

It wasn't until 1952 that communications surveillance was assigned to a specific agency.

At that time, President Harry Truman sent a seven-page top-secret memo to Secretary of State

Dean G. Acheson and Secretary of Defense Robert A. Lovett establishing the National Security

Agency.31 The memo outlined the functions of the NSA to include: 1) protecting

"Communications Security" (COMSEC) of United States telecommunications that are national

security related and 2) obtaining foreign intelligence related telecommunications through the

interception of "Signals Intelligence" (SIGINT). 32 SIGINT is the gathering of electronic

intelligence signals such as radio transmissions. It is a combination of communications

intelligence (COMINT) and electronic intelligence (ELINT). COMINT is the specific type of

SIGINT that involves interception of human-encoded messages between people using devices

such as telegraphs, phones, radios or computers. ELINT involves interception of transmission

from electronic devices, such as radar. The original purpose of the NSA was the interception of

foreign intelligence signals and telephone communications from non-military parties such as

governments, organizations, businesses and individuals.33 This program would come to be


"0 L. Britt Snider, Recollections from the Church Coiniittee'ln or ;,I arear. of the NS4, STUDIES IN INTELL., Winter
1999-2000, available at https://www.cia.gov/1ibrary/center-for-th-tdofielgnc/spuiain/s-
studies/studies/winter99-00/art4.html. Snider is Inspector General for the Central Intelligence Agency.

31 NATIONAL SECURITY AGENCY, NSA/CSS MANUAL 22-1, at 7 (1986).

32National Security Agency, Signals Intelligence, http://www.nsa.gov/sigint/ (last visited June 22, 2008).

33Id.










known as ECHELON and by some accounts, is currently active, intercepting e-mails, faxes,

telefaxes, and telephone communications.34

ECHELON refers broadly to the global surveillance of communications intelligence

between the United States and other nations.35 Although ECHELON has been described by

historians and scholars as a specific computer network, other researchers write that the

boundaries of the program are difficult to identify; therefore, ECHELON in this dissertation

refers to the communications surveillance activities of the United States.36

The United States' National Security Agency coordinates the ECHELON network to

provide "global coverage" of COMINTT, which includes telephone and telegraphic

communications.37 This global coverage includes both signals collection and processing.38 One

example of an ECHELON program is Operation Shamrock conducted in the mid-twentieth

century. Developments in cellular and satellite communications have expanded ECHELON' s

focus beyond traditional telephony. The ECHELON program has expanded to intercept Internet

communications. In the mid 1990s, an NSA whistleblower claimed that the agency was

monitoring Internet traffic at nine maj or exchanges where traffic was routed across United States

borders.39 Although the advanced technological capabilities of the ECHELON network are





34 See e.g. Echelon, Federation of American Scientists, Information Resource Program,
blllp w\ \\ t .fas.org/irp/program/process/echelon.htm (last visited June 21, 2008).

35 Lawrence D. Sloan, Echelon and the Legal Restraints on Signals Intelligence: A Need for Reevaluation, 50 DUKE
L.J. 1467 (2001).

36 Id. at 1470.

37 Id. at 1471.

38 Id. at 1475.

39 Id. at 1478.










debated, there appears to be some sort of international cooperative agreement in place to collect

and filter COMINT traffic using transnational supercomputers searching for key-word patterns.40

The National Security Agency is a secretive organization. The number of employees and

the allotted budget is not public record. The NSA website says that if it were considered a

corporation in terms of "dollars spent, floor space occupied, and personnel employed" it would

rank in the top 10 percent of Fortune 500 companies.41 The Office of Management and Budget,

the Senate Select Committee on Intelligence, and the House of Representatives Permanent Select

Committee on Intelligence, oversee the NSA' s classified budget. 42 Figures are available for the

overall U.S. government intelligence and related activities for 1997 and 1998.43 In 1997, the

aggregate intelligence budget was 26.6 billion dollars; in 1998, the budget was 26.7 billion

dollars.44

The director of the NSA, who must be a commissioned officer with at least a three-star

rank, is recommended by the U. S. Secretary of Defense and approved by the President. 45 The






4o See Kevin J. Lawner, Post-Sept. 11tsh Iternational Surveillance 4ctivity-4 Failure ofhttelligence: The Echelon
Interception System &~ The Fundamental Right To Privacy in Europe, 14 PACE INT L L. REV. 435 (2002). The
European Parliament formed a temporary committee to investigate ECHELON and issued a report in 2001. The
report found that there was "no longer... doubt" about the existence of the ECHELON program. The report states
that the ECHELON program is being used to intercept private and commercial communications. The report also
states that the system depends largely on the interception of satellite communications. EUROPEAN PARLIAMENT,
REPORT ON THE EXISTENCE OF A GLOBAL SYSTEM FOR THE INTERCEPTION OF PRIVATE AND COMMERCIAL
COMMUNICATIONS (ECHELON INTERCEPTION SYSTEM) 11 & 133 (July 11, 2001), available at
http://cryptome. org/echelon-ep-fin. htm.

41 National Security Agency, http://www.nsa.gov (last visited June 22, 2008).

4Id

43Id

4Id

45Nat'1 Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat. 285 (2008).










remaining NSA organization chart, like the budget, is classified by Public law 86-36. 46 This law

protects the NSA from having to release even unclassified organizational information.47 This

law has protected many details of U. S. intelligence activities.

Title III: Omnibus Crime Control and Safe Streets Act

Despite the fact that the National Security Agency had been engaging in classified

intelligence acquisition since the 1950's, twenty years would pass before Congress first

addressed government surveillance of private communications. In 1968, Title III of the Omnibus

Crime Control and Safe Streets Act, adopted June 19, 1968 (hereinafter Omnibus Crime Act),

gave the U.S. Attorney General the power to seek a warrant from a federal district court, or a

federal court of appeals, to conduct electronic surveillance when investigating "particular"

crimes.48 The law was, in part, a response to two U.S. Supreme Court decisions: 1) the 1967

Berger v. New York decision, outlining a statutory wiretapping scheme honoring Fourth

Amendment criteria for search and seizure in cases of national security; and 2) the 1967 Katz v.



46 Nat'1 Security Act of 1959, Pub. L. No. 86-36, 73 Stat. 63 (1959), as amended by Pub. L. No. 87-367, title II, #.
201, 204, 75 Stat. 789, 791 (1961); National Security Agency, NSA Operations Directorate Organizational Chart,
(Nov. 6, 1998), available at]l! htt u\ \\ gwu~edu/~nsarchiv/NSAEBB/NSAEBB23/15-01.hm The organizational
chart referenced here was declassified and posted by George Washington University. See also JOSHUA BOEHM,
CRAIG BAKER, STANLEY CHAN & MEL SAKAZAKI, A HISTORY OF UNITED STATES NATIONAL SECURITY SPACE
MANAGEMENT AND ORGANIZATION (Prepared for the Commission to Assess United States National Security Space
Management and Organization) (2001), available at
http://www. globalsecurity. org/space/1ibrary/report/200 1/nssmo/article03. pdf. The NSA organization structure was
reorganized in 2000 to improve agency responsiveness, with the agency being charged with just two directives:
SIGINT and Information Assurance, both "mission-oriented" directorates. See also Vernon Loeb, NS4
F..,l,_r. ; 1 WASH. POST, Dec. 19, 2000, at A37.

47Nat'1 Security Act of 1959, Pub. L. No. 86-36, 73 Stat. 63 (1959), as amended by Pub. L. No. 87-367, title II, #.
201, 204, 75 Stat. 789, 791 (1961).

48Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as
amended at 18 U.S.C. ## 2510-2520 (2000)). See also U.S. DEP'T OF JUSTICE, CRIMINAL RESOURCE MANUAL 28,
ELECTRONIC SURVEILLANCE TITLE III APPLICATIONS (1997), available at
httpl u\ \\ l\usdoj.gov/usao/eousa/foia~reading_room/usmtte/r008hm A year after the passage of Title
III, President Richard Nixon authorized the NSA, as well as the CIA and FBI, to intercept domestic communications
from international telecommunication facilities. This action by the President, and its legality would be addressed in
the late 1970's intelligence hearings held by the Church Committee, discussed later in this chapter. JAMES
BAMFORD, BODY OF SECRETS: ANATOMY OF THE ULTRA-SECRET NATIONAL SECURITY AGENCY 429-32 (2002).










U.S. decision, which extended Fourth Amendment search and seizure protections to individuals,

although it left open the legality of warrantless surveillance in cases of national security.49 The

Omnibus Crime Act was not intended to limit the President' s constitutional powers,'o but rather

delineate categories for warrantless surveillance, including: 1) protecting the nation against

"actual or potential attack or other hostile acts of a foreign power"; 2) obtaining essential foreign

intelligence information; 3) protecting national security information; 4) protecting against the

overthrow of the government by force or "unlawful means"; or 5) protecting against "clear and

present danger" to the government's structure or existence.5

Congress found, as stated in The Omnibus Crime Act, that "extensive" wiretapping of

interstate and intrastate network facilities was carried out without "legal sanctions," and "without

the consent of any parties of the conversations."52 The act articulated a need to "define on a

uniform basis the circumstances and conditions under which the interception of wire and oral

communications may be authorized."53 COngress acknowledged a need to enable law

enforcement to intercept communications as evidence of criminal activity and to prevent

crimes. 54 COHVersely, Congress recognized the need to "safeguard the privacy of innocent

persons" by requiring judicial oversight and limiting categories or offenses subject to electronic

surveillance."


49 Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 3347 (1967). For a full discussion of
Berger and Katz, see in~fra Ch. 3.
so Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as
amended at 18 U.S.C. ##2510-2520 (2000)).

51 Id. at 2511(3).

52 Id. at 80 1(a).

53 Id. at 80 1(b).

54 Id. at 801(c).

55Id. at #801(d).










The Omnibus Crime Act defined wire communication as

any communication made in whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or other like connection between
the point of origin and the point of reception furnished or operated by any person engaged
as a common carrier in providing or operating such facilities for the transmission of
interstate or foreign communications.56

This updates the Communications Act' s definition by broadly defining communication instead of

the specific "writing, signs, signals, pictures and sounds." The definition still defines

communication in terms of between points of origin and reception, but expands the original

specification of "instrumentalities, facilities, apparatus and services," to cover operation by

common carriers operating facilities." These changes reflect technological advancements and

telecommunication network development made in the 34 years between the Communication Act

and the Omnibus Crime Act.

Additionally, several new terms relating to communication are defined. The Omnibus

Crime Act defines oral communication as "any oral communication uttered by a person

exhibiting an expectation that such communication is not subj ect to interception under

circumstances justifying such expectation."'"" Intercept is defined as "the aural acquisition of

the contents of any wire or oral communication through the use of any electronic, mechanical, or

other device."59 Electronic device is defined as "any device or apparatus which can be used to

intercept a wire or oral communication," not involving a telephonic or telegraphic instrument or


56 Id. at 2510(1).

57 The Communications Act 153(a), 47 U.S.C. # 151 (1934). In the Communications Act, wire communication is
defined as "transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other
like connection between the points of origin and reception of such transmission, including all instrumentalities,
facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications)
incidental to such transmission."

58 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as
amended at 18 U.S.C. ## 2510-2520 (2000)), at 2511(2).

59 Id. at 2511(4).









facility.60 This would include devices used to intercept communications over wire lines, not

actual bugs placed in phones or intercepts made at telecommunication facilities such as central

offices where calls are routed. Contents of wire or oral communication are defined as

"information concerning the identity of the parties to such communication or the existence,

substance, purport, or meaning of that communication."61

The Omnibus Crime Act makes it unlawful to "willfully" intercept, endeavor to intercept,

or procure another person to intercept wire or oral communication.62 It is also unlawful to

"willfully" disclose, or "endeavor" to disclose the contents of any wire or oral communication

obtained illegally.63 It is lawful for communication carriers' agents to intercept or disclose

communication content when engaging in activities that are necessary to the "rendition of

service" as long as monitoring is not random, except in cases of mechanical or quality control

checks.64

The Omnibus Crime Act makes it illegal to manufacture, assemble, possess or sell an

electronic device for the purpose of "surreptitious" interception of wire or oral communication. 65

The act prohibits the use of intercepted communications as evidence in court, except when

lawfully obtained under warrant.66 It also specifies that the U.S. Attorney General, or his

designee, must authorize a federal judge to grant an order for surveillance when there is evidence

of 1) espionage; 2) riots; 3) illegal financial dealings by labor organizations; 4) murder; 5)

60 Id. at 2511(5).

61 Id. at 2511(8).

62 Id. at 2511 (1)(a) &(b).

63 Id. at 2511)(1)(c) & (d).

64 Id. at 2511 (2)(a).

65 Id. at 2512 (1)(a) &(b).

66 Id. at 2515.









kidnapping; 6) robbery; 7) extortion; 8) bribery of public officials or witnesses; 9) wagering; 10)

obstr-uction of criminal investigations; 1 1) presidential assassinations, kidnapping or assault; 12)

violence or threats directed at commerce; 13) violence or threats directed against interstate and

foreign travel; 14) fraud; 15) drug trafficking; 16) extortion; or 17) conspiracy.67

The Omnibus Crime Act provides for disclosure of lawfully intercepted communications

when 1) disclosing contents to another investigative agency or officer acting in the capacity of

official duties; 2) giving testimony under oath or affirmation in any criminal court or grand jury

proceeding; or 3) incidentally obtaining information when lawfully intercepting the contents of

communication not related to the incidentally obtained information.68

The Omnibus Crime Act specifies that applications for orders authorizing interception

must be made in writing, "with proper authority," on oath or affirmation to a judge. Applications

must also contain a "full and complete statement of the facts and circumstances relied upon by

the applicant, to justify his belief than an order should be issued."69 The applicant must also

show that other investigative procedures have "been tried and failed," or appear to be "too

dangerous... or unlikely to succeed."70 The time period of interception must be specified, as

well as the identity of the interception target, the nature and location of the communications

facilities, and a description of the type of communication sought. 7

In cases of "emergency situations," or "conspiratorial activities threatening the national

security interests," requiring interception before a court order can be obtained, an request for


67 Id. at 2516(1)(a)-(g).
68 Id. at 2517(1)-(5).
69 Id. at 2518 (1)(a) &(b).

"I1d. at 2518(1)(c).

71 Id. at 2518 (1)(d) &(4).










authorization must be made within 48 hours of the time the interception occurred. 72 The planned

interception must be terminated if the order is denied. 73

Church Committee

The Omnibus Crime Act established federal requirements for judicial approval in obtaining

wiretaps, but it did not address the issue of warrants in cases of national security, or the

limitations on presidential powers when the President' s constitutional duty to protect the country

intersected with intelligence gathering restrictions on the executive branch. In 1972, President

Nixon' s authorization of illegal electronic surveillance was revealed in the Watergate scandal.

The Watergate Complex, in Washington D.C., was the site of the offices for the Democratic

National Committee. On June 17, 1972, five men were arrested and charged with attempted

burglary of the complex and the DNC office. The men were also charged with attempting to

intercept communications from the office of the DNC chairman, Larry O'Brien. The men, seven

of whom were on the payroll of the Committee to Re-elect the President, were convicted of the

crimes in January of 1973. 74 In 1975, Senator Frank Church from Idaho headed the United

States Senate Select Committee to Study Governmental Operations with Respect to Intelligence

Activities." The Committee was formed to investigate United States intelligence over the





72 Id. at 2518 (7) (a) &(b).

73 Id. at 2518 (8).

74The Watergate Story, http://www.washingtonpost.com/wp-srv/poltc/piawtegeinxhml (last visited
June 22, 2008).

75Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence
Information, Memorandum by Elizabeth B. Bazun & Jennifer K. Elsea, Congressional Research Service Attorneys,
(Jan. 5, 2006), available at ht tp w il it .eff.org/files/filenode/nsaspying/nsa~reseac~eopf
The National Security Agency and Fourth Amendment Rights: Hearings on S.R. 21 Before the Select Comm. to
Study Governmental Operations with Respect to Intelligence Activities, 94th Cong. (1975), available at
http://cryptome. org/nsa-4th. htm.










course of the 20th century. In response to the Watergate scandal--and general federal

wiretapping activities during the 1960's and 1970's--the Church report noted that

At no time, however, were the Justice Department's standards and procedures ever applied
to NSA's electronic monitoring system and its 'watch listing' of American citizens. From
the early 1960's until 1973, NSA compiled a list of individuals and organizations,
including 1200 American citizens and domestic groups, whose communications were
segregated from the mass of communications intercepted by the Agency, transcribed, and
frequently disseminated to other agencies for intelligence purposes.76

In 1975, in response to the Church Committee investigation, NSA Director Lt. General

Lew Allen told the Pike Committee of the U. S. House of Representatives "Messages to and from

American citizens have been picked up in the course of gathering intelligence."7 After

investigating the United States intelligence gathering, the Church Committee released fourteen

reports including volume 5, The National Security Agency and Fourth Amendment rights.7

The Church Committee looked at three companies involved in the Operation Shamrock

surveillance program during WWII: RCA Global, ITT World Communications and Westemn

Union Intemnational.79 Although the original Church report did not discuss the nature of these

companies involvement, the committee discovered a relevant file after it completed its original

investigation.so The file contained internal memorandums showing that the Army Signal Security

Agency, a military precursor to the NSA, went to the three telecommunications companies in

76 Church Report. The Justice Department standards and procedures refer to the wiretapping requirements outlined
in the Omnibus Crime Act.

77The National Security Agency and Fourth Amendment Rights, supra note 75. See also Gerald K. Haines, Looking
for a Rogue Elephant: The Pike Committee La.. ta, te.lr. ,, and the CIA, STUDIES IN INTELL., Winter 1998-99, at 81-
92, available at]'l~ hop \\ \\ cia~gov/library/center-for-the-study-of-intel ligence/kent-csi/pdf/v42i5a07p.pdf. The
Pike Committee, formally the House Select Committee on Intelligence chaired by Otis G. Pike from February of
1975 to January 31, 1976, investigated the Central Intelligence Agency and the Federal Bureau of Investigation.
The Pike Committee was a precursor to the Church Committee. Congress never released the Pike Committee's
report.

78 CHURCH COMMITTEE FINAL REPORT, supra note 4, Vol. 5.
7 9Id

so Snider, supra note 30.










August of 1945 and asked for cooperation.81 The government asked the companies to tumn over

copies of their telegraph messages to federal agents so the intercepts could be reviewed for

information pertaining to national security. At the time, the companies were told Attorney

General Tom Clark said the operation was "not illegal."8s2 ITT World Intemnational was the only

company that initially refused the request, but it acquiesced after learning that RCA and Westemn

Union had agreed to cooperate with the govemnment.8s3 Knowledge of the operation was limited

to a few executives from each company.84

In December 1947, the companies sought protection from anticipated prosecution related

to the program."' A meeting and assurances from Secretary of Defense James Forrestal satisfied

that request.8s6 Forrestal said he spoke on behalf of the President when assuring the companies





st Id

8 2Id

8 3 Id

8 4Id

ss Id.

86 Id. Athan G. Theoharis, The Truman Administration and the Decline of Civil Liberties: The FBI's Success in
Securing Authorization for a Preventive Detention Program, 64 J. AM/. HIST., No. 4, at 1010-30 (1978). In footnote
14, Theoharis discusses federal wiretapping under President Truman's administration, in particular the surveillance
of communist sympathizers. Theoharis documents Attorney General Tom C. Clark's July 1946 letter to secure
President Truman' s "assent to an expansion of FBI wiretapping authority by selectively quoting from a May 21,
1940 Franklin D. Roosevelt directive and implying that the request he submitted to Truman in 1946 was merely a
reaffirmation of that directive." Theoharis says that Clark's letter "deleted a key sentence from Roosevelt's
directive and by so doing would permit wiretapping of 'subversive activities.'" Theoharis writes that Clark used the
same technique in an unsuccessful request on August 17, 1948 to obtain Truman's permission for what would have
been "the first formal presidential authorization of FBI investigations of dissident political activities." In regards to
Operation Shamrock, Theoharis said:

In contrast, while there is no record of direct presidential concurrence, in 1947 and 1949 Secretaries of
Defense James Forrestal and Louis Johnson, claiming to speak for President Truman, directed the
international telecommunications companies RCA and ITT illegally to intercept certain international
messages. Stressing national defense needs, the secretaries assured company executives that by complying
with this request their companies would not be subject to prosecution in the federal courts (for violating the
law against such interception incorporated in Section 605 of the Federal Communications Act of 1934.










that their cooperation "was essential to the national interest and that they would not be subj ect to

Federal prosecution."" Forrestal did add that "he could not bind his successors in office," and

perhaps this is why, in 1948, he unsuccessfully asked Congress to amend @605 of

Communications Act of 1934 to clarify the legality of the companies' cooperation.8 In 1949,

the companies sought additional assurances from the new Secretary of Defense Louis Johnson.8s9

Forrestal's successor said he spoke on behalf of the Attorney General and the President in

granting the requested assurances to the company.90 The legality of the telecommunications

companies participation in Operation Shamrock's was established by the executive branch after

the program concluded. One result of the Church Committee report was the passage of Foreign

Intelligence Surveillance Act.91

Foreign Intelligence Surveillance Act

Congress passed the Foreign Intelligence Surveillance Act of 1978 (hereinafter FISA) two

years after the Church Committee reports were released, investigating United States intelligence

activities. 92 President Carter signed the Foreign Intelligence Surveillance Act into law on

October 25, 1978. The act 1) legalized non-criminal electronic surveillance within the United

States for the purpose of collecting foreign intelligence or counterintelligence; 2) defined and

identified "foreign powers" and agents of "foreign powers" for the purpose of electronic

See generally Athan G. Theoharis, Misleading the Presidents: Thirty years of Wiretapping, NATION, June 14, 1971,
at 744-45. See also Athan G. Theoharis, The FBI's Stretching of Presidential Directives, 1936-1953, 91 POL. Set.
Q., No. 4, at 649 (1977).

87Snider, supra note 30.
88Id

8 9Id

90Id.

91 Id.

92 The Foreign Intelligence Surveillance Act of 1978 (hereafter "FISA"), #101(i), 50 U.S.C. #1801 et seq. (1978).










surveillance; 3) required probable cause be shown for surveillance orders to be authorized; 4)

provided procedures for review of surveillance applications, and 5) outlined circumstances for

lawful surveillance.

Unless otherwise authorized by statute, FISA requires the federal government to obtain a

warrant before spying on American citizens on American soil. FISA allows the President--

through the Attorney General--to authorize warrantless surveillance inside the United States for

up to one year for the purpose of gathering foreign intelligence information. The act creates

judicial and congressional oversight for government surveillance activities of foreign targets.

Periodic reports must be made to the House Permanent Select Committee on Intelligence and the

Senate Select Committee on Intelligence detailing the interception of communications of United

States' persons.

FISA created a Foreign Intelligence Surveillance Court of seven judges (for terms of one

to seven years), appointed by the Chief Justice of the United States Supreme Court to hear

applications and grant orders "approving electronic surveillance anywhere within the United

States."93 The act also established the Foreign Intelligence Court of Review to hear appeals

from the FISA Court. The Chief Justice also was required to appoint three judges to terms of

three, Hyve and seven years to serve on a FISA review court known as the Foreign Intelligence

Surveillance Act Court of Appeals.94 The Justice Department presents evidence to the court,

however the proceedings and court Eindings are sealed.

Electronic surveillance is defined as:

1. the acquisition by an electronic, mechanical, or other surveillance device of the contents of
any wire or radio communication sent by or intended to be received by a particular, known


93 Id. at #103(a).

94 Id. at 103(b).










United States person who is in the United States, if the contents are acquired by
intentionally targeting that United States person, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required for law enforcement
purposes;

2. the acquisition by an electronic, mechanical, or other surveillance device of the contents of
any wire communication to or from a person in the United States, without the consent of
any party thereto, if such acquisition occurs in the United States;

3. the intentional acquisition by an electronic, mechanical, or other surveillance device of the
contents of any radio communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for law enforcement
purposes, and if both the send and all intended recipients are located within the United
States; or

4. the installation or use of an electronic, mechanical, or other surveillance device in the
United States for monitoring to acquire information, other than from a wire or radio
communication, under circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement purposes.95

"Wire communication" means "any communication... carried by a wire, cable or other

like connection furnished or operated by... a common carrier for the transmission of interstate or

foreign communications."96 The definition of "contents"--"a communication" including

"information concerning the identity of the parties to such communication or the existence,

substance, purport, or meaning of that communication," is unchanged from the Omnibus Crime

Act. 97

Applications for warrants must be made in writing under oath or affirmation by a federal

official with the approval of the U.S. Attorney General.98 The application must identify 1) the



95 Id. at #101(f)(1)-(4).

96 Id. at 101(1).

97 Id. at #101(n).

98 Id. at #104(a), 201(b) & 201(a)(3)(A)&(B). FISA restricts electronic surveillance only to that conducted
according to the Attorney General's certification, minimization procedures and Congressional oversight.
Applications can only be authorized if the President--through written authorization-empowers the Attorney
General to approve applications to a court for electronic surveillance of a foreign power or agent of a foreign power,
as long as the surveillance does not involve the "acquisition of communication of any United States person."









federal officer requesting a warrant; 2) the "identity, if known, or a description of the target of

the electronic surveillance"; 3) the fact that the target is a foreign power or agent thereof; 4) the

facilities or places to be monitored; 5) a statement of minimization procedures employed; 6) a

"detailed description of the nature of the information sought"; 7) the certification of the properly

designated executive branch official authorizing the warrant request; 8) a statement of

surveillance means and if physical intrusion is required; 9) a statement of facts concerning

previous applications made involving target, facilities or other specified places; 10) a statement

of the period of time surveillance will be conducted, and 1 1) the devices involved and

minimization procedures employed for each device.99

The Attorney General must certify to the FISA Court that there is no "substantial

likelihood" of a United States person's communications being acquired during the

surveillance. 100 A "U. S. person" is 1) a citizen of the United States, 2) an alien with permanent

lawful U. S. residence, 3) an unincorporated association with a substantial number of U. S.

citizens or aliens, or 4) a U. S. corporation. 101 If a United States citizen is the target or party to

the surveillance, judicial authorization from the FISA Court must be obtained within 72 hours

after surveillance begins.

Minimization requirements must be met to decrease the likelihood of a United States'

person's communications being intercepted during the surveillance. 102 Minimization procedures,

in regards to electronic surveillance, include 1) "specific procedures" to "minimize the

acquisition and retention" and "prohibit the dissemination" of nonpublic information on United


99 Id. at #104(a)(1)-(11).
'oold.

101 Id.

102 For a discussion of minimization requirements, see supra Ch. 1 (Literature Review).










States persons; 2) procedures to prevent identification of any United States person in handling

foreign intelligence information; 3) retention and dissemination of information that a crime has

or is about to be committed; 4) procedures to ensure no disclosure, dissemination or use of

communication contents--to which a U.S. person is party for longer than 24 hours--unless a

court order is obtained or the Attorney General determines the "information indicates a threat of

death or serious bodily harm to any person."103

When an application is made, a judge must grant the request for electronic surveillance if

the above criteria are met as long as the target is a foreign power or agent of a foreign power.

"No United States person may be considered a foreign power or an agent of a foreign power

solely upon the basis of activities protected by the first amendment to the Constitution of the

United States."104

The U.S. president, through the Attorney General, "may" authorize surveillance without a

court order for the purpose of acquiring foreign intelligence information for "a period not to

exceed fifteen calendar days following a declaration of war by the Congress."'os "Foreign

powers," under FISA, are defined to include any foreign governments, factions of foreign

governments and groups controlled by foreign governments. FISA does not apply to extra-

territorial jurisdictions, but is triggered when foreign communications pass through United States

telecommunication facilities and networks. Warrantless surveillance cannot be authorized to

intercept communications from 1) groups engaged in international terrorism or activities; 2)


103 FISA, at 101(h)(1)-(4).

'0 Id. at #105(a)(3)(A).

105 The NSA's United States Signals Intelligence Directive 18 strictly prohibits the interception or collection of
information about ". US persons, entities, corporations or organizations ." without explicit written legal
permission from the Attorney General of the United States. Id. at #111; NATIONAL SECURITY AGENCY/CENTRAL
SECURITY SERVICE, UNITED STATEs SIGNALS INTELLIGENCE DIRECTIVE 18 (1980), available at
http://cryptome.org/nsa-ussidl 8.htm.










foreign-based political organizations not substantially composed of U.S. persons; or 3) entities

that are directed and controlled by foreign governments. The FISA application must show

"probable cause" that the surveillance target is a "foreign power" or "agent of a foreign
,, 106
power.

Foreign intelligence information is defined as information that relates to the ability of the

Untied States to defend against 1) "actual or potential attack or other grave hostile acts of a

foreign power or an agent of a foreign power; 2) sabotage or international terrorism by a foreign

power or an agent of a foreign power; 3) clandestine intelligence activities by an intelligence

service or network of a foreign power or by an agent of a foreign power. 107 The definition of

"foreign intelligence" also encompasses "information" about a foreign power or foreign territory

that relates to 1) the national defense or security of the United States; or 2) the conduct of the

foreign affairs of the United States. 10s

International terrorism includes activities that "involve violent acts or acts dangerous to

human life that are a violation of the criminal laws of the Untied States or of any State, or that

would be a criminal violation if committed within the jurisdiction of the United States or any

State."109 These activities are considered international terrorism when they intend to

1)intimidate or coerce a civilian population; 2) influence the policy of a government by

intimidation or coercion; or 3) affect the conduct of a government by assassination or




106 Probable cause is "an apparent state of facts found to exist upon reasonable inquiry which would induce a
reasonable, intelligent, and prudent person to believe, in civil cases, that a cause of action existed." BLACK S LAW
DICTIONARY 1365 (4th ed. 1968).

'07 FISA, 50 U.S.C. at #101(e)(1)(A)-(C).

10s Id. at #101(e)(2)(A)&(B).

109 Id. at #101(c)(1).









kidnapping. 110 To be considered international terrorism, the activities must occur "totally

outside the United States," or they must "transcend national boundaries."ll

Under FISA, surveillance is only permissible if 1) the Foreign Intelligence Surveillance

Court authorizes an order for surveillance or 2) the Attomney General--in an emergency--

authorizes the surveillance, while an application is made for Court authorization within 24 hours.

FISA court authorization only applies to specific types of surveillance targets. The first is

foreign powers including a foreign government, a representative of a foreign government, an

employee of a foreign government, a faction of foreign government not substantially composed

of United States persons, an entity controlled by a foreign government, or a group engaged in

international terrorism. 112 This also includes acquisition of the "contents of communications

transmitted" between these types of targets, as long as there is "no substantial likelihood that the

surveillance will acquire the contents of any communication to which a United States person is

party," and minimization procedures are utilized. 113 The second type of target allowed under

FISA, is 1) an agent of a foreign power including non-U. S. persons who are officers or

employees of a foreign power; 2) anyone who acts in support of a foreign power' s efforts to

gather intelligence information on U.S. soil, or 3) anyone who knowingly engages in sabotage or

international terrorism on behalf of a foreign power. 114





110Id. at #101(c)(2)(A)&(B).
111 Id. at #101(c)(2)(C).

"1Id. at 101(a)(1)-(6) & #102(a)(1).

113 Id. at# 102(a)(1)(A)(i),(B)&(C).

"1Id. at 10 1(b)(1)-(2).










Evidence not lawfully obtained under FISA must be suppressed in court. "' This statutory

requirement has not been modified in the thirty years since the passage of the act. In cases of

"unintentional acquisition" the contents of the communication "shall" be destroyed "upon

recognition, unless the Attorney General determines that the contents indicate a threat of death or

serious bodily harm to any person."116 If electronic surveillance is employed during an

emergency, and approval is not obtained from a judge after the fact, the judge "must" serve the

target with notice of the application facts, the period of surveillance and the fact that information

was not obtained. "1

The Attorney General "may" direct a "specified communication common carrier" to Birst

"furnish all information, facilities, or technical assistance necessary to accomplish electronic

surveillance" in a way that will protect secrecy and "produce a minimum of interference" with

the common carrier's service of its customers. Secondly, the Attorney General "may" direct a

common carrier to maintain "any records concerning the surveillance or the aid furnished.""l

Carriers "shall" be compensated by the government at the "prevailing rate."119

United States agents, employees and onfcers, in the normal course of their official duties

to conduct electronic surveillance, are "authorized" by FISA to test the capabilities of electronic

equipment. Judicial consent is not required for testing periods up to 90 days, but Attorney

General permission is required if the testing period exceeds this time period. 120 The contents of



11' Id. at #105(g).

"1Id. at #105(i).

11- Id. at #105 (j).

Its Id. at #201(a)(4)A)&(B).
119Id~

120 Id. at #105(f)(1)(A)-(D).










any communication acquired in this manner must be "destroyed before or immediately upon

completion of the test." The same federal agents can use electronic surveillance to "determine

the existence and capability of electronic surveillance equipment being used by persons not

authorized to conduct electronic surveillance."121 Electronic Surveillance also can be used to

train intelligence personnel if the consent of the target is obtained, and contents are destroyed "as

soon as reasonably possible. 122

Any person who engages in electronic surveillance "under color of law" or discloses or

uses information obtained "under color of law," is subj ect to financial penalty and

imprisonment. 123 An "aggrieved person," who is not a foreign power or agent of a foreign

power, who can show that they were the target of illegal surveillance can seek monetary

damages. 124

Communication common carriers are authorized to "provide information, facilities, or

technical assistance to persons authorized by law to intercept wire or oral communications or to

conduct electronic surveillance" as long as they are provided with 1) a court order or Attorney

General certification that no warrant or court order is required by law. 125 The carrier--and its

officers, employees, or agents--shall not disclose the existence of "any interception or

surveillance" except as legally required. Carriers violating the prohibition on disclosure "shall"







121 Id. at #105(f)(2).

122 Id. at #105(f)(3).

123 Id. at #109(a)-(d).

124 Id. at #110.

125 2 U.S.C. # 201 (a)).










be subj ect to civil damages, but no one can sue them for "providing information, facilities, or

assistance" in compliance with FISA proceedings. 126

Electronic Communications Privacy Act

The Electronic Communications Privacy Act of 1986 (hereinafter ECP Act) amended the

Omnibus Crime Control and Safe Streets Act. The ECP Act extended restrictions on

unauthorized interception of oral, wire and electronic communications by the government to

include electronic communications. 127 The act also created new provisions for dealing with

access to stored communications through pen registers and trap and trace devices. 128 These

updates prohibit communication service providers from "knowingly divulging the contents of

any communication while in electronic storage by that service to any person other then the

addressee or intended recipient." This safeguards U.S. citizen's communications, including

computer-enhanced communications, from unauthorized government surveillance or third party

interception. The EPC Act essentially updated FISA' s definition of communication to include





126Id.

127 The Electronic Commc'ns Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified at
18 U.S.C. # 2510).

12s Id. U.S.C. 206 3127(3) (2000) defines "pen register" as:

a device or process which records or decodes dialing, routing, addressing, or signaling information
transmitted by an instrument or facility from which a wire or electronic communication is transmitted,
provided, however, that such information shall not include the contents of any communication, but such
term does not include any device or process used by a provider or customer of a wire or electronic
communication service for billing, or recording as an incident to billing, for communications services
provided by such provider or any device or process used by a provider or customer of a wire
communication service for cost accounting or other like purposes in the ordinary course of its business.

U.S.C. 206 3127(4) (2000) defines "trap and trace device" as:

a device or process which captures the incoming electronic or other impulses which identify the originating
number or other dialing, routing, addressing, and signaling information reasonably likely to identify the
source of a wire or electronic communication, provided, however, that such information shall not include
the contents of any communication.










"computer-enhanced communications," such as e-mail, web searches and call data stored in

electronic databases.

The Electronic Communication Privacy Act makes it unlawful to intentionally access a

telecommunications facility through which electronic communication service is provided without

authorization. 129 Disclosure of any electronic communication contents to the public is illegal.130

The ECP Act restricts government access to stored communications or call-identifying

information such as the phone number dialed. A search warrant is required for intercepting 1)

the contents of wire or electronic communications in electronic storage 2) the contents of wire or

electronic communications in a remote computing service 3) subscriber records or 4) subscriber

service information. 131 The ECP Act dictates that government must provide notice of the

interception of a communication to the subscriber affected within at least 90 days. 132

The definition of "contents" of any wire, oral, or electronic communication include "any

information concerning the substance, purport, or meaning of that communication."133 This

definition is identical to the definitions of contents from the Omnibus Crime Act and the Foreign

Intelligence Surveillance Act. The ECP Act defined electronic communication for the first time.

"Electronic communication" means "any transfer of signs, signals, writing, images, sounds, data,

or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,

photoelectronic or photooptical system that affects interstate or foreign commerce." 134



129 ECPA, 18 U.S.C. #2701(a)(1)-(2) (2000).

130 Id. at 2702(a)(1).

131 Id. at 2703(a)-(c)

132 Id. at # 2703(b)(1)(B)), 2705(a), 2705(a)(1)(B), 2705(a)(2)&(4).

133 Id. at 2510(8).

134 Id. at. #2510(12).










Electronic communication does not include "any" wire or oral communications, nor does it

include communication made through a tone-only paging device. 135 Electronic communication

service includes services to users providing "the ability to send or receive wire or electronic

communications," including "any transfer of signals, writings, images, sound, data or

intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic,

photoelectric, or photooptical system."136

The ECP Act allowed the FBI to use national security letters to compel providers to

produce "subscriber information and toll billing records information, or electronic

communication transactional records." 137 When a national security letter is used to compel

records, evidence must be provided to show that the information sought is "relevant to an

authorized investigation to protect against international terrorism or clandestine intelligence

activities."138

CALEA

The Communication Assistance for Law Enforcement Act of 1994 (hereinafter CALEA)

mandates telecommunications companies to assist law enforcement in executing court authorized





135Id. at 2510(12).

136 Id. at 2510(15).

'37 Id. at 2709. When a national security letter is used to compel records, evidence must be provided to show that
the information sought is "relevant to an authorized investigation to protect against international terrorism or
clandestine intelligence activities...." See also Press Release, Federal Bureau of Investigations, Frequently Asked
Que stions: National Security Letters, http://www.fbi. gov/pressrel/pre ssrel07/nsl~faqs0 3 0907.htm (last visited June
21, 2008). According to the FBI, a National Security Letter is "a letter request for information from a third party
that is issued by the FBI or by other government agencies with authority to conduct national security investigations."
The FBI press release says the following types of "transaction records" can be obtained using a National Security
Letter: subscriber information, toll billing records, Internet service provider login records, electronic
communication transaction records, financial records, money transfers, credit records and other consumer
identifying information.

13s ECPA, 18 U.S.C. # 2709.









electronic surveillance. 139 Whereas FISA mandated communication carriers to cooperate with

federal agents conducting authorized surveillance, CALEA required carriers to have

surveillance-ready networks in place so the companies could comply with court orders for

electronic surveillance and not delay intelligence investigations. 140

CALEA' s purpose was to "require appropriate authorization to activate interception of

communications or access to call-identifying information," as well as to prevent "interception or

access" without authorization. 141 The act defines call-identifying information as ""dialing or

signaling information," identifying the "origin, direction, destination, or termination" of

communication generated or received by a subscriber using "any" telecommunication carrier' s

equipment, facility, or service. 142 CALEA also required communications carriers to maintain

"secure and accurate records of any interception or access with or without such authorization."143

The act mandates telecommunication carriers assist federal law enforcement agencies by

updating equipment, facilities and services to facilitate the interception of wire and electronic

communications. 144 When the government has "lawful authorization," carriers must

"expeditiously" isolate and enable government interception of communications both

"concurrently"--in real time as the transmissions are made--or after the fact "as may be

acceptable to the government."145 Call-identifying information must also be provided to the



139 COnunc'ns Assistance for Law Enforcement Act of 1994 (CALEA), Pub. L. No. 103-414, 108 Stat. 4279 (1994).

140Id.

141 Id. at #229(b) (1) (A)&(B).

142 Id. at #102(2).

143 Id. at #229(b)(2).

144 Id. at #103(a).

145 Id. at #103 (a)(1).










government "pursuant to a court order." However, the physical location of the subscriber' s

telephone number "may" not be disclosed. 146 The intercepted communications and call-

identifying information must be delivered to the government in a format capable of being utilized

by the government with respect to "procured" equipment, facilities and services outside the

"premises of the carrier."147 These transmissions to the government must be made

"unobtrusively" and "with a minimum of interference with any subscriber' s telecommunications

and service."

FISA and the ECP mandated telecommunication carrier cooperation and specified criteria

for obtaining warrants for surveillance. CALEA was the first law to forbid agents from

interfering with communications in the process of intercepting target's communication contents.

Specifically, communication carriers must protect: 1) "the privacy and security" of

communications and call-identifying information not authorized to be intercepted; and 2)

information regarding the government's interception of communications and access to call-

identifying information. 4

Surveillance authorized under CALEA has many limitations. First, neither law

enforcement agencies nor federal officers can require carriers to configure systems using specific

designs for equipment, facilities, services or "features," systems by specific manufacturers, or

systems offered by specific providers of "telecommunications support services."149 The

restrictions on government access to networks do not apply to "information services," "private




146 Id. at #103(a)(2)(A)&(B).

'47 Id. at #103(a)(3).

14s Id. at #103(a)(4) (A)&(B).

149 Id. at #103(b)(1)(A) & (B).










networks" or systems used solely to interconnect telecommunications carriers. 1so

Telecommunications carriers are not responsible for decryptingg" communications or for the

government' s ability to decrypt subscriber or customer transmissions, except when a carrier

provides the encryption itself and "possesses the information necessary to decrypt the

communication."" CALEA allows telecommunications companies to recover costs incurred in

making modifications to "equipment, facilities or services" to facilitate government surveillance

and interception. 152

In "emergency or exigent circumstances," carriers--at their own discretion-- may allow

"monitoring" at carrier premises if that is the "only means" the government can intercept or

access the communications it is trying to obtain. 153 These "circumstances" are defined as cases

where any authorized law enforcement officer, "reasonably determines" that surveillance of

wire, oral or electronic communication is "necessary in an emergency situation" involving 1)

"immediate danger of death or serious physical injury to any person"; 2) "conspiratorial








1so Id. at #103(b)(2)(A) & (B). #102(6)(A), (B)(i)-(iii) and (C) defines information services as "the offering of a
capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available
information via telecommunications. This includes "a service that permits a customer to retrieve stored information
from, or file information for storage in, information storage facilities, electronic publishing, and electronic
messaging services. It does not include "any capability for a telecommunications carrier's internal management,
control, or operation of its telecommunications network." The FCC defines private network, for the purposes of
CALEA as "organizations that provide facilities-based private broadband networks or intranets to enable their
members to communicate with one another and/or retrieve information from shared data libraries not available to the
general public." See Federal Communications Commission, Communications Assistance for Law EnforcementAct
and Broadband Access and Services Notice of Proposed Rulemaking and Declaratory Ruling, ET Docket No. 04-
295 (Rel. Aug. 9, 2004), RM-10865, published 69 Fed. Reg. 56,976 (Sept. 23, 2005), available at
http://hraunfoss.fcc.gov/edocsgpublic/attacmth/C-4187A1.pdf

'51 CALEA, at #103(b)(3).

152 Id. at #103(e)(1).

153 Id. at #103(c).









activities threatening the national security interest"; or 3) "conspiratorial activities characteristic

of organized crime." 154

Even in this type of emergency circumstance, an order must be obtained within 48 hours

after interception has occurred. 155 If an order is nonexistent, then the interception shall

immediately terminate when 1) "the communication sought is obtained" or 2) when the

application for the order is denied."156 In cases where surveillance is terminated without an

order, the contents of interception must be "treated as having been obtained in violation of this

chapter."" The contents intercepted would then be destroyed.

Applications for orders authorizing surveillance must be made in writing to a judge and

must include the identities of the officers making and authorizing the interpretation. A full

statement of the facts and circumstances relied upon, including the offense involved and the

facilities and types of communications that will be intercepted must also be specified. 158 With

this information, a judge can make a temporary order authorizing surveillance of a facility within

the court' s geographical jurisdiction. 159 The judge can authorize surveillance outside the

jurisdiction if an interception involves a mobile device and there is 1) probable cause a crime is

about to be--or has been--committed; 2) the interception is likely to successful; 3) "normal

investigative procedures" have failed, or appear likely to fail or "be too dangerous"; and 4) there

is probable cause that telecommunication facilities specified will be used in connection with the



154 Id. at #2518 (7).

'55 Id. at #2517(7)(b).
156Id.

