WARRANTLESS GOVERNMENTAL SURVEILLANCE THROUGH THE USE OF EMERGING TECHNOLOGY HAS BECOME A MAINSTAY OF GOVERNMENTAL INVESTIGATION BY VANIA M. CHAKER, ESQ. The United States government enjoys awesome technological capabilities.1 It can facilely monitor electronic communications and surreptitiously retrieve stored information on private computer systems. Technology that was once the stuff of science fiction is now routinely used in real life to monitor the activities of citizens, corporations, even foreign nationals in foreign nations.2 Telephone conversations, text messages, electronic transmissions, and even corporate network traffic have been subject to surreptitious warrantless government surveillance by executive order under the mandate of heightened national security concerns in the “Post-9/11 Era.”3 Moreover, in addition to the fully-stocked arsenal of highly-advanced equipment and sophisticated technology the government enjoys, it can also rely upon lofty justifications such as “national security” and “the public good” to persuade or issue seemingly-reasonable directives to large private companies, such as the behemoth firms of AT&T, Verizon, and Bell South, to assist the government with warrantless investigations of private citizens and entities.4
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For example, the “Warrantless Surveillance Controversy” by the U.S. National Security Agency (“NSA”) involved the surveillance of individuals on domestic soil and only incident to Post-9/11 foreign intelligence investigations by the NSA. This directive, termed the “Terrorist Surveillance Program” by the George W. Bush administration, was a component of the broader “President's Surveillance Program” which the NSA is authorized by executive order to monitor the communications of private citizens and companies without a warrant. Phone calls, e-mails, internet activity, text messaging, and other communications involving one party that the NSA may believe to be outside the United States were subject to warrantless government surveillance even if the other party was located on domestic soil. Widespread claims, however, indicate that such warrantless surveillance was conducted with respect to purely domestic communications. Due to the highly sensitive nature of the program, its exact scope is not known, but it is reported that the NSA had broad, unsupervised access to all fiber-optic communications of many of the major telecommunication companies’ communications and telephony traffic. 2 The National Security Agency (“NSA”) is charged with spying on and investigating foreign communications as part of its governmental directive. 3 It has also been reported that such programs operated without the judicial oversight that was mandated by Foreign Intelligence Surveillance Act (“FISA”). 4 The case of Hepting v. AT&T (06-CV-01791-VRW) (2006) uncovered the widespread assistance of several large telecommunications companies (in addition to AT&T) which were illegally collaborating with the National Security Agency to unlawfully spy on private citizens and companies. These companies were unlawfully monitoring the communications of the United States, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP telephone calls routed via the internet. Unfortunately, much of the details could not be learned since the government resisted efforts to learn about the scope of the operation and since discovery could not be completed because District Court Judge Vaughn Walker dismissed the case in 2006 after the government provided retroactive immunity for any telecommunications companies illegally assisting the government thereby rendering the lawsuit moot.