When it comes to matters deemed to be important to national security, even a general’s private E-mails might be subject to investigation by a governmental agency. Just ask the former CIA director, General David Petraeus.
Private telephone calls may not be so private, either, as Yale Law School professor Owen Fiss will discuss in a public lecture at the Institute for Advanced Study on Wednesday, December 5, at 5 p.m. in Wolfensohn Hall on the Institute campus. Go to www.ias.edu/news/public-events for more information.
Fiss, professor emeritus at Yale Law School, talks about the current state of constitutional rules protecting the privacy of telephone conversations in an event titled “The Lives of Others.”
The constitutional rules protecting the privacy of telephone conversations first came about as the result of a 1967 Supreme Court decision and were then extended in 1972. They have been weakened since then, says a release on the event, “in part because of a general retrenchment of privacy rights that began in the mid-1970s and continues to this day.”
“This turn of events is also linked to the events of September 11, 2001, which turned the fight against international terrorism into an urgent public issue and, Fiss argues, led to the compromise of fundamental principles of our constitutional order,” says the release.
“The War Against Terrorism has put into issue two tenets of the American constitutional tradition,” says an abstract for a 2006 article by Fiss in the Oxford Journal of Legal Studies. “The first denies the government the power to imprison anyone unless that person is charged with a crime and swiftly brought to trial. The other requires the government to abide by the Constitution’s restrictions on its power no matter where or against whom it acts.”
In a 2010 article in the Utah Law Review, Fiss writes about the impact of 9/11 on telephone privacy. “In conducting his War on Terror, (President George) Bush showed little respect for the Fourth Amendment protection of privacy. In the immediate wake of 9/11, he authorized the National Security Agency (NSA) to tap telephones without prior judicial authorization. These taps were aimed at international telephone calls between persons in America and individuals abroad suspected of having ties to Al Qaeda.”
According to Fiss, the Supreme Court ruled in 1967 that wiretapping was the functional equivalent of a search, and thus subject to the warrant requirement of the Fourth Amendment. But the court reserved judgment on whether such a rule would extend to cases of national security.
In 1972 the Supreme Court extended the warrant requirement of the Fourth Amendment to a prosecution involving the bombing of a CIA building in Ann Arbor, Michigan. Fiss said that in that case, the Supreme Court once again did not address whether the warrant requirement should apply to wiretaps aimed at obtaining foreign intelligence.
Not wanting to wait any longer for the Supreme Court to rule on the issue, Congress in 1978 passed the Foreign Intelligence Surveillance Act (FISA) that required warrants for wiretaps seeking foreign intelligence. It established a secret tribunal — with judges appointed by the chief justice — that had streamlined procedures for obtaining such warrants.
“Bush’s NSA wiretapping program violated the terms of the 1978 statute and, even more fundamentally, the constitutional principles that it sought to further,” says Fiss. “The warrant requirement creates a check on arbitrary executive action and, to that end, protects the Fourth Amendment’s right of private communication so essential to the development of the human personality and political freedom.”
According to the Surveillance Self Defence Project website (ssd.eff.org), determining whether someone’s expectation of privacy is protected by the Fourth Amendment depends on whether they have knowingly exposed something to another person or to the public at large.
“Some Supreme Court cases have held that you have no reasonable expectation of privacy in information you have ‘knowingly exposed’ to a third party — for example, bank records or records of telephone numbers you have dialed — even if you intended for that third party to keep the information secret,” says the website. “In other words, by engaging in transactions with your bank or communicating phone numbers to your phone company for the purpose of connecting a call, you’ve assumed the risk that they will share that information with the government.”
People often “knowingly expose” much more information that they really know or intend. This information includes insurance records, credit records, bank records, travel records, library records, phone records, and even information that retail stores track when you use loyalty cards to get discounts.
Fiss received his undergraduate education at Dartmouth College and the University of Oxford and earned his law degree at Harvard. He clerked for Thurgood Marshall, when Marshall was a judge on the United States Court of Appeals for the Second Circuit, as well as William J. Brennan Jr. on the United States Supreme Court.
He also served in the Civil Rights Division of the United States Department of Justice. He taught at the University of Chicago from prior to coming to Yale
Friss’ talk is part of Lectures on Public Policy, an annual series at the Institute that addresses issues of broad importance to contemporary politics, social conditions and scientific matters.