157 Id.

15s Id. at #2518(1)(a)&(b).

159 Id. at #2518(3).










offense. 160 The four criteria do not have to be met if 1) the application for a warrant is made by a

federal investigative or law enforcement officer and authorized by a specified Justice Department

official; 2) the judge finds that an application' s specification of these criteria are not practical; 3)

there is probable cause to believe that specification of a telecommunications facility would

thwart the intended interception and 4) the order limits interception to a time period reasonably

presumed to "proximate" the period a target will be using the communication instrument. 161

CALEA prohibits the disclosure of intercepted information to any person other than the

participants of a "wire or radio" communication except 1) to a communication participant' s

"addressee," "agent"162 Or "attorney"; 2) to a person "employed or authorized to forward such

communication to its intended destination"; or 3) in response to a court subpoena; or 4) at the

demand of a federal official legally authorized to demand disclosure of an intercepted

communication. 163

The Telecommunications Act of 1996

The purpose of the Telecommunications Act of 1996 (hereinafter Telecommunications

Act) is "to promote competition and reduce regulation in order to secure lower prices and higher

quality services for American telecommunications consumers and encourage the rapid

deployment of new telecommunications technologies."164 The act was intended to encourage

competition for telecommunications service, telecommunication equipment, cable television,

television broadcasting, radio, the Internet and other computer services.

160Id.

161 Id. at #2518 (11)(a)&(b).

162 Id. at 605(d)(1) defines agent as "any person or employee of a person."

163 Id. at #605(a)(4). Ship masters are also allowed to receive this information for people who are serving under
them. Section 605(d)(1) defines agent as "any person or employee of a person."

164 The Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).









For the purpose of the act, "telecommunications" is defined as "transmission, between or

among points specified by the user, of information of the user's choosing, without change in the

form or content of the information as sent and received." 165 "(Telecommunicaltions Carrier" is

defined by the act to include "any provider of telecommunications services," that will be treated

as a common carrier while engaged in telecommunication services. 166

The Telecommunications Act removed state restrictions on competition in local and long-

distance telephone service and established universal service to subsidize telecommunications

service to public institutions at reasonable prices. Under the Act, Telecommunication carriers

are required 1) to interconnect "directly or indirectly" with the facilities and equipment of other

telecommunications carriers and 2) to not install "network features, functions, or capabilities that

do not comply with the guidelines and standards established pursuant" to the statute. 167 Local

exchange carriers must comply with specific requirements, including 1) telecommunications

service must not be prohibited from resale to competing carriers; 2) telephone numbers must be

portable "to the extent technically feasible"; 3) dialing parity must be provided to competing

carriers and 4) physical rights of ways for installing telecommunication wires must be accessible

to competitors. 168

USA PATRIOT Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of 2001 (hereinafter PATRIOT Act), amended FISA and

expanding the government' s wiretapping powers, was passed in response to the 9/11 terrorist


165 Id. at 3(48).

166 Id. at 3(49).

16 1 U.S.C. 9 251 (a)(1)(2).

168 Id. at 251(b).









attacks. 169 PATRIOT Act amendments permit collection of foreign intelligence information

from U.S. citizens, whereas in the past this type of collection was only legal in the surveillance

of non-U. S. citizens. 170 Collection of foreign intelligence information on U.S. citizens is only

legal when U.S. citizens are not engaged in First Amendment activities. 1 The FISA "wall"

separating foreign and domestic intelligence operations was changed, whereas now foreign

intelligence information need only be a "significant purpose," rather than a "primary purpose" in

obtaining a warrant. 172

Section 201 of the PATRIOT Act amended section 25 16(1) of Title 18 of the United States

Code to add criminal violations relating to "chemical weapons" and "terrorism" to the types of

crimes that qualify for wiretapping. Prior to this change, law enforcement agents were not

allowed to seek wiretaps for these types of criminal investigations. 173

Section 203(b) of the PATRIOT Act amended section 25 17 of Title 18 of the United States

Code by permitting law enforcement officers to share "contents of wire, oral, or electronic

communication" with federal officials, other than law enforcement officers, concerned with "law

enforcement, intelligence, protective, immigration, national defense or national security"

issues. 174 The shared information can only be used in conjunction with conducting "that

person' s official duties." Section 203(b) was scheduled to sunset on December 31, 2005.17



169 The USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).

170 Id. at #203 (b)(2)(B)(i)&(ii).
171 Id. at #214(a)(1).

172 Id. at #218.
173 Id. at #201(2) (amending #2516(1)(q)).

174 Id. at #203(b)(1) (amending #2517(6)&(19)).

175 Id. at #224.









The definition of foreign intelligence was amended to include "information, I /irlterll or not

concerning a United States person, that relates to the ability of the United States to protect

against 1) an actual or potential attack or other "grave hostile acts" of a foreign power or an

agent of a foreign power; 2) sabotage or international terrorism by a foreign power or an agent of

a foreign power; or 3) clandestine intelligence activities by an agent of a foreign power."176

Foreign intelligence also includes information "whether or not concerning a United States

person" relating to a foreign power or foreign territory in connection with 1) the national defense

or the security of the United States; or 2) the conduct of the foreign affairs of the United

States. 1 Section 203(d) gives law enforcement authorities the ability to lawfully share foreign

intelligence and counterintelligence information "obtained as part of a criminal investigation.""

Pre-PATRIOT, law enforcement agencies faced legal obstacles in sharing information related to

intelligence. Foreign intelligence information is defined in the same manner as it is redefined in

section 203(b). 179 Section 204 amends Section 25 11(2)(f) of Title 18 of the United States Code

to add electronic communication to the traditional types of communication--wire and oral--

covered by the original code. Iso

Section 206 permits the use of roving wiretaps in circumstances where the court

considering the warrant application finds that specifying a single location for surveillance "may"

have the effect of interfering with the investigation in cases where the target is changing


176Id. at #203(b)(2)(A)(B)&(C) (emphasis added to highlight change in definition).

' Id. at #203 (b)(2)(B)(i)&(ii). For definition of"United States person," see supra notes 92-126. See also The
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 6001 (Cl r4). The 2004 "lone
wolf' amendment, expanded the definition of "foreign power" to include parties not linked to foreign governments
or terrorist groups.

'7s Id. at #203(d)(1).

179 Id. at #203(2)(A)(i).

Iso Id. at #204(1)&(2).










locations to try and evade surveillance. I This allows agents to wiretap a person, instead of a

single mode of communication. Section 207 extended the duration of FISA surveillance of non-

United States persons, who are agents of a foreign power, to from 90 to 120 days.18s2 Physical

searches are extended from 45 to 90 days, except in cases of foreign powers, where the period is

extended to 120 days.18s3 Extension of a surveillance warrant for a period of one year may be

granted with judicial approval.18 Section 209 allows federal investigators to more easily seize

voice mail communications, using a less restrictive search warrant instead of a wiretapping

warrant. l Sections 206, 207 and 209 were scheduled to sunset on December 31, 2005.186

Section 212 of the PATRIOT Act allows telecommunication carriers to voluntarily

disclose customer call communications and records to government agents when "the provider

reasonably believes that an emergency involving immediate danger of death or serious physical

injury to any person requires disclosure of the information without delay."ls The provider can

also voluntarily disclose this information to "a governmental entity, if the provider reasonably

believes that an emergency involving immediate danger of death or serious physical injury to any


181 Id. at #206. A roving wiretap need not specify the target's location in the warrant application. This allows law
enforcement officials to track and intercept the communication contents of targets using cellular phones.

's:Id. at #207(a)(1)(A)&(B).

's3 Id. at 207(2)(A)&(C). #1821(5) defines p!I1i sical search" as"

any physical intrusion within the United States into premises or property (including examination of the
interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or
alteration of information, material, or property, under circumstances in which a person has a reasonable
expectation of privacy and a warrant be required for law enforcement purposes.

This does not include electronic surveillance or acquisition of foreign intelligence information from "international
or foreign communications, or foreign intelligence activities."

's Id. at #207(b)(1)(B).

'8s Id. at #209(1)(A)&(B), &(2)(A)-(C).

186 Id. at #224.

1s- Id. at #212(a)(1)(A)(B)(i)(-(iii)&(3).










person justifies disclosure of the information." I Previously under FISA--and then CALEA--

the carriers would be forbidden from disclosing contents unless authorized by a court order. This

amendment gave the telecommunications carriers the discretion to contact federal officials if

they discover what might be illegal activities or information suggesting a threat to national

security. Section 212 was scheduled to sunset on December 31, 2005.189

Section 218 changed the FISA wall so that foreign intelligence gathering need only be a

"significant purpose" in obtaining the warrant, rather than a primary purpose. 190 Section 225

provides immunity for carriers complying with a FISA wiretap request by the government.

No cause of action shall lie in any court against any provider of a wire or electronic
communication service, landlord, custodian, or other person (including any officer,
employee, agent, or other specified person thereof) that furnishes any information,
facilities, or technical assistance in accordance with a court order or request for emergency
assistance under this Act. 191

Sections 218 and 225 were scheduled to sunset on December 31, 2005.192

Section 213 allows federal agents to delay the required notification of the subj ect of a

warrant if the court authorizing the surveillance "finds reasonable cause to believe that providing

immediate notification of the execution of a warrant may have an adverse result" on an

investigation. 193 This amendment assists law enforcement officials in cases where notifying the

target might cause the target to change locations or use other methods of communication to

evade interception or collection of evidence related to the criminal investigation. Section 214 of



1ss Id. at #212.

189 Id. at #224.

190 Id. at #218.

191 Id. at #225(h).

192 Id. at #224.

193 Id. at #213(1).










the PATRIOT Act made it easier for law enforcement officials to obtain a warrant for a pen

register or a trap and trace device in cases of international terrorism. As with criminal

investigations, foreign terrorism investigations now only require evidence that the information

sought relates to foreign intelligence. Pre-PATRIOT, the requirement was that evidence be

provided demonstrating that the facilities to be monitored had been--or were about to be--used

by a target not engaged in protected First Amendment activities. 194 Section 214 was scheduled to

sunset on December 31, 2005.195 Section 501 requires the Attorney General to report, on a

semiannual basis, to the Permanent Select Committee on Intelligence of the House of

Representatives and the Senate Select Committee on Intelligence, providing the total number of

applications for surveillance orders approved, granted, modified, or denied.

USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005

The House and the Senate approved separate PATRIOT reauthorization acts, H.R. 3199

and S. 1389, in July of 2005. 196 The Senate passed an additional bill, the USA PATRIOT Act

Additional Reauthorizing Amendments Act of 2006, S. 2271, to safeguard civil liberties not

addressed in the original bills passed in 2005. The President signed the House bill and the

second Senate bill on March 9, 2006. 197

The House bill, known as the USA PATRIOT Improvement and Reauthorization Act of

2005, and the original Senate bill, made 14 of PATRIOT's 16 sunset provisions permanent, and

extended the sunset for roving wiretaps (Section 206). The House bill extended the deadlines to



194 Id. at #214(a)(1).

195 Id. at #224.

196 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. Nos. 109-177 & 109-178.

197 BRIAN T. YEH & CHARLES DOYLE, USA PATRIOT IMlPROVEMENT AND REAUTHORIZATION ACT OF 2005: A
LEGAL ANALYSIS, CONG. RES. REP. No. RL33332, (Dec. 21, 2006).









December 31, 2015, while the Senate bill extended the deadline to December 31, 2009. A

conference report was prepared as a compromise. 198 Although the House agreed to the

conference report, the Senate sought more protection for civil liberties, resulting in a

Congressional action to postpone PATRIOT's expiration date until February 3, 2006 so

additional legislation could be considered. The USA PATRIOT ACT Additional Reauthorizing

Amendment Act of 2006 (S. 2271) was passed by the Senate on March 1, 2006, extending the

sunset deadlines to March 10, 2006. 199

The USA PATRIOT Improvement and Reauthorization Act of 2005 makes permanent

many of the sunset provisions built into the PATRIOT Act of 2001, including: 1) section 203(b)

regarding information sharing; 2) section 207 regarding the duration of wiretaps; 3) section 209

regarding the seizure of voice mail; 4) section 212 regarding emergency disclosures of

communications content or related records to authorities; 5) section 214 regarding pen registers;

6) section 218 regarding the FISA wall; and 7) section 225 providing telecommunications

carriers immunity when executing a FISA warrant.

Sections 206 (roving wiretaps) and Section 215 (business records) are not permanent and

sunset on December 3 1, 2009. Section 215 of the PATRIOT Act provides access to business

records by federal investigators through the use of national security letters. The Director of the

FBI, or his designee, can apply for orders to compel the production of "tangible things" such as

"books, records, papers, documents, and other items" for the investigatory purpose of protecting

"against international terrorism or clandestine intelligence activities," as long as the basis for the

request is not the target' s First Amendment activities. The order must be justified by foreign



198 H. R. Rep. No. 109-333 (2005) (Conf. Rep.).

199 The USA PATRIOT ACT Additional Reauthorizing Amendment Act of 2006, Pub. L. No. 109-178 (2006).









intelligence investigation purposes, but this cannot be disclosed in the order; nor can any person

disclose the actual request by the FBI.

The 2005 PATRIOT Act amendment requires the Attorney General to include additional

information in his semiannual report to Congress, including not just the number of requested and

approved warrants for FISA-authorized surveillance, but also the number of requests "granted,

modified, or denied for the production of library records, book sale records, firearm sale records,

tax return records, educational records and medical records."200 Additionally, Section 113 of the

PATRIOT Act was amended by the 2005 PATRIOT Reauthorization Act to expand the types of

offenses that trigger the authorization to obtain a court order for wire, oral or electronic wiretaps.

The expanded list of crimes include activities relating to: 1) biological weapons; 2) violence at

international airports; 3) nuclear and weapons of mass destruction threats; 4) explosive materials;

5) receiving terrorist military training; 6) terrorist attacks against mass transit; 7) arson within

U.S. special maritime and territorial jurisdiction; 8) torture; 9) firearm attacks in federal

facilities; 10) killing federal employees; 11) killing certain foreign officials; 12) conspiracy to

commit violence overseas; 13) harboring terrorists; 14) assault on a flight crew member with a

dangerous weapon; 15) certain weapons offenses aboard an aircraft; 16) aggravated identity

theft; 17) surfingng" a money laundering technique involving a large monetary transaction that

is separated into smaller transactions to evade federal reporting requirements on large

transactions; and 18) criminal violations of certain provisions of the Sherman Antitrust Act.201


200 Id~

201 Id. at #103.










USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006

The USA PATRIOT Act Additional Reauthorization Act of 2006 amended FISA and other

federal wiretapping statutes.202 The 2006 act further clarified the use of national security letters

by federal intelligence investigators, and gave letter recipients under the right to petition a FISA

judge to eliminate or modify the nondisclosure order.203 Section 3 of the act requires a judge to

conduct an initial review of the order within 72 hours of the request by the recipient of the

national security letter to remove the nondisclosure requirement. The judge must provide the

recipient with a written statement justifying his or her decision to modify the nondisclosure

order. The judge must evaluate the requested disclosure of the existence of a national security

letter to determine if it would 1) endanger national security; 2) interfere with criminal,

counterterrorism or counterintelligence investigations; 3) interfere with diplomatic relations; or

4) endanger the life or physical safety of a person. If the Attorney General, Deputy Attorney

General, Assistant Attorney General or FBI Director certify the letter, then the judge reviewing

the order must show the federal official's decision to certify the letter was made in bad faith in

order to eliminate the order. Section 4 of the 2006 PATRIOT Reauthorization Act states that

recipients of national security letters are excused from having to give the government authorities

the name of the attorney counseling them whether to comply with the national security letter.

Protect America Act

The Protect America Act of 2007 amended the Foreign Intelligence Surveillance Act by

eliminating surveillance warrant requirements for foreign intelligence targets "reasonably





202 Id

203 A petition to remove the nondisclosure requirements can only be done after one year from the date the order was
issued. Id. at 3 & 215, respectively.









believed" to be outside of the United States.204 The bill passed the Senate on August 3, 2007,

and the House on August 4, 2007. President George Bush signed the bill into law on August 5,

2007. The law expired on February 17, 2008, due to a sunset clause.205

The Protect America Act amended FISA to allow the Attorney General or the Director of

National Intelligence to authorize foreign intelligence acquisition for "periods of up to one year"

for targets "reasonably believed to be outside of the United States" if 1) "reasonable procedures"

are in place; 2) a "significant purpose of the acquisition is to obtain foreign intelligence" and 3)

"minimization procedures" are employed.206 Previously, under Section 207 of the 2001

PATRIOT Act, the duration of FISA surveillance of non-United States person, who are agents of

a foreign power, was capped at 120 days. There must be proof that the acquisition involves

foreign intelligence information obtained with the assistance of a communication service

provider.

These circumstances must be supported by "written certification, under oath," with an

affidavit of an appropriate official in the national security field.207 Certification of triggering

circumstances is not required in identification of the "specific facilities, places, premises, or

property at which the acquisition of foreign intelligence information will be directed."208

Authorized acquisitions may require the person with access to the information--the subj ect of

the order--to 1) "immediately provide the Government with all information, facilities, and

assistance necessary" to accomplish the acquisition, while protecting its secrecy and producing a

2 Protect America Act of 2007, Pub. L. No. 110-055, 121 Stat. 552 (2007).

2 Id. at #6(c).

206 Id. at #2(105)(B)(a)(1)-(5). See also The USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).
Minimization procedures are modified at #218.

207 Id. at #2(105)(B)(b).

208 Id. at #2(105)(B)(b).









minimum amount of interference with the services that the carrier is providing to the target and

2) maintain requested records using "security procedures" provided by the Attorney General or

Direction of National Intelligence.209 The government "shall" compensate the person providing

this information at the "prevailing rate. 210 If the person fails to comply with the requested

information, the Attorney General "may" seek court assistance.211 If the person still does not

comply, he or she can be found in contempt of the Court, unless he or she can successfully

challenge the legality of the directive by petition.212 No cause of action "shall" be brought

against a person "providing any information, facilities, or assistance in accordance with a

directive under this section."213

The Protect America Act requires the Attorney General to submit the location verification

procedures to the FISA Court for review within 120 days of passage. 214 The court must approve

the procedures within 180 days of passage. Section 4 requires a semi-annual report to Congress

by the Attorney General on "acquisitions" during the previous six-month period.

Current Congressional Actions

Currently, Congress is considering revisions to the United States electronic surveillance

law, spurred by a national debate over immunity for telecommunication carriers that cooperated

with the government in executing the Terrorist Surveillance Program.215 This cooperation--and


209 Id. at #2(105)((B)(e)(1)&(2).

210 Id. at #2(105)((B)(f ).

211 Id. at #2(105)((B)(g).

212 Id. at #2(105)((B)(h)&(i).

213 Id. at #2(105)((B)(1).

214 Id. at #3.

215 Anne Broache, Congress may OK 'compromise' bill to derail spying lawsuits, May 30, 2008,
http://news.cnet.com/8301-10784 3-99537457hm (last visited June 22, 2008).










its legality--will be discussed in chapter four. The FISA Amendments Act of 2008 "to establish

a procedure for authorizing certain acquisitions of foreign intelligence," was passed on March

14, 2008, as a House amendment in response to the Senate' s amendment of the original House

bill.216 The Senate bill was S. 2248, passed February 18, 2008.217

The latest action by the House, the amendment to the Senate's amendment of the bill

would makes significant changes to the Foreign Intelligence Surveillance Act and attempts to

modernize the body of surveillance law. FISA would be amended to change procedures for

acquiring communications of targets outside the United States by authorizing the Attorney

General or Director of National intelligence to j ointly authorize--for a period of up to one

year--electronic surveillance of targets to acquire foreign intelligence information.21 This

authorization would be prohibited if the intention of targeting a person outside of the U. S. were

to acquire the communications of a person believed to be inside the United States. The targeting

must be done in a manner consistent with the Fourth Amendment. 219 The Director of National

Intelligence also would need to establish a training program for the intelligence community,

following guidelines established by the Attorney General. Targeting also would require the

Attorney General or the Director of National Intelligence to certify that appropriate limitations

and procedures were followed in conducting the surveillance. 220 Electronic surveillance



216 IfOUSe Passes FISA Amendments Act, Posting of Jesse Lee to The Gavel blog,
http://speaker.house.gov/blog/?p=1216 (Mar. 14, 2008). For mark-up of FISA Amendment Act, See FISA
Amendments Act of 2008, H.R. 3773, 110th Cong. (2007), available at
ht tp u\ sagovtrack.us/congress/bill.xpd?bill=hl 10-3773.

217 FISA Amendments Act of 2008, S. 2248, 110th Cong. (2007), available at
ht tp u\ sagovtrack.us/congress/bill.xpd?bill=s 110-2248.

218 H.R. 3773, #702(a)(b)(c)&(d).

219 Id. at 702(b)(5).

220 Id. at 702(f )(1).









conducted under emergency circumstances without judicial authorization would need to be

submitted for review to the FISC of review within seven days.221

The Attorney General and the Director of National Intelligence would be authorized to

direct communication carriers to cooperate with the government surveillance requests by

providing information, facilities and assistance, but at the same time maintaining security

procedures.222 Certifications for targeting and minimization procedures would be submitted o

the FISC of Review.223 The Attorney General and the Director of National Intelligence would be

required to assess compliance with these procedures every six months and submit the results of

the review to the FISC.224 Department of Justice Inspectors General also would be authorized to

review the assessments. Additionally, the Attomney General would be required to make

semiannual reports to the intelligence and judiciary committees on authorizations for

surveillance.""

To conduct electronic surveillance on a U. S. person located outside of the United States,

applications for targeting must be made by a federal officer and approved by the Attomney

General.226 The application must be reviewed by the FISC of Review, which can authorize

surveillance orders for ninety days with ninety-day renewals.22 The Attomney General can make

an emergency authorization if he determines an emergency exists, he informs a judge of his



221 Id. at# 702(g)(1)(A)&(B).

222 Id. at 702(h).

223 Id. at 702(i).

224 Id. at 702(i)(5).

225 Id. at 702(1).

226 Id. at 703(a).

227 Id. at 703(b)(1)(J).









decision and applies for FISC authorization within seven days of authorizing surveillance.228

The section also allows for j oint applications of targets where surveillance will be conducted

concurrently both inside and outside of the United States.229

The amendment would make FISA the sole means for conducting electronic surveillance

on domestic communications.230 The Attorney General would be required to submit semiannual

reports to the congressional intelligence committees with copies of FISC orders, including

retroactively submitting orders for the five years preceding the passage of the bill.231 The

Attorney General would be required to submit emergency authorizations for the use of pen

registers or trap and trace devices to the FISC within seven days for review. 232 Department of

Justice Inspectors General, the Director of National Intelligence, the National Security Agency

and any other agencies involved with the Terrorist Surveillance Program would be required to

review the establishment, implementation, product and use of the intercepts made through the

program, as well as provide a report to the intelligence and judiciary committees.233 Federal

agents would be authorized to collect foreign intelligence information from targets--not

substantially composed of U. S. persons--engaged in international proliferation of weapons of

mass destruction.234





2 Id. at 703(d)(1)(B).

2 Id. at 705(a)&(b).
230 Title VII #708(c)(2) is amended by # 102(a) of H.R. 3773.

231 H.R. 3773 at# 707(a)&(b).

I32d. at# 105(6)(e)(1)(D)(6)&(7)(i), 108.

2 Id. at ##109&110.

2 Id. at 111(a)&(b).










A ten-year statute of limitations would be put into effect for offenses with financial and

criminal penalties outlined under FISA.235 The government would be allowed to intervene in

federal or state civil suits against any person complying with a request for surveillance

cooperation by an intelligence agency.236 Parties in the suits would be allowed to submit

evidence even if that evidence is subject to state secrets privilege.237 Specifically, the Attorney

General is required to provide the court of jurisdiction in such suits (based on carrier assistance

to the government between September 1, 2001 and January 17, 2007, under the Terrorist

Surveillance Program) evidence of assistance requests or directives related to the charges in the

238
case.

A Commission on Warrantless Electronic Surveillance Activities would be established,

through the legislative branch, to report to the President and Congress on all intelligence

collection programs and activities inside the United States or regarding U.S. persons in effect as

of September 1, 2001.239 The Commission must protect national security in carrying out its

duties and submit interim reports.240 The Commission would be terminated 60 days after its

final report.241

The proposed amendment to FISA does not prohibit intelligence agencies from conducting

lawful surveillance necessary to 1) "prevent Osama bin Laden, al Qaeda, or any other terrorist or

terrorist organization from attacking the United States, any U.S. person, or any U.S. ally; 2)

2 Id. at 112.

236 Id. at 802.

2 Id. at 802(b).

2 Id. at 802(e).

239 Id. at 30 1(b)(1).

240 ld. at 301(b)(2).

241 Id. at 301(j).










ensure the safety and security of U. S. Armed Forces, or any other officer or employee of the

government involved in protecting U.S. national security; or 3) protect the United States, any

U. S. person, or any U. S. ally from threats posed by weapons of mass destruction or other threats

to national security.242

The bill is currently in conference committee to resolve the differences between the Senate

and House amendments.243

International Law

Beyond federal statutes protecting electronic surveillance, the United States is also party to

international treaties that protect the human right to privacy. The General Assembly of the

United Nations adopted the Universal Declaration of Human Rights (hereinafter, Declaration) on

December 10, 1948.244 The Declaration is meant to be a "common standard of achievement for

all peoples and all nations" and a way to ""promote respect for these rights and freedoms."24

The preamble of the Declaration says the "recognition of the inherent dignity and of the equal

and inalienable rights of all members of the human family is the foundation of freedom, justice

and peace in the world."










2 Id. at 406.

2 FISA Amendments Act of 2008, S. 2248, 110th Cong. (2007), available at
hp w\ il itgovtrack.us/congress/bill.xpd?bill=s1 10-2248. As of June 14, 2008, the bill is still pending committee
review.

2 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc
A/810 (Dec. 12, 1948), available at httpl un \\ \ un~org/Overview/rights.html.

2 Universal Declaration of Human Rights, United Nations, http://www.un.org/Overview/rights.html (last visited
June 14, 2008).










The Declaration has no legally binding authority, but is meant to be a standard for nations

to adhere to in promoting not just individual human rights, but also "friendly relations between

nations."246 Article 12 of the Universal Declaration of Human Rights says

No one shall be subj ected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks.

Two other international agreements very similar to the Universal Declaration of Human

Rights Article 12 should be included when considering the Declaration. Article 17 of the

International Covenant on Civil and Political Rights says "No one shall be subj ected to arbitrary

or unlawful interference with his privacy, family, home or correspondence, nor to unlawful

attacks on his honour and reputation."247

The International Telecommunications Convention (ITC) is the Geneva-based governing

body of international telecommunications subsidiaries. Article 22 of the ITC says that members

agree to protect the "secrecy of international correspondence." The convention also says that

members can tumn correspondence over to authorities in order to ensure the execution of "intemal

laws" or internationall conventions." The ITC covers the internal laws of member states.








246 In 1998, Ramsey Clark said: "The United States government pays lip service to the Declaration, but its courts
have consistently refused to enforce its provisions reasoning it is not a legally binding treaty, or contract, but only a
declaration." Ramsey Clark, Founder, International Action Center, Keynote Address at the Fiftieth Anniversary of
the Universal Declaration of Human Rights (Dec. 2, 1998), available at
lut \ ti \ \\thirdworldtraveler. com/HumanRights/RClark_50thAnnivUDHR.html. The Declaration is a component
of binding international law. Playing on this concept, Ramsey said United States citizens should "stop their own
governments from violating these definitions of human rights." Ramsey addressed a conference in Baghdad with a
primary focus on the human rights of Iraqi citizens impacted by international sanctions. Ramsey Clark was the
keynote speaker, in Baghdad, Iraq on December 2, 1998, at a conference on the fiftieth anniversary of the signing of
the Universal Declaration of Human Rights.

24 Int'1 Covenant on Civil & Political Rights, G.A. res. 2200A (XXI) at art. 17, 21 U.N. GAOR Supp. (No. 16) at
52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.









CHAPTER 3
FIRST AND FOURTH AMENDMENT COURT DECISIONS

In this chapter, the constitutional issues involving electronic surveillance will be explored

by reviewing the relevant, seminal First Amendment and Fourth Amendment court decisions.

The First Amendment decisions will be reviewed chronologically, following the development of

the "clear and present danger" test, as it relates to the chilling effect of government suppression

of free speech. Many of these cases involve political speech made by members of organizations

assembling to oppose the United States government, so the review will also highlight cases

where the court rule of free assembly under the First Amendment. The Fourth Amendment

decisions involving electronic surveillance will also be reviewed chronologically building on the

historic privacy opinions as they have developed over time with the courts. Specifically, cases

will be reviewed that establish a right to privacy for electronic communications through the

application of the traditional protections against government search and seizure. In both the First

and Fourth Amendment sections of this chapter, the review will emphasize cases where the

courts have suggested government restrictions on constitutional freedom create a chilling effect

of activities protected under the First Amendment. The idea of "breathing space" for ideas to

compete in the marketplace, which is closely tied to the chilling effect, as discussed in chapter

one, will also be highlighted when the Court uses the concept in its reasoning. The concepts of

"chilling effect" and "breathing space" are rarely the main issues in deciding U.S. Supreme

Court decisions, but their continual use has led to a widely accepted judicial doctrine often

mentioned in cases involving government surveillance of subversive citizens.

The First Amendment Decisions

The First Amendment is an important starting point in looking at constitutional protections

for targets of electronic surveillance by the government. The First Amendment' s protections for






























































SU.S. CONST. amend. I.


free speech can be endangered by federal statutes that do not adequately protect a target

engaging in activities such as political expression. Statutes can also limit a target' s ability or

desire to express opinions due to the fear they will face repercussions in response to

communicating their ideas.

The First Amendment states that

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment, a part of the United States Bill of Rights, was ratified in 1791. It

guarantees fundamental civil liberties including protection against the establishment of religion

and for the free exercise of religion, freedom of speech, and freedom of the press. It also

guarantees a right of people to petition the government for redress of grievances and the right to

assemble for the purposes of petition or communication on "national questions."

Two First Amendment legal principles are directly relevant to the government' s electronic

surveillance of citizen' s phone communications. The first is the "chilling effect" of laws that

restrict the First Amendment right to free expression. This concept has been applied in cases

controlling potentially subversive political views such as communism. The Court has found that

citizens have a First Amendment right to engage in this kind of expression despite the possibility

of related illegal activities. The second concept is one of the "breathing space" necessary to

ensure free expression in the marketplace of ideas. Although breathing space has been

traditionally applied to potentially false statements of the press in libel cases, the idea is

applicable to surveillance in the sense in that it suggests that government should not be able to

restrict true political speech in the marketplace of ideas.










As discussed in chapter one, the marketplace of ideas model for freedom of expression

relies upon citizens being free to express political opinions that enhance the democratic process

by promoting discourse. When the government takes action to prevent this type of

communication, it infringes upon the breathing space citizen's need to develop their ideas

without fear of retribution. As Alexander Meiklej ohn suggested, the purpose of the First

Amendment is to ensure that individuals can participate in the political decision making

process.2

Government regulations that restrict free speech and political discourse "chill" citizen

involvement in the democratic process.3 Frederick Schauer attributed the chilling effect to two

legal principals: 1) laws are people-made rules and it is difficult to predict the outcome of their

application and 2) the legal system is not perfect and errors in the legislative and judicial

processes pose harm to individuals. First Amendment protections for free speech can promote

the free flow of information, but government interference in the realm of free speech can

undermine this critical exchange in the political process.4

Citizens have a need for privacy to ensure there is "breathing space" to develop

autonomous ideas and express their opinions without government interference or societal

pressure. Although these ideas might conflict with widely accepted societal views, they are vital

for promoting exchange in the marketplace of ideas. Freedom of speech is a fundamental First

Amendment right that has been upheld and shaped by a body of court cases, which include

decisions relating to sedition and war protests. Freedom of assembly is closely related to


2 ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1960). See also ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS
RELATION TO SELF-GOVERNMENT (1948), available at http://digital.1ibrary.wisc.edu/17 11 .dl/UW.MeikFreeSp.

3 Frederick Schauer, Fear, Risk and the FirstAmendment: Unraveling the 1/tell, a Effect, 58 B.U. L. REV. 685
(1978).
4 Id. at 691-92.









freedom of speech. Contemporary citizens often use telecommunication channels to discuss

political and legal issues, as well as personal matters. Communication over telecommunication

devices and lines enable a highly-mobile citizenry to engage in democratic dialogue with fellow

citizens who might be located too far away geographically for face to face discussion. Although

the freedom of religion, press and petition clauses could be relevant to a discussion of electronic

surveillance and First Amendment rights, they will be downplayed in this discussion, in part

because of the scope of the research. The analysis of First Amendment cases will focus on the

free speech and free assembly clauses of the First Amendment.

Before looking at case law involving the government suppression of free speech and

assembly, it is important to establish the historical climate of the era to which the case law traces

its roots. This time period centers on the United States' involvement in World War I. On June

15, 1917, Congress passed the Espionage Act of 1917.5 The law allowed the government to

prosecute individuals who caused "insubordination, disloyalty, mutiny, or refusal of duty in the

military or naval forces of the United States."6 It also criminalized promoting the success of

United States' enemies. The Espionage Act said:

Whoever, when the United States is at war, shall willfully make or convey false reports or
false statements with intent to interfere with the operation or success of the military or
naval forces of the United States or to promote the success of its enemies and whoever,
when the United States is at war, shall willfully cause or attempt to cause insubordination,
disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or
shall willfully obstruct the recruiting or enlistment service of the United States, to the
injury of the service or of the United States, shall be punished by a fine of not more than
$10,000 or imprisonment for not more than twenty years, or both.'




SThe Espionage Act of 1917, ch. 30, tit. I, #3, 40 Stat. 219 (June 15, 1917).

6ld

SId. at #3.










At the time of the Act' s passage, many U. S. citizens feared that dissent at home during

war-time could undermine a U.S. victory abroad. Less than a year later, the Espionage Act of

1917 was amended by the Sedition Act of 1918, criminalizing "disloyal" language against the

government. s Again, it was feared that dissent could harm national morale. Whereas the

Espionage Act criminalized actions to undermine the U.S. war effort, the Sedition Act

criminalized speech and publications that criticized the government. The Sedition Act made it a

federal crime to

willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive
language about the form of government of the United States, or the Constitution of the
United States, or the military or naval forces of the United States, or the flag of the United
States.9

The Sedition Act criminalized the advocacy, teaching, defense or suggestion of any word

that would "support of favor the cause of any country with which the United States is at war."

The Espionage Act of 1917 and the subsequent Sedition Act of 1918 led to large number of

Supreme Court cases addressing the issue of government suppression of citizen speech and

association under the First Amendment. These cases will be reviewed with a specific focus on

the language that supports a judicial lineage for the "chilling effect" as it relates to the

marketplace of ideas, clear and present danger, free association, political speech and breathing

space.

Although a lot of significant precedence in Supreme Court opinions supports the concepts

of the chilling effect and breathing space, support of these ideas began with a dissenting opinion

in the 1919 case of Abramns v. U.S.'o The Supreme Court has long been concerned with


SThe Sedition Act of 1918, ch. 75, 40 Stat. 553-54 (May 16, 1918).


'O Abrams v. United States, 250 U.S. 616 (1919).










providing opportunities to criticize the government and openly discuss public issues, even when

majority opinions upheld laws that restricted or punished speech. Following the passage of the

Espionage Act of 1917 and the Sedition Act of 1918, the Supreme Court decided three cases that

would create the "clear and present danger test," the early standard for evaluating the necessity

of government suppression of free expression. In March of 1919, the Court decided Schenck v.

thrited States, Frohwerk v. thrited States and Debs v. thrited States. 1 U.S. Supreme Court

Justice Oliver Wendell Holmes wrote the unanimous decisions for each of the cases. In Schenck,

the Court held that opposition to the Espionage Act was a "clear and present danger," to the

nation in general, and more specifically, the military. 12

Schenck v. United States

In Schenck, for the first time the Supreme Court, in a 9-0 decision, upheld the

constitutionality of the Espionage Act and therefore Charles Schenck' s conviction. 13 Schenck

was the secretary of the Socialist Party, which printed and distributed 15,000 leaflets by mail

encouraging opposition to the military draft. The leaflets, in "impassioned language" described

"military conscription" as the "worst form" of despotism and a "monstrous wrong against

humanity."14 Schenck was convicted on three counts: 1) conspiracy to violate the Espionage

Act by causing and "attempting to cause" insubordination in the military and naval forces of the

United States by obstr-ucting the recruiting and enlistment effort, 2) conspiracy to commit and






11 Schenk v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United
States, 249 U.S. 211 (1919).

'2 Schenck, 249 U.S. at 52.

13Id.

I4d. at 51.










offense against the United States, and 3) unlawful use of the mail for transmitting messages

related to conspiracy against the United States. 1

The Court, in its decision, reasoned that Schenck did not deserve First Amendment

protection when criticizing the draft because his action created a "clear and present danger" to

the United States armed forces during a time of war. The Court reasoned that the intent of the

Socialist Party's document was to undermine the war effort because "the document would not

have been sent unless it had been intended to have some effect, and we do not see what effect it

could be expected to have upon persons subj ect to the draft except to influence them to obstruct

the carrying of it out."16 The Court acknowledged that during "ordinary times" the defendants

would enj oy constitutional protection in distributing their leaflets during war times, the

"character of every act depends upon the circumstances in which it is done. 1

The Court, in the Schenck decision, introduced one of the most famous clauses in First

Amendment doctrine, "The most stringent protection of free speech would not protect a man in

falsely shouting fire in a theatre and causing a panic."l Building on this idea, Holmes

established the "clear and present danger test" that would become the new standard, at least until

it was modified by later decisions, for government suppression of free expression:

The question in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. 19





'16 d. at 49.

'16 d. at 51.

'1- d. at 52.

Is Id .

19 Id .










The Court based its decision in Schenck on the question of "proximity and degree," and

said that words that enj oy tolerance during peacetime can be found to be unconstitutional during

times of war. 20 The Court reasoned that the purpose of the Espionage Act of 1917 was to punish

"conspiracies to obstruct as well as actual obstruction."21 Therefore, the success of the

conspiracy was not the measure of the crime.22 Under the "clear and present danger" test, there

were two tests for the protection of free speech. The first was based on circumstances, such as

the nation being at war. The second was based on the intent of the speaker--whether or not he

or she intended to bring about action against the government. In the second tier of the test,

successfully executing the intent of a plan was not a necessary criteria in abridging the target' s

speech. Mere intent to commit the type of crime barred by Congress was sufficient cause to

secure a conviction.

In other words, in Schenck, the Court upheld acts specifically designed to curb or "chill"

speech believed to be in conflict with national policy. Not surprisingly the First Amendment

sensitive term "chilling effect" was not mentioned by name in the decision.

Frohwerk v. United States

A week after the Schenck decision, Holmes wrote the maj ority opinion in Frohwerk v.

United States, repeating its support of the "clear and present danger" test. 23 In Frohwerk, the

Supreme Court unanimously upheld the District Court of Western Missouri's conviction of the

defendant, Jacob Frohwerk for thirteen counts relating to the preparation and publication of anti-




20 Id.

21 Id.

22 Id.

23 Frohwerk v. United States, 249 U.S. 204 (1919).










draft articles.24 Frohwerk, a copy editor for a Missouri German language newspaper, had

distributed twelve articles during 1917 promoting "disloyalty, mutiny and refusal of duty in the

military and naval forces of the United States."25 He was sentenced to ten years in prison, but he

appealed on First Amendment grounds that his words were protected speech.

Relying on the Schenck decision, the Justice Holmes reasoned "the First Amendment,

while prohibiting legislation against free speech as such, cannot have been, and obviously was

not, intended to give immunity for every possible use of language."26 Therefore, as in Schenck,

"a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion."27 The

Court decided the case on the standard in Schenck standard, determining if the publications were

"overt acts" of conspiracy, rather than the on the basis the government asked for--Congress'

power "to punish such a conspiracy to obstruct." 28 The Court found little difference between

the publications in Schenck and the publications currently being considered in Froinverk. 29

The first expression by Frohwerk, referred to by the Court, was the declaration that it is "a

monumental and inexcusable mistake to send our soldiers to France."30 The publication

referenced "the unconquerable spirit and undiminished strength of the German nation."31 The

paper called for an end to the war: "We say therefore, cease firing."32 Later, the publication said


I4d. at 205.

25Id.

26 Id.

27Id. at 206.

28Id. at 206-07.

29 Id. at 207.

3o Id.

31Id.

3Id










that the "drafted man...recognizing that his country is not in danger and that he is being sent to a

foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching

the conviction that this is but a war to protect some rich men's money."33

Given this language, the Court reasoned that during times of war, although we do not "lose

our right to condemn," the "circulation of the paper was in quarters [neighborhoods]where a little

breath would be enough to kindle a flame."34 Although the publication was not specifically

targeting men that might be drafted, it still had the potential to trigger reader opposition to the

draft.35 The Court ruled that even though no means of conspiracy was specified, the publication

still amounted to criminal conspiracy because Frohwerk intended "to accomplish" the goal.36

As in Schenck, the Court applied the new test of "clear and present danger," requiring only

intent to commit conspiracy--not a successful act to carry out a plan. Again, the decision,

which does not use the term "chilling effect," supported the idea that the government can chill

"dangerous" speech that would otherwise be constitutionally protected speech. Words alone

were sufficient to establish a threat under Frointerk. Instead of allowing potentially false or

dangerous ideas to be tested in the marketplace, the Court upheld the government' s effort to

stifle speech.

Debs v. United States

The last case of three decided in the Spring of 1919 was Debs v. United States, involving

the conviction of a former three-time Presidential candidate who had been spoken out against




33 Id.

34Id. at 208-09.

35 Id. at 209.

3 Id.










World War II. Although the Court again did not mention the 'clear and present danger" test in

its decision, it upheld the standard established in Schenck and Frohverk.

On the same day it decided the Frohverk case, the Supreme Court unanimously upheld the

conviction of socialist political leader Eugene V. Debs under the Sedition Act of 1918, which

amended the Espionage Act of 1917.37 The government said that Debs' speech on June 16,

1918, in Canton, Ohio, was an attempt to "cause and incite insubordination, disloyalty, mutiny

and refusal of duty in the military and naval forces of the United States."38 In the speech, Debs

praised a woman who was convicted of obstructing the enlistment service, in addition to

honoring other people convicted the same crimes.39 He told those listening to him not to worry

about the charge of treason leveled by the government if they j oined the socialist cause, but

instead "be concerned about the treason that involves yourselves."40 Debs was convicted under

the Espionage Act for was opposing the official government war-time initiative by obstructing

the recruitment and enlistment service of the United States military.

The Supreme Court, in its opinion, highlighted Deb's sympathy for the persons honored in

his speech against enlistment.41 The Court also highlighted a 1918 Socialist Party proclamation,

"Anti-War Proclamation and Program," endorsed by Debs. The proclamation declared that the

war in Germany could not be justified, and that







37Debs v. United States, 249 U.S. 211 (1919).
38Id.

39 Id. at 213.

40 Id. at 214.

41 Id. at 215.










We brand the declaration of war by our Governments as a crime against the people of the
United States and against the nations of the world. In all modern history there has been no
war more unjustifiable than the war in which we are about to engage.42

The "clear and present danger" test was not mentioned in the opinion, and the intent of

Deb's words was not analyzed. Neither did the Court, again, mention the term "chilling effect."

Of course the decision, upholding a federal statute barring the advocacy of political change,

could easily have "chilled" antiwar and other anti-government expression.

