136 Chapter 4Chapter 4 || Civil LibertiesCivil Libertiesswooped up in the course of monitoring foreign targets. However, early in 2018, when
Congress reauthorized the foreign surveillance for an additional six years, it opened the
door to allowing “about” collection and “backdoor” searches to start up again.^128
Critics warn that phone surveillance may be the tip of the iceberg, because the
government may be monitoring travel, credit card, and banking records more widely than
we think. Government agencies have previously skirted the restrictions in the Privacy Act
of 1974 and the Fourth Amendment by purchasing this information from businesses, since
the Privacy Act requires disclosure of how the government is using personal information
only when the government itself collects the data. The Justice Department spent
$19 million in 2005 to purchase commercially gathered data about American citizens,
according to a report by the Government Accountability Office. These data are then used
to search for suspicious patterns of behavior in a process known as data mining.^129 In 2016,
a massive data collection program by AT&T called Project Atmosphere was used by law-
enforcement agencies investigating everything from murder to medical fraud.^130
The debate over domestic surveillance has generated intense disagreement. At one
extreme, critics conjure up images of George Orwell’s classic novel 1984, in which Big
Brother, a reclusive totalitarian ruler, watches the characters’ every move. Critics see
the surveillance as a threat to civil liberties and to our system of checks and balances
and separation of powers. They believe that when the executive branch refuses to obtain
warrants through the FISA court to conduct surveillance, it is taking on too much power
without consulting the other branches of government. But supporters of the program
argue that getting a court order may take too long, jeopardizing the surveillance
necessary to protect the country. Congress tried to strike a balance between these two
positions when it enacted the FISA Amendments Act of 2008. This law continued the
ban on monitoring the purely domestic communications of Americans without a court
order, gave the government authority to intercept international communications, and
provided legal immunity to the telecommunications companies that had cooperated
in the original wiretapping program. However, the New York Times revealed that the
NSA had still been engaged in “overcollection” of domestic communication between
Americans under the new law, including an attempt to wiretap a member of Congress
without a court order. Although the NSA vowed to stop purely domestic surveillance
without a court order, technical problems make it difficult to distinguish between
communications made within the United States and overseas.^131The Director of National Intelligence
testified at a congressional hearing
on possible changes to the FISA as
protesters in the background called for
an end to government surveillance.Full_05_APT_64431_ch04_102-147.indd 136 16/11/18 1:31 PM