In 2013, Edward Snowden, a former CIA employee, and National Security Agency (“NSA”) contractor, leaked top secret documents to the public. These documents detailed the NSA’s controversial electronic surveillance practices and procedures, sparking a debate about wiretapping and privacy laws. Snowden revealed that the government employed questionable electronic surveillance programs. The controversy circles around the potential privacy violations surrounding government agency practices to monitor communications. Since then, the Obama Administration has been under pressure to address individual privacy concerns. Last month, President Obama addressed the nation and introduced proposed changes to current electronic surveillance practices.
What Are the Current Wiretapping Laws, Before President Obama’s Proposed Amendments?
Wiretapping has been possible since the invention of the telephone. The procedure gets its name from earlier methods, which required officials to physically place electrical taps on telephone lines. Wiretapping is a constitutional and legal practice. In most cases, officials must secure a warrant from a judge beforehand. However, federal intelligence agencies can apply to the Foreign Intelligence Surveillance Court (“FISA”), under secret proceedings, for court approval. In some circumstances, these agencies can proceed with approval from the United States Attorney General, without court approval. In the event that the agency does need to secure a warrant before wiretapping, courts typically apply a very strict standard of review before granting approval. For instance, the judge will look to ensure there are no other less intrusive methods to gather information. In general, the courts look at wiretapping as a last resort. Alternatively, if a party who is participating in a call, records the call and produces it to a government agency, the agency does not need prior court approval. The agency is then at liberty to use the contents of the recorded phone call for its purposes.
How Does President Obama Aim to Amend Wiretapping Laws?
President Obama’s proposed amendments would set out new standards that the NSA must follow when collecting information. The so-called “metadata” is information that a service provider keeps relating to when, where, and to whom the calls were made to. However, metadata does not include content. Typically, metadata is limited to phone numbers, and the time, length, and location of the calls. Collectively, this information can reveal a lot about a call. For instance, monitoring a telephone call on a smartphone can quickly pinpoint the caller’s exact location. President Obama is not aiming to stop the NSA from collecting metadata. Instead, he has indicated that the scope of collections will be limited. Part of these limitations will include requiring court approval before all wiretapping. He also called for a change to allow advocates an opportunity to argue against the need for wiretapping to protect individual privacy. The NSA will also be limited in its capacity to access current databases containing metadata. The Obama Administration expressed that its objective is to strike a balance between individual privacy rights and protection of national security.
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