Abrams v. United States

The Court experienced an important turning point in the handling of free speech cases just

eight months after it decided the trilogy of cases establishing and supporting the "clear and

present danger" test. Most notably, Abramns v. U.S., is not know so much for the maj ority's

decision--which supported the precedence of Schenck, Frohwerk and Debs-but rather the

dissenting opinion of Justice Holmes. Holmes, the author of the opinions in Schenck, Frohwerk

and Debs, broke with the maj ority in Abrams in what marked an important turning point in the

judicial interpretation of "clear and present danger."43

In Abramns, decided in November 1919, the Supreme Court' s 7-2 maj ority upheld the

conviction of the New York anarchists under the Espionage Act as constitutional. Jacob

Abrams, Mollie Steimer, Hyman Lachowsky, and Samuel Lipman had participated in the

publication of Der Marnl in,, a newspaper that advanced the anarchist political agenda in

opposition to capitalism.44 The quartet, inspired by the Russian Revolution, dropped five

thousand leaflets off of a rooftop in Manhattan advocating their anarchist cause.45 The leaflets



42 Id. at 215-16.

4 3 Id.

44 Abrams v. United States, 250 U.S. 616, 618 (1919).
45 Id. at 618.










were titled "Revolutionists Unite for Action," "The Hypocrisy of the United States and her

Allies," and "Workers -- Wake up."46

The men were arrested and convicted on October 25, 1918 in the United States District

Court for the Southemn District of New York on four counts. These included 1) "disloyal,

scurrilous and abusive language about the form of Government of the United States," 2)

publication of language "intended to bring the form of Government of the United States into

contempt, scomn, contumely and disrepute," 3) publication of language "intended to incite,

provoke and encourage resistance to the United States" in World War I, and 4) conspiring "when

the United States was at war with the Imperial German Government, unlawfully and willfully, by

utterance, writing, printing and publication, to urge, incite and advocate curtailment of

production of things and products, to-wit, ordnance and ammunition, necessary and essential to

the prosecution of the war."47 They were sentenced to prison for 15-20 year terms for advocating

the overthrow of the United States government.

Before the Supreme Court, the government argued that the First Amendment did not apply

to the New York anarchists because it was only meant to protect the press from prior government

restraints on publication. Abrams and his associates were charged after the publication and

distribution of their paper. The attorney for the j oumalists argued that the Espionage and

Sedition Acts were an unconstitutional restraint on the men's natural right of liberty of

discussion.48 Further, the attorney for the defendants in the case argued that the Espionage and

Sedition Acts did not apply because the United States was not at war with the Soviet Union.49


46 Id. at 618-19, 621.

47Id. at 621.

48Id. at 619.

49 Id. at 618-19.










Justice John Clark wrote the opinion of the Court, holding that the New York four were

guilty of conspiring to violate the Espionage and Sedition Acts.SO The Court, relying on the clear

and present danger test established in Schenck, reasoned that the government need only show

that there was evidence of intent to overthrow the government. 5 The Court said that the obvious

purpose of the distributed papers was to "persuade the persons to whom it was addressed to turn

a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to

render it assistance in the prosecution of the war. 52

The Court did not accept the claim that Abrams and his associates only intended to prevent

United States involvement in the Russian Revolution, but rather through this "primary purpose,"

their intent was to defeat the United States' war effort. 53 The Court emphasized that the four

defendants were not seeking to bring about administrative change or "candid discussion" of the

issue, but rather they were attempting to "defeat the war plans of the Government of the United

States by bringing upon the country the paralysis of a general strike, thereby arresting the

production of all munitions and other things essential to the conduct of the war."54

The Court used, as one example of the defendant' s intent to incite violence against the

government, a pamphlet that read

Do not let the Government scare you with their wild punishment in prisons, hanging and
shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to
fight. 5



"I1d. at 617, 621.

51 Id. at 619.

I2d. at 620-21.

53Id. at 621.

I4d. at 622.

55Id. at 622.









The Court referred to another pamphlet to show that the defendants advocated

revolutionary acts to "keep the armies of the allied countries busy at home."56 The Court

concluded that the pamphlets made clear the intent of Abrams and the others to "throw the

country into a state of revolution." 5 Although the defendant' s "immediate occasion" for

promoting the "outbreak of lawlessness" may have been to prevent sending troops to Russia,

their actions could impede the United States war effort in Germany.'

Justice Oliver Wendell Holmes, dissented from the maj ority opinion, j oined by Justice

Louis Brandeis. Holmes differed with the Court on the application of the "clear and present

danger," the test he originated in Schenck v. United States. In his dissent, Holmes offered a

revised test, one that he said afforded greater protection for political speech. Holmes' new

standard for the "clear and present danger" test, even though it was part of the Abramns dissent,

would become the standard for Supreme Court decisions on freedom of expression in the

decades following Abramns.

Holmes' dissent said the four New York defendants posed no true threat to the United

States' war effort. Whereas previously the standard for clear and present danger was

demonstrating there was a "present" danger to the government, Holmes in Abramns specified that

there must be proof of "imminent" danger. Holmes did not believe the words uttered by the four

New York activists posed the same danger, or demonstrated an intent to harm the war effort, that

the unrealized deeds they were advocating would.






56 Id. at 623.

57Id.

58Id.










Holmes argued that the sentiment in the pamphlets "in no way" was meant to attack the

"form of government of the United States."59 He based his new interpretation of intent, which he

first established in the second tier of Schenck 's "clear and present danger" test, on the nature of

Abrams' words, which were not a specific act intended to overthrow the government, but rather

an expression. Holmes said

But, when words are used exactly, a deed is not done with intent to produce a consequence
unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor,
that the consequence will follow, and he may be liable for it even if he regrets it, but he
does not do the act with intent to produce it unless the aim to produce it is the proximate
motive of the specific act, although there may be some deeper motive behind.60

Even though the words were uttered during a "time of war," Holmes reasoned that the

"principle of the right to free speech is always the same.61 He argued that only a "present danger

of immediate evil or an intent to bring it about" would warrant government intervention on

expression.62 Holmes felt that "the surreptitious publishing of a silly leaflet by an unknown

man" did not pose an "immediate danger" to the country.63 Furthermore, Holmes reasoned that

there was no intent by the defendants other than helping Russia, and certainly there was no "hint

at resistance to the United States" present in the defendant' s actions.64

Holmes dedicated a large portion of his dissent to the discussion of "persecution for the

expression of opinions."65 He reasoned that sweeping away all opposition through suppression

of speech was a "logical" action if the government did not want to face political dissent. He

59 Id. at 626.

601)d. at 627.

61 Id. at 627-28.

62 Id. at 628.

6 3 Id.

64 Id. at 628-29.

65 Id. at 630.










write that under such an approach, allowing opposition indicates that the speech is impotent.66

Holmes said outlawing a class of speech indirectly acknowledges its power to reach the "ultimate

good desired" by allowing "free trade in ideas."67 In expanding on this "free trade in ideas,"

Holmes used the marketplace of ideas metaphor for the first time in Court history to refer to the

mechanics of free expression:

the best test of truth is the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes safely can be carried
out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an
experiment. Every year, if not every day, we have to wager our salvation upon some
prophecy based upon imperfect knowledge. While that experiment is part of our system, I
think that we should be eternally vigilant against attempts to check the expression of
opinions that we loathe and believe to be fraught with death, unless they so imminently
threaten immediate interference with the lawful and pressing purposes of the law that an
immediate check is required to save the country.68

In the Abramns case, the dissenting Justices said Schenck 's test of "danger" was not met.

Although just two justices supported the dissenting opinion, its impact still echoes in modern

theories of free expression. The Holmes-Brandeis dissent provided a conceptual rationale for free

expression that is similar to the free market in economics on which the country is theoretically

based.69 The Holmes-Brandeis dissent brought the advocacy of a free exchange of ideas by John

Milton and John Stuart Mill into the 21"t century judicial ideology. For example, Holmes'

statement that "the best test of truth is the power of the thought to get itself accepted in the

competition of the market" was reminiscent of Milton' s statement, "let her [truth] and falsehood


Ibd

67Id

68Id. (emphasis added).
69 See Richard A. Posner, Free Speech in an Economic Perspective, 20 SUFFOLK U. L. REV. 1, 7 (1986) (discussing
how the economic principle of a marketplace is applicable to the legal argument for free speech as a method for
citizens developing ideas in the public forum. Citizens in the private sphere develop ideas in a deliberative process
that is integral to a healthy democracy). Contra C. Edwin Baker, Scope of the First 4mendinent Freedom ofSpeech,
25 UCLA L. REV. 964, 967-74 (1978).










grapple; who ever knew Truth put to the worse in a free and open encounter."70 Essentially, the

Holmes-Brandeis dissent recognized the chilling effect of suppressing free expression in the

democratic process.

Gitlow v. New York

The Abramns dissent of Holmes and Brandeis did not immediately change the Supreme

Court' s pattern of affirming convictions based on speech or its reliance of the "clear and present

danger" as developed in Schenck. In Gitlow v. New York, the Court upheld the defendants'

convictions under a New York criminal syndicalism statute. However, the Gitlow case is notable

because the Court--for the first time--said that First Amendment protections ought to be

extended to state government action against speech, in addition to federal suppression of

speech."

In the 1925 case, Gitlow v. New York, decided by the U.S. Supreme Court in a 7-2 opinion,

the Court upheld the conviction of a defendant under New York' s criminal anarchy law.72 The

case was decided on the issue of whether the First Amendment' s free speech clause applied to

states under the Fourteenth Amendment. Benj amin Gitlow and three conspirators were

convicted of criminal anarchy under New York Penal Law, 160, 161.1. Gitlow was tried,

convicted and sentenced separately, with the judgment affirmed by the Appellate Division and

by the Court of Appeals of the state of New York.





"0 JOHN MILTON, AREOPAGITICA (Oxford at the Clarendon Press 1882) (1644), available at
http:.//books.google. com/books?id=RGILAAAAIAAJ&dq=milton+areopaiiclg=P&ots= Cwsdll1fi gn&sig=L
2Ld0JIwAyRzYyygCTOkfRDxra8&hl=en&prev=http://www. google. com/search%/3Felient%/3Dsafari%/26rlsD
n%/26q%3 Dmilton%/2B areopagitica%/26ie%3 DUTF-8%26oe%/3 DUTF-8&sa=X&oi=print&ct=title&cad=one-book
with-thumbnail#PPR3 ,M1.

71Id. at 506.

72Gitlow v. New York, 268 U.S. 652 (1925).










The New York Statute defined "criminal anarchy" in section 160 as "the doctrine that

organized government should be overthrown by force or violence, or by assassination of the

executive head or of any of the executive officials of the government, or by an unlawful

means."73 Furthermore, section 161@l of the state criminalizes the advocacy of criminal anarchy

by 1) word of mouth, 2) writing, 3) advising, or 4) teaching the duties of the doctrine.74 Section

161@2 criminalizes the actions made in section 161@l when they are carried out through printing,

publishing or editing issues related to criminal anarchy or knowingly circulating, selling,

distributing, or displaying books, papers, documents or written printed matter relating to the

doctrine."

Gitlow was convicted on two counts: 1) advocating, advising and teaching the doctrine of

criminal anarchy through the writings in "The Left Wing Manifesto", and 2) printing, publishing

and circulating a paper titled, "The Revolutionary Age," which advocated the forceful overthrow

of government. 76 The Court opinion specified "there was no evidence of any effect resulting

from the publication and circulation of the Manifesto."

The maj ority opinion was written by Justice Edward Terry Sanford, who was j oined by

Chief Justice William Howard Taft, and Justices Willis Van Devanter, James Clark McReynolds,

George Sutherland and Harlan Fiske Stone. The Court upheld the New York statute

criminalizing the advocacy of the overthrow of government by force or violence, but it

simultaneously extended the Fourteenth Amendment' s due process clause to include the Bill of


73Id. at 654.

7Id

75Id. at 654-55.

I6d. at 655.

77Id. at 656.










Rights.78 The court clarified the "clear and present danger" test created in Schenck and expanded

in Abramns.

In regards to the statute violating the Fourteenth Amendment' s protections, the Court said

That while liberty of expression 'is not absolute,' it may be restrained 'only in
circumstances where its exercise bears a causal relation with some substantive evil,
consummated, attempted or likely,' and as the statute 'takes no account of circumstances,' it
unduly restrains this liberty and is therefore unconstitutional.79

However, the Manifesto, was found to advocate and urge "mass action which shall

progressively foment industrial disturbances and through political mass strikes and revolutionary

mass action overthrow and destroy organized parliamentary government."so The Court ruled

that the language was not "the expression of philosophical abstraction," but rather the "language

of direct incitement."sl The Court said that a State "may" punish utterance that endanger the

foundations of organized government or "present a sufficient danger of substantive evil,"

therefore Gitlow' s conviction must be upheld.82 Furthermore, the Court expanded on the clear

and present danger test in saying that these types of utterances, by nature

involve danger to the public peace and to the security of the State. They threaten breaches
of the peace and ultimate revolution. And the immediate danger is none the less real and
substantial, because the effect of a given utterance cannot be accurately foreseen. The State
cannot reasonably be required to measure the danger from every such utterance in the nice
balance of a jeweler's scale. A single revolutionary spark may kindle a fire that,
smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot
be said that the State is acting arbitrarily or unreasonably when in the exercise of its
judgment as to the measures necessary to protect the public peace and safety, it seeks to
extinguish the spark without waiting until it has enkindled the flame or blazed into the
conflagration. It cannot reasonably be required to defer the adoption of measures for its

78Previously, in Barron v. Baltimore, 32 U. S. 243 (1833), the Court held that the Bill of Rights only applied to the
federal government.

79 Gitiow, 268 U.S. 652 at 664.
sold. at 665.

81Id.

82 Id. at 667, 669.










own peace and safety until the revolutionary utterances lead to actual disturbances of the
public peace or imminent and immediate danger of its own destruction; but it may, in the
exercise of its judgment, suppress the threatened danger in its incipiency.83

The Court, relying on the reasoning in Schenck and Debs, specified that the defendant's

words did represent a "substantive evil," and therefore created a "clear and present danger" to the

nation.8s4 Again, since the statute was not "in itself unconstitutional," the Court affirmed the

Court of Appeals judgment. s

Justice Holmes, who was joined by Brandeis, again dissented, arguing that the court should

adhere to the "clear and present danger" standard for evidence establishing a substantive evil.

Holmes and Brandeis, the justices respectively authoring and signing on to the dissent in

Abramns, disagreed with the maj ority opinion in Gitlow. Holmes argued that Gitlow' s advocacy

posed no present danger and only a few people would receive the message, with possible action

taking place at an "indefinite time in the future."86

Relying upon Schenck, Holmes maintained that free speech must be extended protection

under the Fourteenth Amendment. Holmes took issue with the maj ority labeling Gitlow' s

manifesto as an "incitement," writing that "every idea is an incitement" if it is believed."

The only difference between the expression of an opinion and an incitement in the
narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason.
But whatever may be thought of the redundant discourse before us it had no chance of
starting a present conflagration. If in the long run the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of the community, the only
meaning of free speech is that they should be given their chance and have their way."


83Id. at 669.

84Id. at 671.

ssId.

Ibd. at 673.

87Id

88Id. at 673.










Holmes and Brandeis, again, provided powerful language in Gitlow, which establishes the

framework for a "chilling effect" of free speech at the hand of government action. Their

handling of ideas conflicted with the maj ority's reasoning that ideas alone could incite danger.

Rather they suggested what could only be interpreted as a marketplace model: ideas "should be

given their chance and have there way." 89 This marketplace concept, which they first relied on

in their Abramns' dissent, is powerful support for the development of the "chilling effect"

doctrine. Ideas must be allowed to compete in a market, free from government intervention that

chills the natural discourse brought about by citizen exchange over true and false information.

Whitney v. California

In Whitney v. California, the Court did apply the "clear and present danger" test, sustaining

a criminal conviction under the Califomnia Syndicalist statute.90 Brandeis and Holmes concurred

in the opinion, again emphasizing that there was no evidence of "substantive evil" to create the

danger needed to pass the Court' s adopted test.91 Whltney would remain the precedent for the

"clear and present danger" test until it was overturned in 1969 by Brandenburg v. Ohio.

In Whitney v. California, decided May 16, 1927, the U.S. Supreme Court in a 9-0 vote,

held that California's criminal syndicalism law--criminalizing defense, advocacy or

establishment of an organization committed to violent means of effecting government change--

did not violate the First Amendment.92 The Superior Court of Alameda County, California

convicted Charlotte Whitney under the California Criminal Syndicalism Act for helping to




8 9Id

91) Whitney v. California, 274 U.S. 357, 371 (1927).

91 Id.

92 Id. at 359-60.










establish the Communist Labor Party.93 Whitney was a member of the Oakland branch of the

Socialist Party and she attended a convention in November of 1919 for the purpose of

"organizing a California branch of the Communist Labor Party."94 Whitney claimed that she had

no intention of the party becoming an instrument of violent of overthrow of the government.

Whitney claimed she "took part in formulating and presenting" a convention resolution that

would use legitimate political reform--the ballot--not acts criminalized by the California

Syndicalism Act. 95 The District Court of Appeals affirmed the judgment. 96 Her petition to have

the case heard by the Supreme Court was denied.97 Whitney brought appealed to the Supreme

Court on writ of error, but the cased was dismissed for "want of jurisdiction.98 The Court then

granted a rehearing.99

Justice Edward Sanford wrote the maj ority opinion. The Court held that the Syndicalism

Act was "not repugnant to the due process clause by reason of vagueness and uncertainty of

definition."1oo The Court said the Act "was not repugnant to the equal protection clause, on the

ground that as its penalties are confined to those who advocate a resort to violent and unlawful

methods as a means of changing industrial and political conditions."'ol The Court said the Act

was also not "repugnant to the due process clause as a restraint of the rights of free speech,


93 Id. at 359.

94 Id. at 364.

95 Id. at 367-68.

96 Id. at 359 (citing People v. Whitney, 207 P. 698 (1922)).

97 Id. at 359.

98 Id. (citing People v. Whitney, 269 U.S. 530 (1925)).
99Id.

100 Id. at 368.

10' Id. at 369.










assembly, and association," because Constitutional freedom of speech does not confer an

"absolute right to speak without responsibility."102 The Court vacated the writ of error and

affirmed the appeal court decision.

Justice Brandeis, joined by Justice Holmes wrote a concurring opinion. Brandeis said that

the due process clause of the Fourteenth Amendment "applies to matters of substantive law as

well as to matters of procedure," therefore "all fundamental rights comprised within the term

liberty are protected by the federal Constitution from invasion by the states." He included free

speech, the right to teach and the right of assembly as fundamental rights. 103

In regards to "clear and present danger," Brandeis said the Court had not yet established a

standard for establishing when danger is "clear," or "how remote the danger may be and yet be

deemed present."104 He also insisted that the Court had not yet set a standard for how

sufficiently substantial and evil must be to justify the abridgement of speech and assembly. 1os

Brandeis insisted an evil must be "substantial."106

Brandeis, in his concurring opinion, provide his interpretation of the Constitution framers'

intent behind guaranteeing liberty was the protection of political discussion as a fundamental

principle of the American government:

They believed that freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political tnrth; that without free speech and
assembly discussion would be futile; that with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine'07


102Id. at 371.

103 Id. at 373.

104 Id. at 375-77.

'os Id. at 374.

106Id~

'07 Id. at 375-77.










Brandeis added that it was "hazardous to discourage thought, hope and imagination,"

because it bred repression and prohibited "good" counsels from remedying "evil ones."'os

Furthermore, he added that for free speech to be suppressed, there must be reasonable ground to

believe that 1) evil will be a result of the speech, 2) the danger "apprehended" is imminent and 3)

evil prevented is serious:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burnt women. It is the function of speech to free men from the bondage
of irrational fearS. 109

He highlighted the difference between "advocacy and incitement," "preparation and

attempt," and assembly and conspiracy as a difference "borne in mind."110 He said that American

should always be free to challenge the abridgement of speech unless an emergency justifies the

government' s actions. 1

Brandeis said that "imminent danger" alone cannot justify the prohibition of free speech

and assembly, there must be a "probability of serious injury to the state."112 Brandeis

concurrence is a departure from the maj ority views in Whimney, but it is an important turning

point in First Amendment jurisprudence. In Abramns, Holmes argued that even unpopular ideas

should be free to compete in the marketplace. Brandeis bolstered this argument in his Whimney

concurrence by suggesting that free speech enabled the democratic process. His concurring

opinion recommended changing the "clear and present danger" test to a time to answer test.

Whereas the maj ority opinion indirectly embraced the governments need to chill violent


los Id

109Id.

110 d.

1I1 Id.

"1Id. at 377-78.










advocacy, Brandeis' concurrence supported growing sentiment for his "marketplace" model

introduced in Abramns. The Whitney concurrence would gain ground in the 1950's and 1960's as

the Court decided free speech cases under the First Amendment. The marketplace model

advocated by Brandeis in this concurring opinion, and preceding dissents with Holmes, would

not find maj ority support in the Court until the 1969 Brandenburg v. Ohio decision overturned

Whitney. 113

Bridges v. California

Fourteen years after the Whitney decision, the Court would issue an opinion that began to

relax the application of the "clear and present danger" test. In Bridges v. California, decided

December 8, 1941, the U.S. Supreme Court, in a 5-4 vote, held that the prior restrain of pretrial

coverage by journalists was unconstitutional barring a "clear and present danger to the

administration of justice."114 The Court specified that the working principle of "clear and

present danger" be based upon a "substantive evil [that] must be extremely serious and the

degree of imminence extremely high before high before utterances can be punished."

The Bridges case was decided on appeal with the appeal of the Times-M~irror Co. v.

Superior Court case. 11 In Bridges, a union official, Harry Bridges, sent a telegram to the U. S.

Secretary of Labor, threatening a strike if a judicial motion was enforced against unions. The

letter was subsequently published in local California newspapers. The petitioners said the

judicial motion was an abridgement of Constitutional protections for free speech and press. The



113 For a full discussion of Brandenburg v. Ohio, see in~fra.

114 Bridges v. California, 314 U.S. 252 (1941). Bridges was decided on appeal with a companion case, Times-
Mirror Co. v. Superior Court, 310 U.S. 623 (1941).

1's In Times Mirror Co., the Los Angeles Times was convicted for contempt, when it published editorials on the
sentencing of union members while a decision was pending. The decision was upheld by the lower appellate courts
and the California Supreme Court.










lower appellate courts upheld his conviction for contempt of court. The Supreme Court

sustained the First Amendment claims of the defendants and overturned both decisions on

grounds that no "clear and present danger" had been shown. The Bridges case was decided on

the issue of whether a publisher could be held in contempt of court for editorial statements made

during a pending case.

The maj ority opinion was written by Justice Black, j oined by Justices Hugo Black,

William Douglas, Frank Murphy, Stanley Reed and Robert Jackson. The Court, relying on the

reasoning in the Gitlow decision, held that punishment for an out of court publication,

specifically being charged with contempt relating to a pending case, is only constitutional if the

"clear and present danger" test can be met by showing a substantive evil that is likely to result

from the utterances published. 116 The degree of likelihood was a question pondered by the Court,

as it relied on the Schenck "clear and present danger" test to evaluate whether the utterances were

used in "such circumstances," and of "such a nature," that they would bring about a substantive

evil. 1

The Court said that the body of cases establishing the "clear and present danger" did not go

to the outer limits of constitutional protections for expression, but rather recognized minimum

protections under the Bill of Rights. I The Court said that the First Amendment' s free speech

and press clauses must be given as broad a scope as can be tolerated by society.119 An out of

court publication, even if it has a "reasonable tendency" to interfere with the orderly




116 Bridges, 314 U.S. at 261, 263.
11- Id. at 261.

Its Id. at 263.

"1Id. at 265.










administration of justice, is not necessarily subject to punishment for contempt. 120 The Court

referred to the relevance of the "clear and present danger" test in cases of espionage, criminal

syndication, anti-insurrection, breach of peace and substantive evils that could destroy or invade

the right of privacy associated with life or property. 121

Nevertheless, the "clear and present danger" language of the Schenck case has afforded
practical guidance in a great variety of cases in which the scope of constitutional
protections of freedom of expression was in issue. 122

The Court said that in order to restrict free speech or press, an the evil "must" be

"substantial" and "serious."123 The Court specified that "even the expression of 'legislative

preferences or beliefs' cannot transform minor matters of public inconvenience or annoyance

into substantive evils of sufficient weight to warrant the curtailment of liberty of expression." 124

The working principle of the "clear and present danger" test is "that the substantive evil must be

extremely serious, and the degree of imminence extremely high, before utterances can be

punished."125 The Court then analyzed the historical nature of the publications in the case--

"publications tending to obstruct the orderly and fair administration of justice."126 The Court

concluded that the Constitutional framers intended the First Amendment to give "liberty of the

press... the broadest scope that could be countenanced in an orderly society."127 Furthermore,


'20 Id. at 272.

121 Id. at 262. See Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U. S. 616 (1919);
Whitnev v. California, 274 U.S. 357 (1927); Herndon v. Lowry, 301 U.S. 242 (1937); Cantwell v. Connecticut, 310
U.S. 296 (1940); Thornhill v. Alabama, 310 U.S. 88 (1940).

122 Bridges, 314 U.S. at 262.

123 Id

'24 Id. at 262-63 (citing Schneider v. State, 308 U.S. 147, 161 (1939)).

'25 Id. at 263.

126Id~

127 Id. at 265.










the Court reasoned "Criteria applicable under the Constitution to other types of utterances are not

applicable, in contempt proceedings, to out-of-court publications pertaining to a pending
,,128
case.

In regards to the publication at issue in the present case, the Court found that

judgments below therefore produce their restrictive results at the precise time when public
interest in the matters discussed would naturally be at its height. Moreover, the ban is
likely to fall not only at a crucial time, but upon the most important topics of discussion.
Here, for example, labor controversies were the topics of some of the publications.
Experience shows that, the more acute labor controversies are, the more likely it is that, in
some aspect, they will get into court. It is therefore the controversies that command most
interest that the decisions below would remove from the arena of public discussion. 129

The Court held that the previous judgments in Bridges resulted in

a curtailment of expression that cannot be dismissed as insignificant. If they can be
justified at all, it must be in terms of some serious substantive evil which they are designed
to avert.13

Even though Bridges used the word "outrageous," to describe the court' s handling of the

labor dispute, there is no "threat" of "an illegal course of action."131 Bridges, as Secretary of

Labor, had an official duty to prevent strikes and was exercising the First Amendment right of

petition in his duty as a United States government representative. 132

Where the maj ority opinion reversed the decisions of the lower courts, Justice Felix

Frankfurter wrote the dissenting opinion, joined by Justices Harlan Stone, Owen Roberts, and








'2s Id. at 268.

129 Id. at 268-69.

'30 Id. at 270.

131 Id. at 277.

132Id.










James Byrnes. 133 Frankfurter saw the "administration of justice by an impartial judiciary" as

basic to the concept of freedom, even when it was at odds with freedom of expression. 134

Because freedom of public expression alone assures the unfolding of truth, it is
indispensable to the democratic process. But even that freedom is not an absolute, and is
not predetermined. By a doctrinaire overstatement of its scope, and by giving it an illusory
absolute appearance, there is danger of thwarting the free choice and the responsibility of
exercising it which are basic to a democratic society. 135

Frankfurter argued that Bridges was attempting to overawee" a judge and deprive the state

of its powers to secure citizen justice. 136 The dissenting opinion said that the maj ority opinion

intimidated "the fair course of justice," by allowing coercion of the courts. 137

In Bridges, the Court' s opinion fell just short of rejecting the application of the "clear and

present danger" test as it had been historically used in the cases leading up to and including

Whitney. In modifying the "clear and present danger" test to require showing of "substantial"

and "serious" harm, the Court began to embrace the line or reasoning in the Holmes and

Brandeis dissents of the previous decades. This nod to the harm in chilling inconvenient or

annoying speech, represented at least a temporary turning point, one where the Court began to

recognize the need for citizens--even those with radical views--to be free to advocate courses of

action, as long as they did not engage in specifically prohibited acts of overthrow or conspiracy.

West Virginia State Board of Education v. Barnette

The cases previously reviewed in this section focus clearly on the establishment and

application of the "clear and present danger" test. Yet, the kinds of activities that triggered


133 Id. at 279.

134 Id. at 280-94.

135 Id. at 293.

136 Id. at 279.

137 Id. at 280.










prosecution under statutes prohibiting advocacy of government overthrow are closely related to

another class of expression. In the early 1940's the Court would be presented with an

opportunity to rule on forced patriotism through a government mandate for symbolic speech.

Although the case was closely tied to the First Amendment' protection for religious freedom, the

Court decided the case on the issue of free expression.

In West Virginia State Board of Education v. Walter Barnette, decided June 1943, the

U. S. Supreme Court, in a 6-3 decision, held that the First Amendment' s establishment clause

prohibits public schools from forcing students to salute the American flag and say the Pledge of

Allegiance, affirming the lower district court decision. 138 The decision was significant because it

overruled the Court' s 1940 decision in M~inersville School District v. Gobitis, involving a

plaintiff s claim that his First Amendment right to free religion was abridged by a state

compelling students to salute the American flag and recite the pledge. The maj ority opinion was

written by Justice Robert Jackson, joined by Chief Justice Harlan Stone and Wiley Rutledge. 139

Justices Black, Douglas and Murphy concurred with the opinion. The Court reasoned that

compelling children to salute the flag and say the pledge of allegiance was a violation of the First

and Fourteenth Amendments. 140 Furthermore, compelled patriotism is not a permissible means

of achieving "national unity."141

Following the Gobitis decision, the West Virginia legislature had amended its statutes to

require schools to "conduct courses of instruction in history, civics, and in the Constitutions of



'3s W. Va. State Bd. of Educ. v. Barnette, 3 19 U.S. 624 (1943).

139 JUStices Hugo Black and William Douglas jointly concurred with the opinion, as did Justice Frank Murphy in a
separate concurrence.
140 Barnette, 319 U.S at 637, 642.
141 Id. at 640.










the United States and of the State 'for the purpose of teaching, fostering and perpetuating the

ideals, principles and spirit of Americanism, and increasing the knowledge of the organization

and machinery of the government."'142 On January 9, 1942, the Board of Education adopted a

resolution, based on the Gobitis opinion, requiring the flag salute to become "a regular part of the

program of activities in the public schools," with all teachers and pupils being required to

participate in the "salute honoring the Nation represented by the Flag; provided, however, that

refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with

accordingly." 143

The Parent and Teachers Association, The Boy and Girl Scouts, the Red Cross and the

Federation of Women' s Clubs obj ected to the resolution as "being too much like Hitler' s."144

Modifications were made so that only a "stiff-arm" salute were required, with the "right hand

raised and palm turned up" while the pledge of allegiance was recited. 145 If a child refused to

salute the flag, he or she was expelled from school and denied readmission until they complied

with the compelled salute. While expelled, they were considered tr-uant from school and their

parents were fined and faced j ail time. 146 The parents in the Barnette case Jehovah' s Witnesses,

brought suit against the Board of Education, arguing that the flag was an "image" that their

religion forbade them from saluting in any manner. 147 Therefore, a compelled salute was an

"unconstitutional denial" of their religious freedom and freedom of speech, as well as the


142 Id. at 625 (citing Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940)).
143 Id. at 626.

144 Id. at 627.

145 Id

146 Id. at 629.

147 Id. at 629-30. Exodus, Chapter 20, verses 4 and 5, says: "Thou shalt not make unto thee any graven image, or any
likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth;
thou shalt not bow down thyself to them nor serve them."










Fourteenth Amendment' s due process and equal protection clauses. 148 The District Court

"restrained enforcement" of the compelled salute while the Board of Education appealed the

case. 4

The U.S. Supreme Court identified the issue in the case as a conflict between authority and

the rights of the individual, not an issue of religious freedom. 150 Even though the Gobitis Court

held that the State "may" require teaching in the history and structure of government--even to

inspire patriotism and love of country--the compulsion of students to declare a belief goes

beyond the Gobitis holding. 1 The Court found that the flag salute-a form or utterance--was a

"primitive but effective way of communicating ideas."152 This "short cut from mind to mind" to

"symbolize some system, idea, institution or personality" created loyalty among citizens, but

failed to acknowledge that citizen's do not garner meaning from compelled loyalty. 153 The

Court said that "A person gets from a symbol the meaning he puts into it, and what is one man's

comfort and inspiration is another's jest and scorn."154 Therefore, the Court reasoned that







14s Barnette, 319 U.S at 630. See also U.S. CONST. amend. XIV 1:


All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
149 Barnette, 319 U.S at 630.

150Id.

1 Id. at 631.

152Id.

'53 Id. at 632.

I54d. at 632-33.










"involuntary affirmation," when commanded, violates the Bill of Rights safeguard for an

individual to speak what is on his or her "own mind."15

It is now a commonplace that censorship or suppression of expression of opinion is
tolerated by our Constitution only when the expression presents a clear and present danger
of action of a kind the State is empowered to prevent and punish. 156

Not only would a compelled flag salute violate the protections guarded by the Bill of

Rights, but since forced nationalism ignores an individual's own beliefs, it is meaningless."

Any credo of nationalism is likely to include what some disapprove or to omit what others
think essential, and to give off different overtones as it takes on different accents or
interpretations. If official power exists to coerce acceptance of any patriotic creed, what it
shall contain cannot be decided by courts, but must be largely discretionary with the
ordaining authority, whose power to prescribe would no doubt include power to amend.
Hence validity of the asserted power to force an American citizen publicly to profess any
statement of belief or to engage in any ceremony of assent to one presents questions of
power that must be considered independently of any idea we may have as to the utility of
the ceremony in question. 5

The Gobitis decision rej ected a claim of religious freedom in favor of a need for national

unity, but the Barnett~BBB~~~~BBB~~~BBB case is unique because, as the Court reasoned, "The question which

underlies the flag salute controversy is whether such a ceremony so touching matters of opinion

and political attitude may be imposed upon the individual by official authority under powers

committed to any political organization under our Constitution."159 The Court said the Gobitis

opinion found that "National unity is the basis of national security," with authorities having the

right to select the appropriate means for its attainment. 160 However, the Court added that in



155 Id. at 634.

156 Id. at 624.

'57 Id. at 625.

lss Id.

159 Id. at 635-36.
1601)d. at 640.










Barnette, "National unity as an end which officials may foster by persuasion and example is not

in question. The problem is whether under our Constitution compulsion as here employed is a

permissible means for its achievement." The Court felt it was not.

Struggles to coerce uniformity of sentiment in support of some end thought essential to
their time and country have been waged by many good as well as by evil men. Nationalism
is a relatively recent phenomenon but at other times and places the ends have been racial or
territorial security, support of a dynasty or regime, and particular plans for saving souls. As
first and moderate methods to attain unity have failed, those bent on its accomplishment
must resort to an ever-increasing severity. As governmental pressure toward unity becomes
greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper
division of our people could proceed from any provocation than from Einding it necessary
to choose what doctrine and whose program public educational officials shall compel
youth to unite in embracing. 161

The Court added that

those who begin coercive elimination of dissent soon find themselves exterminating
dissenters. Compulsory unification of opinion achieves only the unanimity of the
graveyar .d 62

In regards to forced patriotism, the Court added that

freedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch the
heart of the existing order. 163

Additionally, the Court said that

If there is any fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith therein. If there are
any circumstances which permit an exception, they do not now occur to us. 164

The Court' s decision in Barnett was significant because it addressed the underlying issue

in the body of cases establishing the "clear and present danger" test. National unity was not a


161 Id. at 640-41.

162 Id. at 641.

163 Id. at 641-42.

164 Id. at 642.










goal that could be achieved by the government suppressing dissenting views for the sake of

promoting the official United States policy. 165 In mandating official government views, and

compelling citizen adherence, the government was indirectly chilling the speech of citizens who

obj ected to the policies. If citizens with opposing political views are silenced and their views

criminalized through government actions, then they are robbed of the opportunity to participate

in the marketplace of ideas. This undermines the democratic process revered in the United

States. What is most important in the Barnett case is the language the Court used to describe

compelled speech. It has direct relevance to the "chilling effect" doctrine, as it embraces a need

for citizens to have "breathing space" to develop their ideas through political discourse.

Dennis v. United States

Although the U.S. Supreme Court traditionally sided with the government in the

suppression of expression, the Bridges and Barnett cases represented a slight relaxation of the

jurisprudence on patriotic ideals and the need to criminalize dissident speech. This departure

would be short lived. In response to the communist scares of the 1940's, Congress passed The

Smith Act. 166 The Smith Act, like the Espionage and Sedition Acts of the early 20th century,

criminalized advocacy and intent to overthrow the government.

The Smith Act, passed in 1940, made it a felony to:

I. knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or
propriety of overthrowing or destroying any government in the United States by force or
violence, or by the assassination of any officer of any such government;

165 Another First Amendment protection relevant to the Court' s decision in Barnette, is the right to protest war and
the right to engage in political speech. See Cohen v. California, 403 U.S. 15 (1971) (upholding the right to wear a
shirt which read, "Fuck the Draft"). The Supreme Court upheld a law prohibiting the destruction of draft cards in
United States v. O 'Brien in 1968. 391 U.S. 367 (1968). Although interfering with the draft was prohibited under the
Smith Act, the Court upheld the right of students to protest the Vietnam War by wearing black armbands to school
in Tinker v. Des Moines Independent Community School District. 393 U.S. 503 (1969). The Tinker holding would
be weakened by the Bethel School District v. Fraser decision, which upheld a rule that punishing a student for
speech in a public assembly. 478 U.S. 675 (1986).
166 Smith Act, ##2 & 3, 54 Stat. 671, 18 U.S.C. # 10, 11 (1946 ed.) (codified as amended at 18 U.S.C. 2385 (2000)).










II. with intent to cause the overthrow or destruction of any government in the United States, to
print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or
printed matter advocating, advising, or teaching the duty, necessity, desirability, or
propriety of overthrowing or destroying any government in the United States by force or
violence;

III. to organize or help to organize any society, group, or assembly of persons who teach,
advocate, or encourage the overthrow or destruction of any government in the United
States by force or violence; or to be or become a member of, or affiliate with, any such
society, group, or assembly of persons, knowing the purposes thereof. 167

The Smith Act also made it unlawful for "any person to attempt to commit, or to conspire

to commit, any of the acts prohibited by the provisions of this title." 168 The Court would decide

two important cases relating to the Smith Act: 1) Dennis upholding the criminalization of

advocacy of the overthrow of government and 2) Yates, which barred the criminalization of mere

advocacy and teaching of government overthrow. These opinions, though they updated the

application of the "clear and present danger" test, did not depart from the Court' s previous

decisions in Schenck, Frohwerk, Debs, Abramns, Whitney and Gitlow.

In Eugene Dennis, et al. v. thrited States, decided June 4, 1951, the U. S. Supreme Court, in

a 6-2 decision, affirmed the decision of the Second Circuit Court of Appeals and held that the

defendants' convictions for conspiracy to overthrow the government by force, by means of

participation in the Communist Party, were not a violation of the First Amendment. 169 The

Petitioners were indicted in July of 1948, under the Smith Act. 170 Petitioner Eugene Dennis was

general secretary of the Communist Party of the United States.


167 Id. at 497. Section 2 (b) of the Smith Act states: "For the purposes of this section, the term 'government in the
United States' means the Government of the United States, the government of any State, Territory, or possession of
the United States, the government of the District of Columbia, or the government of any political subdivision of any
of them."

168 Smilth Act, 3.

169 Dennis v. United States, 341 U.S. 494 (1951).

170 Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.).










The maj ority opinion was written by Chief Justice Fred Vinson, j oined by Justices Stanley

Reed, Harold Burton and Sherman Minton. 17 The Court limited its review of the case to two

questions: 1) Whether sections 2 and 3 of the Smith Act violate the First Amendment or any part

of the Bill or Rights and 2) Whether Section 2 or 3 of the Act violate the First and Fifth

Amendments because of indefinitenesss." 172 The Court chose not to consider whether the

petitions did "in fact advocate the overthrow of the Government by force and violence," but

instead it would rely upon the affirmative decision of the Court of Appeals in this matter given

the fact that it took six months to review evidence in the lower court case. 173 Furthermore, on

the issue of the petitioners' intent with regards to their membership in the Communist Party, the

Court wrote that intent to overthrow the government amounted to intent to deny others of

constitutional rights. 7

Since the purpose of the Smith Act was to "protect existing Government, not from change

by peaceable, lawful and constitutional means, but from change by violence, revolution and

terrorism," Congress' actions were not in conflict with constitutional protections for

individuals. 17 Since the "very language of the Smith Act" is directed at "advocacy, not

discussion," the Court found that "Congress did not intend to eradicate the free discussion of

political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas

without fear of governmental sanction. 176 COngress intended to prevent action in the form of


'71 Justices Felix Frankfurter and Robert Jackson concurred with the majority opinion. Justice Tom Clark did not
take part in the decision.

1 2 DennYis, 341 U.S. at 495-96.

1 3 Id. at 497-98.

I74d. at 500.

' Id. at 501.

1 6 Id. at 501-02.










advocacy--the crime the petitioners were convicted of. It did not intend to limit their discussion

of the issues.

Still, given the fact that the case was based on actions that contained an element of speech,

the Court clarified the First Amendment issues arising out of the Smith Act' s enforcement.

the basis of the First Amendment is the hypothesis that speech can rebut speech,
propaganda will answer propaganda, free debate of ideas will result in the wisest
governmental policies. It is for this reason that this Court has recognized the inherent value
of free discourse. 7

The Court added that freedom of speech is not unlimited-dissenters do not have

"unlimited, unqualified" rights to speech--but rather speech must be weighed for its "societal

value."" Based on previously decided cases, the Court deduced that "where an offense is

specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press

as evidence of violation may be sustained only when the speech or publication created a "clear

and present danger" of attempting or accomplishing the prohibited crime, e. g., interference with

enlistment."179 Specifieally, the overthrow of government by force and violence "is certainly a

substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value

of any society, for if a society cannot protect its very structure from armed internal attack, it must

follow that no subordinate value can be protected."1so

The Court said that the "literal problem" presented in Dennis was the meaning of the

phrase "clear and present danger."ls The Court said that it did not mean the government has to



' Id. at 503.

17s Id

179 Id. at 505.

Iso Id. at 509.

181 Id










wait for plans to be executed, it can intervene when it becomes aware of a plan involving

overthrow.18s2

Certainly an attempt to overthrow the Govemnment by force, even though doomed from the
outset because of inadequate numbers of power of the revolutionists, is a sufficient evil for
Congress to prevent. The damage which such attempts create both physically and
politically to a nation makes it impossible to measure the validity in terms of the
probability of success, or the immediacy of a successful attempt.18s3

The Court "rej ected the contention that success or probability of success is the criterion

"for clear and present danger.18s4 The Court adopted a phrase from Chief Justice Leamned Hand,

""In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability,

justifies such invasion of free speech as is necessary to avoid the danger." l Just because the

petitioners' actions did not result in an attempt to overthrow the Government by force or

violence, it does not mean that they are not guilty of advocacy.18s6 The Court said that "It is the

existence of the conspiracy which creates the danger...if the ingredients of the reaction are

present, we cannot bind the Govemnment to wait until the catalyst is added."'"

Justices Hugo Black and William Douglas dissented in separate opinions. In his dissenting

opinion, Justice Black emphasized that the petitioners were not charged with attempt to

overthrow the government, but rather they were charged because "they agreed to assemble and to

talk and publish certain ideas at a later date," as part of the Communist Party's overall plan to





182Id~

183 Id

184 Id. at 510.

'8s Id. at 510 (citing United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950)).

186 Id. at 510-11.

1 Id. at 511.










forcibly overthrow the government. Iss Therefore, given The Smith Act' s enforcement as a prior

restrain on speech and press, Black would Eind the law unconstitutional.18s9 Black said that the

"clear and present danger" test was ignored in the maj ority opinion because of "expressed fear

that advocacy of Communist doctrine endangers the safety of the Republic." 190

Black argues that the judicial review of legislation "waters down" the First Amendment to

a doctrine that protects only "safe" and "orthodox" views. 191 In regards to the Communist scare,

which prompted the passage of the Smith Act, Black wrote

Public opinion being what it now is, few will protest the conviction of these Communist
petitioners. There is hope, however, that in calmer times, when present pressures, passions
and fears subside, this or some later Court will restore the First Amendment liberties to the
high preferred place where they belong in a free society. 192

Douglas, in his dissenting opinion emphasized that the petitioners were convicted for

merely teaching the Communist doctrine. 193 They did not teach, in Douglas's words, "the

techniques of sabotage, the assassination of the President, the filching of documents from public

Hiles, the planting of bombs, the art of street warfare."194 He says the preceding acts would not

enj oy First Amendment protection, but "teaching" is "of a different character." 195 The

petitioners organized people and themselves to learn the "Marxist-Leninist doctrine," contained





' Id. at 579.

189Id~

190 Id. at 580.

191 Id.

192 Id. at 581.

193 Id. at 581-82.

194 Id. at 581.

195 Id. at 582.










in books. 196 Douglas reasoned that since "the books themselves are not outlawed," it cannot be a

crime to teach the "creed" contained within them. 197

The crime then depends not on what is taught but on who the teacher is. That is to make
freedom of speech turn not on what is said, but on the intent with which it is said. Once we
start down that road we enter territory dangerous to the liberties of every citizen. 198

Douglas emphasized that the maj ority opinion made speech due "service for deeds,"

essentially criminalizing speech.

The doctrine of conspiracy has served divers and oppressive purposes and in its broad
reach can be made to do great evil. But never until today has anyone seriously thought that
the ancient law of conspiracy could constitutionally be used to turn speech into seditious
conduct. 199

Douglas argued that free speech is essential to democracy because it allows ideas to

compete in the marketplace:

Free speech has occupied an exalted position because of the high service it has given our
society. Its protection is essential to the very existence of a democracy. The airing of ideas
releases pressures which otherwise might become destructive. When ideas compete in the
market for acceptance, full and free discussion exposes the false and they gain few
adherents. Full and free discussion even of ideas we hate encourages the testing of our own
prejudices and preconceptions. Full and free discussion keeps a society from becoming
stagnant and unprepared for the stresses and strains that work to tear all civilizations
apart.20

He adds that free speech--full and free discussion--is the foundation of our political

system and the safeguard of "every religious, political, philosophical, economic, and racial group



196Id~

So far as the present record is concerned, what petitioners did was to organize people to teach and
themselves teach the Marxist-Leninist doctrine contained chiefiv in four books: 3 Stalin, Foundations of
Leninism (1924); Marx and Engels, Manifesto of the Communist Party (1848); Lenin, The State and
Revolution (1917); History of the Communist Party of the Soviet Union (B.) (1939).

197 Id. at 583.

198 Id

199Id~

2 Id. at 584.










amongst us."201 Douglas acknowledged, in deference to the "clear and present danger test," that

speech is dependant upon circumstances, but those circumstances only exist when "conditions

are so critical that there will be no time to avoid the evil that the speech threatens."202 He calls

free speech the "strength of the nation," and its "halt" the cause of the nation' s "destruction."203

He adds that free speech is the rule, not the exception.204

Douglas concluded by adding that there is no evidence that Communism is gaining a

stronghold in the United States, and therefore poses no "clear and present danger."205 He

describes Communism as a "bogeyman," but "crippled as a political force" in the United

States.206 He attributes this crippling to the positive effect of free speech and free discussion,

with the American people "wanting none of it [communism]."207 Again, in regards to

communism posing a "clear and present danger," he says that the United States is "resilient" and

the Communist "wares remain unsold."208 In regards to the First Amendment, Douglas said that

Congress should not be allowed to halt free speech, except in cases of "peril," to the Nation. 209

He added that the Court should have faith in the American people to "never give support to these







201 Id.

202 Id.

203 Id.

204 Id.

205 Id. at 588.

206 Id.

207 Id.

20s Id. at 588-89.

209 Id. at 590.










advocates of revolution, so long as we remain loyal to the purposes for which our Nation was

founded."210

In Dennis, the maj ority opinion continued a tradition of judicial support for the

government' s need to chill speech, which could potentially endanger the smooth functioning of

the United States democratic process. The Court found that the government did not need to wait

for a conspiracy to be successfully executed, it could intervene prior to the critical moment and

prevent danger to the populous and the "Republic." This, in some ways, amounts to a prior

restraint on speech, in essence chilling speech believed harmful by the government. Black, in his

dissent, acknowledged this prior restraint and found it to be an unconstitutional abridgment of

free speech. Douglas, in his dissent, said that Communism should be free to compete in the

marketplace of ideas because it was politically unviable and therefore, posed no "clear and

present danger." Though the majority opinion embraced the chilling effect, the dissenting

opinions of Black and Douglas added weight to the theory of the chilling effect. The Dennis

decision was followed six years later by the Yates decision, where the Court weakened the

enforcement of the Smith Act, preventing prosecution for the advocacy of ideas alone.

Yates v. United States

In Yates, et al. v. United States, decided June 17, 1957, the U. S. Supreme Court, in a 6-1

decision, held that people must be encouraged to do something for there to be a violation of the

Smith Act.211 Mere belief in an idea could not be criminalized. There must be advocacy for

action to be taken. Yates involved the 1951 conviction of Oleta O'Connor Yates and 13 other

petitioners charged under the Smith Act for being members of the Communist Party USA in



210 Id. at 591.

211 Yates v. United States, 354 U.S. 298 (1957).










California. Yates claimed she was engaged in "passive actions" which were not forbidden under

the Smith Act's criminalization of "active" attempts to overthrow the government.

The Court found that evidence against Hyve of the petitioners was insufficient for them to

have been convicted by the lower court. The maj ority opinion was written by Justice John

Marshall Harlan, II, j oined by Chief Justice Earl Warrant and Justice Felix Frankfurter. Justice

Harold Burton concurred.212 JUStices Hugo Black and William Douglas concurred in part with

the maj ority opinion. The Court reversed the convictions by the United States District Court for

the Southern District of California and remanded the case to the District Court with instructions

to acquit Hyve of the petitioners and grant new trials to the remaining nine. 213 The Court found

the convictions, which rested upon the application of the Smith Act, were "hostile to the

principles upon which its constitutionality was upheld" in the Dennis case.214 The 14 petitions

were convicted of a single count of conspiracy made up of two parts 1) advocacy and teaching

"the duty and necessity of overthrowing the Government of the United States by force and

violence"; and 2) organization, as the Communist Party of the United States, of a "society of

persons who so advocate and teach, all with the intent of causing the overthrow of the

Government by force and violence as speedily as circumstances would permit."215 The







212 Justice Hugo Black concurred in part and dissented in part, joined by Justice William Douglas. Justice Tom
Clark also dissented. Justices William Brennan, Jr. and Charles Whittaker did not take part in the consideration or
decision of the case.

213 Tates, 354 U.S. at 327-34.
21 Id. at 300.

215 Id.










petitioners were each sentenced to Hyve years and imprisonment and fined $10,000 each.216 The

Court of appeals affirmed the decision, but the Supreme Court granted certiorari.217

The Court ruled that the indictment was not made under the Smith Act until 1951, six years

after the Communist Party was founded in 1945. The statute of limitations for "organizing" an

organization to overthrow the government was just three years.218 The word "organize," as it

was used in the Smith Act, was strictly construed by the Court to refer only to activities related

to the creation of a new organization. The Court found the definition of "organize" did not relate

to acts carried out after the formation of the organization. 219

The Court found that the Smith Act does not prohibit advocacy and teaching of forcible

overthrow of Govemnment, so long as it is taught as an abstract principle and not instigation to

action.

Any advocacy or teaching which does not include the urging of force and violence as the
means of overthrowing and destroying the Govemnment of the United States is not within
the issue of the indictment here, and can constitute no basis for any finding against the
defendants. 220

The lower court had instructed the jury to convict if they found "advocacy," to "incite" the

forcible overthrow of the Government.221 The Court said that the First Amendment protected

mere advocacy--"the true constitutional dividing line is not between inciting and abstract

advocacy of forcible overthrow, but rather between advocacy as such, irrespective of its inciting




216 Id. at 302.

217 Id. at 303 (citing Yates v. United States, 225 F.2d 146 (9th Cir. 1955)).

21s Id. at 303.

219 Id. at 303, 304-12.

2 Id. at 314.

2 Id. at 312.










qualities, and the mere discussion or exposition of violent overthrow as an abstract theory."222

The Court clarified that nothing in Dennis undermined the "distinction between the statement of

an idea which may prompt its hearers to take unlawful action, and advocacy that such action be

taken.223 The Court said the interpretation of conspiracy under Dennis, was misinterpreted by

the Court of Appeals in the Yates case, which mistakenly thought that proving an "overt act was

an adequate substitute for the linking of the advocacy to the action which would otherwise have

been necessary."224 When the Appeals Court cited Dennis that "the existence of the conspiracy"

creates the danger, they erred in interpreting the decision.22

Justice Burton concurred with the Court; except for its interpretation of the word

"organize," as used in the Smith Act.226 JUStices Brennan and Whittaker took no part in the

consideration or decision of the case. Justices Black and Douglas concurred in part and

dissented in part.

Referencing his dissent with Justice Douglas in Dennis, Black wrote that he would

"reverse every one of these convictions," and acquit the defendants because the Smith Act

unconstitutionally abridged the "freedom of speech, press and assembly."22 Black said that the

trials conducted in response to Smith Act convictions were "prolonged affairs lasting for

months," due to "massive collections" of evidence unmanageable by jurors.228 Black agreed

with the maj ority' s definition of "organize," and its holding that the trial judge erred in

2 Id. at 312-14.

2 Id. at 322.

2 Id

2 Id. at 323 (citing Dennis, 341 U.S. at 510-11).
226 Id. at 338.

2 Id. at 339 (Black, J., concurring in part and dissenting in part).
22s Id










instructing the jury about advocacy as an abstract principle under the Smith Act. 229 He also

agreed with the acquittal of five petitioners, although he thought all of the petitioners should be

acquitted.23 Black said that he believes the "First Amendment forbids Congress to punish

people for talking about public affairs, whether or not such discussion incites to action, legal or

illegal."231 Whereas, the Court held that attendance at Communist Party meetings constituted

"overt action," under the Smith Act, Black thought there was not enough evidence to convict

since Article IIIg3 of the Constitution requires the testimony of two witnesses to the "same overt

act" or a "confession in open court."232 Black said this was an important protection because it

kept people from "being convicted of disloyalty to government during periods of excitement,

when passions and prejudices ran high, merely because they expressed unacceptable views."233

Black says the defendants committed no "overt act" beyond attendance at a "constitutionally

protected public assembly where they took part in lawful discussion of public questions, and

where neither they nor anyone else advocated or suggested overthrow of the United States

Government."3

Black felt the prosecution under the line of reasoning currently promoted encouraged an

evolution towards "authoritarian government in which voices criticizing the existing order are

summarily silenced."235 He added, "Doubtlessly, dictators have to stamp out causes and beliefs



2 Id. at 341.

230 Id.

231 Id.

2 Id. at 342-43.

2 Id. at 343 (citing Cramer v. United States, 325 U. S. 1 (1945)).

234 Id.

235 Id.










which they deem subversive to their evil regimes."236 He concluded by discussing the

Constitutional framers intent behind the First Amendment:

The choice expressed in the First Amendment in favor of free expression was made against
a turbulent background by men such as Jefferson, Madison, and Mason -- men who
believed that loyalty to the provisions of this Amendment was the best way to assure a
long life for this new nation and its Government. Unless there is complete freedom for
expression of all ideas, whether we like them or not, concerning the way government
should be run and who shall run it, I doubt if any views, in the long run, can be secured
against the censor. The First Amendment provides the only kind of security system that
can preserve a free government -- one that leaves the way wide open for people to favor,
discuss, advocate, or incite causes and doctrines however obnoxious and antagonistic such
views may be to the rest of us. 237

Justice Clark, in his dissent, pointed out that the petitioners convicted under the Smith Act

in the present case were "engaged in conspiracy with the defendants" in the Dennis case,

although he acknowledges they were in a "lower echelon in the party hierarchy."238 Therefore,

Clark would affirm the convictions.239

The maj ority opinion in Yates, protected the advocacy of "abstract principles" from

government suppression. This was a significant shift from its decision in the Dennis case.

Black, in his dissent, emphasized how free expression and assembly must be protected during

periods of nation political "excitement." Black, who saw the Smith Act as a prior restraint in

Dennis, argued that citizens must be free to participate in constitutionally protected assemblies

for the purpose of discussing matters important to their participation in the national governance

process. Both the majority opinion, and Black' s dissent, supports the development of the

"chilling effect" as an offshoot of the marketplace of ideas model. Abstract principles--or quite



236 Id

2 Id. at 344.

2 Id. at 344-45.

239 Id. at 345.










simply, ideas--are best left to compete in the market for viability. When the government

restricts their introduction to the market, it can interfere with an important political process that

ensures citizens enjoy constitutionally guaranteed liberties.

New York Times v. Sullivan

The next case relevant to this review is a libel case, but it is relevant to a discussion of the

marketplace of ideas as the Court struck down an Alabama law abridging freedom of expression

under the First Amendment. More importantly, the Court makes use of the term "breathing

space" to discuss the insular needs of the marketplace of ideas.

In New York Times Co. v. L.B. Sullivan, decided March 9, 1964, the U.S. Supreme Court,

in a 9-0 decision, held that an Alabama libel law unconstitutionally abridged the petitioner' s

freedom of speech and press guaranteed by the First Amendment. 240 The First Amendment,

applied through the Fourteenth Amendment' s due process clause, protected a newspaper from

being sued for libel for making false defamatory statements about the official conduct of a public

official, as long as the statements were not made with knowing or reckless disregard for the

truth.241 The Court reversed the lower court decision and remanded the case.

The New York Times, on March 29, 1960, published full-page advertisement titled, "Heed

Their Rising Voices." The ad solicited funds to defend Martin Luther King, Jr. on an Alabama

tax evasion charge. The ad also described police actions, including actions by the Montgomery,

Alabama, police force against civil rights protesters. Montgomery City Commissioner L.B.

Sullivan, who was one of three police department supervisors, was not named in the ad, but he

interpreted the charges against the police department as defamation against him. The Ad



240 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 272 (1964).
241 Id. at 265-92.










mentioned sixty-four persons by name. Sullivan, following Alabama libel law's legal

requirement that punitive damages could only sought if a written demand for public retraction

failed or was refused, sent a request that the Times denied. Sullivan filed suit against the Times.

Sullivan also successfully sued Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth and Joseph

Lowery-the four black ministers mentioned in the ad--for $500,000 in Alabama Court.242

Justice William Brennan wrote the maj ority opinion, j oined by Chief Justice Earl Warren

and Justices Tom Clark, John Harlan, Potter Stewart, and Byron White. Justices Hugo Black and

Arthur Goldberg each wrote separate concurrences, both j oined by Justice William O. Douglas.

The maj ority established a standard for "actual malice" in cases where press reports could be

considered defamation and/or libel.243 To establish "actual malice," a plaintiff must prove that

the publisher of the statement in question knew that the statement was false or acted in reckless

disregard of its truth or falsity.244

In the opinion, the Court introduced the need for "breathing space" as a condition for free

debate and expression in society. Even erroneous statements in regards to political conduct and

views need to be protected because there is a public interest in both discussion and being able to

acquire information. The Court said that even if there is harm in the criticism of official conduct,

citizens have First Amendment protections for such speech.245 The criticism needs "breathing

space to survive."246 The court emphasized that the theory of the Constitution is "that every

citizen may speak his mind and every newspaper express its view on matters of public concern

2 N.Y. Times Co. v. Sullivan, 144 So.2d 25 (Ala. 1962), rev 'd on other grounds, N.Y. Times Co. v. Sullivan, 376
U.S. 254, (1963).

2 Sullivan, 376 U.S. at 279-83.

2 Id. at 284-92.

2 Id. at 298.

246 Id










and may not be barred from speaking or publishing because those in control of government think

that what is said or written is unwise, unfair, false, or malicious."247

Dombrowski v. Pfister

The "chilling effect" was mentioned by name by the U.S. Supreme Court for the time in a

decision, which found a Louisiana Law criminalizing Communist association to be

unconstitutional. Although the case is related to previous decisions involving free association by

organizations dissenting from government policy, it is more significant for the Court's

recognition of the "chilling effect" that government suppression has on First Amendment

activities.

In Dombrowski v. P/ister, decided April 26, 1965, the Supreme Court, in a 5-2 vote,

reversed the lower plaintiff s conviction of the appellant for distribution of communist literature.

The plaintiff, James A. Dombrowski, alleged that Louisiana' s Subversive Activities and

Communist Control Law and Communist Propaganda Control Law violated his First

Amendment right of free expression. 248 The law required members of communist organizations

to register with the government.249 He complained the laws were overbroad and used in "bad

faith" to deter civil rights efforts. The United States District Court For The Eastern District Of

Louisiana upheld his conviction and Dombrowski appealed the case to the Supreme Court.

The Supreme Court found that reviewing the conviction would not be "adequate

vindication" for violated constitutional protections and in the interim, there might be a

"substantial loss or impairment of freedoms of expression."250 The court felt this would be an


2 Id. at 299.

2 Dombrowski v. Pfister, 380 U.S. 479 (1965). See also LA. REV. STAT. 1979.

249 Dombrowski, 380 U.S. at 492-93.

20 Id. at 485.










"irreparable injury" under the First Amendment.251 The Court said, "the mere possibility of

erroneous initial application of constitutional standards will usually not amount to the irreparable

injury necessary to justify a disruption of orderly state proceedings."252

The Court emphasized that regardless of prosecution, the law could create a "chilling effect

upon the exercise of First Amendment rights," by discouraging membership and threatening

exposure of those with unpopular ideas.253 Addressing the danger in sweeping statutes, the

Court said

Appellants' allegations and offers of proof outline the chilling effect on free expression of
prosecutions initiated and threatened in this case.254

The Court said that the Louisiana Statute, in that it was overly broad, had the potential to

create a "danger zone" where protected expressions "may be inhibited."255 As long as the state

can prosecute under the statute, the threat of prosecutions pose a "real and substantial" threat to

protected expression.256

Even the prospect of ultimate failure of such prosecutions by no means dispels their
chilling effect on protected expression.257

In Dombrowski, the Court acknowledged the potentially harmful effect of laws

criminalizing activities protected by the First Amendment. If a law remained on the books, even



251 Id. at 483.

2 Id. at 484.

2 Id. at 488, 494.

2 Id. at 487 (citing N.A.A.C.P. v. Button, 371 U. S. 433 (1963), where the Court ruled on a case involving attorney
malpractice and solicitation of business. In the case, the Court addressed the potential effect of successful
prosecution "The chilling effect upon the exercise of First Amendment rights may derive from the fact of the
prosecution, unaffected by the prospects of its success or failure. )

2 Id. at 494.

256 Id.

257 Id.










when charges filed under the law failed, the law still had the potential to alter citizens'

constitutionally protected activities by creating fear of official government retribution. The

"danger zone" referenced by the Court is antonymous with the idea of "breathing space."

Citizens, denied a breathing zone to engage in First Amendment expression and association free

from government action, could potentially "chill" their activities in order to escape prosecution.

Any chilling of citizen expression could effect the competition of ideas in the marketplace.

Lamont v. Postmaster General

Another case of government suppression of subversive views involves the distribution of

communist literature through the United States Postal System. The Lamont case focused more

clearly on free association, as it was decided upon a "right to receive." In Lamnont v. Postmaster

General, decided May 24, 1965, the U.S. Supreme Court, in an 8-0 vote, found the Postal

Service and Federal Employees Salary Act of 1962 to be an unconstitutional abridgement of

citizen' s First Amendment rights.258 The 1962 Act required the Postmaster General to detain

unsealed mail from foreign addressees of "communist political propaganda" and deliver the held

mail only when the addressee requested it through signing a notification card.259 Under the Act,

the postal service maintained screening points where all unsealed mail from designated countries

was routed.260 For a three-year period, the notification card contained a check box where the

addressee could indicate a desire to receive "communist political propaganda" in the future.261

The postmaster maintained a list of addressees requesting this kind of correspondence.262 Dr.


2 Lamont v. Postmaster Gen., 381 U.S. 301 (1965); Postal Service & Federal Employees Salary Act of 1962, 76
Stat. 840 #305 (a) (1962).

259 Lamont, 381 U.S. at 302-04.
261) Id.

261 Id.

262 Id.










Corliss Lamont sued the Post Office, arguing that the requirement to be listed was a violation of

his First Amendment rights of free association.

The maj ority opinion, written by Justice Douglas, found that the addressee' s First

Amendment rights were limited by requiring him to return the card in order to receive mail.263 In

the opinion, the Court likened the maintenance of the list to a licensing act that controlled the

flow of ideas to the public.264 The list was found to have a deterring effect to correspondence by

those with "sensitive positions."265 The Court said the Postal Service Act "is at war with the

uninhibited, robust, and wide-open debate and discussion that are contemplated by the First

Amendment."266

In a concurring opinion, Justice William Brennan wrote that although there is no specific

constitutional guarantee for access to publications, the Bill of Rights protects fundamental

personal rights "necessary to make the express guarantees fully meaningful."267 Brennan argued

that a "right to receive" is fundamental and necessary so that addressees can receive ideas and be

free to consider them. 268 Brennan argued that the alternative "would be a barren marketplace of

ideas" with only sellers and no buyers.269 Brennan cites the reasoning in 1926 Supreme Court

case, Boyd v. United States, involving the a defendant charged with failing to pay import duties

on a shipment of plate glass.270 At the district court trial, the defendant successfully argued that


263 Id. at 305-07.

264 Id. at 306.

265 Id. at 307.

266 Id. (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

267 Id. at 308.

268 Id

269 Id

"70Id. at 309.










producing the invoice would result in self-incrimination, a violation of his constitutional rights

under the Fifth Amendment. The Supreme Court upheld the decision, reasoning:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way, namely, by
silent approaches and slight deviations from legal modes of procedure. This can only be
obviated by adhering to the rule that constitutional provisions for the security of person
and property should be liberally construed. A close and literal construction deprives them
of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more
in sound than in substance. It is the duty of courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments thereon. 271

The Lamnont case was the first time the Supreme Court declared a federal law

unconstitutional on First Amendment grounds. It was also the first time the Court used the

phrase "marketplace of ideas," although the term "market" had been used before by Holmes and

Brandeis in the Abramns dissent, and later in Brandeis' dissent to the Gitlow case. This

recognition, by a Court maj ority, is significant in establishing a judicial theory around the

"chilling effect" of government actions on free expression. In the Lamont decision, the Court-

although not by name--began to establish a need for "breathing space" to protect free expression

in the marketplace of ideas.

Ashton v. Kentucky

In the late 1960's the Court began to strengthen protections for free expression under the

First Amendment. Although they did not use the term "breathing space" in these opinions, the

holdings implied a stricter standard for laws that criminalized constitutionally protected

activities. In Ashton v. Kentuckry, decided May 16, 1966, the U.S. Supreme Court held that a

conviction, under a broad construction of law that make it unconstitutional, cannot be sustained






2 Boyd v. United States, 116 U.S. 616, 635 (1926).










on appeal by limiting the construction to eliminate the unconstitutional features of the law. 272

The Court granted certiorari and reversed the lower court decision.

Ashton was convicted for violating the Kentucky common law crime of criminal libel--

defined as "any writing calculated to create disturbances of the peace, corrupt the public morals,

or lead to any act which, when done, is indictable." 273 His crime was the publication of a

pamphlet. The pamphlet accused Hazard Police Chief Sam L. Luttrell of having a side j ob, even

though it was illegal for "peace officer to take private j obs."274 It said Sheriff Charles E. Combs

hired deputies because they wanted to carry guns. The pamphlet also said Combs intentionally

blinded a boy with teargas and beat him up while he was handcuffed, in a locked jail cell.275 The

pamphlet suggested that Comb "probably bought off the jury," in the related trial. Finally, the

pamphlet said that the co-owner of the Hazard Herald, Mrs. W.P. Nolan, was accused of

withholding national aid shipments to miners.276

The petitioner was charged with malice and falsity, both requirements of the offence.277

He was sentenced to prison and fined for the publication of a pamphlet that made claims against

police officials involved in a Kentucky labor dispute. 278 The Kentucky Court of Appeals

affirmed the conviction, but adopted a different definition of criminal libel removing the

requirement that breach of the peace be the constitutional basis for imposing criminal liability.279


2 Ashton y. Kentucky, 384 U.S. 195, 198 (1966) (citing Shuttlesworth y. Binninghant 382 U. S. 87 (1965)).

2 Id. at 197.

2 Id. at 196.

25 Id

2 Id. at 197.

27 Id

2 Id. at 196.

2 Id. at 197.










The Supreme Court found that the laws under which the petitioner was convicted were vague.

"Laws which touch on First Amendment rights must be carefully and narrowly drawn.280 The

maj ority opinion emphasized that civil and political institutions depend on free discussion. The

right to speak freely and promote diverse ideas is what sets the United States apart from

totalitarian regimes.28

Stanley v. Georgia

In Stanley v. Georgia, decided April 7, 1969, the U.S. Supreme Court, in a 9-0 vote, held

that the First and Fourteenth Amendments prohibited a Georgia statute criminalizing the private

possession of obscene materials.282 In Stanley, law enforcement onfcers searched the plaintiff~ s

home for evidence of illegal materials involving bookmaking.283 While executing the search

warrant, they found reels of film containing obscene images. The fi1m was seized and Stanley

was convicted under Georgia law for possession of obscene materials.284

The conviction was upheld by the Supreme Court of Georgia and appealed to the U.S.

Supreme Court. 285 In the maj ority opinion for the U. S. Supreme Court, Justice Thurgood

Marshall recognized the right to receive information, in the privacy of one' s own home, as a

fundamental right protected by the constitution.286 The Court held that a state could regulate

production or distribution of obscene material, but not private possession.287 This decision, like


280 Id. at 200.

281 Id. at 198-200.

282 Stanley v. Georgia, 394 U.S. 557 (1969).

283 Id. at 558.

284 Id

285 Id

286 Id. at 565.

287 Id. at 567-68.










Lamnont, upheld the right of the plaintiff to receive information from other citizens as an

important constitutional protection.

Brandenburg v. Ohio

The Dennis case was overruled in 1969 by Brandenburg v. Ohio allowing the court to

reinterpret the "clear and present danger" test to more stringently require "imminent action,"

rather than the previous standard of "clear and present danger" established in Schenck. In

Clarence Brandenburg v. State of Ohio, decided June 9, 1969, the U. S. Supreme Court in a

unanimous decision, held that Ohio's criminal syndicalism statute violated the First Amendment,

applied through the Fourteenth Amendment because it broadly prohibited the mere advocacy of

violence, not the constitutionally unprotected incitement to imminent lawless action.288

Imminent lawless action required "intent", "imminence" and "likelihood."

Ohio Ku Klux Klan leader Clarence Brandenburg invited a Cincinnati Television station to

cover a KKK rally, portions of which were taped and showed group members making speeches,

including a speech where a member said "our President, our Congress, our Supreme Court,

continues to suppress the white, Caucasian race."289 The member subsequently announced plans

for a July 4th march on Washington.290 Brandenburg was charged and convicted for advocating

"the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism

as a means of accomplishing industrial or political reform" and "voluntarily assembl[ing] with

any society, group or assemblage of persons formed to teach or advocate the doctrines of

criminal syndicalism." Brandenburg was convicted under the statute. He argued that the statute




2 Brandenburg v. Ohio, 395 U.S. 444 (1969).
289 Id. at 444-45.
291) Id. at 445-46.










violated his First and Fourteenth Amendment rights to freedom of speech. An Ohio Appellate

Court upheld his conviction.

The Supreme Court reversed Brandenburg's conviction since the statute punished "mere

advocacy" of action. The Court added, "Freedoms of speech and press do not permit a State to

forbid advocacy of the use of force or of law violation except where such advocacy is directed to

inciting or producing imminent lawless action and is likely to incite or produce such action."291

In Brandenburg, the court writes that its decisions

have fashioned the principle that the constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.292

Justice Douglas, in his concurring opinion, agreed with the Court, but said he did not

believe the "clear and present danger test" had a place in the First Amendment regime.293

Action is often a method of expression, and within the protection of the First Amendment.
Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of
this Court. May he be indicted? Suppose one rips his own Bible to shreds to celebrate his
departure from one "faith" and his embrace of atheism. May he be indicted?294

He reiterated the "line between what is permissible and not subj ect to control and what

may be made impermissible and subject to regulation is the line between ideas and overt acts."295

Justice Black in his concurrence agreed with Justice Douglas' concurring opinion that the "clear

and present danger" doctrine should have no place in the interpretation of the First


291 Id. at 444.

2 Id. at 447. One action found not to incite action against the government is the act of burning a United States flag.
In 1989, in Texas v. Johnson, the Supreme Court reversed the conviction of Gregory Johnson for burning a flag,
determining that an idea cannot be punished simply because iee lie e finds the idea offensive or disagreeable." This
decision is seen as a protection of free expression. Texas v. Johnson, 491 U. S. 397 (1989).

293 Brand'enburg, 395 U.S. at 454.
294 Id. at 454-55.

295 Id. at 456.










Amendment. 296 He joined with the Court' s opinion citing Dennis, but pointed out that the per

curium opinion did not indicate any agreement on the Court's part with the "clear and present

danger" doctrine on which Dennis purported to rely.

Brandenburg was the Court' s last maj or case involving government suppression of speech

that might incite others to lawless action. The Brandenburg test validated Justices Holmes and

Brandeis' dissents in the opinions immediately following Schenck.

Gertz v. Welch

The Court, following Brandenburg, continued to provide stricter standards laws that

criminalized activities that enjoyed constitutional protections, such as public discussion. In

Elmer Gertz v. Robert Welch, Incorporated, decided June 25, 1974, the U.S. Supreme Court

reversed the Seventh Circuit Court's opinion and held that the First Amendment permitted

statutes that formulated their own standards of libel for defamatory statements made upon private

figures, as long as liability is not imposed without fault. 297 JUStice Lewis Powell wrote the

maj ority opinion, j oined by Justices Potter Stewart, Thurgood Marshall, Harry Blackmun and

William Rehnquist. Justice Harry Blackmun concurred. Chief Justice Warren E. Burger, and

Justices William Brennan, William Douglas and Byron White dissented in four individual

opinions.

Chicago policeman, Nuccio, was convicted of second-degree murder.298 The victim's

family retained the petitioner, Elmer Gertz, "a reputable attorney," to represent them in civil

litigation against Nuccio.299 The American Opinion, a publication of the John Birch Society,


296 Id. at 450.

297 Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48 (1974).

298 Id. at 325-26.

299 Id.










"alleged" the murder trial was part of a "Communist conspiracy to discredit the local police."300

The article said Gertz arranged Nuccio's "frame-up," and called Gertz a "communist-fronter."301

Gertz filed a libel suit against the publisher of the magazine, Robert Welch, and the jury of

the United States District Court for the Northern District of Illinois found for Gertz.302 Gertz

claimed that the "falsehoods published by the respondent injured his reputation as a lawyer and a

citizen."30 After the jury returned its verdict, the District Court decided to apply the New York

Times v. Sullivan standard barring "media liability for defamation of a public official absent

proof that the defamatory statements were published with knowledge of their falsity or in

reckless disregard of the truth, should apply to this suit." Gertz appealed the decision contesting

the applicability of the New York Times standard, since he was not a public figure.304 The Court

of Appeals would affirm this decision, which found that Gertz failed to prove "knowledge of

falsity or "reckless disregard for the truth."305

The Supreme Court reversed and remanded the lower court decision deciding the case on

the issue of "whether a newspaper or broadcaster that publishes defamatory falsehoods about an

individual who is neither a public official nor a public figure may claim a constitutional privilege

against liability for the injury inflicted by those statements."306 This led to a judicial analysis of

true and false ideas, which would shape future decisions involving government restriction of free



300 Id.

301 Id.

302 Id. at 327.

303 Id.

304 Id. at 330.

305 Id. at 348-50.

306 Id. at 332.










speech. 307 The Court said there is "no such thing as a false idea" under the First Amendment.

Although there may be no constitutional value in false statements of fact, they provide

competition for other ideas within the marketplace.308 When the state punishes false opinions, it

runs the risk of "inducing a cautious and restrictive exercise of the constitutionally guaranteed

freedoms of speech and press."309

Relying upon the New York Times decision, the Court said that there must be an

"allowance of the defense of truth," allows the propagation of speech "that matters", however,

the Court did not apply the New York Times standard.31

In his dissenting opinion, Justice Brennan agree with the Court' s holding that the petitioner

was not a public official or figure, but he argued that the decision offered no "breathing space"

for free and robust debate.311 Brennan emphasized that "even a limitation of recovery to actual

injury," would do little to give First Amendment expression the "elbowroom" it needs to

flourish.312 Finally, even a limitation of recovery to "actual injury" however much it reduces

the size or frequency of recoveries will not provide the necessary elbowroom for First

Amendment expression. Justice White also dissented, applying New York Times standard for

seditious libel as "beyond the police power of the state.313






3o- Id. at 339.

30s Id

309 Id. at 340.

310 Id. at 341.

311 Id. at 361.

312 Id. at 367.

313 Id. at 387.










Breathing Space

The term "breathing space" was used by the Court in the Times decision, there are also

references to this concept in other Court opinions that are not as closely related to this review of

the chilling effect of government action. Still, these cases will be reviewed briefly to show a

growing use of the term by the Court. Collectively, the cases begin to clarify the Court' s use of

the term and how it should be applied in First Amendment protections.

In the 1986 case of Philadlphia Newspapers v. Hepps, the U.S. Supreme Court expanded

the idea of breathing space for "true speech" on matters of public concern. 314 In the case, a

Pennsylvania libel statute was found unconstitutional on First Amendment grounds. The Court

reasoned that First Amendment expressions require "'breathing space."315 The kind of speech in

question concerned the nature of the political process. The Court found this kind of speech

"clearly" mattered and was at the core of First Amendment protections--even if the speech was

false.

In the 1988 case of Hustler Magazine v. Jerry Falwell, the U. S. Supreme Court found that

a parody of a public figure had First Amendment protection.316 The Court recognized that even

falsehoods have value in political debate and restricting speech of this nature would have a

chilling effect on speech that has Constitutional value. The Court cited Philadlphia

Newspapers to reiterate that protection for free expression under the First Amendment requires

"breathing space."






314 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).

315 Id. at 799.

316 Hustler v. Falwell, 485 U.S. 46 (1988).










Virginia v. Black

In Commonwealth of Virginia, Petitioner, v. Barry Elton Black, Richard J. Elliott, and'

Jonathan O'Mara, decide April 7, 2003, the U.S. Supreme Court upheld the constitutionality of

part of a Virginia statute banning cross burning, but struck down the part of the statute requiring

the defendant to bear the burden of proof in demonstrating that the act of burning a cross was not

intent as intimidation. 1

Justice Sandra Day O'Connor wrote parts I-III of the maj ority opinion and parts IV and V

of the concurrence. Her maj ority opinion was joined by Chief Justice William Rehnquist, and

Justices John Paul Stevens, Antonin Scalia and Stephen Breyer. O'Connor' s concurrence was

joined by Rehnquist, Stevens and Breyer. Justice John Paul Stevens also wrote a concurrence, as

did Justice Antonin Scalia who also dissented in part and was joined by Justice Clarence Thomas

for parts I and II of his dissent. Justice David Souter, j oined by Justices Anthony Kennedy and

Ruth Bader Ginsburg concurred and dissented in part. Clarence Thomas also authored a dissent.

Barry Elton Black was convicted of violating a Virginia Statute banning cross burning.

The Court struck down the statute because it used the act of cross burning as prima facie

evidence of intent to intimidate. The First Amendment' s protection for speech are not absolute

and free speech and expression "may" be regulated in certain categories.318 The state could ban

cross burning when there was the intent to intimidate.319

Although the Virginia decision struck down the cross-burning statute in part, it did create

some vulnerability for First Amendment activities that had the tendency to "intimidate." This

reliance on the "intent" of the action was reminiscent of the Court' s opinions during the Schenck

317 Virginia v. Black, 538 U.S. 343 (2003).

31s Id. at 344.

319Id.










era when the "clear and present danger" test was formulated. Given the recency of this case, its

influence on judicial interpretations of First Amendment protections cannot be well established.

The First Amendment cases reviewed in this section have established a clear test of "clear

and present danger" for evaluating the government' s criminalization of constitutionally protected

activities. Although some of these cases involve prosecution for libel, most cases involved

prosecution of citizens expressing views that were different from democratic ideals, or the

military goals of the government during war time. In reviewing these cases, the "chilling effect"

of government actions on the marketplace of ideas emerged as a line of reasoning used by the

Court to evaluate the use of the "clear and present danger" test. The phrases "chilling effect",

"marketplace of ideas" and "breathing space" were not only used by the Court, but the

underlying principles involving the concepts were applied first in dissents and later in maj ority

holdings as valuable ideas for evaluating First Amendment protections.

Fourth Amendment Decisions

The Fourth Amendment protects against unreasonable search and seizure, search without

warrant, and search without probable cause. The amendment--which textually protects people,

homes, papers and effects--was in large part of a reaction to writs of assistance imposed on the

colonist during the time of British rule.320 The Fourth Amendment states that:

The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.321

Although the relevance of the "chilling effect", "marketplace of ideas", and "breathing

space," is clear in the First Amendment cases discussed in the previous section, the cases


320 A "writ of assistance" is a general search warrant. See definitions, supra Chapter 1.
321 U.S. CONST. amend. IV.









reviewed up to this point did not involve electronic surveillance. Citizens now use electronic

communication-specifieally phone communication--to engage in political discourse and other

First Amendment activities. This section will review the Court' s seminal decisions involving the

application of the Fourth Amendment to electronic surveillance by the government. Notably, the

first Fourth Amendment cases involving electronic surveillance decided by the Court do not

extend the Fourth Amendment' s protection for unwarranted search and seizure. As the Court

began to change its early reasoning and extend Fourth Amendment protections for electronic

surveillance, the judicial reasoning relied on in decisions begins to highlight the necessity of

extending the marketplace model to electronic communications. The cases in this section will be

reviewed chronologically, following the Court' s gradual adoption of the Fourth Amendment' s

protections for electronic surveillance case. The review will also highlight the emergence of the

marketplace model--and the related ideas of "chilling effect" and "breathing space"--in the

Court' s opinions involving electronic surveillance.

The cases that will be discussed reveal a shift in the Court' s treatment of phone

communication. At first, in Olmstead, the Court was hesitant to extend the same protections to

electronic communication that were provided to letters sent through the United States Postal

Service. Essentially, phone communication was seen as a sort of broadcast made for anyone

with the ability to intercept the transmission. In subsequent cases, the Court changed its

reasoning, and recognized the privacy rights of parties involved in electronic transmissions. This

reasoning would be based in part on the necessity of citizens to use phone communications as a

tool for public discussion in the marketplace.

Olmstead v. United States

In Olmstead et al. v. United States, decided April 9, 1928, the U.S. Supreme Court, in a

5-4 decision, affirmed the decision of the Ninth Circuit of the U. S. Court of Appeals, finding that









the tapping of private conversations--over telephone wires leading from the defendants'

residence to office where conspiracy was allegedly planned--was not an unlawful search and

seizure under the Fourth Amendment.322

The plaintiffs, including Roy Olmstead, were convicted of a conspiracy to violate the

National Prohibition Act in the District Court for the Western District of Washington. They

were charged with unlawfully "possessing, transporting, and selling alcohol." Olmstead was the

general manager of a Seattle bootlegging facility. The conspiracy was discovered in part by

federal officers who tapped the phones of the conspirators.323 "Small wires" were inserted along

the telephone wires in the basement of the building and at the house lines in the streets near the

house, without trespassing on the property of the defendants. 324

The maj ority opinion was written by Chief Justice William Taft, j oined by Justices James

McReynolds, Edward Sanford, George Sutherland, and Willis Van Devanter.32 The Court relied

upon several cases to decide the case. Boydv. UnitedStates, decided February 1, 1886, was a

case involving the seizure and forfeiture against 35 cases of plate glass by the District Attorney

after the owner/importer of the glass used fraudulent or false invoices to defraud revenue. 326 The

"Congressional Act of 1874," compelling the production of the invoice for inspection, was found

to be "repugnant" to the Fourth and Fifth Amendments because the refusal to produce the

documents was equated by the Court with an admission of guilt. 327



3 National Prohibition Act, 27 U.S.C.A. 1 et seq; Olmstead v. United States, 277 U.S. 438 (1928).

3 Olmstead v. United States, 277 U.S. 438 (1928).

3 Id. at 457.

3 Justices Louis Brandeis, Oliver Holmes, Harlan Stone and Pierce Butler dissented in four different opinions.

326 Olmstead, 277 U.S. at 458 (citing Boyd v. United States, 116 U. S. 616 (1886)).

3 See Congressional Act of 1874, 5 (June 22, 1874) (codified at 19 U.S.C. # 535).










Justice Joseph Bradley--relying on the Court' s decision in Boyd v. United States-- said

the Fourth Amendment issue in the Olmstead case as the government' s "compelling" production

of the invoices if the defendant did not produce them. 328 Although this is not "actual search and

seizure, it does force the defendant to produce self-incriminating evidence."329 The Court in the

Boyd case found that "compulsory production of a man's private papers to establish a criminal

charge against him" was a Fourth Amendment issue of search and seizure. 330

The Court in Olmstead also relied upon the reasoning in Weeks v. United States, decided

February 24, 1914, to establish that a warrant was needed to engage in search and seizure under

the Fourth Amendment.331 In the Weeks case, police arrested the defendant without a warrant

and then searched the defendant's room after obtaining a key from the neighbor.332 Although

they did not possess a search warrant, they seized "various papers and articles."333 The

defendant requested his property be returned and the lower court ordered the return of items not

related to the case. The Court, drawing a parallel between personal items in the home and sealed

letters in the mail, held that an official of the United States had acted "under color" of his office

and violated the defendants' constitutional rights in seizing the items without a warrant.334 This

was the first use of the exclusionary rule, barring the admission of illegally obtained evidence in

court.



328 Boyd, 116 U. S. at 621.

329 Id.

330 Olmstead, 277 U.S. at 459.

331 Weeks v. United States, 232 U. S. 383 (1914).
332 Id.

333 Id.

334 Olmstead, 277 U.S. at 460.










Finally, the Court in Olmstead looked at Fourth Amendment warrant requirements in the

case of Gouled v. United States, decided February 28, 1921, where the defendant was charged

with conspiracy to defraud the United States after a document was taken from his office under

the orders of the Intelligence Department of the Army.335 The paper, which incriminated him,

was taken without a warrant, given to the United States attorney and introduced as evidence in

the conspiracy.336 Admission of the paper in the lower court was considered a violation of the

Fourth Amendment because the defendant had no knowledge of its admission to court and could

not request its return before it was introduced and considered by the court.337

The Supreme Court used the Boyd, Weeks and Gouled cases to rule out a Fifth Amendment

claim of compelled speech and instead focus on the Fourth Amendment issue of warrants.338

The Court relied on the historical purpose of the Fourth Amendment to "prevent the use of

governmental force to search a man's house, his person, his papers, and his effects and to prevent

their seizure against his will."339 In the Boyd and Weeks cases, the issue was the government

using its power to compel the production of documents.340 In Gouled, the prohibition on search

and seizure was taken to the "extreme limit," but the Olmstead Court said this did not expand the

authority the government' s authority because in Olmstead there was not actual entrance of

private quarters, nor was anything "tangible" seized.341 The Court said in Olmstead that it would



335 Gouled v. United States, 255 U. S. 298 (1921).
336 Id.

337 Olmstead, 277 U.S. at 462.
338 Id.

339 Id. at 463.

340 Id.

341 Id.










be impossible to obtain a warrant specifying the place person or things to be searched or

seize .d 34

The Supreme Court said that the Fourth Amendment did protect sealed letters in the care of

the Post Office from government seizure, but conversations conducted over phone lines were

different in several ways. First, the postal service is monopolized by the government and

"unlawful rifling" by government agents would be "search and seizure" of a senders' "effects,

which are only transmittable by use of the government' s mail system, which has guaranteed

protection."343 The telegraph and telephone systems do not have this protection because they do

not involve personal "effects," but rather communications "reaching to the whole world from the

defendant' s home or office." Second, intercepting phone communications involves only

"hearing," not seizure. Third, the Court suggested that phone lines are open spaces like

highways that stretch between houses, and therefore are not guaranteed protection from search

and seizure."

Despite the fact that the Gouled Court urged liberal interpretation of the "purpose of the

framers of the Constitution in the interest of liberty," it did not extend search and seizure beyond

"persons, papers, and effects" to "hearing and sight."345 This is because although cases of



3 Olmstead, 277 U.S. at 464.

343 Id.

3 Id. at 464-65.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The
Fourth Amendment does not forbid what was done here. There was no searching. There was no seizure.
The evidence was secured by the use of the sense of hearing and that only. There was no entry of the
houses or offices of the defendants...By the invention of the telephone 50 years ago, and its application for
the purpose of extending communications, one can talk with another at a far distant place...The language of
the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world
from the defendant's house or office. The intervening wires are not part of his house or office, any more
than are the highways along which they are stretched.

3 Id. at 465.










government intrusion on phone lines might involve trespass, they did not trigger Fourth

Amendment protection because there was no potential for anything tangible to be seized as

evidence. 346 The Court suggested that only Congress could change the laws protecting the

secrecy of telephone communications. 347 If Someone installs a telephone in his or her home, he

has the intention of proj ecting his voice across the wires running from the house. For this

reason, the Fourth Amendment does not apply because the person has no tangible effect to

protect and the interception does not take place in their home. 348

It is important to note that although Olmstead is a landmark decision in which the court

denied Fourth Amendment protection for phone communications, four justices dissented from

the maj ority opinion, offering multiple interpretations of the constitution over the holding' s

literalist interpretation.

Justice Louis Brandeis, in his dissent, emphasized that the "illegal wiretapping" was an

"unreasonable search and seizure" given that it lasted for many months and involved the tapping

of eight telephones.349 He wrote that the telephone is an instrument that the American

Constitutional framers "could not have dreamed of," 350 and legislation should be adaptable to




346 Id. See Hester v. United States, 265 U. S. 57 (1924) (holding that "the testimony of two officers of the law who
trespassed on the defendant's land, concealed themselves 100 yards away from his house, and saw him come out and
hand a bottle of whisky to another, was not inadmissible. While there was a trespass, there was no search of person,
house, papers, or effects). See also United States v. Lee, 274 U. S. 559 (1927).

3 Olmstead, 277 U.S. at 465.

34 What has been said disposes of the only question that comes within the terms of our order granting certiorari in
these cases. But some of our number, departing from that order, have concluded that there is merit in the twofold
objection, overruled in both courts below, that evidence obtained through intercepting of telephone messages by a
government agents was inadmissible, because the mode of obtaining it was unethical and a misdemeanor under the
law of Washington. To avoid any misapprehension of our views of that objection we shall deal with it in both of its
phases." Id. at 466.

349 Id. at 471 (Brandeis, J., dissenting).

35 We must never forget,' said Mr. Chief Justice Marshall in [McCullough v. Maryland] 'that it is a Constitution
we are expounding.' Since then this court has repeatedly sustained the exercise of power by Congress, under various










modern circumstances, not "confined to the form that evil had theretofore taken" in past

experiences.351 When the framers wrote the constitution "force and violence" were the only

method the government could use to compel self-incrimination.352

Discovery and invention have made it possible for the government, by means far more
effective than stretching upon the rack, to obtain disclosure in court of what is whispered
in the closet.353

Brandeis, in his dissent, predicted that the government might one day have even more

"scientific" ways of invading individual security, that perhaps

may some day be developed by which the government, without removing papers from
secret drawers, can reproduce them in court, and by which it will be enabled to expose to a
jury the most intimate occurrences of the home.354

Relying on Boyd v. United States, 355 Brandeis said that the government is not only

supposed to respect concrete forms of property such as doors, but also the indefeasiblee right of

personal security, personal liberty and private property."356 Citing the reasoning in hIterstate

Conanerce Conanission v. Brintson (1894), a case that relied on Boyd, Brandeis invoked the

words of the Court:

Of all the rights of the citizen, few are of greater importance or more essential to his peace
and happiness than the right of personal security, and that involves, not merely protection
of his person from assault, but exemption of his private affairs, books, and papers from the





clauses of that instrument, over objects of which the fathers could not have dreamed." Id. at 472 (quoting McCulloch
v. Maryland, 17 U.S. 316 (4 Wheat.) (1819).

351 Id. at 472.

3 Id. at 473.

3 3 Id

3 Id. at 474.

3 116 U. S. 616 (1886).

356 Olmstead, 277 U.S. at 475.










inspection and scrutiny of others. Without the enj oyment of this right, all other rights
would lose half their value. 357

In regards to the specific comparisons between mailed letters and phone communications,

Brandeis relied on the words of Ninth Circuit Court of Appeals District Judge Frank Rudkin

from the Ex parte Jackson case to write that there is no essential difference between the two.358

Brandeis even went so far as to suggest that phone tapping involved the invasion of multiple

parties' privacy because the phone lines of everyone that communicated with the suspect were

tapped when they contacted or were contacted by him.359 Brandeis said, "writs of assistance and

general warrants are but puny instruments of tyranny and oppression when compared with wire

tappmng."360

Brandeis emphasized that the Constitutional framers

recognized the significance of man's spiritual nature, of his feelings and of his intellect.
They knew that only a part of the pain, pleasure and satisfactions of life are to be found in
material things. They sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the government, the right to be
let alone-the [sic] most comprehensive of rights and the right most valued by civilized
men. To protect, that right, every unjustifiable intrusion by the government upon the
privacy of the individual, whatever the means employed, must be deemed a violation of the
Fourth Amendment.361

Brandeis reasoned that it should not matter if the evidence was acquired by a physical

search and seizure or it aided law enforcement. He said that liberty should be protected,




3 Id. (citing Interstate Commerce Commission v. Brimson, 154 U. S. 447, 479 (1894) (holding that the twelfth
section of an 1887 act to regulate commerce-authorizing the Commerce Commission to invoke the aid of any U.S.
court in requiring the "attendance and testimony of witness, and the production of documents, books, and papers"--
was constitutional because the matter extended beyond the Court's judicial power)).

3 Id. (citing Ex parte Jackson, 96 U.S. 727 (1878) (holding that publications relating to illegal lotteries could be
excluded from mailing by the U.S. postal service)).
359Id.
361) Id. at 476.

361 Id. at 478.










especially when "government' s purposes are beneficent," because "the greatest dangers to liberty

lurk in insidious encroachment by men of zeal, well-meaning but without understanding."362

Brandeis referenced a brief filed by the telephone companies in the case,

Criminals will not escape detection and conviction merely because evidence obtained by
tapping wires of a public telephone system is inadmissible. if it should be so held; but, in
any event, it is better that a few criminals escape than that the privacies of life of all the
people be exposed to the agents of the government, who will act at their own discretion,
the honest and the dishonest, unauthorized and unrestrained by the courts. Legislation
making wire tapping a crime will not suffice if the courts nevertheless hold the evidence to
be lawful.363

Brandeis said that the Radio Act of 1927, as well as numerous state laws, banned

wiretapping by private parties or the government.

Decency, security, and liberty alike demand that government officials shall be subj ected to
the same rules of conduct that are commands to the citizen. In a government of laws,
existence of the government will be imperiled if it fails to observe the law scrupulously.
Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the
whole people by its example. Crime is contagious. If the government becomes a
lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself;
it invites anarchy. To declare that in the administration of the criminal law the end justifies
the means-to declare that the government may commit crimes in order to secure the
conviction of a private criminal-would bring terrible retribution.364

Justice Oliver Holmes dissented separately, but agreed with Brandeis on this last point

regarding government conduct.365 JUStice Pierce Butler also dissented, agreeing with Brandeis

and Holmes on the issue of the government following the law, but added:

Telephones are used generally for transmission of messages concerning official, social,
business and personal affairs including communications that are private and privileged-
those between physician and patient, lawyer and client, parent and child, husband and wife.
The contracts between telephone companies and users contemplate the private use of the
facilities employed in the service. The communications belong to the parties between


362 Id. at 479.

363 Id.

364 Id. at 484.

365 Id.









whom they pass. During their transmission the exclusive use of the wire belongs to the
persons served by it. Wire tapping involves interference with the wire while being used.
Tapping the wires and listening in by the officers literally constituted a search for
evidence. As the communications passed, they were heard and taken down.366

Olmstead was followed by a series of progeny cases would shape surveillance law in the

coming decades. The first case involving "bugging," or surveillance by an electronic device, to

reach the Supreme Court was Goldman v. thrited States, decided April 22, 1942.367 The case

involved a device called a detectaphone that was placed against a wall to overhear conversations

in an adj oining the room. In this case, the Court found that "bugging" did not violate Fourth

Amendment rights since there was no physical trespass during the interception. In On Lee v.

thrited States, decided February 23, 1982, the Court found that "no trespass was committed"

when a federal agent bugged the target' s laundry.368 In Silverman v. thritedStates, decided

March 6, 1961, the Court found that a microphone inserted under a baseboard to electronically

eavesdrop on a target' s conversations did constitute an "actual intrusion into a constitutionally

protected area."369

In Olmstead, the Court upheld the constitutionality of warrantless wiretapping by federal

agents. The case was decided in the same era as the Gith~,~w and Whitney cases. In Gitlow and

later, Whitney, the Court had upheld the constitutionally of a statutes criminalizing the advocacy

of violent overthrow of the government. In all three cases, the Court yielded to the government

in its judgment of criminalizing what might be understood as constitutionally protected activities.

In Gitlow and Whitney, free speech was limited when it posed a danger to the nation. In



366 Id. at 487 (Butler, J., dissenting). Justice Stone also dissented.

367 Goldman y. United States, 316 U.S. 129 (1942).

368 Lee v. United States, 343 U.S. 747 (1952).

369 Silverman v. United States, 365 U.S. 505 (1961).










Olmstead, private communication was not afforded Fourth Amendment protection from

warrantless search and seizure when parties to the communication were engaged in conspiracy

against federal statutes.

In Olmstead, the Court began to interpret how laws would be applied to the emerging

telecommunications technology increasingly available to citizens. The case was decided just one

year after the passage of the Radio Act of 1927. Notable is the Court' s metaphor of phone lines

as "highways" exempt from traditional protection for search and seizure.370 It likened telephone

communications to open broadcasts. The Court reasoned that there was nothing "tangible to be

seized" in phone communications.371 The Court' s suggestion that Congress update

communications law is also important because in 1934, Congress would pass the

Communications Act, legalizing carrier cooperation with government efforts during national

emergencies. 7

Lopez v. United States

In Lopez v. United States, decided May 27, 1963, the U. S. Supreme Court, in a 6-3 vote,

affirmed the Federal District Court of Massachusetts' decision that the Internal Revenue Service

was not guilty of unlawfully invading the German Lopez' s office because the defendant gave



37 "The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The
amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was
secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the
defendants...By the invention of the telephone 50 years ago, and its application for the purpose of extending
communications, one can talk with another at a far distant place...The language of the amendment cannot be
extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or
office. The intervening wires are not part of his house or office, any more than are the highways along which they
are stretched." Olmstead v. United States, 277 U.S. 438, 464-65 (1928).

371 Id. See Hester v. United States, 265 U. S. 57 (1924). In Hester, the Court held that the testimony of two officers
of the law who trespassed on the defendant's land, concealed themselves 100 yards away from his house, and saw
him come out and hand a bottle of whisky to another, was not inadmissible. While there was a trespass, there was no
search of person, house, papers, or effects. See also United States v. Lee, 274 U. S. 559 (1927).

3 Commc'ns Act, 47 U.S.C. # 151 (1934).










consent for entry and the agent' s willingness to accept a bribe was "not real."373 The defendant

was indicted and convicted on four counts of attempted bribery of Internal Revenue Agent Roger

Davis based in part on a wire recording of a conversation in which the bribe took place.374

Justice Harlan wrote the majority opinion, joined by Justices Warren, Black, Clark, Stewart and

White. Justices Douglas and Brennan dissented. The decision hinged on the fact--under

Massachusetts law--that Davis was party to the recording, not a third party, and simply used the

wire-recorded conversation to verify his testimony.375 The surveillance device was not planted

by "unlawful physical invasion of a constitutionally,"-' eavesdropping'-- it was simply worn

by the agent.376 The Court concluded that the petitioner accepted the chance of "faultless

memory or mechanical recording" when he invited the agent inside for a conversation. The

Court reasoned that the risk that taken by the Lopez in offering a bribe to the federal agent

included the risk that the offer would be accurately reproduced in court, "whether by faultless

memory or mechanical recording."377

Chief Justice Earl Warren concurred with the majority opinion, but emphasized that the

current decision did not reaffirm the On Lee decision, which upheld the use of a wired

information to collect evidence.378 With Justice William Brennan joining, Warren said that 1)

the On Lee case was wrongly decided; 2) "fantastic advances in the field of electronic

n7 Lopez v. United States, 373 U.S. 427, 438-43 (1963). In Lopez, the defendant was charged with bribing an
internal revenue service agent. The Court affirmed the lower court decision that electronic eavesdropping devices
were constitutional if not planted through "unlawful physical invasion of a constitutionally protected area."
37 Id. at 428.

37 The Court has, in the past, sustained instances of 'electronic eavesdropping' against constitutional challenge,
when devices have been used to enable government agents to overhear conversations which would have been
beyond the reach of the human ear." Id. at 438.

3 6 Id. at 439.

3 Id. See also Lee v. United States, 343 U.S. 747 (1952)).

37 Lopez, 373 U.S. at 441.










communication constitute a great danger to the privacy of the individual; 3) indiscriminate use of

such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth

Amendments; and 4) and these considerations impose a heavier responsibility on this Court in

its supervision of the fairness of procedures in the federal court system. 379

Justice Brennan, joined by Justices William Douglas and Arthur Goldberg dissented,

writing that the purpose of the Fourth Amendment is not just to protect secrecy. Brennan added

that Lopez did not surrender his "right of privacy when he communicated his 'secret thoughts.'380

Relying on Silverman v. United States, Justice Brennan said "If a person commits his secret

thoughts to paper, that is no license for the police to seize the paper; if a person communicates

his secret thoughts verbally to another, that is no license for the police to record the words."381

Stopping short of saying that "all communications are privileged," Brennan added that "the right

of privacy would mean little if it were limited to a person's solitary thoughts, and so fostered

secretiveness. It must embrace a concept of the liberty of one's communications, and historically

it has."382 Brennan said that the only way to guard against contemporary eavesdropping is to

"keep one' s mouth shut," much different than conventional tactics of "lowering voices."383

Brennan's opinion relied on the 1765 British case of Entick v. Calrrington, which informed

the "structure of the Fourth Amendment," to maintain that "general search warrants are unlawful

because of their uncertainty."384 In Entick, John Entick sued three of the King' s messengers



379 Id.

380 Id. at 449 (Brennan, J., dissenting).

381 Silvermany. United States, 365 U.S. 505 (1961).

382 Lopez, 373 U.S. at 449 (Brennan, J., dissenting).
383 Id. at 453.

384 Id. at 454 (citing Entick v. Carrington, (1765) 19 How. St. Tr. 1029, 1066; 95 Eng. Rep. 807 (K.B.)). Entick v.
Carrington was a case decided in 1765 and is the leading English law case for limiting the scope of executive power










who, under the authority of the secretary of state, had seized his personal papers that were

deemed seditious by the government. The seizure of the papers was made without a warrant.

Brennan said the "Warrant Clause" is a result of the American Revolution, spurred by the

"evil of the general warrant."385 The general warrant gave the government the "untrammeled

right to extract evidence from people."386 In this way, the Fourth and Fifth Amendments are

complementary and create a "comprehensive right of personal liberty in the face of governmental

intrusison.387 Brennan said that American independence was born of this "one single factor"--

personal liberty.388

Justice Brennan also refers to the Boyd v. thrited States case, cited by Brandeis' dissent in

Olmstead vs. thrited Sta.tes, as an example of a decision that "has never been impeached." 389

The Boyd decision, as pointed out in the dissent, has been "repeatedly approved in the decisions





in order to protect the establishment of individual civil liberties. Entick involved three messengers of the British
King who, under the orders of the Secretary of State Lord Halifax, burgalarized the home of John Entick, a writer.
They seized his private papers, which were found by the government to be seditious, and he was subsequently
arrested. The case was decided by the Chief Justice of the Common Pleas, Lord Camden, who held that the
secretary of state had no statutory right to order a warrant for seizure of the papers. Justice Camden reasoned that
citizens could do anything that was not forbidden by law, and conversely the state could only engage in actions,
which were permitted by law.

3 Lopez, 373 U.S. at 454 (Brennan, J., dissenting).
386 Id

3 Id. at 455.

3 Id. at 454. "Historically we are dealing with a provision of the Constitution which sought to guard against an
abuse that more than any one single factor gave rise to American independence. John Adams surely is a competent
witness on the causes of the American Revolution. And he it was who said of Otis' argument against search by the
police .. 'American independence was then and there born. Id. at 454 n. 3/6 (quoting 10 ADAMS, WORKS 247;
Harris v. United States, 331 U.S. 145 (1947) (Frankfurter, J., dissenting)). James Otis, Jr. was a Massachusetts
Advocate General of the Admiralty Court who in 1760 resigned after being asked to argue in favor of writs of
assistance. Otis decided instead, to represent the merchants in the case. In response to Otis' 1761 argument for the
plaintiffs in court, John Adams said, "The child independence was then and there born,[for] every man of an
immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance." See
also 2 LEGAL PAPERS OF ADAMS 106-47 (Wroth & Zobel, eds., 1965).

389Lopez, 373 U.S. at 455-56 (Brennan, J., dissenting). See also Boyd v. United States, 116 U.S. 616 (1886).










of the courtr" and affirms a "comprehensive right of privacy, of individual freedom."390

Brennan asserts the "right to privacy" is a "basic constitutional right" that was upheld in Mapp v.

Ohio, decided June 19, 1961.391 In Mapp, the U.S. Supreme Court held that the Fourth

Amendment' s prohibition on search and seizure, as extended to the states through the Fourteenth

Amendment, prohibited introducing illegally obtained information in criminal prosecutions.392

Brennan's dissent said that the Olmstead decision must be appraised against the backdrop

of Boyd's "liberal construction" of the Fourth and Fifth Amendments.393 The Olmstead decision

held that no actual "trespass" and no seizure of "physical evidence" made the "Fourth

Amendment inapplicable."394 However, in Olmstead, the Court found telephonic

communications to be "peculiar to wiretapping," because telephone wires ran out of the home or

office and were not part of it. 395 Brennan said that "modern life" suggests that the telephone is

just as valuable and "indispensable" in "free human communication" as the face-to-face home

conversations of yesteryear. 396 Brennan writes that the Olmstead decision, which controls

electronic surveillance--"apart from wiretapping"--was "erroneously decided" because 1)

Olmstead interprets the Fourth Amendment as "limited to the tangible fruits of actual

trespasses,"--a departure from the Boyd case; 2) Olmstead is unsupportable because it only


391) "The authority of the Boyd decision has never been impeached. Its basic principle, that the Fourth and Fifth
Amendments interact to create a comprehensive right of privacy, of individual freedom, has been repeatedly
approved in the decisions of this Court .. Thus we have held that the gist of the Fourth Amendment is '(t)he
security of one's privacy against arbitrary intrusion by the police." Lopez, 373 U.S. at 456.

391 Id. at 456-57 (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

392 Mapp v. Ohio, 367 U.S. 643 (1961).

393 Lopez, 373 U.S. at 457.
394 Id. at 457-58.

395 Id. at 458.

396 Id.










applies the Fourth Amendment to "problems familiar to the technology of the eighteenth

century"-even though the Framers could not "foresee the invention of the telephone"; 3)

Olmstead was not a "decisional revolution," as the Court continued to follow the principles laid

out in the Boyd decision; and 4) since Olmstead, the Court has undermined the "supports" for

Olmstead 's interpretation of the Fourth Amendment, that "fruits of electronic surveillance

though intangible, nevertheless are within the reach of the Amendment."397

Brennan' s dissent said a "search" occurs when a person "looks or listens," not just when

someone manually rummages concealed objects." 398 Still, Brennan's dissent said that the Court

has feared that "electronic surveillance" could never be reasonable within the meaning of the

Amendment and furthermore, restrictions on electronic surveillance could strip law enforcement

of a "useful technique" in criminal investigations.399

Brandeis, in his dissenting opinion in Lopez, is careful to say that this does not mean that

no search could be constitutionally devised, but that the requirements of the Fourth Amendment

are "not inflexible."400 Brandeis added that the Court must refuse to admit illegally-gathered


397 Id. at 458-60. Brennan's phrase "tangible fruits of actual trespasses" is different than the Boyd holding because
in Boyd, the Court said the federal act compelling the plaintiff to produce his financial books in court was
unconstitutional under the Fourth Amendment--even though the compulsion did not involve an actual search or
seizure. Boyd, 116 U.S. at 635.

398 Lopez, 373 U.S. at 458-60.

399 Id. at 463.

400 Justice Brennan explained:

But the argument is unconvincing. If in fact no warrant could be devised for electronic searches, that would
be a compelling reason for forbidding them altogether. The requirements of the Fourth Amendment are not
technical or unreasonably stringent: they are the bedrock rules without which there would be no effective
protection of the right to personal liberty. A search for mere evidence offends the fundamental principle
against self-incrimination, as Lord Camden clearly recognized; a merely exploratory search revives the
evils of the general warrant, so bitterly opposed by the American Revolutionaries; and without some form
of notice, police searches became intolerable intrusions into the privacy of home or office. Electronic
searches cannot be tolerated in the name of law enforcement if they are inherently unconstitutional.. .But in
any event, it is premature to conclude that no warrant for an electronic search can possibly be devised. The
requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of
law enforcement. It is at least clear that 'the procedure of antecedent justification before a magistrate that is










evidence in order to spur an "imaginative solution whereby the rights of individual liberty and

the needs of law enforcement are fairly accommodated."401 Brandeis said that just because

"police traditionally engage in some rather disreputable practices of law enforcement is no

argument for their extension."402

Eavesdropping was indictable at common law and most of us would still agree that it is an
unsavory practice. The limitations of human hearing, however, diminish its potentiality for
harm Electronic aids add a wholly new dimension to eavesdropping. They make it more
penetrating, more indiscriminate, more truly obnoxious to a free society. Electronic
surveillance, in fact, makes the police omniscient; and police omniscience is one of the
most effective tools of tyranny. 'Eaves-droppers, or such as listen under walls or windows
or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and
mischievous tales, are a common nuisance and presentable at the court-leet: or are
indictable at the sessions, and punishable by fine and finding sureties for their good
behaviour.' 403

"In the nature of things," Brandeis added, "wiretapping is only useful in the investigation
of crimes of a continuing nature, which are typically not maj or crimes... The same
principles apply to electronic surveillance generally."404 Brandeis said that

electronic surveillance imports a peculiarly severe danger to the liberties of the person. To
be secure against police officers' breaking and entering to search for physical obj ects is
worth very little if there is no security against the officers' using secret recording devices to
purloin words spoken in confidence within the four walls of home or office. Our
possessions are of little value compared to our personalities. And we must bear in mind
that historically the search and seizure power was used to suppress freedom of speech and
of the press... and that today, also, the liberties of the person are indivisible. 405





central to the Fourth Amendment could be made a precondition of lawful electronic surveillance. And there
have been numerous suggestions of ways in which electronic searches could be made to comply with the
other requirements of the Fourth Amendment. Id. at 464.

401 Id. at 465.

402 Id

403 Id. at 466 (citing 4 W. BLACKSTONE'S COMMENTARIES ON THE LAWS OF ENGLAND 151-52, 168 (T. Cooley 2d
rev. ed. 1872). A court leet is "an English petty criminal court for the punishment of small offences." "Court Leet,"
Classic Encyclopedia, http://www.1911lencyclopedia.org/Court leet (last visited June 11, 2008).

404 Lopez, 373 U.S. at 469.

405 Id. at 469-70.










Brandeis' dissent said that electronic surveillance "strikes deeper than at the ancient feeling

that a man's home is his castle"; it "strikes at Freedom of communication.'"40 Furthermore,

freedom of speech is undermined where people fear to speak unconstrainedly in what they

suppose to be the privacy of home and office."407 Brandeis said in dissent that the "right to

privacy is the obverse of freedom of speech" in that the First Amendment freedoms can be seen

to include "under certain circumstances" the right to anonymity.408

The passive and the quiet, equally with the active and the aggressive, are entitled to
protection when engaged in the precious activity of expressing ideas or beliefs. Electronic
surveillance destroys all anonymity and all privacy; it makes government privy to
everything that goes on. In light of these circumstances I think it is an intolerable anomaly
that while conventional searches and seizures are regulated by the Fourth and Fourteenth
Amendments and wiretapping is prohibited by federal statute, electronic surveillance as
involved in the instant case, which poses the greatest danger to the right of private
freedom, is wholly beyond the pale of federal law. 409

The maj ority opinion in Lopez struggled with the technological advances of the day,

describing wiretapping as a "mechanical recording." In Olmstead, the Court saw phone

communication as a means of broadcasting private thoughts to the world, beyond the scope of

Fourth Amendment privacy protections for home and property. The Lopez decision reinforced

this reasoning, finding that Lopez opened up his private thoughts to search and seizure when he

communicated them to another person. The concurring and dissenting opinions in Lopez

represent a slightly modernized judicial view of developing telecommunications technology.


406 Under Hitler, when it became known that the secret police planted dictaphones in houses, members of families
often gathered in bathrooms to conduct whispered discussions of intimate affairs, hoping thus to escape the reach of
the sending apparatus. Id. at 470 (citing United States v. Lee, 193 F.2d 306, 317 (2d Cir. 1951) (dissenting opinion)).
"Electronic surveillance strikes deeper than at the ancient feeling that a man's home is his castle; it strikes at
Freedom of communication, a postulate of our kind of society. Lopez' words to Agent Davis captured by the
Minifon were not constitutionally privileged by force of the First Amendment." Id.

4o- Id. (citing Donald B. King, Wire Tapping and Electronic Surveillance: 4 Neglected Constitutional
Consideration, 66 DICK. L. REV. 17 (1961)).

40s Id

409 Id. at 471.










Chief Justice Warren' s concurrence spoke of "fantastic advances in the field of electronic

communication." Justice Brennan's dissent described the telephone as a "valuable" tool of

modern human communication. These opinions would soon find footing in the Warren Court,

which would overturn Olmstead and Lopez 's traditional interpretation of constitutional

protection for the privacy of phone communications.

Griswold v. State of Connecticut

Following the Lopez decision, the Court would rule on a case involving contraceptives,

decided on the issue of marital privacy. This Griswold case is significant because the U. S.

Supreme Court reasoned that the Bill of Rights had implied "penumbras", unspecified guarantees

that are tangentially related to specifically named and protected rights. Specifically the right to

privacy, although unnamed in the Constitution, emanated from other guarantees: The First

Amendment right of association, the Third Amendment' s prohibition of quartering soldiers in

any house during peacetime, The Fourth Amendment' s guarantee against unreasonable search

and seizure and the Fifth Amendment' s privilege against self incrimination. This was the first

time the Court recognized individual privacy rights. The "penumbra" reasoning in Griswold

would quickly take hold in the Court and change the way that it viewed electronic

communications.

Griswold v. State of Connecticut, decided June 7, 1965, (1965) involved defendants'

conviction for violating the Connecticut birth control law, which criminalized the use of

contraceptives, and the subsequent appeal to the Sixth Circuit of the U. S. Court of Appeals.410

The U.S. Supreme Court, in a 7-2 vote reversed the decision, finding the Connecticut law was

unconstitutional because it intruded upon marital privacy. Justice Douglas wrote the maj ority



410 Griswold v. Connecticut, 381 U.S. 479 (1965).










opinion, joined by Justices Warren, Clark, White, Brennan, Harlan and Goldberg. Justices Black

and Stewart dissented. Although this is a case was decided primarily under the Ninth and

Fourteenth Amendments, the Supreme Court clarified several issues of privacy of individuals

and the home that are relevant in interpreting the Fourth Amendment' s protections. The Court

said that the Bill of Rights provides guarantees that are related through penumbras.411

Relying upon Boyd v. United States, the Court said these Penumbras create zones of

privacy to protect against all government invasions into "the sanctity of a man's home and the

privacies of life."412 Citing Entick v. Calrrington, the majority said

It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of personal security,
personal liberty and private property, where that right has never been forfeited by his
conviction of some public offense-it is the invasion of this sacred right which underlies and
constitutes the essence of Lord Camden's judgment. Breaking into a house and opening
boxes and drawers are circumstances of aggravation; but any forcible and compulsory
extortion of a man's own testimony, or of his private papers to be used as evidence to
convict him of crime, or to forfeit his goods, is within the condemnation of that
judgment. 413

Justice Goldberg's concurring opinion-- joined by Chief Justice Warren and Justice

Brennan-added "I do agree that the concept of liberty protects those personal rights that are

fundamental, and is not confined to the specific terms of the Bill of Rights."414 Goldberg said,

"The enumeration in the Constitution, of certain [Ninth Amendment] rights, shall not be

construed to deny or disparage others retained by the people." Justice Goldberg interpreted this



411 Id. at 484-85.

412 Id. "The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all
governmental invasions 'of the sanctity of a man's home and the privacies of life' .. We recently referred in~app
v. Ohio to the Fourth Amendment as creating a 'right to privacy, no less important than any other right carefully and
particularly reserved to the people.'" Id. at 484 [citations omitted].
413 Id. at 484. See also Entick v. Carrington, (1765) 19 How. St. Tr. 1029, 1066; 95 Eng. Rep. 807 (K.B.) and supra
notes 384-388.

414 Id. at 484.









Amendment, credited to James Madison, as a way to quiet fears that specifically enumerating

rights would exclude rights not specifically mentioned.415 Madison said, 'no language is so

copious as to supply words and phrases for every complex idea.'416 Goldberg quoted Madison in

presenting the Amendment to demonstrate that the framers did not intend for the first eight

amendments to be an exhaustive list of "basic and fundamental rights" constitutionally

guaranteed to the people:

It has been obj ected also against a bill of rights, that, by enumerating particular exceptions
to the grant of power, it would disparage those rights which were not placed in that
enumeration; and it might follow by implication, that those rights which were not singled
out, were intended to be assigned into the hands of the General Government, and were
consequently insecure. This is one of the most plausible arguments I have ever heard urged
against the admission of a bill of rights into this system; but, I conceive, that it may be
guarded against. I have attempted it, as gentlemen may see by turning to the last clause of
the fourth resolution (the Ninth Amendment).417

Finally the "right of privacy" is recognized in the concurrence as a fundamental personal

right "emanating 'from the totality of the constitutional scheme under which we live.'418 Citing

Justice John Marshall Harlan II's dissenting opinion in Poe v. Ullman, Certainly the

safeguarding of the home does not follow merely from the sanctity of property rights. The home

derives its pre-eminence as the seat of family life. And the integrity of that life is something so

fundamental that it has been found to draw to its protection the principles of more than one

explicitly granted Constitutional right."'419





415 Id. at 488 (Goldberg, J., concurring).

416 THE FEDERALIST NO. 37, at 236 (James Madison) (Cooke ed., 1961).

417 Griswold, 381 U.S. at 489-90 (Goldberg, J., concurring) (quoting 1 ANNALS OF CONG. 439 (Gales ed. 1834)).

41s Id. at 494 (quoting Poe v. Ullman, 367 U.S. 497, 521 (1961) (Douglas, J., dissenting)).

419 Id. at 495 (quoting Poe v. Ullman, 367 U.S. 497, 551-52 (1961) (Harlan, J., dissenting)).










Berger v. New York

Following Griswold's recognition of constitutional privacy rights, the Court would

undergo a significant philosophical shift from its Olmstead and Lopez decisions on electronic

surveillance. In the 1966 Ashton case, the Court had recognized the role of free discussion in

civil and political discussions.420 In 1967, the Court would decide two cases that extended

Fourth Amendment protections against warrantless search and seizure to phone communications.

In Ralph Berger v. State of New York, decided June 12, 1967, the defendant was convicted

in a New York County Supreme Court on counts of conspiracy to bribe the chairman of the New

York State Liquor Authority.421 The U.S. Supreme Court, in a 6-3 vote, held that conversations,

in themselves, are protected by the Fourth Amendment, and capturing conversations through the

use of electronic devices was a "search."

The case involved a New York eavesdropping statute, which allowed the use of ex pate

orders--general search warrants--to collect evidence, as long as an oath or affirmation was

made that there was "reasonable ground" to believe that evidence of a crime "may" be

obtained.422 The statute required that the oath or affirmation be made by: 1) the district

attorney, 2) the attorney general or 3) an officer above the rank of sergeant of any police

department of the state or any political subdivision thereof. 423

Under the authority of the State Supreme Court, an order was issued permitting the

installation, for a period of 60 days, of a recording device in the office of the defendant, a




420 Id. at 198-200.

421 Berger v. New York, 388 U.S. 41 (1967).

422 Id.

423 Id. at 43-44.










suspected conspirator in a bribery ring involving the issuance of liquor licenses. 424 The

petitioner, Ralph Berger, was an attorney and a go between in this bribery operation. Berger

obj ected to use of relevant portions of the recordings as evidence at trial. The recordings were

played for the jury, and the verdict in the case upheld the constitutionality of the New York

statute.42

Justice Clark wrote the maj ority opinion, which described eavesdropping as "an ancient

practice, which at common law was condemned as a nuisance." 426 The telephone was described

as a device that enabled a "more modem eavesdropper known as the wiretapper." 427 The Court

said that wiretapping techniques-developed by science--have spurred lawmakers to create

"statutory protection" against the "invasion of individual privacy."428 The New York County

Supreme Court decision, upholding the constitutionality of the statute was overturned, as the

U.S. Supreme Court found the statute to be "offensive" based on four criteria:

I. The conversations were illegally obtained since the "property" sought was not "particularly
described," in keeping with the probable cause requirement of the Fourth Amendment.
This illegal interception amounts to a "roving commission" to "seize any and all
conversations" of the person targeted." 429


4 Id. at 44-45.

4 Id. at 45.

426 Id. at 45-47. "Sophisticated electronic devices have now been developed (commonly known as "bugs") which
are capable of eavesdropping on anyone in most any given situation. They are to be distinguished from "wiretaps,"
which are confined to the interception of telegraphic and telephonic communications." Id. at 46-47.

4 Id. at 46.

428 Id. at 47. "And the Founders so decided a quarter of a century later when they declared in the Fourth
Amendment that the people had a right "to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." Indeed, that right, they wrote, 'shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."' Id. at 49. "The law, though jealous of individual privacy, has not
kept pace with these advances in scientific knowledge. This is not to say that individual privacy has been relegated
to a second-class position for it has been held since Lord Camden's day that intrusions into [privacy] are 'subversive
of all the comforts of society."' Id. at 49 (citing Entick v. Carrington, (1765) 19 How. St. Tr. 1029, 1066; 95 Eng.
Rep. 807 (K.B.)).

429 Id. at 58-59.










II. The statute authorized a two-month period of eavesdropping on a 24-hour basis which
would allow conversations to be "seized" with no "regard to their connection with the
crime under investigation." This coupled, with the statutory two-month extension made "in
the public interest," fails to meet requirements for probable cause.430

III. The statute does not specify a "termination date" for the eavesdropping, but instead places
the termination at the discretion of the law enforcement officer conducting the
surveillance.43

IV. The statute does not require notice, as do conventional warrants, because its "success
depends on secrecy." Nor does it require a "showing of exigent circumstances" to excuse
this requirement. Therefore, there is no "judicial supervision or protective procedures."432


The Supreme Court, in the Berger decision, said that it "cannot forgive the requirements of

the Fourth Amendment in the name of law enforcement," because the requirements are "basic to

the privacy of every home in America."433 Federal law enforcement officers must "comply with

the basic command of the Fourth Amendment before the innermost secrets of one's home or

office are invaded."434 If this is not possible, the "fruits of eavesdropping devices are barred

under the Amendment."435

Few threats to liberty exist which are greater than that posed by the use of eavesdropping
devices. Some may claim that without the use of such devices crime detection in certain
areas may suffer some delays since eavesdropping is quicker, easier, and more certain.
However, techniques and practices may well be developed that will operate just as speedily
and certainly and-what is more important-without attending illegality.436






430 Id. at 59.

431 Id. at 59-60.

432 Id. at 60.

433 Id. at 62-63.

434 Id. at 63.

435 Id.

436 Id.










The Court said that "under specific conditions and circumstances" eavesdropping devices

are permissible if the "constitutional standard" is met before "official invasion is permissible."437

Justice William O. Douglas concurred in the Court' s maj ority opinion, particularly its "sub

silentio" overruling of the Olmstead decision.438 He also condemned electronic surveillance for

"its similarity to the general warrants out of which our Revolution sprang."439

A discreet selective wiretap or electronic "bugging" is of course not rummaging around,
collecting everything in the particular time and space zone. But even though it is limited in
time, it is the greatest of all invasions of privacy. It places a government agent in the
bedroom, in the business conference, in the social hour, in the lawyer's office-everywhere
and anywhere a "bug" can be placed.440

Douglas said that a statute placing a policeman in every home or office would be struck

down as a "bald invasion of privacy," even if there were probable cause that evidence existed

establishing a crime had been committed.441 He said that electronic surveillance creates a

"dragnet" placing an "invisible policeman" in the home.442 This moves the country closer to a

"totalitarian regime," and further from the Fourth Amendment' s protection of privacy.443

Douglas argued for a "high constitutional barricade against the intrusion of Big Brother into the

lives of all of us."

Justice Potter Stewart, in his concurring opinion, said the state statute was constitutional

because it did not authorize an unreasonable search and seizure. Its requirements were "more

stringent than the Fourth Amendment," with it's "reasonable grounds" requirement" mirroring

4 Id. at 63.

4 Id. at 64 (Douglas, J., concurring). "Sub silentio" means without formal notice.
439 Id

440 ld. at 64-65.

441 Id. at 67.

442 Id

4 Id. at 68.










"probable cause" under the Fourth Amendment.444 Stewart found the issue to be whether the

statute's search requirements meet Fourth Amendment standards--"showing of justification"

must "match the degree of intrusion." 445 In this case, the judge was not presented with any facts

to support the allegations against the target.

Justice Hugo Black dissented in the Berger opinion arguing that the Court' s decision

makes it "completely impossible" for the state or the federal government to ever have valid

eavesdropping statutes, because the Court negates New York' s criteria for probable cause for

surveillance.446 Black was referring the maj ority opinion' s first criteria in evaluating the New

York statute requiring that the property sought be "particularly described."447 Black said that

there is "no inherent danger" in using electronic recordings as evidence because they are

"unerringly accurate" and therefore superior to oral testimony, which can be affected by memory

and perspective.448 Black found it "impossible" that the "wise Framers of the Fourth

Amendment" intended to protect the "right of privacy," which he calls "a chameleon" that has a

"different color for every turning."449 He concluded that state legislatures should be free to pass

laws about electronic surveillance-"Honest men may rightly differ on the potential dangers or

benefits inherent in electronic eavesdropping and wiretapping."450






4 Id. at 68-69 (Stewart, J., concurring in result).
4 Id. at 69.

446 Id. at 70-71 (Black, J., dissenting).

4 Id. at 58-59 (majority opinion).

4 Id. at 73 (Black, J., dissenting).
449 Id. at 77.

45old. at 88-89.










Justice Harlan dissented on the basis that the Court' s maj ority opinion violated the

distinction between federal and state authority.451 He felt the decision would "thwart"

Congressional efforts to refine the use of electronic eavesdropping as a law-enforcement" tool.452

Justice White dissented because he found the maj ority opinion would strike down the New York

statute "on its face," when there was no evidence that the petitioner's constitutional rights had

been violated. 453 He said that the present case is not the "proper vehicle for resolving all of these

broad constitutional and legislative issues raised by the problem of official use of wiretapping

and eavesdropping."454

Katz v. United States

In Charles Katz v. United States, decided December 18, 1967, the U.S. Supreme Court

held that the Fourth Amendment protection from unreasonable search and seizure protected

individuals' conversations in public telephone booths, specifically the use of warrantless

wiretaps by authorities. Katz was convicted, in the United States District Court of Southern

California, for the interstate transmission of bets or wagers by wire communications. Katz

appealed, and the U. S. Court of Appeals for the Ninth Circuit affirmed the District Court' s

decision and certiorari was granted "because there was no physical entrance into the area

occupied" by Katz.455

Justice Stewart wrote the maj ority opinion, j oined by Chief Justice Warren and Justice Abe

Fortas. Justice Douglas concurred, joined by Justice Brennan. Justice Harlan wrote a separate

concurrence, as did Justice White. Justice Black wrote a dissenting opinion in the case. The

451 Id. at 89 (Harlan, J., dissenting).
452 Id.

453 Id. at 107.

454 Id. at 107.

455 Katz v. United States, 389 U.S. 347, 348 (1967).










Court, in its maj ority opinion, held that the government had no legal justification for

electronically listening to and recording the defendant' s words over a telephone line in a public

phone booth. Justice Stewart said the phone booth was a "search and seizure" zone for Fourth

Amendment purposes and did not honor safeguards that kept it within constitutional standards.456

Katz raised two issues in his petition to the Court: 1) is a public telephone booth a

constitutionally protected area in regards to "right to privacy" and "search and seizure" under the

Fourth Amendment to the United States Constitution; and 2) is "physical penetration of a

constitutionally protected area... necessary before a search and seizure can be said to be violative

of the Fourth Amendment to the United States Constitution.'"45 The Court declined "to adopt

this formulation of the issues," since the Fourth Amendment does not translate to a "general

constitutional 'right to privacy,'" instead it insures individual privacy against "certain kinds" of

government intrusion. 458 These intr-usions are guarded against by the First Amendment--

"limitations upon governmental abridgment of 'freedom to associate and privacy in one's

associations;" 459--The Third Amendment-" prohibition against the unconsented peacetime

quartering of soldiers protects another aspect of privacy from governmental intrusion;" and the

Fifth Amendment--"the right of each individual 'to a private enclave where he may lead a





456 Id

4 Id. at 350-51.

"5 iWe decline to adopt this formulation of the issues. In the first place the correct solution of Fourth Amendment
problems is not necessarily promoted by incantation of the phrase 'constitutionally protected area.' Secondly, the
Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' That Amendment protects
individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have
nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of
governmental invasion. But the protection of a person's general right to privacy-his right to be let alone by other
people is, like the protection of his property and of his very life, left largely to the law of the individual States." Id.
459 Id. at 351.










private life."'460 "Virtually every governmental action interferes with personal privacy to some

degree," but the Court outlines the question in the case as when the action violates Constitutional

Protections.461

In Katz, the Court reasoned that what the petitioner

sought to exclude when he entered the booth was not the intruding eye-it was the uninvited
ear. He did not shed his right to do so simply because he made his calls from a place where
he might be seen. No less than an individual in a business office, in a friend's apartment, or
in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth
Amendment. One who occupies it, shuts the door behind him, and pays the toll that
permits him to place a call is surely entitled to assume that the words he utters into the
mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is
to ignore the vital role that the public telephone has come to play in private
communication. 462

Although there was no physical penetration, the Court said that it departs from the narrow

view of privacy in the Olmstead decision requiring actual trespass and seizure. 463 As an

example, the Court cited the Silverman v. United States case to show that they have found the

Fourth Amendment to govern "recording of oral statements overheard without any 'technical

trespass under local property law."464

The Court said that the controlling decisions of Olmstead and Goldman have been eroded

and the "'trespass doctrine" no longer controls because electronic surveillance allows the

government to engage in activities that constitute a search and seizure, without penetrating a

wall.465 Therefore, the issue is whether the government agents followed the legal protocol to



460 Id. (citing Tehan y. United States ex rel. Shott, 382 U.S. 406 (1966)).

461 Id. at 350 (citing Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890)).

462 Id. at 352 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)).

463 Id.

464 Id. at 353 (citing Silverman v. United States, 365 U.S. 505 (1961)).
465 Id.










begin electronic surveillance-narrowly tailoring the activity and obtaining a warrant.466 The

government did not attempt to attain judicial oversight of surveillance activities through a

warrant, despite the fact, as the Court writes, one could have been obtained legally based on the

facts of the case in light of past judicial examples. 467 In regards to privacy considerations, Court

found that they:

do not vanish when the search in question is transferred from the setting of a home, an
office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled
to know that he will remain free from unreasonable searches and seizures. The government
agents here ignored 'the procedure of antecedent justification that is central to the Fourth
Amendment, 'a procedure that we hold to be a constitutional precondition of the kind of
electronic surveillance involved in this case.'468

Douglas concurred with the maj ority opinion and was j oined by Justice Brennan, in

making the important note that White's concurring opinion was "a wholly unwarranted green

light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases

which the Executive Branch itself labels 'national security' matters."469 This could be

problematic since the Executive Branch, unlike the Judicial Branch, is not "neutral or

disinterested," but charged with investigating crimes--sometimes ones in which they are the

"intended victim."470

Justice Harlan also concurred with the maj ority opinion, but states that he relied upon the

Silverman v. thrited States decision to emphasize that the "interception of conversations

reasonably intended to private should constitute a 'search and seizure' and that the examination




466 Id. at 354.

467 Id

468 Id. at 359.

469 Id. (Douglas, J., concurring).

470 Id. at 359-60.










or taking of physical property was not required."47 Silverman, in conjunction with the current

case, were Harlan's basis for arguing that the Goldman case should be reconsidered and

overruled, "Its limitation on Fourth Amendment protection is, in the present day, bad physics as

well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as

physical invasion."472

Justice Byron White concurred that the surveillance of a public phone booth was subj ect to

warrant requirements, but found that previous cases were "undisturbed" by the current

decision.47 Also, White noted the Court' s acknowledgement that national security cases are

beyond the reach of the current decision and can rely upon the considerations of the President of

the United States or the Attorney General.474

Justice Black dissented on the basis that 1) "the words of the Amendment will bear the

meaning given them by today's decision"; and 2) "the proper role of this Court" is not to rewrite

the Amendment to "bring it into harmony with the times."475 Black elaborated to say the Fourth

Amendment, through its first clause, protects "tangible things," and through its second clause,

protects those "tangible things" from search and seizure.476 He said that the Court' s decision in

this case would apply the Fourth Amendment to "overhearing future conversations which by

their very nature are nonexistent until they take place."477 Therefore, it would be impossible to



471 Id. at 361-62 (citing Silvermanyv. United States, 365 U.S. 505 (1961)) (Harlan, J., concurring).

472 Id. at 362.

473 Id. at 362-63.

474 Id. at 363-64.

475 Id. at 364-65 (Black, J., dissenting).

476 Id. at 365.

477 Id










obtain a warrant for a conversation that had simply been predicted to happen at some point in the

future. He said -as the Court did in the Berger case--that applying the Fourth Amendment in

this case--one of eavesdropping--is beyond the scope of what was envisioned by the

Constitutional Framers:

Tapping telephone wires, of course, was an unknown possibility at the time the Fourth
Amendment was adopted...In those days the eavesdropper listened by naked ear under the
eaves of houses or their windows, or beyond their walls seeking out private
discourse... There can be no doubt that the Framers were aware of this practice, and if they
had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe
that they would have used the appropriate language to do so in the Fourth Amendment.
They certainly would not have left such a task to the ingenuity of language-stretching
judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching
the conclusion that its Framers and critics well knew the meaning of the words they used,
what they would be understood to mean by others, their scope and their limitations. 478

Black' s dissent was built on the premise that the Fourth Amendment, even with "liberal

construction," is "aimed directly at the abhorred practice of breaking in, ransacking and

searching homes and other buildings and seizing people's personal belongings without warrants

issued by magistrates."479 He argued that Berger and the maj ority's opinion in Katz were the

cases to erode the doctrine established in Olmstead and Boyd, cases he continued to endorse. 480

In Berger, the Court overturned the Olmstead holding, while at the same time recognizing

the value of the telephone in promoting discourse among citizens. In doing so, the Court also

recognized how the telephone facilitated eavesdropping--which the Court condemned in Berger

on Fourth Amendment grounds.481 Previously, in Katz, the Court said only that the telephone had

a vital role in private communication. 482 This shift in the Court' s view of telephone


478 Id. at 366.

479 Id. at 366-67.

480 Id. at 367-72.

481 Id

482 Katz, 389 U.S. at 352 (majority opinion) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)).










communication--and its application of Fourth Amendment protections to electronic

surveillance--was made possible by the Griswold Court' s recognition of a right to privacy in

matters of private life.

In Olmstead, the Court recognized electronic surveillance as "mechanical recording." In

Lopez, Brennan' s dissent said the telephone was a valuable tool of human communication.

Douglas' concurrence in Berger went even further, likening warrantless surveillance to the

general warrants used by the British against American colonists.483 Douglas uses powerful

language in his concurrence suggesting that surveillance dragnets moved American closer

toward a totalitarian regime. He even went so far as to draw a parallel between this type of

government interception and the "Big Brother" regime of George Orwell's novel, Nineteen

Eighty-Four.

The Court' s updated view of phone communications and electronic surveillance would

lead Congress to update the statutory framework for electronic surveillance. Following the

Berger and Katz decisions, Congress, in 1968, passed the Omnibus Crime Control and Safe

Streets Act, establishing a legal framework for federal authorities to obtain warrants for

wiretapping in criminal investigations.

United States v. United States District Court

In thrited States v. thrited States District Court (hereinafter referred to as the Keith case),

decided June 19, 1972, the U.S. Supreme Court, in an 8-0 decision, held that government

officials must obtain a warrant before electronic surveillance is initiated in matters of domestic

security.484 The United States asked the Supreme Court to compel the judge for the United


483 Id

t8 united States v. L hited States District Court is known as the "Keith Case" because Judge Damon Keith of the
United States District Court for the Eastern District of Michigan--in a watershed decision--ordered the
Government to disclose all illegally intercepted conversations to the defendants in the case.










States District Court for the Eastern District of Michigan to vacate an order directing the United

States to make full disclosure of electronically monitored telephone conversations. 485 The

Government appealed the decision to the Court of Appeals for the Sixth Circuit, but the appeals

court upheld the lower court decision. The U.S. Supreme Court granted a writ of certiorari in the

case. Justice Lewis Powell, Jr. wrote the maj ority opinion of the Court affirming the appeals

court decision. The majority in Keith held the Omnibus Crime Control and Safe Streets Act does

not grant the president the power to conduct surveillance for purposes of national security and

that "electronic surveillance in domestic security matters requires an appropriate prior warrant

procedure."486

In the Keith case, the three defendants were charged with conspiracy to destroy

government property. One of the defendants, Larry Plamondon, was charged with the bombing

of a CIA office in Michigan. 487 The Court said the issue in the case was whether the President

had the power to authorize the Attorney General to conduct warrantless electronic surveillance in

domestic security matters. 488 Although, past Presidents had authorized this type of surveillance,

it was the first time the issue--how to balance national security concerns and a citizen's rights to

privacy--came before the Supreme Court.489

The defendants sought a hearing to force the government to disclose "certain electronic

surveillance information." The U.S. Attorney General, John Mitchell, responded with an

affidavit that he had approved the wiretaps for the purpose of gathering intelligence information


485 United States v. U.S. District Court ("Keith"), 407 U.S. 297 (1972).

486 Id. at 298. Justice Rehnquist took no part in considering or deciding the case.
487 Id.

488 Id. at 299.

489 Id.










"necessary to protect the nation from attempts of domestic organizations to attack and subvert

the existing structure of the Government." The surveillance logs were "filed in a sealed exhibit

for in camera inspection by the district court."490 The district court, relying on the affidavit and

the logs, found the surveillance was unlawful because it was conducted without judicial

approval. The government was ordered to disclose the logs to the defendant charged in the

bombing. The government sought writ of mandamus from the U. S. Court of Appeals for the

Sixth Circuit to "set aside the district court order."491 The Supreme Court affirmed the Appeals

Court decision.

In the Keith case, the Court maj ority found that the Omnibus Crime Control and Safe

Streets Act authorized electronic surveillance for certain specifically named crimes, subj ect to

prior court order.492 The Court held that the Act was a "comprehensive attempt by Congress to

promote more effective control of crime while protecting the privacy of individual thought and

expression." The Court acknowledged that the Omnibus Act was in part, a response to the

Berger Case, which struck down a New York law that allowed authorized electronic surveillance

without procedural safeguards. The Court cited Section 25 11 (3) of the Omnibus Act, which

states

Nothing contained in this chapter or Communications Act [citation omitted] of shall limit
the constitutional power of the President to take such measures as he deems necessary 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.
Nor shall anything contained in this chapter be deemed to limit the constitutional power of
the President to take such measures as he deems necessary 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 str-ucture or existence of the Government. The

491) Id. at 300-01.

491 Id. at 301.

492 Id. at 301-02.










contents of any wire or oral communication intercepted by authority of the President in the
exercise of the foregoing powers may be received in evidence in any trial hearing, or other
proceeding only where such interception was reasonable, and shall not be otherwise used
or disclosed except as is necessary to implement that power. 493

The Government argued that 2511(3) empowered the President to authorize warrantless

surveillance in cases of national security. The Court acknowledged that in passing the Act,

Congress "recognized" the President' s authority to conduct warrantless surveillance of foreign

powers, however the Court said that the language of the Act was neutral and conferred no power

beyond what the President already enjoyed under the Constitution.494 The Court said that

Congress did not intend to broaden the President' s power with the Omnibus Act, it meant only to

preserve already existing powers.495 In COntrast, the Court said, Section 25 16 of the Omnibus

Act governs executive-authorized surveillance, requiring the Attorney General to "make

application to a federal judge" for surveillance. The Court's majority opinion said Section 2518

of the Omnibus Act required prior approval, probable cause, "strict time limits" on surveillance

and in "an emergency situation," approval within 48 hours of interception of communications. 496

The Court went further, to say, "Congress only intended to make clear that the Act simply did

not legislate with respect to national security surveillances."497 The Court used the legislative

history to support the conclusion that Section 251 1(3) was not the "measure of executive

authority asserted in this case." The Court said the Omnibus Crime Control and Safe Streets Act






493 Id. at 302-03.

494 Id. at 303.

495 Id

496 Id. at 304-05.

497 Id. at 306.










raised a constitutional challenge.498 Although the Attorney General's affidavit states the

surveillance was necessary to "protect the nation from attempts of domestic organizations to

attack and subvert the existing structure of Government," the Court found there was no evidence

of involvement by a foreign power in the conspiracy to bomb the CIA office.499 The Court said

Section 2511(3) only authorizes Presidential power in cases where the national security is

threatened by a foreign power.'oo The President is charged with preserving protecting and

defending the Constitution under Article II--and surveillance is an appropriate tool for carrying

out this charge.'ol However, citizen privacy must also be considered as a factor in national


498 Id. at 306-07. "Most relevant is the colloquy between Senators [Philip] Hart, [Spessard] Holland, and [John]
McClellan [the Bill's sponsor] on the Senate floor:

Mr. HOLLAND: The section (2511(3)) from which the Senator (Hart) has read does not affirmatively give
any power. .. We are not affirmatively conferring any power upon the President. We are simply saying
that nothing herein shall limit such power as the President has under the Constitution. .. We certainly do
not grant him a thing. There is nothing affirmative in this statement.

Mr. MCCLELLAN: Mr. President, we make it understood that we are not trying to take anything away
from him.

Mr. HOLLAND: The Senator is correct.

Mr. HART: Mr. President, there is no intention here to expand by this language a constitutional power.
Clearly we could not do so.

Mr. MCCLELLAND: Even though intended, we could not do so.

Mr. HART: However, we are agreed that this language should not be regarded as intending to grant any
authority, including authority to put a bug on, that the President does not have now. In addition, Mr.
President, as I think our exchange makes clear, nothing in section 2511(3) even attempts to define the limits
of the President' s national security power under present law, which I have always found extremely vague ..
.Section 2511(3) merely says that if the President has such a power, then its exercise is in no way affected
by title III."

Id. (quoting 114 CONG. REC. 14751 (1968)).

499 Id. at 309.

50n Id

5ol "The covertness and complexity of potential unlawful conduct against the Government and the necessary
dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory
instrument in certain circumstances. The marked acceleration in technological developments and sophistication in
their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It
would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of
those very techniques which are employed against the Government and its law abiding citizens." Id., at 310-12.










security issues because the Bill of Rights safeguards the privacy of the home and private speech

from "unreasonable surveillance. 502 JUStice Powell, in the maj ority opinion, wrote that national

security cases "reflect a convergence of First and Fourth Amendment values not present in cases

of 'ordinary' crime," with a "greater j eopardy to constitutionally protected speech." 503

History abundantly documents the tendency of Government-however benevolent and
benign its motives-to view with suspicion those who most fervently dispute its policies.
Fourth Amendment protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to
political dissent is acute where the Government attempts to act under so vague a concept as
the power to protect 'domestic security.' Given the difficulty of defining the domestic
security interest, the danger of abuse in acting to protect that interest becomes apparent. 504


The price of lawful public dissent must not be a dread of subjection to an unchecked
surveillance power. Nor must the fear of unauthorized onfcial eavesdropping deter
vigorous citizen dissent and discussion of Government action in private conversation. For
private dissent, no less than open public discourse, is essential to our free society.5os

Therefore, the Court said that since the "Fourth Amendment is not absolute in its terms,"

the biggest issue in the case is whether the government's duty to protect national security

outweighs constitutional protections for "individual privacy and free expression."506 Essential to

the decision was "whether a warrant requirement would unduly frustrate the efforts of

Government to protect itself from acts of subversion and overthrow directed against it."5o? The

Court said the Fourth Amendment requires judicial review of executive decisions in these cases

because those charged with enforcing, investigating and prosecuting the law, "should not be the

For discussion of Article II, see infra.

502 Id. at 313.

503 Id

504 Id. at 314.

so' Id. at 315.

506 Id. at 314-15.

so' Id. at 315.










sole judges of when to utilize constitutionally sensitive means in pursuing their tasks." 5os

Furthermore, "post-surveillance judicial review" does not safeguard Fourth Amendment rights in

cases, which fail to result in prosecutionS. 509 The government' s belief that disclosure of

information to a magistrate in these cases would j eopardize investigations does not justify a

"departure from Fourth Amendment standards."sio


If the threat is too subtle or complex for our senior law enforcement officers to convey its
significance to a court, one may question whether there is probable cause for
surveillance."

The Court is careful to limit its decision to cases involving domestic aspects of national

security, and not foreign powers or agents of foreign powers. 512

The Keith case was a landmark decision because it established the need for the government

to obtain a warrant before electronic surveillance began in matters relating to domestic security.

The Court said that the Omnibus Crime Control and Safe Streets Act did not give the President

an unchecked power of surveillance in national security issues.513 The Keith case was the first

time the Supreme Court considered the balance between national security concerns and

constitutional protections for privacy. The Court, also for the first time, recognized that national

security cases are unique in that they present a threat to constitutionally protected speech. The

Court said the threat arose out of the convergence of First and Fourth Amendment issues.




50s Id. at 316-17.

509 Id. at 317-18.

51old. at 319-20.

511 Id. at 320.

siz Id. at 321-22.

513 Keith, 407 U.S. at 298.










The Court recognized that government attempts to protect domestic security had the

potential to endanger "political dissent." In contrast to the Court' s decisions on political dissent

in Schenck and Abrams, the Keith decision offered some protection for unpopular political

beliefs.514 Although the Court did not go so far as to directly recognize the value in these beliefs,

it did decide the case on reasoning that reflect the marketplace of ideas model. The Courts

language in discussing "unchecked surveillance power," invokes the chilling effect doctrine

when it says lawful public dissent must not be subject to "dread" from government action. It

goes further in saying that the "fear" of unauthorized eavesdropping can "deter vigorous citizen

dissent and discussion of Government action in private conversation." The Court, in the Keith

case, recognized the value of private dissent, not just public discourse. 5 The Keith decision

extended the marketplace of ideas, and its necessary breathing space, to private political dissent

and association.

California Bankers Association v. Shultz

Two years after Keith, the U.S. Supreme Court would decide a case involving the

government seizure of bank records. Although the case did not involve electronic surveillance,

the reasoning in the opinion touched on First Amendment rights to associational privacy. Justice

Douglas' dissent in the case relied upon the Katz and Keith decisions and hinted at a future

where all electronic records might be subj ect to search and seizure by the government.

In California Bankers Association v. .\hah:r, decided April 1, 1974, the Supreme Court, in a

6-3 vote, held that regulations requiring banks to keep records and report them to the Secretary

of the Treasury did not constitute a Fourth Amendment seizure, nor did it violate the members'


514 Id. at 314.

sis Id. at 315.










First Amendment rights to association.516 The regulation in question was the Bank Secrecy Act

of 1970, that required banks to keep and report records with "a high degree of usefulness in

criminal, tax, or regulatory investigations or proceedings." "7

Justice Rehnquist wrote the maj ority opinion j oined by Justices Burger, Steward, White,

Blackmun, and Powell. Justices Douglas, Brennan and Marshall dissented. The Court found

that the statute did not violate the Fourth Amendment rights of the plaintiffs in requiring

information be disclosed to the government." The plaintiffs argued that the bank acted as an

"agent of the Government" in keeping records and reporting them pursuant to the act, but the

Court said this was not a search and seizure because in all of the transactions the bank was "itself

a party."519 Also, the banks "voluntarily kept records" before required to by regulation, so the

records were useful to the bank in its own business practices. 520

In regards to the Schultz's claim that the recordkeeping requirements violated the members

First Amendment rights, the Court found that there was no threat to associational privacy.521

This Court said this was because the threat was remote and different than the previous cases

decided on this issue, including: 1) Laird v. Tatum-where the records of the Army's system

were less remote; 522 2) Boyd v. United States-where a foreign reporting requirement was found



516 Cal. Bankers Ass'n v. Schultz, 416 U.S. 21 (1974).

517 Id

51s Id. at 52.

519 Id. (citing United States v. Biswell, 406 U.S. 311 (1972)).

520 Id. at 53.

521 Id. at 56-57.

5 The Laird case involved a general contingency plan developed by the Department of the Anny to assist local
authorities in "quelling" Detroit, Michigan civil disorder. In Laird, decided June 26, 1972 in a 5-4 vote, the Supreme
Court held that the plan did not "constitute a justifiable controversy on the basis of the record in this case, disclosing
as it does no showing of objective harm or threat of specific future harm." Laird v. Tatum, 408 U.S. 1 (1972).










invalid under the Fourth Amendment as a general warrant; 523 and 3) Stanford v. Texa~s--where

regulations were found to be "obnoxious to the Fourth Amendment."524 The Court deferred to

the judgment of Congress when it passed the 1970 Bank Secrecy Act provisions under challenge,

and said the fact that a legislative enactment manifests a concern for the enforcement of the

criminal law does not cast any "generalized pall of constitutional suspicion" over it. 525

Justice Douglas, in his dissent, called attention to the nature of the records at hand

suggesting that

It would be highly useful to governmental espionage to have like reports from all our
bookstores, all our hardware and retail stores, all our drugstores. These records too might
be 'useful' in criminal investigations. One's reading habits furnish telltale clues to those
who are bent on bending us to one point of view. What one buys at the hardware and retail
stores may furnish clues to potential uses of wires, soap powders, and the like used by
criminals. A mandatory recording of all telephone conversations would be better than the
recording of checks under the Bank Secrecy Act, if Big Brother is to have his way. The
records of checks-now available to the investigators-are highly useful. In a sense a person
is defined by the checks he writes. By examining them the agents get to know his doctors,
lawyers, creditors, political allies, social connections, religious affiliation, educational
interests, the papers and magazines he reads, and so on ad infinitum. These are all tied to
one's social security number; and now that we have the data banks, these other items will
enrich that storehouse and make it possible for a bureaucrat-by pushing one button-to get
in an instant the names of the 190 million Americans who are subversives or potential and
likely candidates.52

Douglas added that it would be "sheer nonsense" to agree that all citizen's bank records

have a "high degree of usefulness in criminal, tax, or regulatory investigations or proceedings,"

5 Boyd v. United States, 1 16 U. S. 616 (1886). For discussion of the Boyd case, see supra text accompanying notes
326-329.

5 The Stanford' case involved the Texas Suppression Act of 1955, which outlawed the Communist party and
created criminal offenses for Communist party association. Stanford v. Texas, 379 U.S. 476 (1965). See also TEX.
REV. CIV. STAT. ANN. art. 6889-3A, 2 (Vernon 1957) (repealed 1993). A Texas District Court Judge issued a
warrant for the search of the petitioner's home. The four-hour search by federal officers resulted in the seizure of
over 2000 items, none of which were Communist-related. Stanford filed a motion for the return of the seized items,
but the motion was denied by the Fifty-seventh Judicial Court of Texas. In Stanford, decided January 18, 1965, the
Supreme Court, in a 9-0 vote, extended Fourth Amendment protections through the Fourteenth Amendments to
constitutionally bar states from issuing general search warrants.

C2 al. Bankers Ass'n v. Schultz, 416 U.S. 21, 77 (1974).

526 Id. at 84-85 (Douglas, J., dissenting).










and doing so amounts to assuming that "every citizen is a crook."527 He said that if the "religion,

ideology, opinions, and interests," of each citizen are "automatically" available to federal

agencies, that it would be a "sledge-hammer approach to a problem that only a delicate scalpel

can manage."528 He added that he was "not yet ready to agree that America is so possessed with

evil that we must level all constitutional barriers to give our civil authorities the tools to catch

criminals."529

Douglas, relying upon the idea of privacy that he outlined in his concurring opinion in

Katz, said that "bank accounts are within the 'expectations of privacy' category," because they

reflect a person' s "interests, his debts, his way of life, his family, and his civic commitments."530

Unrestricted access by government agents to the bank records would be an unwarranted search,

and as in the Keith case531, this holds the potential for "invasion of privacy and protected

speech."532 Douglas' dissent then takes a prophetic turn as he compares bank records to phone

communications, and predict future requests by Congress

Suppose Congress passed a law requiring telephone companies to record and retain all
telephone calls and make them available to any federal agency on request. Would we
hesitate even a moment before striking it down? I think not, for we condemned in United
States v. United States District Court 'the broad and unsuspected governmental incursions
into conversational privacy which electronic surveillance entails.'533

Douglas then said the Bank Secrecy Act gave Congressional authority to the Secretary of

the Treasury to conduct warrantless surveillance, a move that he said would represent a "slow

5 Id. at 85.

52s Id

529 Id. at 86.

530 Id. at 80.

531 United States v. U.S. District Court ("Keith"), 407 U.S. 297, 313-318 (1972).

532 Id

5 SchultZ, 416 U.S. at 89-90 (Douglas, J., dissenting).










eclipse of Congress by the mounting Executive power.",534

Douglas' dissent makes clear that he sees the banking records Act as a search and seizure

under the Fourth Amendment. 535 He quotes Justice Bradley's word in the maj ority opinion for

the Boyd case

It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way, namely, by
silent approaches and slight deviations from legal modes of procedure.536

Doulgas also highlighted the nature of intangible property with regards to search and

seizure as laid out in Katz v. United States, since the members disclosed information to the bank

"for a limited purpose" within the "context of a confidential relationship."537 In regards to the

maj ority's opinion in Schulz--that the Act only required record keeping and did not change the

law regulating "acquisition of records by the government"--Douglas said that "this attempt to

bifurcate the acquisition of information into two independent and unrelated steps is wholly

unrealistic." He added that the record keeping requirement "feeds into a system of widespread

informal access to bank records by Government agencies and law enforcement personnel."538

Finally, he said that although bank records might be used as "negotiable instruments for illegal

purposes,"~ this alone "cannot justify the Government's running roughshod over the First

Amendment rights of the hundreds of lawful yet controversial organizations."539





5 Id. at 90-91.

5 Id. at 94.

536 Id

5 Id. at 95-96 (citing Katz v. United States, 389 U.S. 347, 512 (1967)).
5 Id. at 96-97.

539 Id. at 99.










Justice Douglas, in the mid-1970's could not have foreseen the amazing technological

revolution that was about to occur in regards to telecommunications and computer technology.

His dissent, however, evokes scenarios that have become contemporary reality. The PATRIOT

Act allows federal officials to access "reports from all our bookstores, all our hardware and retail

stores, all our drugstores." The Act also allows the monitoring of bookstore purchases and library

accounts.

The Terrorist Surveillance Program is still under judicial review, but as will be discussed

in Chapter Four, it may be possible for the government to record "all telephone conversations."

Douglas theorized that Congress could pass a law requiring telephone companies to record and

retain telephone calls for the federal government. Twenty years after his prediction, Congress

passed CALEA requiring telecommunication carriers to build in government access for

electronic surveillance.

Zweibon v. Mitchell

Just three years after the Keith decision, a District Court case was decided that challenged

the Supreme Court's landmark holding. Keith had established a need for warrants before the

government could begin electronic surveillance in domestic security investigations, but it left

open the question of how domestic investigations should be handled when the conspirators were

engaged in activities related to foreign security. In Bertramn Zweibon,, et al. v. John N. M~itchell,

decided June 23, 1975, the United States District Court of Columbia held that the President did

have the power to authorize warrantless surveillance in domestic matters relating to the foreign

aspects of national security.

In Zweibon, the New York headquarters of a political organization, demonstrating against

the Attorney General's Soviet policy, was the target of electronic surveillance by the Federal










Bureau of Investigations.540 The plaintiffs were 16 members of the Jewish Defense League and

the defendants were Attorney General John Mitchell and agents and employees of the FBI. 541

The plaintiffs brought suit under Title 18 U.S. Code j@ 2510-2520 for damages imposed by that

statute resulting from alleged unlawful electronic surveillance overhearings of plaintiffs'

telephone conversations during the month of October, 1970 and from January 5, 1971 through

June 30, 1971.542 The Attorney General believed that at least some of the activities of the Jewish

Defense league were "obviously detrimental to the continued peaceful relations between the

United States and the Soviet Union and threatened the President's ability and constitutional

authority to conduct the foreign relations of this country."543

The district court judge in Zweibon held that the organizations activities threatened

peaceful relations with the Soviet Union and endangered the lives of Americans in Moscow.

Furthermore, court authorization for the electronic surveillance was unnecessary because of the

foreign nature of the target' s activities. The President was found to have constitutional power to

authorize the surveillance.544 The court found that the FBI' s surveillance was a "proper exercise

of the President's constitutional authority to conduct the nation's foreign relations and his power

to protect the national security," and beyond the reach of the Omnibus Crime Control and Safe

Streets Act.545


50 Zweibon v. Mitchell, 363 F. Supp. 936 (D.D.C. 1975).

51 Id.

52 Id.

5 Id. at 937-43.

5 18 U.S.C.A. ##2510-2520, 2511(3).

54 The pertinent part of Section 2511(3) provides:

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47
U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems
necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to










The district court made clear that Congress had intended to remain neutral on the

President' s national security powers, as outlined by the decision in the Keith case, which found

Title III did not apply to national security surveillance by the executive. 546 However, the Jewish

Defense League "posed a threat to the continuance of our peaceful foreign relations with the

Soviet Union and subj ected American citizens living in Moscow to harm by retaliation."547 The

Court said this threat to foreign relations brought the surveillance under the authority of the

executive, not the judiciary.54 The Court found that no prior judicial authorization is necessary

when electronic surveillance is conducted in relation to "foreign aspects" of national security.549

Three years later, Congress would pass the Foreign Intelligence Surveillance Act of 1978

to provide a statutory framework for obtaining surveillance warrants in foreign intelligence

investigations.
















obtain foreign intelligence information deemed essential to the security of the United States, or to protect
national security information against foreign intelligence activities. The contents of any wire or oral
communication intercepted by authority of the President in the exercise of the foregoing powers may be
received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable,
and shall not be otherwise used or disclosed except as is necessary to implement that power. Zweibon, 363
F. Supp. at 942 (citing Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ## 2510-
2520).

546 Id. at 942-43.

5 Id. at 943.

54s Id

549 Id










CHAPTER 4
CONTEMPORARY ISSUES

This chapter will explore the contemporary legislative, executive and judicial actions

involving the Terrorist Surveillance Program. First, government and industry reports of

technological advancements in the telecommunications industry will be examined to the extent

they influence electronic surveillance. Then, the Terrorist Surveillance Program, a warrantless

domestic surveillance program authorized by the Bush Administration, will be introduced and

explained. Finally, court cases filed in response to the Terrorist Surveillance Program will be

introduced and explained, providing their current status in the judicial system.

Technological Transition

In 2001, before the September 11Ith attacks, the National Security Agency provided the

incoming Bush Administration with the "Transition 2001" report. The report, which was

originally classified because it contained communications intelligence information, was prepared

to provide the new president with background information on the National Security Agency's

mission, structure, focus and budget. 2 The report said analog communications were being

replaced by digital data, prompting the NSA to recommended the government establish a

"permanent presence on a global telecommunications network" to protect domestic

communications and target adversarial communications.3 The NSA, in the Transition 2001



NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE, TRANSITION 2001 (2000) available at
htt \\ \\ lgwu.edu/~nsarchiv/NSAEBB/NSAEBB24/nsa25 .pdf [hereafter TRANSITION 2001]. See also JEFFREY
RICHELSON, ED., THE NATIONAL SECURITY AGENCY DECLASSIFIED (2005)
lit \p u\ sagwu.edu/~nsarchiv/NSAEBB/NSAEBB24/index .hm3

2 TRANSITION 2001, supra note 1.

3 In the past, NSA operated in a mostly analog world of point-to-point communications carried along discrete,
dedicated voice channels. These communications were rarely encrypted, and those that were used mostly
indigenous encryption that do not change frequently. Before the arrival of fiber optic technology, most of these
communications were in the air and could be accessed using conventional means: the volume was growing but at a
rate that could be processed and exploited. Id. at 31.










report, said that "tailored access" would be necessary to facilitate this cooperation with partners.4

The report said the NSA was prepared to "exploit in an unprecedented way the explosion in

global communications."'

In the Transition 2001 report, the NSA "demands a policy recognition that [it] will be a

legal but also a powerful and permanent presence on a global telecommunications infrastructure

where protected American communications are targeted adversary communications will

coexist."6 The NSA, in the report, said that the "volume, velocity, and variety of information"

currently on global networks "demands a fresh approach to the way NSA has traditionally done

business."

The report suggested that the Information Age "may" require a "restatement and

endorsement" of the NSA' s Industrial Age policies. It is not clear what this statement means--

as there is no elaboration on the point--but the report immediately emphasized that global

networks of the 21s~t century have made gaining access to communications more difficult.9 The

NSA, in the report, added that the Information Age might also cause the agency to "rethink and

reapply the [Fourth Amendment] procedures, policies and authorities born in an earlier electronic

surveillance environment."'o The report reiterated the NSA' s commitment to the Fourth

Amendment, but says that "senior leadership must understand that today's and tomorrow' s

mission will demand a powerful, permanent presence on a global telecommunications network

I1d. at 3.

SId. at 31.

6 d.

SId. at 32.

I1d.

9 d.

1 Id.










that will host the "protected" communications of Americans as well as the targeted

communications of adversaries."" Given that the document was classified, the Bush

administration made no official statement regarding the report. However, in a speech on March

26, 2004, President George W. Bush recognized two Information Age factors driving the

explosive growth in the telecommunications market: technology and competition. 12 He also set a

"national goal for... the spread of broadband technology" by 2007. 13

Two events have significantly shaped the telecommunications industry and reflect

technological changes and competitive forces, identified by President Bush: 1) the 1984 breakup

of the American Bell Telephone monopoly and 2) The Telecommunications Act of 1996. The

American Telephone and Telegraph Company (AT&T) incorporated in 1885 as part of the parent

company American Bell Telephone Company. 14 In 1899, AT&T acquired American Bell's

assets and became known as the Bell Telephone System.ls AT&T is primarily concerned with

networking, the interconnection of cables and fibers, which carry phone and other

communication transmissions. 16 The network is primarily comprised of three components: 1)

"transmission," which involves the routes over which the messages travel, 2) "switching," which


"l d.

12 Statement on White House Policy for Broadband Technology, Promoting Innovation and Economic Security
Through broadband Technology (Mar. 26, 2004)
http:.//www.whitehouse. gov/infocus/technolo gy/economic olicy20040/hp.html.

1 3Id.

14 AT&T Milestones in History, http://att.de/history/milestones.html (last visited June 22, 2008). The original
corporate charter said the company's mission was to "connect one or more points in each and every city, town or
place in the State of New York with one or more point in every other city, town or place in said State and in each
and every other of the United States, Canada and Mexico; and each and every of said cities, towns and places is to
be connected with each and every other city, town or place in said states and countries, and also by cable and other
appropriate means with the rest of the known world." JONATHAN E. NEUCHTERLEIN & PHILIP J. WEISER, DIGITAL
CROSSROADS (2005).

1s AT&T Milestones in History, http://att.de/history/milestones.html (last visited June 22, 2008).

1 6Id.










involves the systems for routing messages, and 3) management," which involves the

"intelligence" that makes the system function. 1

The Bell System officially ceased to exist on January 1, 1984, after a 1982 agreement was

reached between AT&T and the U. S. Justice Department. Is The agreement, in response to a 1974

anti-trust suit, resulted in AT& T agreeing to "divest itself of local telephone operations."19 The

Bell system was split into seven Regional Bell Operating Companies and AT&T retained "long

distance telephone, manufacturing, and research and development operations."20 The split of the

Bell system was intended to promote competition and encourage development of the

telecommunications system.

A little more than a decade after the breakup of AT&T, Congress passed The

Telecommunications Act of 1996 to address technological convergence, open

telecommunications markets and foster competition.21 The changes brought about by converging

landline, wireless and broadband technologies were possible in large part thanks to expanding

technology. As National Security Agency Director Michael Hayden highlighted, in his 2002

statement to the Senate Select Committee on Intelligence and the House Permanent Select

Committee on Intelligence, the convergence of these technologies has resulted in a situation

where the government is increasingly reliant upon the telecommunications industry to carry our




17Id~

's Id. See also NEUCHTERLEIN & WEISER, supra note 14. United States v. AT&T, 552 F. Supp. 131, 141 n.41
(D.D.C. 1982) (opinion on modification of final judgment (MFJ)); See also DECISION TO DIVEST, MAJOR
DOCUMENTS IN U. S. v. AT&T, 1974-1984 Vols. I, II, & III, at I-19 to I-21, Doc. 19 (modification of final judgment)
(Christopher H. Sterling, et al. eds., 1986).
19 AT&T Milestones in History, http://att.de/history/milestones.html (last visited June 22, 2008).

20 Id

21 Thomas G. Krattenmaker, The TelecommunicationsAct of 1996, 49 FED. COMM. L.J. 1 (1996).










electronic surveillance.22 Hayden said that commercial broadband carries the bulk of

communications in the United States.23 These telecommunication carriers also contract with the

government for outsourcing. An example of this is the "Groundbreaker" program, which

outsources information technology necessary to serve the mission of the NSA. 24 Groundbreaker

is an effort to modernize the NSA' s electronics infrastructure through a contract with the private

Computer Sciences Corporation, a company that leases electronic equipment to the NSA for use

in surveillance."

In his 2002 statement to the Intelligence committees, Hayden said he had met with

"prominent corporate executive officers" to discuss the NSA' s data management needs.26

Hayden briefly discussed the "Trailblazer program" and how the government had awarded the

contract to a private firm.27 Trailblazer improves signals intelligence (SIGINT) gathering by

replacing outdated Cold War technology with information technology that can handle the

"surveillance [and analysis] of cell phones, e-mail, fiber-optic telephones and other modern

communication technologies."28 Hayden also mentioned an unnamed program that enlisted a

"corporate giant to jointly develop a system to mine data that helps us learn about our



22 Statement for the Record, Hearing Before the Joint Inquiry of the Senate Select Committee on Intelligence and the
House Permanent Select Committee on Intelligence (Oct. 17, 2002) (statement of Lieutenant General Michael V.
Hayden, Director, National Security Agency), available at http://www.nsa.gov/releases/relea00064.pd [hereafter
"Hayden Statement"].

23 See NEUCHTERLEIN & WEISER, supra note 14. TRANSITION 2001, supra note 1.

24 Id

25 Hayden Statement, supra note 22.

2 6Id

27 Alice Lipowicz, Trailblazer loses its way, 20 WASH. TECH. No. 18 (Sept. 12, 2005), available at
http ://www.washingtontechnology. com/news/20_1 8/federal/26960-1 .html. The $197 million dollar contract was
awarded to Conquest Inc. of Annapolis Junction, Maryland.

28 Id. See also Lipowicz, supra note 27.










[surveillance] targets."29 Hayden said that the NSA spent about a third of its budget "making

things ourselves."30 He said that number would be down to 17% by 2003.31 The relationship

between the government and private corporations was well documented through Hayden's

specification of contracts and programs.

The Terrorist Surveillance Program

President George Bush declared a War on Terror in 2001 after the attacks on the World

Trade Center.32 In a speech to Congress on September 20, 2001, just days after the attacks,

President George W. Bush addressed the growing national fear of terrorism by saying that

terrorist were the "heirs of all the murderous ideologies of the 20th century... sacrificing human

life to serve their radical visions."33

On October 26, 2001, Congress passed the USA PATRIOT Act, modifying the Foreign

Intelligence Surveillance Act, and expanding the government' s wiretapping powers.34 U.S.

citizens could now be targeted in foreign intelligence surveillance, as long as they were not

engaged in First Amendment activities. The PATRIOT Act extended FISA surveillance

procedures to the crime of terrorism. The PATRIOT Act gave federal intelligence agencies

powerful new tools to protect national security, including: sharing information between agencies,

allowing roving wiretaps to track mobile targets using wireless communication technology and




29 Hayden Statement, supra note 22.
30Id.

31 Id.

32Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of
September 11, 2 PUB. PAPERS 1140 (Sept. 20, 2001).

33 Id.

34 The USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).











delaying target notification of surveillance warrants. Since the passage of the PATRIOT Act,

scholars have questioned how the modification affects citizens' constitutional privacy rights.35

In 2002, President Bush issued a secret order authorizing the Terrorist Surveillance

Program as a tool to fight the War on Terror.36 This order sidestepped a long-standing

requirement of FISA that required federal authorities to obtain a warrant when wiretapping a

United States citizen.37 The Terrorist Surveillance Program was a domestic wiretapping program



3See David S. Jonas, The Foreign Intelligence Surveillance 4ct Through The Lens Of The 9 11coiniission Report:
The Wisdom Of The Patriot 4ct 4mendinents 4nd The Decision Of the Foreign intelligence Surveillance Court Of
Review, 27 N.C. CENT. L.J. 95 (2005). See alvo Jennifer M. Hannigan, Playing Patriot Gaines: National Security
C /,//,,~ s;. Civil Liberties, 41 Hous. L. REV. 1371 (li l14).

36(You know, we feel comfortable that this surveillance is consistent with requirements of the 4th Amendment. The
touchstone of the 4th Amendment is reasonableness, and the Supreme Court has long held that there are exceptions
to the warrant requirement in -- when special needs outside the law enforcement arena. And we think that that
standard has been met here. When you're talking about communications involving al Qaeda, when you -- obviously
there are significant privacy interests implicated here, but we think that those privacy interests have been addressed:
when you think about the fact that this is an authorization that's ongoing, it's not a permanent authorization, it has to
be reevaluated from time to time. There are additional safeguards that have been in place -- that have been imposed
out at NSA, and we believe that it is a reasonable application of these authorities. (Gonzales)

The President, of course, is very concerned about the protection of civil liberties, and that's why we've got strict
parameters, strict guidelines in place out at NSA to ensure that the program is operating in a way that is consistent
with the President's directives. And, again, the authorization by the President is only to engage in surveillance of
communications where one party is outside the United States, and where we have a reasonable basis to conclude that
one of the parties of the communication is either a member of al Qaeda or affiliated with al Qaeda. (Gonzales)

Across the board, there is a judgment that we all have to make -- and I made this speech a day or two after 9/11 to
the NSA workforce -- I said, free peoples ahvays have to judge where they want to be on that spectrum between
security and liberty: that there will be great pressures on us after those attacks to move our national banner down in
the direction of security. What I said to the NSA workforce is, our job is to keep Americans free by making
Americans feel safe again. That's been the mission of the National Security Agency since the day after the attack, is
when I talked -- two days after the attack is when I said that to the workforce.

There's ahvays a balancing between security and liberty. We understand that this is a more -- I'll use the word
"aggressive" program than would be traditionally available under FISA. It is also less intrusive. It deals only with
international calls. It is generally for far shorter periods of time. And it is not designed to collect reams of
intelligence, but to detect and wamn and prevent about attacks. And, therefore, that's where we've decided to draw
that balance between security and liberty. (Hayden)

Press Release, White House, Press Briefing by Attomney General Alberto Gonzales and General Michael Hayden,
Principal Deputy Director for National Intelligence (Dec. 19, 2005)
http://wwly.whitehouse.gov/news/releases/20512201219-1.html [hereafter "Gonzales & Hayden Press
Briefing"].

37Risen & Lichtblau, supra note 5. See Foreign Intelligence Surveillance Act, U.S. Code Title 50 Chapter 36
Subchapter I--Electronic Surveillance #1801-1811, Pub. L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978), codified as
amended at 50 U.S.C. ## 1801 et seq. Title 18 U.S.C. 2511(2)(a)(ii)(B) says Notwithstanding any other law,










managed by the National Security Agency.38 The purpose of the Terrorist Surveillance

Program--as the name implies--was to detect conspiratory communications between U.S.

citizens and individuals with terrorist connections in other countries. 39 The Bush administration

said the Terrorist Surveillance Program was a means to address emergent national security

concerns and issues related to terrorism.40

After the New York Times article revealed the existence of the Terrorist Surveillance

Program, the Bush Administration immediately tried to assure the public that measures were

taken to ensure both the legality and necessity of the surveillance program. In a radio address on

December 17, 2005, Bush acknowledged the existence of the orders he signed authorizing the

program.4

In the weeks following the terrorist attacks on our nation, I authorized the National
Security Agency, consistent with U.S. law and the Constitution, to intercept the
international communications of people with known links to al Qaeda and related terrorist





providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians,
or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by
law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section
101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents,
landlord, custodian, or other specified person, has been provided with- (A) a court order directing such assistance
signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title
or the Attorney General of the United States that no warrant or court order is required by law, that all statutory
requirements have been met, and that the specified assistance is required, setting forth the period of time during
which the provision of the information, facilities, or technical assistance is authorized and specifying the
information, facilities, or technical assistance required.

For a full discussion of FISA, see supra Chapter 2.

38Risen & Lichtblau, supra note 5. In December of 2005, Congress met to negotiate extending the powers of the
USA PATRIOT Act of 2001, a statute largely concerned with demolishing the historical wall between intelligence
and law enforcement.

39 President's Radio Address, 41 WEEKLY COMP. PRES. Doc. 1880 (Dec. 17, 2005). See also Risen & Lichtblau,
supra note 5.

40 Risen & Lichtblau, supra note 5.

41 President's Radio Address, 41 WEEKLY COMP. PRES. Doc. 1880 (Dec. 17, 2005).










organizations. Before we intercept these communications, the government must have
information that establishes a clear link to these terrorist networks.42

Bush, in his radio address, described the TSP as "a highly classified program that is crucial

to our national security."43 He said the purpose of the TSP was "to detect and prevent terrorist

attacks against the United States, our friends and allies."44

On December 19, 2005, just two days after Bush' s radio address to the American people,

Attorney General Alberto Gonzales appeared at a press conference to assure Americans that the

President was justified in his actions by his "inherent Presidential powers" and the 2001

Congressional Authorization to Use Military Force in the War on Terror.45 The inherent powers

of the President are based on Article II of the Constitution, which requires the President to take

the following oath upon assuming office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the
United States, and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States.46

This oath, specifically to "preserve, protect and defend" the United States Constitution

charges the President with the legal responsibility to protect against foreign attack. Said this

duty legally supported the use of warrantless domestic to stop terrorist attacks.47

The Authorization for Use of Military Force (hereinafter AUMF), a j oint-congressional

resolution, was signed on September 18, 2001, in response to the September 11Ith terrorist attacks




4 2Id.

4 3 Id.

4 4Id.

45 See Gonzales & Hayden Press Briefing, supra note 36.

46 U.S. CONST. art. II, 1.

47 See Gonzales & Hayden Press Briefing, supra note 36.










on "the United States and its citizens."48 In the AUMF, Congress recognized the national right

to "self-defense" in protecting U. S. citizens from "grave acts of violence." The AUMF

recognized the President' s Constitutional authority to "take action to deter and prevent acts of

international terrorism against the United States," as long as there was an "unusual and

extraordinary threat to the national security and foreign policy of the United States."

Section 2(a) of the Authorization for Use of Military force says:

The President is authorized to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism against the United
States by such nations, organizations or persons.49

Attorney General Gonzales, in the press conference, said:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act ... requires a
court order before engaging in this kind of surveillance that I've just discussed and the
President announced on Saturday ... unless otherwise authorized by statute or by Congress.
That's what the law requires. Our position is, is that the authorization to use force, which
was passed by the Congress in the days following September 11Ith, constitutes that other
authorization, that other statute by Congress, to engage in this kind of signals
intelligence. 5

Gonzales highlighted the "special needs" created by terrorism in regards to warrant

requirements, upholding the constitutionality of the Terrorist Surveillance Program. 5

You know, we feel comfortable that this surveillance is consistent with requirements of the
4th Amendment. The touchstone of the 4th Amendment is reasonableness, and the
Supreme Court has long held that there are exceptions to the warrant requirement in --
when special needs outside the law enforcement arena. And we think that that standard has
been met here.




48Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001).

49 Id. at 2(a).

"0 See Gonzales & Hayden Press Briefing, supra note 36.
51Id.










Gonzales added that although there was a "significant privacy interest" in protecting

communications, but the temporary nature of warrantless surveillance authorization under the

TSP provided adequate safeguards.52 Gonzales said President Bush was "very concerned about

the protection of civil liberties" and that is why the TSP only authorized warrantless surveillance

when "one party is outside the United States" or there was a "reasonable basis to conclude that

one of the parties of the communication is either a member of al Qaeda or affiliated with al

Qaeda." 53

In the same press conference, Principal Deputy Director for National Intelligence Michael

Hayden, said that "there's always a balancing between security and liberty," but the

administration had upheld the balance by limiting the reach of the Terrorist Surveillance

Program. Hayden said

We understand that this is a more...aggressive program than would be traditionally
available under FISA. It is also less intrusive. It deals only with international calls. It is
generally for far shorter periods of time. And it is not designed to collect reams of
intelligence, but to detect and warn and prevent about attacks.54

On February 6, 2006, Attorney General Gonzales defended the constitutionality of the

Terrorist Surveillance program to the Senate Judiciary Committee, describing the program as an

early warning system for the twenty-first century." Gonzales described al Qaeda as an

unconventional enemy with sophisticated communications, requiring the U.S. government to rely





I2d.

53Id.

I4d.

55Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States, United States Senate
Committee on the Judiciary, Feb. 6, 2006, available at
http://judiciary.senate.gov/testimony.cfm id= 1727&wit~id= 3936.










on its technological strengths to prevail in the War on Terrorism.56 He also stated that the

current program has a stronger focus than past presidential surveillance initiatives and is

necessary to protect cherished civil liberties."

Little is known about the Terrorist Surveillance Program, as the order authorizing it is

"secret" and the government has withheld details of the program under "state privilege." 58What

is known about the program comes from media reports relying on interviews with anonymous

sources within the intelligence community. Two anonymous U.S. intelligence officials outlined

the Terrorist Surveillance Program in a February 2006 USA Todaly story, revealing how decisions

to monitor calls are made.59 The intelligence officials said a forty-eight-point checklist was used

to determine if the target has links to al-Qaeda or there is some other "reasonable basis" for

suspecting terrorist activities.60 In his December 19, 2005 press conference, Attorney General

Gonzales said that the Terrorist Surveillance Program only authorized surveillance in cases

where there was a "reasonable basis" to believe that one of the targets was either outside of the




5 Id

57 Id. Jason A. Gonzalez, Constitutional aspects of Foreign affairs: How the War on Terrorism Has ( As 4;,~... the
Intelligence G,th.., s; Paradigm, 51 NAVAL L. REV. 289 (2005). Jason Gonzalez (no relation to the Attorney
General Gonzales) provides a congressional, executive and judicial history of FISA in his article, and examines the
law's background through the scope of a changing intelligence paradigm. He says that the pendulum shifts during
wartime and Congress should not unduly restrain the President's power to conduct defensive wars. Gonzalez leans
on historical examples, such as President Roosevelt's 1940 memorandum approving electronic domestic
surveillance to prevent subversive activities against the government. He also cites the use of warrantless surveillance
in the early 1950s national security context as a means to expose subversive communist activities. The author,
Gonzalez concludes by saying the President has a "broad power to redirect his national security forces imvard."

58 See supra text accompanying note 205 for the definition of state secret privilege.

59 Leslie Cauley & John Diamond, Telecoms let NS4 spy on calls, USA TODAY, Feb. 6, 2006, available at
hop u\ \\ usatoday.com/news/washington/2006-02-05-stecosxhmPENWSA To date, no further
details on this list have been released by the government.

"0 Gonzales & Hayden Press Briefing, supra note 36. Although the 48-point checklist is referenced in this and other
articles, the actual list has not been released or explained by the Bush Administration or the intelligence community.
To date, no further details on this list have been released by the government.










United States or a member of a terrorist organization. 61 If the anonymous intelligence officials

are credible, the 48-point checklist provides a basis for evaluating the Terrorist Surveillance

Program in the context of FISA requirements.

The officials, interviewed in the article said the first step in the checklist is to determined if

the target is based in the United States or is communicating with someone in the United States

and U.S. or allied intelligence or law enforcement indicates the target is engaged in terrorism or

terrorism related activities.62 This would include the PATRIOT Act' s modified definition of

domestic terrorism, which includes attempting to coerce or intimidate U.S. citizens.63

The 48-point checklist has not been released, so it is difficult to determine what constitutes

a "rasonble asi" for suspicion of terrorist activities; however, the second step in the

checklist, gives "one of three" NSA officials power to authorize a wiretap.64 It is not clear from

the intelligence officials accounts whether this authorization for wiretap would be finalized with

an official warrant from a Foreign Intelligence Surveillance Court judge.

The next step requires that "technicians" work with telecommunications company

executives to intercept the communications. Whether that technician will be a government or

corporate employee was not explained by the anonymous intelligence sources.

Finally, the intelligence officials said the NSA notified the appropriate law enforcement

agency when terrorism is suspected, but does not necessarily disclose the source of its

6 1 Id.

62Id.

63 Section 802 of the PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272, amends the U.S. Code, 18 U.S.C. 2331,
defining "domestic terrorism" as activities that (A) involve acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State: (B) appear to be intended--(i) to intimidate or coerce a civilian
population: (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a
government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial
jurisdiction of the United States.

64 Gonzales & Hayden Press Briefing, supra note 36.










information.65 This step capitalizes on the PATRIOT Act' s amendment to FISA that foreign

intelligence be only a "significant purpose" in intelligence gathering under the statute. In this

process, information that is of a criminal nature may be shared with law enforcement, but the

primary purpose of the surveillance is still foreign intelligence in the War on Terror.

The anonymous intelligence officials said that the "identity of the party is suppressed" and

the "content of the communication is destroyed" if the intelligence does not ultimately reveal a

terrorist connection.66 This step would make it difficult for any court to determine the legality of

the surveillance methods used to monitor suspected terrorists. When evidence of unsubstantiated

surveillance is destroyed, there is no evidence to use in monitoring the constitutionality of the

NSA' s actions.

Attorney General Alberto Gonzales sent a letter to the Senate Judiciary Committee on

January 17, 2007, informing Congress that a judge for the Foreign Intelligence Surveillance

Court authorized the Government to collect international communications when one party to the

correspondence was believed to be associated with a terrorist organization.67 This order brought

the activities of the TSP under the judicial oversight of the FISA Court.68 Gonzales, in the letter,

said that he believed the Terrorist Surveillance Program always complied with the law. It is

unclear whether the FISA court had provided individual warrants or whether it had issued






6 5 Id.

6 6 d.

67 Letter from Alberto Gonzales, U.S. Attorney General, to Patrick Leahy, Chairman of the Senate Committee on the
Judiciary and Arlen Specter, Ranking Minority Member on the Senate Committee of the Judiciary (Jan. 17, 2006),
available at http://graphics8.nytimes.com/packages/pdfpltc/06 1 17gonzalesLetter.pdf [hereafter Gonzales
letter"].

6 8 Id.









blanket approval for NSA surveillance activities.69 Gonzales said the administration would not

reauthorize the program when it expired.'0

Contemporary Cases

Until recently, the First Amendment implications of advances in the technological,

regulatory and statutory terms of surveillance have not received significant legal attention in the

courts. However, dozens of lawsuits, in response to Bush' s public disclosure of the Terrorist

Surveillance Program, are currently pending in the courts. Three cases have been selected for

review based on their status as the few post-September 11Ith suits--involving plaintiff who sued

the government for violating their First Amendment rights--which have received significant

judicial advancement and media attention.

In Hepting v. A T& T (hereinafter Hepting), the plaintiffs' claim telecommunication

companies partnered with the government in its surveillance programs, violating free expression

and privacy. In Center for Constitutional Rights v. President George W. Bush (hereinafter CCR),

the defendants claim the Terrorist Surveillance Program violated their rights to free expression

under the First Amendment, and their rights to privacy under the Fourth Amendment. A multi-

jurisdiction review board has recently consolidated the CCR and Hepting cases. Currently, the

Hepting and CCR cases are pending in the Ninth Circuit.

In American Civil Liberties Union v. National Security Agency (hereinafter ACLU), the

Terrorist Surveillance Program was found to be a violation of citizens' First Amendment rights

to free speech, in that it chilled their phone communications--an important tool for political

discussion. In the decision, the only one so far in the crop of cases filed in response to the


69 Id. Slobhan Gorman, Bush cedes authority on spy program, CHI. TRIB, Jan. 18, 2007, available at 2007 WLNR
985775.

7o Gonzales letter, supra note 67.










Terrorist Surveillance Program, United States District Court for the Eastern District of Michigan

Judge Anna Diggs Taylor acknowledged the First amendment implications, but she did not

extensively address the issue. Instead, she based her decision on the legality of the Terrorist

Surveillance Program against the Fourth Amendment' s protection of individual privacy. The

Sixth Circuit Court of Appeals struck down the ACLU decision. The plaintiffs appealed the case

to the U.S. Supreme Court, who declined the case.

Hepting v. AT&T

In response to the Terrorist Surveillance Program, Tash Hepting, Gregory Hicks, Carolyn

Jewel and Erik Knuzen filed a class action lawsuit in January of 2006 alleging that the AT& T

Corporation acts as an agent of the government in intercepting private phone communications

without a warrant." The Hepting case raised a new issue in electronic surveillance that had not

yet been addressed by the judiciary--the partnership between telecommunication companies and

the government: Are the telecommunications companies acting "under the color of law" when

they cooperate with the government' s warrantless electronic surveillance?72 The Eighth Circuit

of the U. S. Court of Appeals defines "under color of law" in its jury instruction manual as acts

done "when a person acts or purports to act in the performance of official duties under any state,

county or municipal law, ordinance or regulation."

The Hepting case specifically targets the actions of AT& T, a telecommunications carrier

that facilitates millions of daily telephone, Intemet and electronic message communications,

many of which are stored in company databases.73 AT& T, the largest telecommunications


71 Hepting v. AT&T Corp., Nos. C-06-0672-JCS & 3:06-cy-00672-VRW (N.D. Cal. 2006).

72 8th Cir. Civil Jury Instr. 4.40 (2001). For an example of application of "under color of law," see Adickes v. Kress
&~ Co., 398 U.S. 152 (holding that a law enforcement "conspiracy" to deprive a citizen of Fourteenth Amendment
due process rights provides the basis for state action).

73 Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. 2006).










provider in the United States, handles hundreds of millions of voice calls daily. 74 AT& T

provides long distance services to about 24.6 million residential customers." Additionally,

AT& T provides bundled phone and Internet service to about 73 million households in 46

states. 76As discussed previously in this chapter, technological advancements and congressional

legislation promoting competition fueled AT&T's growth in the telecommunications industry.

The Electronic Frontier Foundation (hereinafter EFF), on behalf of the plaintiffs, claim that

AT& T is involved in a government surveillance program that restricts the First Amendment right

to express oneself without fear of government retribution." The EFF said that AT& T, in an

"illegal collaboration," opened its facilities and databases to "direct" access and data mining by

government agencies, including the NSA. 78 The Electronic Frontier Foundations said that

AT&T used "trap and trace"79 and pen registers devices to capture dialing, routing, addressing


74Complaint for damages, declaratory and injunctive relief, Hepting v. AT&T Corp., No. C-06-0672-JCS (N.D. Cal.
filed Jan. 31, 2006), available at httpl un \\ \ eff~org/files/filenode/att/att-complaintpf The plaintiffs say AT&T
handles about 300 million calls in an average business day. Id. at para. 23. These numbers are based on the date of
the plaintiff's filing in the case, January 2006.

75 Id. at para. 24.

76 Id. In March of 2006, AT&T registered a statement with the Securities Exchange Commission to hold special
stockholder meetings to approve the acquisition of the BellSouth Corporation. See AT&T Corp., Customer Facing
Talking Points for CSP AT&T / BellSouth Merger (SEC Form 425) (Mar. 13, 2006), available at
http://edgar.brand. edgar-
online.com/EFX~dll/EDGARpro.dll?FetchFilingTM1?SessionlD=60KCfmmKL9VU9Mc&ID=42708 15. If the
sale is approved, AT&T would control 22% of the market (consumer dollars spent) after the merger, and 37% of
consumer dollars spent on wired phone service. Press Release, TNS Telecoms, AT&T/Bellsouth Will Control 22%
Consumer Telecom Spending, 34% Business Spending (Mlar. 13, 2006), available at
hop w l \\t\ .tnstelecoms.com/press-3-13-06.html.

77Complaint for damages, declaratory and injunctive relief at Count I, Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Jan. 31, 2006), available at httpl un \\ \ eff~org/files/filenode/att/att-complaintpf .

78Id. at paras. 2-8. "Daytona" is a database management technology developed by AT&T laboratories to manage
multiple databases including "Hawkeye," a call detail record for virtually all telephone communications on the
domestic network since 2001. A call detail record includes "originating and terminating" telephone numbers, call
time and call length. The plaintiffs' claim states that as of September 2005, the uncompressed data totaled 312
terabytes. "Daytona" also manages "Aurora," a database that has stored Internet traffic data since 2003. Id. at
paras. 47-63.

79 According to 18 U.S.C. # 3127(4), a trap and trace device records originating phone numbers for incoming calls to
a specific phone line.










and/or signaling information that was then made available to the government through remote or

local access.8 The EFF also cited a Federal Communications Commission Eiling from the AT& T

merger with the Southwester Bell Corporation to establish a relationship between AT& T and the

government. The filing said that AT& T is a significant provider of telecommunications and

information technology to the federal government, including "network services, systems

integration and engineering, and software development services to a broad range of government

agencies, including those involved in national defense, intelligence, and homeland security." The

FCC Eiling listed AT&T's federal customers for telecommunications services, including: the

White House, the State Department, the Department of Homeland Security, the Department of

Defense, the Department of Justice, and most branches of the armed forces. In the FCC Eiling

AT& T said it was involved in classified contracts that required it to employ people with

government security clearance. AT&T, in the FCC Eiling, said the company supported the

national security infrastructure through its participation in all of the "key fora" for supporting

U.S. Government "national security objectives."82

The Hepting plaintiffs' make six counts against AT& T. Only Hyve counts will be examined

for the purpose of this research since the sixth count falls beyond the federal scope of this

paper.8s3 Each count will be outlined and examined individually. The plaintiffs are seeking an


so According to 18 U.S.C. 3127(3), a pen register records all numbers dialed out from a specific phone line.

st Amended complaint for damages, declaratory and injunctive relief, Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Feb. 22, 2006), available at httpl \\ \\ \\ eff~org/files/filenode/att/att~complaintaeddpf
Complaint for damages, declaratory and injunctive relief, Hepting v. AT&T Corp., No. C-06-0672-JCS (N.D. Cal.
filed Jan. 31, 2006), available at httpl \ ti \ ll eff org/file s/filenode/att/att-complaint.pdf.

82 Amended complaint for damages, declaratory and injunctive relief, Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Feb. 22, 2006) available at http://wwweeff org/files/filenode/att/att~complaint~amenddpf

83 Id. In count six, the plaintiffs claim AT&T engages in unlawful and deceptive business practices in violation of
California Constitution Article I I Business and Professional Code #17200 et. Seq. In addition to the complaints
regarding deceptive and unlawful business practices, the plaintiffs claim that AT&T installed pen registers and trap
and trace devices without obtaining a court order.










injunction against the defendant' s participation in the program, as well as statutory and punitive

damages.84

Count one

The plaintiffs said AT& T acts as an agent of the government in violating the First and

Fourth Amendment rights of the plaintiffs represented by the Electronic Frontier Foundation.

The plaintiffs, including Tash Hepting, Gregory Hicks, Carolyn Jewel and Erik Knuzen, said the

Fourth Amendment guarantees them a "reasonable expectation of privacy in their

communications stored by AT& T."s This reasonable expectation of privacy encompasses the

right to speak or receive speech anonymously and to associate privately.86 The plaintiffs in the

Hepting case said that their private communications were intercepted, disclosed and divulged at

the direction of the government. The plaintiffs said that AT& T continues to act as an agent of the

government "with deliberate indifference" or "reckless disregard" for plaintiff s First, Fourth and

Fourteenth amendment rights through its disclosure of customer information.

The plaintiffs complained AT& T acts in the interest of government investigators and not in

the interest of protecting "its own property or rights," including customer communications and

company networks. The plaintiff s claim did not emphasize the application of the constitutional

amendments, as much as it looks at the industry-government relationship in light of AT&T' s

privacy po icy.8




84 Amended complaint for damages, declaratory and injunctive relief, Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Feb. 22, 2006), available at hopll \\ \\ \\ eff~org/files/filenode/att/att~complaintaeddpf

85Id. at paras. 78-80.
8 6 d.

87AT&T has a privacy policy, which sets clear guidelines under which it will protect or release private customer
information.










Title 18 of the U. S. Code provides legal immunity for a telecommunications company that

provides government database access, as long as the government produces documentation of

security concerns as justification for the surveillance.8 AT&T's Privacy Policy says it will not

disclose customer information without customer consent or a "subpoena, search warrant, or other

legal process." The privacy policy also allows for disclosure in the "case of imminent physical

harm to the customer or others."89 The documentation for the subpoena or search warrant does

not have to be a traditional court order; but it must be a written formal request from the Attomney

General, whether or not there is a court order. 90 If AT& T can prove there was a formal request,

then it will negate the issue of whether providing the NSA access to databases runs counter to the

constitution' s protection of negative liberty. If the Attorney General issued a formal request for

cooperation, AT&T is not liable as an agent of the government. AT&T would be working within

the framework of the law and not therefore, in collusion with the government under color of law.

Count two:

The plaintiffs also alleged that AT&T acquires communications through electronic

surveillance without consent of at least one party engaged in the communication, as required by

AT&T' s privacy policy. The plaintiffs said AT&T acts as an agent of the government by

engaging in this electronic surveillance "under color of law." Electronic surveillance under

color of law, and not authorized by statute, is criminalized by 50 U.S.C. @ 1809.91 Electronic

surveillance is defined as the electronic, mechanical or other interception of communications


88Title 18 Part I Chapter 119 #2511(2)(a)(ii)(A)(B).

89 AT&T Privacy Policy, b1lip w\ int\\att.com/privacy/ (last visited June 22, 2008).

91) 18 U.S.C.#2511.

91 50 U.S.C. # 1809(a)(1)(2). See Amended complaint for damages, declaratory and injunctive relief at para. 94,
Hepting v. AT&T Corp., No. C-06-0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
ht p wil t eff. org/file s/filenode/att/att~complaint~amended.pdf.










sent or received by a person who is in the United States.92 The interception, whether or not

intentional, requires the consent of at least one of the parties involved or a warrant for law

enforcement purposes.93 The plaintiffs said that AT& T engaged in electronic surveillance and

intentionally disclosed the acquired information without statutory authorization. Plaintiffs said

they were never given a chance to consent to the surveillance; nor was the surveillance disclosed

to them after the fact.94 Plaintiffs also alleged that there is a strong likelihood the surveillance is

ongoing.95 If AT& T engaged in electronic surveillance without consent of at least one party, and

with statutory authorization, then it could be seen as an agent of the government in violation of

U.S. laws.

The Bush Administration defended the Terrorist Surveillance Program by saying the

Authorization for the Use of Military Force adopted by Congress shortly after the September 11Ith

attacks permitted the executive branch to order warrantless surveillance.96 If an official

document exists ordering AT& T to participate in the Terrorist Surveillance Program, then the

surveillance could be seen as legal since AT&T's privacy policy allows disclosure of customer

information when authorized by official government order. Disclosure is also legal under 50

92 50 U.S.C. #l801(f)(1)(2)(3)(4).

93 Id. See Amended complaint for damages, declaratory and injunctive relief at para. 93, Hepting v. AT&T Corp.,
No. C-06-0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
htt w\ il iteff.org/files/filenode/att/att~complaint~aeddpf According to the FBI, under "color of any law"
includes "acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority,
but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts
of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting
or pretending to act in the performance of his/her official duties. This definition includes, in addition to law
enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security
Guards, etc., persons who are bound by laws, statutes ordinances, or customs." See
htl1 tp u\ \\ .fbi.gov/hq/cId./civilrights/statutes.htm nho2114.

94 Amended complaint for damages, declaratory and injunctive relief at para. 64, Hepting v. AT&T Corp., No. C-06-
0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
ht t w l \\t .eff org/file s/filenode/att/att~complaint~amended.pdf.
95 Id.

96 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001).










U.S. 1809(b) when the government produces a court order or warrant authorizing the

surveillance.97 AT& T' S privacy policy also allows disclosure of customer information when

authorized by a court order, even when neither of the parties engaged in the communication are

notified.

The policy says

AT& T will not sell, trade, or disclose to third parties any customer identifiable information
derived from use of an AT& T online service without customer consent or official court
order.98

Additionally, the AT&T privacy agreement says AT&T may also use customer identifiable

information to investigate and help prevent potentially unlawful activity or activity that threatens

the network or otherwise violates the customer agreement for that service."99 The customer

agrees to the terms of the privacy policy through notification and continued use of services. 100

Count three

The plaintiffs allege the plaintiff intercepts customer communications in violation of 18

U. S.C.g25 11, the section of the U. S. code that governs crimes and criminal procedures in

relation to the interception and disclosure of wire, oral or electronic communications. This is

different from count one, which makes a claim against the constitutionality of the surveillance.

It is also different from count two, which makes a claim against the legality of AT&T' s

involvement under the chapter of the U. S. code which governs War and National Defense.

"Interception", an "attempt to intercept" or "arrangement to intercept" any wire, oral or




97 50 U.S.C 1809(b).

98 AT&T Privacy Policy, hopll w\ \\ t\att.com/privacy/ (last visited June 22, 2008).

99Id.

10 Id.










electronic communication is prohibited by 18 U.S.C.g2511.101 Disclosure or transmission of

contents obtained or generated through surveillance is also prohibited. 102 The plaintiffs says that

AT& T "intentionally intercepted, endeavored to intercept, or procured another person to

intercept or endeavor to intercept" electronic communicationS. 103 They claim the information

was intentionally disclosed to government intelligence agentS. 104

This count can be evaluated in a manner similar to the evaluation of count two. Title 50,

discussed in count two, is the War and National Defense Chapter of the U.S. Code. Title 18, in

contrast, deals specifically with wiretapping from a criminal perspective. Title 18 deals

specifically with the relationship between the government and a telecommunications provider

collaborating for the purpose of electronic surveillance. Employees of telecommunication

providers are forbidden from engaging in "random monitoring" of communication service,

except in the case of quality control checks. 1os However, Title 18 "authorizes" employees to

provide information, facilities and technical assistance to intelligence officials that provide a

court order or written certification by the Attorney General.106

When a statute, court order or written authorization sanctions provider cooperation, there is

no cause of action against the provider. 107 As in Count Two, if AT& T can establish they were

acting under an official government order, they will not be liable under Title 18. AT& T would

10' 18 U.S.C. # 2511(1)(a)(c).
102Id.

103 Amended complaint for damages, declaratory and injunctive relief at para. 102, Hepting v. AT&T Corp., No. C-
06-0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
b~lill u ll .eff org/file s/filenode/att/att~complaint~amended.pdf.
'0 Id. at para. 103/

105 18 U.S.C.(2)(a)(i).

106 18 U.S.C 2511(2)(a)(ii)(A).
107 Id.










also be exempt from prosecution under this count if the Authorization for Use of Military Force

were seen as a statutory basis for the Terrorist Surveillance Program. The provider and its

representatives are also prohibited from disclosing the "existence of any interception or

surveillance or the device used to accomplish the interception or surveillance" when a court

order is executed. 10s When the company is acting to comply with this section, it cannot be the

subj ect of court action.

Count four

The plaintiffs claimed AT&T divulges or publishes the "existence, contents, substance,

purport, effect or meaning "of the plaintiffs' communications in violation of 47 U. S.C@605(a),

the section of the United States code which establishes federal telecommunication regulations.

Title 47 prohibits "divulging or publishing" electronically stored communications unless

authorized by court order or another lawful authority. 109 If a letter from the Attorney General

was issued to AT& T, then that written authorization should satisfy this legal requirement and

nullify this count in the case.

Count five

Plaintiffs allege that AT& T illegally divulged electronic communication records to a

governmental entity in violation of 18 U. S.C.g2702, which prohibits the disclosure of electronic

subscriber records to anyone except as needed for internal customer service.110 This count is

similar to the plaintiffs' claim in count four that the AT& T divulged customer communications;


'0s 18 U.S.C. # 2511(2)(a)((ii)(B). Violators of this section are liable for civil damages under #2520.

109 Amended complaint for damages, declaratory and injunctive relief at paras. 112-113, Hepting v. AT&T Corp.,
No. C-06-0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
hop w\ il iteff.org/files/filenode/att/att~complaint~aeddpf Disclosure can legally take place in certain cases,
such as disclosure to officers of communication centers, masters of ships, attorneys or the addressee of the
intercepted communication.

110 18U.S.C.# 2702.










the key difference between the two counts is that in this count, the plaintiff s make the claim that

AT&T provided the government with subscriber records for a purpose other than internal

customer service. If it can be established that AT& T disclosed customer identifiable

information to the government, the plaintiffs could have grounds under this count. However,

based on the privacy policy that consumers agree to in using the service, discussed in count two,

the disclosure of the records would technically be made with the consent of the customer. The

customer, in using provider services, agrees to the privacy policy which allows for disclosure

authorized by warrant, court order, or cause to believe the customer intends to "harm"

themselves or someone else. AT& T is accused of participating in the "Terrorist Surveillance

Program," but terrorist by nature seek to harm others.

Hepting v. AT&T: First Amendment issues

The complaint filed by the EFF challenges the legality of AT&T' s participation in the

Terrorist Surveillance Program and asks that the action be seen as a violation of the plaintiff s

First Amendment rights under the U. S. Constitution. "1 The complaint states that the plaintiff s

First Amendment rights to speak and receive speech anonymously and associate privately are

violated by the program.112 The EFF suggests that the actions of the defendants AT& T and

telephone companies involved in the TSP represent "a credible threat of immediate future

harm."113 Only one of the individual plaintiffs, Carolyn Jewel, explained the actual harm she

suffered. Gregory Hicks and Erik Knutzen only described their communication activities.




111 Amended complaint for damages, declaratory and injunctive relief at para. 2, Hepting v. AT&T Corp., No. C-06-
0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
hop w i \\t \.eff org/file s/filenode/att/att~complaint~amended.pdf.
"1Id. at para. 85.

113 Id. at para. 88.










* Gregory Hicks, a retired Naval Officer and systems engineer, has been a San Jose,
California subscriber of AT&T Corporation's residential long distance telephone service
since February 1995. He regularly used the service to call Korea, Japan and Spain. 114

* Carolyn Jewel, a database administrator and author, has been a Petaluma, California
subscriber of AT&T Corporation's Worldnet service since June 2000. She used the
service to send and receive e-mail with correspondents in England, Germany and
Indonesia. 11 In her statement for the court, Jewel said that she has been concerned about
the privacy of her communications since learning about the TSP. As an example, she cited
her limited responses to an Indonesian Muslim acquaintance's inquiries into her
understanding of Balinese Islamic practice. She also has avoided discussing U.S. action in
Iraq with him. She says she would have limited her communications even sooner had she
known of the TSP. 116

* Erik Knutzen, a photographer and land use researcher was a Los Angeles, California
subscriber of AT&T Corporation's Worldnet from October 2003 to May 2005. He used
the service to send and receive both domestic and international e-mail.ll

Hepting v. AT&T: state secrets

The Hepting case has raised another issue, beyond the constitutional protections afforded

to private phone communications. The case has yet to be decided and this is due in part to the

sensitive nature of the information that the plaintiffs are seeking to introduce as evidence in

establishing their claims.

Mark Klein worked as a technician for AT&T for over 20 years.ll Klein filed a

declaration with the court that was released in a redacted version on June 8, 2006. He had




"1Id., at para. 14.

Its Id., at para. 15.

116 Declaration of Carolyn Jewel in Support of Motion for Preliminary Injunction (Doc. No. 18) at pp. 2-3, para. 8-
10, Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed Mar. 31, 2006), available at
htl ll w il it \eff org/file s/filenode/att/JewelDecl .pdf

117 Amended complaint for damages, declaratory and injunctive relief at para. 16, Hepting v. AT&T Corp., No. C-
06-0672-JCS (N.D. Cal. filed Feb. 22, 2006), available at
ht p wil t eff. org/file s/filenode/att/att~complaint~amended.pdf.

1's Declaration of Mark Klein in Support of Plaintiff' s Motion for Preliminary Injunction, Hepting v. AT&T Corp.,
No. C-06-0672-VRW (N.D. Cal. filed under seal, Mar. 28, 2006, redacted version released June 8, 2006), available
at htll \p w\ il iteff.org/files/filenode/att/Mark%/20Klei%0neatd2Dc-clig2ExbtsPF










previously issued a public statement on April 6, 2006.119 Klein's public statement contains more

details than the heavily redacted version filed with the court, although they offer the same

version of his employment activities. Klein said that in 2002, while he was working at an AT& T

office in San Francisco, he met an NSA agent who was interviewing a technician for a job. 120

He said that in 2003, he saw a room being built in the AT& T Folsom Street headquarters in San

Francisco. 121 Klein said that the NSA agent that was interviewed was eventually hired to staff

the new room where public calls would be routed. 122

Klein said he learned, in the course of his job duties, that fiber optic cables from the secret

room were tapping into the WorldNet circuits, "splitting off a portion of the light signal."123

Klein also described documents, which listed equipment in the secret room including the Narus

STA 6400, a semantic traffic analyzer that can sift through Internet data looking for

"preprogrammed targets."124 Klein said he knew of other splitters being installed in cities

including Seattle, San Jose, Los Angeles and San Diego. 125 Klein described the NSA monitoring

capabilities as a "vacuum-cleaner surveillance" of all data crossing the Internet. 126



119 Mark Klein, Wiretap Whistle-Blower 's Account, WIRED, Apr. 7, 2006,
I1lllp w\ il \t .wired.com/news/technology/1 ,70621-0.html (last visited June 22, 2008).

120 Id; Declaration of Mark Klein in Support of Plaintiff s Motion for Preliminary Injunction, Hepting v. AT&T
Corp., No. C-06-0672-VRW (N.D. Cal. filed under seal, Mar. 28, 2006, redacted version released June 8, 2006),
available atll! ht t w il \ .eff org/file s/filenode/att/Mark%/20Klein%/20Unredace%0cl
Including%/20Exhibits.PDF. Mark Klein, Wiretap Whistle-Blower 'sAccount, WIRED, Apr. 7, 2006,
Illi w\ il itwired.com/news/technology/1 ,70621-0.html (last visited June 22, 2008).

121 Id.

122Id.

123 Id.

124Id.

125 Id.

126Id.










On April 28, 2006, three weeks after the media released Klein's statement, the U.S.

government filed a statement of interest in the Hepting case. The statement said the government

would provide an assertion of the state secrets privilege, a motion to intervene and a motion to

dismiss the case by May 12, 2006. 127 The government asked the court to suspend discovery until

the motions were filed. 128 The plaintiffs submitted several documents to the court under seal at

the request of the Department of Justice. The DOJ is not a plaintiff in the case, but it said

unsealing the documents might compromise national security. The plaintiffs said the exclusion of

these documents could results in the dismissal of the case. 129

Department of Justice said the parties in the case (both plaintiffs and AT& T executives)

are not sufficiently informed to speak on the sensitivity of the documents sealed in this case. 130

The government said there is judicial precedent for government intervention in cases between

private parties when "sensitive military secrets" are the central focus of litigation. 131 In its

statement of interest, the government also cited the 1998 decision of the U. S. Court of Appeals in

Kasza v. Browner, upholding the use of the state secrets privilege to exclude information from a








127 First Statement of Interest of the United States (Doc. No. 82-1), Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Apr. 28, 2006), available at httpl un \\ \ eff~org/legal/cases/att/USA~statementonterstpfi
For legal precedent of states secret privilege, see pages 62, 111 and 260.

'2s First Statement of Interest of the United States (Doc. No. 82-1), Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Apr. 28, 2006), available at httpl un \\ \ eff~org/legal/cases/att/USA~statementonterstpfi

129 United States v. Reynolds, 345 U.S. 1 (1953) at 11 n.26 (holding that the government can claim the states secret
privilege in cases involving national security if it can show reasonable cause for privilege)
130 First Statement of Interest of the United States (Doc. No. 82-1), Hepting v. AT&T Corp., No. C-06-0672-JCS
(N.D. Cal. filed Apr. 28, 2006), available at httpl un \\ \ eff~org/legal/cases/att/USA~statementonterstpfi

131 F as;.. j.:v. Penthouse Int 'l, Ltd., 776 F.2d 1236, 1239, 1241-42 (4th Cir. 1985) (holding that a case can be
dismissed if a trial would lead to disclosure of state secrets).










case where plaintiffs alleged the Air Force had improperly handled toxic waste in a classified

operating area. 132

On May 13, 2006, John Negroponte, the director of National Intelligence, filed a

declaration invoking the military and state secrets privilege under the National Security Act. 133

Negroponte' s statement says that disclosure of evidence contained in the testimony of Mark

Klein would cause "exceptionally grave damage" to U.S. national security. 134 Negroponte also

said the Terrorist Surveillance Program, as authorized by the President, gave the NSA the legal

authority to collect "certain one-end foreign communications." He did not elaborate on this

description, saying that further details of the program would disclose classified intelligence

information. Keith B. Alexander, the director of the National Security Agency, also filed a

declaration on May 13, supporting Negroponte' s assertion of state secrets privilege. 135



132 Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998). (The court also said that submission of classified material for
in camera, ex parte review is "unexceptional" in cases where the state secrets privilege is invoked: therefore
sensitive information should be separated from nonsensitive information to allow for disclosure of nonsensitive
information).

133 Declaration of John D. Negroponte, Director of National Intelligence (Doc. No. 124-2), Hepting v. AT&T,
Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed May 13, 2006), available at
http1 w\ il it.eff.org/files/filenode/att/DeclofJohnNegrpnepf See Military and State Secrets Privilege, 50 U.S.C.
S403 -1(i)(1). The ODNI website describes the role of the Director of National Intelligence:

The Director of National Intelligence (DNI) serves as the head of the Intelligence Community (IC),
overseeing and directing the implementation of the National Intelligence Program and acting as the
principal advisor to the President, the National Security Council, and the Homeland Security Council for
intelligence matters related to the national security. Working together with the Principal Deputy DNI
(PDDNI) and with the assistance of Mission Managers and four Deputy Directors, the Office of the DNI's
goal is to effectively integrate foreign, military and domestic intelligence in defense of the homeland and of
United States interests abroad.

Office of the Director of National Intelligence, About the ODNI, http://www.dni.gov/who.htm (last visited June 17,
2008).

134 Declaration of John D. Negroponte, Director of National Intelligence (Doc. No. 124-2) at para. 9, Hepting v.
AT&T, Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed May 13, 2006), available at
ht t w il it eff org/file s/filenode/att/DeclofJohnNegroponte .pdf.

135 Declaration of Lieutenant General Keith B. Alexander, Director National Security Agency (Doc. 124-3) at para.
9, Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed May 13, 2006), available at
ht t w l \\t .eff org/file s/filenode/att/DeclKeithAlexander.pdf.










Alexander asked the judge to dismiss the case in the interest of preventing "harms" to U.S.

national security that would occur if it were litigated. 136

Hepting v. AT&T: developments

A maj or obstacle for the plaintiffs in a case of this nature is establishing AT&T's

involvement in the Terrorist Surveillance Program. 137 The December 2005 New York Times

article reported cooperation between telecommunications corporations and the government, but

did not specifically name companies that had participated in the Terrorist Surveillance Program.

A survey of telecommunication providers conducted by CNET, an Internet publisher of

computer and technology news and information, attempted to discover which of the maj or

telecommunications companies might be involved. 138 CNET, in early February of 2006, asked

national telecommunication providers if they had participated in the Terrorist Surveillance

Program. 139 Of the companies polled, fifteen said they had not been part of the program.

Twelve companies chose not to reply, some citing "national security" as the reason. AT& T

spokesman Dave Pacholczyk said, "We don't comment on matters of national security."

According to a February 2006 report by USA Todaly, seven telecommunications executives

anonymously admitted that the government had eavesdropped on international calls by suspected

terrorists without warrants. 140 AT& T, MCI and Sprint publicly denied participation in the




13 Id~

' JAMES RISEN, STATE OF WAR: THE SECRET HISTORY OF THE C.I.A. AND THE BUSH ADMINISTRATION (2006).
like the WWII companies who were party to secret government surveillance, information about company
involvement in the program is almost certainly limited to upper level executives.

13s Our Story, httpl w\ int\\cnetnetworks.com/company/ (last visited June 22, 2008).

139 Declan Declan McCullagh & Anne Broache, Some companies helped the NS4, but which? CNET News.com,
Feb. 6, 2006 (last visited June 14, 2008).

140 Cauley & Diamond, supra note 59.










program, but anonymous executives levied claims of the companies' involvement. 141 Publicly,

companies such as AT& T are offering a no comment to the media, perhaps due to national

security reasons cited by Negroponte in his declaration in the Hepting case. Anonymously,

executives say industry and government are partnered in the surveillance. It is possible that the

executives are forbidden by court order from officially revealing assistance provided to the

government in the Terrorist Surveillance program. 142

Even if AT& T is not bound by a court order preventing discussion of the program, it is

unlikely this case would be successful based on court reactions to past claims naming

corporations as parties to the government' s warrantless surveillance. In the 1982 case of Halkin

v. Helms, the United States Court of Appeals for the District of Columbia Circuit held that courts

must defer to executive expertise when assessing executive privilege in handling information that

poses a reasonable danger to secrets of state." 143 In the Halkin case, Adele Halkin filed a lawsuit

on behalf of herself and twenty-seven other Vietnam War activists and organizations that

claimed the government had intercepted their "international wire, cable and telephone

communications" without a warrant. 144 The plaintiffs demanded the release of the government-

held information about their own communications. The Halkin case is a relevant precedent in

Hepting because--in addition to the NSA, CIA, FBI, Secret Service and Defense Intelligence

Agency--the three communications giants who cooperated with the government's Operation

Shamrock during WWII were also listed in the Halkin case as defendants. 145 Western Union


141 Id.

142 Title 18 2511 (2)(a)(ii)(B).

143 Halkin v. Helms, 598 F.2d 1, 83 (D.C. Cir. 1978).

144Id.

145 Id.










International, RCA Global Communications, and ITT World Communications were named in the

Halkin case, which was filed in response to a situation remarkably similar to what the Hepting

plaintiffs' allegations.

The Halkin case did not directly consider the role of the telecommunication corporations in

the illegal surveillance. Instead, the court found for the defendants based on state secret

privilege, that is, the government could invoke state-secrets privilege if the divulgence of a

discovery material would compromise national security. 146 The court says that the "state secrets

privilege is absolute." 147 The court added that, "The superiority of well-informed advocacy

becomes less justifiable in view of the substantial risk of unauthorized disclosure of

privileged information."148 Without evidence demonstrating that the plaintiffs were actually

the subjects of illegal surveillance, the Hepting case would have no basis.

On May 17, 2006, Judge Vaughn R. Walker of the U. S. District Court for the Northern

District of Califomnia denied AT&T's motion to compel the return of documents attached to the

testimony of Mark Klein. 149 Judge Walker ordered the documents to be kept secure by the EFF,

as they were still sealed under court order. On June 6, 2006 Judge Walker issued an order stating

that the case "cannot proceed" until the court examined the classified documents to decide to

"what extent" the state secrets privilege might apply.iso In the order, Judge Walker ordered the





146Id~

147 Id. at 88&

148 Id

149 Order on secret evidence and argument (Doc. No. 171), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D.
Cal. filed June 6, 2006), available at httpl w\ il \t .eff~org/files/filenode/att/order66.pdf.
150Id.










government to provide the classified documents for in camera review no later than June 9.15

Subsequently, oral arguments were heard on June 23, 2006. 152

On July 20, 2006, the court issued an order denying the government's motion to dismiss

the case. 153 The court said that deferring to a "blanket assertion of secrecy" would abdicate the

judicial responsibility to the United States Constitution. 154 Furthermore, the court said that

dismissing the case would "sacrifice liberty for no apparent enhancement of security."" On July

20, the court denied the government's motion to dismiss the case. 156 The court order stated that

the state secrets privilege had limits. 1 The court said that deferring to a "blanket assertion of

secrecy" would abdicate the judicial responsibility to the United States Constitution. 5



s'5 Id. at p. 7, lines 11-17.

152 Order on motions to dismiss (Doc. No. 308), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed
July 20, 2006), available at http://www.eff.org/files/filenode/att/308_re nmn odsispf

153 Id. On April 28, 2006, the government filed a statement of interest asserting state secrets privilege, followed by a
motion to intervene and dismiss on May 12, 2006. First Statement of Interest of the United States (Doc. No. 82-1),
Hepting v. AT&T Corp., No. C-06-0672-JCS (N.D. Cal. filed Apr. 28, 2006), available at
hop11 w il \ it .eff org/legal/case s/att/U SA~statement of intere st. pdf. On May 17, 2006, Judge Vaughn R. Walker of
the United States District Court for the Northern District of California issued a Civil Minute Order denying AT&T's
motion to compel the return of documents attached to the testimony of Mark Klein, but ordered the EFF to keep the
documents secure. On June 6, 2006, the court ordered the government to provide classified documents for an in
camera review. See Order on secret evidence and argument (Doc. No. 171), Hepting v. AT&T Corp., No. 3:06-cy-
00672-VRW (N.D. Cal. filed June 6, 2006), available atlI! hri \\ \\ l.eff.org/files/filenode/att/order66.pdf. Oral
arguments for the case took place on June 23, 2006. In the order, the court denied AT&T's motion to dismiss.
Order on motions to dismiss (Doc. No. 308), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed
July 20, 2006), available at http://www.eff.org/files/filenode/att/308_re nmn odsispf

154 Order on motions to dismiss (Doc. No. 308), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed
July 20, 2006), available at http://www.eff.org/files/filenode/att/308_re nmn odsispf

'ss Id. On November 7, 2006, the U.S. Court of Appeals for the Ninth Circuit granted AT&T permission for an
appeal. Order granting appeal to the Ninth Circuit, Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal.
filed Nov. 7, 2006), available at ht tp w il it .eff.org/files/filenode/att/appealgrantedpf

156 Order on motions to dismiss (Doc. No. 308), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed
July 20, 2006), available at http://www.eff.org/files/filenode/att/308_re onmnodsispf. In the same
order, the court denied AT&T's motion to dismiss.
I s? Id

lss Id.










Furthermore, the court said that dismissing the case would "sacrifice liberty for no apparent

enhancement of security."15 The court said that based on publicly available information, details

of government monitoring of communication content would not reveal any new information to

terrorists. 160 The court also ruled on the public disclosure of information regarding

"communication content" versus the monitoring of "communication records," stating that the

latter' s existence is unclear. 161 On August 2, the court issued a stay of proceedings pending

appea .1 162

On August 9, 2006, over a dozen cases were consolidated before Judge Walker from suits

against the government and telecommunications companies with plaintiffs alleging illegal

surveillance under the Terrorist Surveillance Program. 163 The Judicial Panel on Multidistrict

Litigation found that seventeen cases involved "common questions of fact," and should therefore

be centralized in the Northern District of California to "serve the convenience of the parties and

witnesses and promote the just and efficient conduct" of the legislation of the cases. All of the

class action suits that were consolidated involved "alleged Government surveillance by



159Id.
1 601)d

161 Id.

162 Order granting motion to stay until Aug. 8 (Doc. No. 330), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW
(N.D. Cal. filed Aug. 2, 2006), available at httpl un \\ \ eff~org/files/filenode/att/stay82.pdf.

163 In re Nat'1 Sec. Agency Telecommunications Records Litigation, 444 F. Supp. 2d 1332 (JPML Aug 9, 2006)
(No. MDL-1791). The consolidated cases include: Conner v. AT&T Corp., No. 1:06-632 (E.D. Cal. 2006); Souder
v. AT&T Corp., No. 3:06-1058 (S.D. Cal. 2006); Schwarz v. AT&T Corp., No. 1:06-2680 (N. D. Cal. 2006); Terkel
v. AT&T Inc., No. 1:06-2837 (N.D. Cal. 2006).; Herron y. Verizon Global Networks, Inc., No. 2:06-2491 (E.D. La.
2006); Fuller v. Verizon Commc'ns, Inc., No 9:06-77 (D. Mont. 2006); Dolberg v. AT&T Corp., No. 9:06-78 (D.
Mont. 2006); Marck v. Verizon Commc'ns, Inc., No. 2:06-2455 (E.D.N.Y. 2006); Mayer v. Verizon Commc'ns,
Inc., No. 1:06-3650 (S.D.N.Y. 2006); Hines v. Verizon Nw., Inc., No. 3:06-694 (D. Or. 2006); Bissit v. Verizon
Commc'ns, Inc., No. 1:06-220 (D.R.I. 2006); Mahoney v. AT&T Commc'ns, Inc., No. 1:06-223 (D.R.I. 2006);
Mahoney v. Verizon Commc'ns, Inc., No. 1:06-224 (D.R.I. 2006); Potter v. BellSouth Corp., No. 3:06-469 (M.D.
Tenn. 2006); Trevino v. AT&T Corp., No. 2:06-209 (S.D. Tex. 2006); Harrington y. AT&T Inc., No. 1:06-374
(W.D. Tex. 2006).










individual telecommunications companies." The consolidation was made for three reasons given

by the court: 1) to eliminate duplicate discovery, prevent inconsistent pretrial rulings and

conserve resources; 2) to place all cases under the jurisdiction of the California court where the

"more advanced" Hepting action was taking place; and 3) to address the Government' s security

concerns over "production of highly classified information."

On August 14, 2006, the court granted AT&T another stay of proceedings pending

appeal.164 On November 7, 2006, the U. S. Court of Appeals for the Ninth Circuit granted

AT&T's request for an appeal.165

On February 15, 2007, six additional cases were consolidated with the Hepting suit. 166

The United States Judicial panel for the Ninth Circuit notified the parties in the consolidated

cases, which include: thrited States v. Rabner, thrited States v. Gaw/, Clayton Gaw/ v. AT& T,

thrited States v. Adamdddddddd~~~~~~~~~s, thrited States v. Palermino, and thrited States v. Volz. 167 The cases were

transferred to the Northern District of California for "coordinated pretrial proceedings" with the

Hepting case. In part, the transfer was made due to the fact that the "United States challenges the

authority of state officials to seek information from telecommunications carriers about alleged

foreign intelligence activities of the United States on the grounds, inter alia, that such state

demands are precluded by the Constitution and preempted by federal law":




164 Order granting motion to stay until Sept. 29 (Doc. No. 336), Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW
(N.D. Cal. filed Aug. 14, 2006), available at httpl un \\ \ eff~org/files/filenode/att/orderstar.pdf

165 Order granting appeal to the Ninth Circuit, Hepting v. AT&T Corp., No. 3:06-cy-00672-VRW (N.D. Cal. filed
Nov. 7, 2006), available at http://www.eff.org/files/filenode/att/aplgntddf

166 Transfer Order (Doc. No. 165), In re Nat'1 Sec. Agency Telecommunications Records Litigation, 474 F. Supp. 2d
1355 (JPML Feb 15, 2007) (No. MDL 1791).

167 Id. The cases are United States v. Rabner, No. 06-cy-2683 (D.N.J. 2006); United States v. Gaw, No. 06-1-cy-
1132 (E.D. Mo. 2006); Clayton/Gaw v. AT&T, No. 06-cy-4177 (W.D. Mo. 2006); United States v. Adams, No. 06-
cy-0097 (D. Me. 2006); United States v. Palermino, No. 06-cy-1405 (D. Ct. 2006); United States v. Volz, No. 06-
cy-188 (D. Vt. 2006).










These six actions involve common questions of fact with the actions in this litigation
previously centralized in the Northern District of Califomnia, and that transfer of the six
actions to the Northern District of California for inclusion in the coordinated or
consolidated pretrial proceedings in that district will serve the convenience of the parties
and witnesses. 168

On February 20, 2007, U.S. District Court Judge Vaughn Walker opened the discovery

process in the case, denying the government and AT&T's request to freeze proceedings while the

Ninth Circuit of the U. S. Court of Appeals decided the question of state secrets privilege. Walker

also denied the request for a blanket stay for the other telecommunications surveillance cases

transferred to his court. 169 Additionally, Walker certified the case for appeal.

On August 15, 2007, the Ninth Circuit Court of Appeals heard arguments in the

consolidated civil lawsuit, including Hepting. 170 Judges Harry Pregorson, Michael Daly Hawkins

and M. Margaret McKeown presided over arguments from attorneys representing the United

States government, AT&T and the Electronic Frontier Foundation. 17 The appeal hearing took

place in San Francisco and the court looked at two issues related to the surveillance program: 1)

do the plaintiffs have standing to sue based on actual injury by the government program; and 2)

do national security concerns justify dismissal of the case under state secrets privilege?172





168 Transfer Order (Doc. No. 165), In re Nat'1 Sec. Agency Telecommunications Records Litigation, 474 F. Supp. 2d
1355 (JPML Feb 15, 2007) (No. MDL 1791).

169 Order granting in part and denying in part motion to stay (Doc. No. 172), In re Nat'1 Sec. Agency
Telecommunications Records Litigation, (JPML Feb 20, 2007) (No. MDL 1791), available at
ht tp w il it .eff.org/files/filenode/att/stayorder220.d
170 Electronic Frontier Foundation, Unofficial transcript of 9th Cir. Hearing inl ll.. pt,~ a s A T& T(Aug. 15, 2007),
available at ht tp w il it .eff.org/files/filenode/att/hepting_9th cruthaigtasrp_8507pf
See also Adam Liptak, U.S. Defends Surveillance to 3 Skeptical Judges, N.Y. TIMES, Aug. 16, 2007, available at
htt w\ il itnytimes.com/2007/08/1 6/washington/1 6nsa.html?_r-1 &oref=login&pagewanted=print.

171 Electronic Frontier Foundation, Unofficial transcript of 9th Cir. Hearing inl ll.. pt,~ I A T& T, at 1 (Aug. 15,
2007), available at ht tp w il it .eff.org/files/filenode/att/hepting_9th cruthaigtancit0120.d
1 72Id~









U. S. Deputy Solicitor General Gregory Garr argued on behalf of the government, telling

the court what the federal government contended was the court's role in the proceedings:

Your j ob is to determine whether or not the requirements of the [secrets] privilege have
been properly met. And that includes the declaration, the sworn declaration of the head of
the agency asserting the privilege, and the assertion that that individual asserting it has
personal knowledge of the matter [at hand]. 173

Garr also argued that the review of any documents establishing the state secrets privilege

would jeopardize national security. 174 He, along with AT&T attorney Mike Kellogg, also

questioned the validity of the evidence filed on behalf of former AT& T technician Mark Klein.

Garr said, of the evidence:

The plaintiffs in this case allege that there is a secret room at AT& T and that alleged
activities are taking place in that room. They have no proof of that except the affidavit
from someone who says that there's a leaky air-conditioner and some poorly installed
cable in the room, which is hardly consistent with this sort of breathtaking program they
have in mind. 175

Kellogg said that AT&T was legally prohibited from disclosing any information that

would jeopardize national security:

I'd like to make three points today focused on the issue of plaintiffs' standing. And the
first point is that the questions that the Court would have to resolve in order to determine
that the plaintiffs have standing are the very questions as to which the government has
invoked the state-secrets privilege. In other words, they would have to show not only that
there is such a dragnet program but that AT& T participated in it and that their own
individual communications were captured pursuant to that. But those precise questions
which are necessary to standing are ones that the government, invoking the state-secrets
privilege according to proper procedures, have said cannot be litigated and cannot be
resolved one way or another. AT&T is not allowed to put in any defense with respect to
those questions. Evidence is not allowed to be presented on those questions. Under those
circumstances, at this stage in the litigation, as you asked, Judge McKeown, courts have





173 Id. at 6.
1 74Id~

1 75 Id










repeated said that once it becomes clear that the very questions at issue cannot be litigated,
the case has to be dismissed. 176

Judge Pregerson asked Garr whether a warrant was obtained in this case, specifically, if the

government went through the FISA court in the case. 1 Garr responded that the answer to that

question was "protected by the state secrets." 1 When Judge McKeown pressed for an answer,

Garr said he could not say whether or not the FISA court held proceedings on the case because,

"it would disclose methods or means or the existence of intelligence."179 Judge Pregerson

responded by saying, "everybody knows about the FISA court," and added

we are getting into the operational details of intelligence capabilities, and the one thing that
the intelligence experts will say is the more publicly and the more concretely we educate
our adversaries on our intelligence-8gathering capabilities, the easier it is for them to evade
detection by adapting their means.1s

Judge Margaret McKeown addressed the issue of mass surveillance, saying:

Yes, my only question or comment on your final remark is that we have a denial here of
broad-spread domestic surveillance. If we didn't have a denial and if the government were
undertaking that, I imagine from your comments that your response would be we can't--
no-one could litigate that kind of an invasion because of the state-secrets doctrine. s

The Hepting case is currently pending in the Ninth Circuit.

CCR v. Bush

In Center for Constitutional Rights, et al. v. George W. Bush, et al., filed January 17,

2006, the Center for Constitutional Rights (hereinafter CCR) filed a lawsuit against President

George W. Bush on behalf of plaintiffs Tina M. Foster, Gitanj ali S. Gutierrez, Seema Ahmad,


1 76Id.

177 Id.
1 78 Id.

1 79 Id

180Id.

181 Id.










Maria Lahood and Rachel Meeropol. 182 The Center for Constitutional Rights is a nonprofit

organization that represents people, including Muslim foreign nationals, whose rights have been

allegedly violated by intelligence gathering and detention practices since September 11, 2001.183

The plaintiffs claimed they are "within the class of people" described by the government as

targets of the TSP.18s4 The CCR complaint said the Terrorist Surveillance Program created a

"chilling effect" on the defendant's First Amendment right to free speech. ls5 The plaintiffs

claim their conversations with clients and other people "abroad" have been intercepted through

the TSP, violating attorney client privilege and inhibiting them from representing their clients

"vigorously."18s6

The CCR alleged that the government obstr-ucted their "modes" of expression and

association under the First Amendment. This includes the ability to 1) provide free legal advice,

2) join together in association for legal advocacy, 3) freely form attorney-client relationships, 4)

vigorously advocate for clients, and 5) petition the government for redress of grievances. s

Rachel Meeropool and Maria Lahood made two of the claims of individual harm:

*Rachel Meeropol, an attorney at CCR, said she communicates with witnesses and
other people in the Middle East. In her statement, she said that she has become
more cautious of what she says in telephone conversations since learning of the
Terrorist Surveillance Program. I She said that since she found out, she has

182 Ctr. for Constitutional Rights v. Bush, No. 06-CV-00313. (S.D.N.Y. 2006). The Center for Constitutional
Rights, including its lawyers and legal staff, are the plaintiffs in the case.

183 COmplaint at para. 3, Ctr. for Constitutional Rights v. Bush, No. 06-CV-00313. (S.D.N.Y. filed Jan. 17, 2006),
available at http://ccrjustice.org/files/CCRNSAComplan_1_06.pdf.

184 Id. at para. 4.

' Id. at para. 2.

186 Id., at paras. 5 and 6.

18s Id., at paras. 51 and 52.

1ss Affirmation of Rachel Meeropol at para. 305, Ctr. for Constitutional Rights v. Bush, No. 06-CV-00313.
(S.D.N.Y. filed Jan. 17, 2006), available at http://ccrjustice.org/files/CCRNSAComplan_1_06.pdf.










reevaluated her communication practices. She felt she couldn't "safely or ethically"
discuss matters with clients via phone.18s9 Meeropol said that having to meet in
person delays meetings or forces her to use inefficient postal message delivery. 190
She concluded her statement by saying that it is "frightening" and "outrageous" that
the interception of her attorney-client communications is not subj ect to judicial
oversight.

*Maria Lahood, an attorney for the CCR, said in her statement that she has become
"extremely cautious" of her phone conversations with clients since becoming aware
of the TSP. She said she is "constantly monitoring" her conversations with a
particular client who might be a target of the TSP. Lahood said these conversations
are often "deferred" until she can meet with her client in person and that often
includes flying out of the country. 191


The CCR case was transferred to the San Francisco District Court under Judge Vaughn

Walker on December 15, 2006. 192 On August 9, 2007, attorneys for the CCR asked Judge

Walker to find the NSA' s program of warrantless surveillance unconstitutional," and strike it

down based on the chilling effect to the plaintiff s constitutionally protected activities."193 The

Ninth Circuit Court of Appeals will decide the CCR case with Hepting, both of which are

pending.

ACLUv. NSA

On January 17, 2006, the same month the Center for Constitutional Rights filed its suit

against President Bush, the American Civil Liberties Union filed, in the Eastern United States

District Court of Michigan, Southern Division, a complaint for declaratory and injunctive action


189 Id. at paras. 4-6.

190 d. at para. 11.

191 Id. at paras. 3-5.

192 Also transferred were Mink y. AT&T Commc'ns of the Sw., Inc., No. 4:06-cy-01 113 (E.D. Mo. 2006) & Shubert
v. Bush, No. 1:06-cy-02282 (E.D.N.Y. 2006).

193 Plaintiffs' Supplemental Reply Memorandum, In re Nat'1 Sec. Agency Telecommunications Records Litigation
(N.D. Cal. filed Aug. 9, 2007).










against the National Security Agency. The suit, filed on behalf of journalists, scholars, attorneys

and national nonprofit organizations challenged the constitutionality of"a secret government

program to intercept vast quantities of the international telephone and Internet communications

of innocent Americans without court approval."194 In the complaint, the plaintiffs said that the

Terrorist Surveillance Program violated their Fourth Amendment right to privacy and their First

Amendment rights to free speech and association under the U.S. Constitution. 195 The plaintiffs

complained that the TSP disrupted their ability to "talk with sources, locate witnesses, conduct

scholarship, and engage in advocacy."19

On August 17, 2006, eight months after the ACLU filed suit, Judge Anna Diggs Taylor

ruled the Terrorist Surveillance Program to be unconstitutional on First and Fourth Amendment

grounds based on the public interest in upholding the constitution. 197 Judge Taylor concluded

her opinion with a quote from U.S. v. Robel, by Justice Warren in 1967:

Implicit in the term 'national defense' is the notion of defending those values and
ideas which set this Nation apart. .. It would indeed be ironic if, in the name of
national defense, we would sanction the subversion of .. those liberties ..
which makes the defense of the Nation worthwhile. 198








194 COmplaint for declaratory and injunctive relief at para. 1, Am. Civil Liberties Union v. Nat'1 Sec. Agency, No.
2:06-CV-10204 (E.D. Mich. filed Jan. 17, 2006), available at
http1 w\ il \t .aclu.org/pdfs/safefree/nsacomplaint.0 11706.pdf.

195 Id. at paras. 3, 192, 193.

196 Id. at para. 2.

197 MemOrandum Opinion (Doc. No. 70) at 43, Am. Civil Liberties Union v. Nat'1 Sec. Agency, No. 2:06-CV-10204
(E.D. Mich. filed Aug. 17, 2006), available at
htt wilit aclu.org/pdfs/safefree/nsamemo .opinion.judge.taylor.08 1706.pdf.

198 Id. (quoting United States v. Robel, 389 U.S. 258 (1967) (holding the U.S. government cannot deprive citizens of
constitutional protections for free association, even in cases of national security)).










In the decision, Judge Taylor relied upon the reasoning in Marcus v. Search Warrants, to

highlight the "intellectual matrix within which our own constitutional fabric was shaped."199 She

said the Bill of Rights was created with a historical knowledge of free speech struggles in

England. Those struggles were linked to search and seizure. Unrestricted powers of search and

seizure can be instruments for "stifling liberty of expression."200 As precedent, Judge Taylor

relied on the reasoning of the court in the 1965 Dombrowski v. Pfister case, where the Supreme

Court struck down a Louisiana statute mandating that members of communist organizations

register with the government. In Dombrowski, the Court held that intrusive government

surveillance could create a chilling effect on free expression.201

In ACLU v. NSA, Judge Taylor said that FISA prohibits surveillance based solely on First

Amendment protected activities like free expression.202 She then said national security cases

were of a "special nature" because they involve a convergence of First and Fourth Amendment

values. She said this convergence posed a greater risk to constitutionally protected speech.203

She ruled that President Bush, in authorizing the TSP, violated the Constitution in failing to

provide Fourth Amendment privacy protection for First Amendment protected speech that






199 Id. (citing Marcus v. Search Warrants, 367 U.S. 717 (1961) (holding that states, under the Fourteenth
Amendment's due process clause, cannot seize obscene publications because the materials removal from the market
amounts to a violation of the First Amendment's protection for free speech and press)).

200 Id. (quoting Marcus, 367 U.S. 717 at 729).

201 Dombrowski v. Pfister, 380 U.S. 479 (1965). In Dombrowski v. Pfister, decided April 26, 1965, the Supreme
Court, in a 5-2 vote, reversed the lower plaintiff' s conviction of the appellant for distribution of communist
literature. See Chapter 3, supra, for full discussion of case.

202 50 U.S.C. #l805(a)(3)(A). See also United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982).

203 MemOrandum Opinion (Doc. No. 70) at 33, Am. Civil Liberties Union v. Nat'1 Sec. Agency, No. 2:06-CV-10204
(E.D. Mich. filed Aug. 17, 2006) (quoting U.S. v. U.S. District Court ("Keith"), 407 U.S. 297, 313-14 (1972)),
available at ht tp w il it .aclu.org/pdfs/safefree/nsamemo.opinionjug.talr01706.pdf










challenged administrative policies through unorthodox political beliefs.204 Bush's authorization

of the TSP was an intrusive government action, which chilled the defendant' s right to free

expression.

The defendants in the case had relied on the 1971 case of Laird v. Tatum to argue a

"chilling effect" of First Amendment rights based on "speculative fears" of the TSP. 205 In Laird,

the plaintiffs had claimed that the existence of an Army domestic surveillance program of civil

disturbances chilled their associational rights. Judge Taylor distinguished the ACLUissue from

Laird because, she said, plaintiffs were not arguing a chilling effect based on the notion that they

"could conceivably" become subj ect to surveillance under the TSP, but that continuation of the

TSP has chilled their activities such as making international and national calls, and carrying out

professional responsibilities. Taylor said the distinction was that the TSP actually chilled the

defendants First Amendment expressions, whereas in Laird, the chilling effect was purely

speculative.

Plaintiffs would be able to continue using the telephone and email in the
execution of their professional responsibilities if the Defendants were not
undisputedly and admittedly conducting warrantless wiretaps of conversations.206

Examples of the types of concrete injuries alleged in the case can be found in the original

complaint filed by the plaintiffs who believe their communications are being intercepted illegally

under the TSP:207 Taylor found that the plaintiffs suffered "distinct, palpable, and substantial

injuries" as a result of the TSP. She said the injuries are "concrete and particularized", and not


2 Id. The U.S. Court of Appeals for the Sixth Circuit stayed the District Court's ruling on October 4, 2006, while
they considered an appeal by the government. Oral arguments for the appeal were heard on January 31, 2007.
2 Id. at 18-20 (discussing defendants' reliance on Laird v. Tatum, 408 U.S. 1 (1972)).
206 Id. at 21.

207 Complaint for declaratory and injunctive relief, Am. Civil Liberties Union v. Nat'1 Sec. Agency, No. 2:06-CV-
10204 (E.D. Mich. filed Jan. 17, 2006), available at httpl w\ \\ t\aclu.org/pdfs/safefree/nsacomplaint.0 11706.pdf.









"abstract or conj ectural."208 Judge Taylor considered the following complaints made by the

individual plaintiffs

* James Bamford, a journalist, author, and expert on U. S. intelligence, said his ability to
research and write about the National Security Agency, intelligence and the War on Terror
is "seriously compromised" by the TSP because sources are less likely to communicate
with him for fear of government surveillance.209

* Larry Diamond, a Stanford University Professor and c-editor of the Journal of Democracy,
said his ability to "advocate and advise on democratic reform in the Middle East and Asia"
is inhibited by the TSP because political dissidents are less willing to contact him for fear
of government momitoring.210

* Christopher Hitchens, a reporter and author, said that the TSP is a "detriment to his
effectiveness as an investigative j ournalist" on Middle Eastern politics because individuals
are "less forthcoming in their conversations with him," due to the likelihood their
communications are being monitored.211

* Tara McKelvey, an editor of The American Prospect and Marie Claire, said the TSP
"substantially impairs" her ability to communicate with Middle Eastern sources due to
fears the communications will be intercepted.212

* Bamett R. Rubin, Senior Fellow at the New York University Center on International
Cooperation, believed the TSP interfered with his work as a scholar in exchanging
controversial information and sensitive ideas with people in the Middle East.21

* The members of the ACLU of Michigan argued that international calls to the Middle East
were being intercepted and this surveillance inhibited members from "communicating
freely and candidly" in their personal and professional communications.

* Noel Saleh, a member of the Michigan ACLU and a licensed attorney, said she has
refrained from talking to friends abroad about topics that might trigger TSP monitoring.
Saleh said that before he learned of the program, he felt free to engage in open


208 MemOrandum Opinion (Doc. No. 70) at 22, Am. Civil Liberties Union v. Nat'1 Sec. Agency, No. 2:06-CV-10204
(E.D. Mich. filed Aug. 17, 2006), available at
hop w\ il itaclu.org/pdfs/safefree/nsamemo .opinion.judge.taylor.08 1706.pdf.
209 Id. at paras 147, 158.

210 Id. at paras. 159, 166.

211 Id. at para. 168.

212 Id. at paras. 174, 182.

213 Id. at paras. 13, 191.









communication about topics of the day. Saleh felt less able to discuss issues and gain
insights with citizens of other nations.214

* Nabih Ayad, a member of the Michigan ACLU and a licensed attorney, said he will not
have "certain kinds of conversations by phone" because he is afraid the government might
be monitoring his communications in cases involving terrorist related immigration or
crimes. On a personal level, Ayad avoided discussing certain political topics with family
and friends for fear that the conversations will trigger monitoring.215

* The Council of American-Islamic Relations complained that the TSP prevented members
from furthering the mission of promoting public understanding of Islam because open
communication of this nature might place the community under "unlawful surveillance.216

* Nazih Hassan, a member of CAIR-Michigan and a Lebanese immigrant, said awareness of
the TSP has caused him to stop talking to family members about political topics and
current events including "Islam and the war in Iraq, Islamic fundamentalists, terrorism,
Osama bin Laden, al Qaeda, the war in Afghanistan and the riots in France and
Australia."21 Hassan said the TSP interferes with his ability to promote "peace and
justice" in the United States through free and open communication. He is also unable to
gain insight from people abroad on current events because he is fearful conversations on
certain topics will trigger monitoring.

* Joshua L. Dratel, a criminal defense lawyer in New York and an expert on Military
Tribunals, said that he has "ceased having certain kinds of discussions over the telephone
or by email for fear that the government may be monitoring his communications."218

* Nancy Hollander, a criminal defense lawyer in New Mexico and a leader in recruiting
volunteers to represent prisoners at Guantanamo, said the program has inhibited her
communications with individuals in the Middle East for fear that the government might be
monitoring her communications. She has decided to cease using phone communications to
plan strategic or privileged aspects of her terrorism related cases.21

* William W. Swor, a Michigan criminal defense attorney, says the TSP inhibited
communications between himself and individuals in the Middle East. Since learning of the




214Id., at paras. 77, 81, 82.

215 Id. at para. 90.

216Id. at paras. 96, 102.

217 Id. at paras. 107, 110, 114-117.

2 Id. at paragraph 130, 135.

219Id. at paras. 136, 141.










TSP, Swor avoided "certain kinds of discussions" by phone for fear the government might
be monitoring his communications.220

ACLU v. NSA: Developments

The government appealed the ACLU decision to the Sixth Circuit Court of Appeals in

Cincinnati where arguments were heard from both parties on January 31, 2007.221 On July 6,

2007, the Sixth Circuit Court of Appeals overturned the original ruling on the basis that the

plaintiffs lacked standing to bring the suit against the govemment.222 Judge Alice M. Batchelder,

in the maj ority opinion, said that the plaintiffs only alleged possible injuries from the

government program. 223 She said that although there was a possibility that the NSA was

intercepting the plaintiffs' communications, there was also a possibility that the agency was not

intercepting the communications. 224 Judge Batchelder said that the district court erroneously

assumed the plaintiffs' telephone and e-mail communications were "protected expressions"

chilled by government surveillance. 225 The appeals court found that the plaintiffs could only

establish a "subj ective chill." 226 The appeals court said that in order to establish a chilling effect

the plaintiffs would have to show evidence beyond their knowledge of the government

surveillance program. 227 Judge Batchelder said due to the state secrets privilege, the plaintiffs





2 Id. at para. 142.

2 Am. Civil Liberties Union v. Nat'1 Sec. Agency, 493 F.3d 644 (6th Cir. 2007), available at
http://fll1.findlaw.com/news.findlaw.com/nytimes/docsnaalna000npf

222 Id.

223 Id.

224 Id.

225 Id.

226 Id.

227 Id.










could not prove that they were the targets of the Terrorist Surveillance Program. 228 Judge

Batchelder, in the majority opinion, said

the plaintiffs do not and because of the State Secrets Doctrine cannot produce any
evidence that any of their own communications have ever been intercepted by the NSA,
under the TSP, or without warrants. Instead, they assert a mere belief, which they contend
is reasonable and which they label a "well founded belief."229

Judge Batchelder, in the maj ority opinion, also said that the plaintiffs in the case who were

attorneys said that surveillance interfered with their duty to keep attorney-client conversations

confidential; she used this statement to say that the plaintiffs' claim of harm was based on

perceived harm to their clients, not themselves--and therefore invalidated the First Amendment

claim. 230 Judge Batchelder said District Court Judge Taylor wrongly interpreted the "chilling

effect" precedent in the Laird case. 231 She said the Laird plaintiffs alleged an actual personal

fear of reprisal by the government, but the ACLU plaintiffs did not make this same claim. 232

In October of 2007 the ACLU appealed the case to the United States Supreme Court. The

Supreme Court turned down the appeal on February 19, 2008, without comment.233












228 Id.

229 Id. at 6.

230 Id.

231 Id.

232 Id.

233 Supreme Court Order List (Feb. 19, 2008) available at
hop w\ il itsupremecourtus.gov/orders/courtorders/021908pzor.pdf.









CHAPTER 5
CONCLUSION

Telecommunications privacy and freedom is a complex issue that has developed over the

20th century as technology has expanded and intelligence agencies have worked to develop new

initiatives in response to emergent threats to national security. At the dawn of the 21s~t century,

the United States government struggled to balance concerns over protecting national

infrastructure, with the inevitable encroachments on citizens' civil liberties that these protections

create.

Research was conducted to examine the connection between citizen' s First Amendment

protections for free speech and Fourth Amendment protections for privacy. The balance between

citizen's constitutional protections for civil liberties and the government's need to protect

national security were examined. U.S. legislative, executive and judicial histories of domestic

electronic surveillance were reviewed to detect patterns in government restrictions on citizen

expression during times of national crisis. The effect of developing telecommunications

technologies--as they relate to electronic surveillance capabilities--was also introduced as a

variable in evaluating the balance between liberty and security.

This chapter will answer the research questions posed in chapter one by examining the

findings from the data in chapters two through four. Future remedies for issues coming out of

this research will be explored. Finally, future research recommendations for research will be

presented.

This research was conducted to find answer for the following research questions:

* RQ1: What is the legislative history governing the surveillance of United States citizens?

* RQ2: What is the judicial history of the relationship between political surveillance of
citizen communications and those citizens' First Amendment rights?










* RQ3: How does the Fourth Amendment' s protection for privacy relate to the First
Amendment' s protections for free speech?

* RQ4: Do current surveillance cases in the courts show a trend of protection for Emerson' s
key First Amendment values, or a shift towards Lasswell's garrison state?

* RQ5: What is the current balance between the need to protect civil liberties and the need
to protect national security based on judicial interpretations of federal surveillance laws?

* RQ6: Does government surveillance of private communications create a chilling effect on
free expression in the marketplace of ideas, as interpreted by the courts?

Findings

In this section, the research questions will be reintroduced and answers will be provided

based on the data collected.

What is Legislative History Governing the Surveillance of United States Citizens?

Statutory provisions for electronic surveillance were created in response to technological

advancements in the telecommunications industry and seek to balance government needs to

protect citizens against citizens' needs for civil liberty protection. The current body of law is

neither unique from historical regulations, nor is it revolutionary in its scope. Congress has an

established record for seeking to balance national security and civil liberties through warrant

requirements for surveillance. Congress also has sought a balance between security and liberty

by codifying legislative and judicial oversight for executive branch surveillance activities.

Domestic surveillance of citizen communications in the United States gained footing

during World War I, when the State Department began intercepting and decoding messages

transmitted within and beyond U.S. national borders. Two decades later, the Communications

Act of 1934 addressed what was by then, a rapidly developing communications industry by

enabling "rapid, efficient, nationwide, and worldwide wire and wire radio communication









service" for all people. The Communications Act, for the first time, legally defined common

carriers, wire communication, and foreign communication. The Communications Act

encouraged cooperation between government and communication carriers in instances necessary

to protect national security.2

The National Security Agency was the successor of Operation Shamrock, an early military

operation to intercept telegraphic messages during World War II. The NSA was charged with

protecting communications security, and obtaining foreign communications intelligence. The

NSA has matured into an organization with a multi-billion dollar budget, overseeing domestic

and foreign intelligence. Most operating details of the NSA are classified statutes protecting

sensitive national security information.

Title III of the Omnibus Crime Control and Safe Streets Act, passed in 1968, was the first

attempt by Congress to legislate government surveillance of private communications.3 The 1968

Omnibus Crime Control Act required warrants for government surveillance, except in specific

situations such as protecting the nation from attack, obtaining foreign intelligence, protecting

national security information, or protecting the government from violent overthrow. In addition

to outlining judicial oversight for government surveillance, the Omnibus Crime Control Act

updated the definition of wire communication to reflect the changing technical infrastructure of

the telecommunications industry. The law also defined electronic devices and communications

in light of these developments.





SCommc'ns Act, 47 U.S.C. # 151 (1934).

2 COmmc'ns Act, 47 U.S.C. # 210(b) (1934).

3 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as
amended at 18 U.S.C. ##2510-2520 (2000)).









The Omnibus Crime Act made it illegal for common carriers to willfully disclose contents

of intercepted transmissions, unless the disclosure was made to a government investigative

agency and authorized by a written federal court order. The crime law also authorized 48 hours

of warrantless surveillance when the government acts in an "emergency" to protect national

security interests.

After the disclosure of illegal electronic surveillance by President Nixon during Watergate,

the United States Senate Select Committee to Study Govemnmental Operations with Respect to

Intelligence Activities investigated national surveillance laws and practices.4 The resulting

Church Committee report looked at cooperation between the government and private companies

intercepting communications during World War II. The report' s revelation of gaps in national

policy and laws governing surveillance was an impetus for future Congressional action

addressing surveillance procedures.

The Foreign Intelligence Surveillance Act of 1978 (FISA) legalized non-criminal

electronic surveillance within U.S. borders when probable cause could be shown that the purpose

of the intercept was to collect foreign intelligence information. FISA also created the Foreign

Intelligence Surveillance Court to review government applications for surveillance. Under

FISA, the government was required to obtain a warrant from the court before spying on United

States citizens within United States borders. The surveillance must be authorized by the

Attorney General and is subject to congressional and judicial oversight. FISA also implemented

minimization procedures to diminish the possibility that United States' citizen's communications

would be intercepted. FISA permitted communication carriers to cooperate with the government


4 The National Security Agency and Fourth Amendment Rights: Hearings on S.R. 21 Before the Select Comm. to
Study Governmental Operations with Respect to Intelligence Activities, 94th Cong. (1975), available at
http://cryptome. org/nsa-4th. htm.










in providing intercepted communication contents as long as proper warrant and minimization

procedures were honored.

The Electronic Communications Privacy Act of 1986 extended restrictions on the

unauthorized interception of oral, wire and electronic communications by the government to

include electronic communications.' Communication providers were further restricted from

disclosing the contents of communications to unauthorized third parties, requiring a search

warrant for the interception of communications content, as well as subscriber records and service

information. The law required the government to notify subscribers of interception within 90-

days of the incident. Additionally, the FBI was granted the ability to use national security letters

to compel providers to produce certain subscriber information.

The Communication Assistance for law Enforcement Act of 1994 extended legal

requirements for cooperation between the government and private telecommunications

companies, mandating surveillance-ready networks. Carriers were not only required to update

networks and devices to accomplish this, they also were required to assist law enforcement in

intercepting private communications when a warrant was provided. In emergency situations,

carriers can intercept communications at their own discretion if a law enforcement officer

demonstrates that a situation exists where national security is in j eopardy, or if there is risk of

immediate danger, death or injury to a person. In these cases, a court order must be obtained

within 48 hours of the interception.

After the 9/11 terrorist attacks, the PATRIOT Act of 2001 amended FISA to expand the

government' s wiretapping powers.6 PATRIOT removed the FISA requirement that U. S. citizens


5 The Electronic Commc'ns Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified at
18 U.S.C. # 2510).

6 The USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).









not be targeted, unless they were engaged in First Amendment activities, as long as foreign

intelligence was a significant purpose of the investigation. PATRIOT allowed surveillance in

new types of criminal investigations, such as terrorism, that were not included in FISA.

PATRIOT also legalized the sharing of information between federal law enforcement agencies in

an attempt to promote collaboration between officers in protecting national security. Foreign

intelligence information was expanded to include any information linked to protecting national

security, even if it was linked to a United States' citizen. PATRIOT allowed the use of roving

wiretaps that did not specify a single target or location.

PATRIOT also allowed telecommunications carriers to voluntarily disclose customer

communications to government agents when there was reason to believe that imminent death or

injury might occur. If there was a reasonable belief that notifying the target would have an

adverse result on the investigation, PATRIOT allowed the government to delay notification of

surveillance.

The PATRIOT Act was amended in 2005, extending the original sunset provisions on

certain sections of the original statute from 2009 to 2015. The PATRIOT reauthorization act of

2005 also required the Attorney General to provide additional information in his required annual

reports. The types of offenses that are subj ect to surveillance were expanded to include new

terrorism related crimes such as biological weapons, terrorist training and attacks, weapons of

mass destruction, torture, and attacks on aircraft.

The PATRIOT Act was further amended in 2006 to clarify the use of national security

letters. Under the 2006 amendments, letter recipients can petition a FISA judge, to appeal in the

individual case, the letter' s nondisclosure requirements and judicial review is required within 72-

hours of when the letter is served. In 2007, the Protect America Act further amended FISA,









removing the warrant requirement that foreign intelligence targets must be reasonably believed

to be outside United States borders. The 2007 update also allowed the Attorney General to

authorize intelligence for up to one year in cases where foreign targets are reasonably believed to

be outside of the U. S. borders. Common carriers are required to provide the government with

information, facilities and assistance necessary to intercept the suspected communication when a

court order is presented. The person providing the information can be compensated for

providing information, and failure to comply with an ordered request can result in the part being

found in contempt of the court. Parties cooperating with the government are protected from legal

action arising from the execution of the order.

The legal history of surveillance in the United States has developed alongside national

concerns over growing security concerns. New agencies and laws have expanded the

government intelligence infrastructure, as well as capabilities to address emerging threats to

national security. The latest example of an expanded agency capability is the 2005 PATRIOT

reauthorization act, which included new types of crimes that trigger warrantless surveillance. As

laws have developed, Congress has been careful to attempt to codify safeguards for Americans'

civil liberties. Warrant requirements for domestic surveillance, judicial oversight, and quarantine

of First Amendment activities are legislative protections to balance constitutional rights against

the needs of the nation.

What is the Judicial History of the Relationship Between Political Surveillance of Citizen
Communications and Those Citizens' First Amendment Rights?

The Courts have traditionally addressed free speech against the backdrop of First

Amendment protections intended to limit government interference with political participation.

Justices have continually endeavored to limit the chilling effect that government action has on

citizens' abilities to inj ect new and subversive political views into the marketplace of ideas,










however the Court' s actual decisions reflect an understanding of government' s need to quiet

dissent in times of national crisis. In Schenck v thrited States, the Supreme Court upheld the

constitutionality of the Espionage Act on the basis that the defendant--in distributing literature

that advocated against military enlistment--did not deserve First Amendment protection. The

Schenck court found that the defendant' s actions in criticizing the draft posed a "clear and

present danger" to the U. S. armed forces during a time of war. 7 The Court said that although the

defendant might have enjoyed constitutional protection for his expression during peace time,

during war time the expression posed a unique danger--one of proximity and degree. From this

reasoning, Justice Oliver Holmes established the "clear and present danger test" for judicial

evaluation of government suppression of free expression.

The "clear and present danger" test established two criteria for allowing free speech. The

first tier required unusual circumstances, such as the nation being at war. The second tier was

the intent of the speaker--where he or she intended to incite action against the government. In

the second tier of the test, the execution of a successful plan was not necessary, only the intent to

commit a crime must be established. If both tiers of the test were satisfied, then the government

could restrict free speech on the basis of national security. The Court upheld its Schenck ruling

and the "clear and present danger test" in the 1919 cases of Froinverk v. U.S.9 and Debs v. U.S. 10

In the Abramns v. U.S. case, decided in the latter half of 1919, the Court upheld the

conviction of New York anarchists under the Espionage Act. 11In Abramns, the Court relied on



SSchenck v. United States, 249 U.S. 47 (1919).

SId. at 252.

9 Frohwerk v. United States, 249 U.S. 204 (1919).

10 Debs v. United States, 249 U.S. 211 (1919).

11 Abrams v. United States, 250 U.S. 616 (1919).









the "clear and present danger test" created in Schenck to Eind that only the intent of government

overthrow was necessary to obtain a conviction under the Espionage Act, not the successful

execution of a plan for overthrow. The Abramns case is most famous, not for its maj ority opinion

upholding the need for intent as established in Schenck, but for the dissent of Justice Holmes,

who had created the "clear and present danger test" in his maj ority opinion in the Schenck case.

Justice Holmes, joined by Justice Brandeis, said that there should be greater protection for

political speech. Holmes reasoned that the speech of the defendants in Abrams posed no true

threat to the U.S. war effort. This was because there was no proof of "imminent danger."

Holmes said that the defendants' words should be protected as free expression. The Holmes-

Brandeis dissent in Abramns was not significant at the time of the decision, as it did not

immediately impact the application of the clear and present danger test for the Abrams

defendants. The Court would later draw on the reasoning of Holmes and Brandeis in the Gitlow

and Whitney cases.

The next Supreme Court case, post Schenck, that would significantly change the Court's

approach to free speech cases involving potential state and local government infringement was

the 1925 case of Gitlow v. New York, 12 where the Court upheld the conviction of a defendant

charged with advocating criminal anarchy. The Court upheld the constitutionality of the state

statute, but most importantly, said the First Amendment applied to states through the Fourteenth

Amendment' s due process clause.

In Gitlow, the Court did not use the "clear and present danger test" in its decision,

although Justice Edward Terry Sanford, in his majority opinion, indirectly clarified the "clear

and present danger" test created in Schenck and later expanded in Abramns. Sanford said that the



12 Gitlow v. New York, 268 U.S. 652 (1925).










defendant' s publications advocated government overthrow through the "direct language of

incitement."13 He said it was not a philosophical abstraction, but a "sufficient danger of

substantive evil."14

In Schenck, Justice Holmes had based the clear and present danger test on two criteria 1)

circumstances surrounding the free expression, such as times of war or national crisis and 2)

whether or not the defendant intended to incite a crime. The Abramns Court had recognized this

standard, but Justice Holmes, in a dissent, said there must also be proof of imminent danger

Rather than just a "clear and present danger." Justice Sanford, in Gitlow, used the term

"substantive evil" to describe the defendant' s words is a nod to the Holmes dissent in Abramns

advocating greater protection for political expression unless there was a true threat to the nation.

In Whitney v. California, 15 a 1927 case involving a California law criminalizing advocacy

of violent or disruptive labor movements., the Court upheld the defendant' s conviction and said

the constitutional protection for free speech did not confer an absolute right to "speak without

responsibility." In its holding, the Court maj ority did not apply the "clear and present danger

test," but rather decided the case on the fact that the statute did not criminalize mere advocacy,

only violent or illegal actions. Justices Brandeis, in his concurrence, joined by Justice Holmes,

emphasized that there must be evidence of "substantive evil" in order for government restrictions

on free speech to pass judicial review. Brandeis said that the Court had failed to set a standard in

the "clear and present danger" test for the level of substantive evil that was necessary to abridge

free speech and assembly Brandeis argued that it must be a "substantial" level. Furthermore,


13 Id. at 665.

14 Id. at 667, 669.

15 Whitney v. California, 274 U.S. 357 (1927).
16Id. at 375-77 (Brandeis, J., concurring).










Brandeis said that "imminent danger" is not enough to satisfy the standards of the "clear and

present danger" test. There must be some substantial "probability of serious injury to the state."

Although the maj ority opinion in Whitney did not significantly alter the application of the "clear

and present danger test", Brandeis' concurrence would be mentioned in several Court opinions

yet to come.

In the 1941 case of Bridges v. California, a case where the Supreme Court struck down the

prior restraint of pretrial press coverage, the Court tightened up its standards in applying the

"clear and present danger" test. The Court said that in order to pass the test and punish speech,

the government must demonstrate that the defendant' s First Amendment activities posed a

"substantive evil", with an extremely high imminence. The Court relied on a new version of the

"clear and present danger" standards established in Schenck, that there must be special

circumstances surrounding the speech and the expression must be of a nature that would bring

about substantive evil. The Court said previous cases decided on application of the "clear and

present danger" test were recognition of only minimal protection for speech under the Bill of

Rights. In order to restrict speech, the "substantive evil" must be 1) substantial, 2) extremely

serious, and 3) highly imminent. In Bridges, the Court' s emphasis on a need for speech to pose

"substantial" and "serious" harm, in essence, adopted the reasoning in the Holmes and Brandeis

dissents of the previous decades.

In Dennis v. United States, decided June 4, 1951, the U. S. Supreme Court held that the

defendants' Smith Act convictions for Communist conspiracy to overthrow the government were

not a violation of the First Amendment. 1 Chief Justice Fred Vinson, in the maj ority opinion,

said freedom of speech is not unlimited-dissenters do not have "unlimited, unqualified" rights


17 Dennis v. United States 341 U.S. 494 (1951).