24th Annual Bill of Rights
Art and Essay Contest, 2007-2008

for Students in Grades 7 through 12

TOPIC:  WARRANTLESS WIRETAPS:
              Does Government access to telephone calls and emails
              without a warrant violate the Constitution?

THE CONSTITUTIONAL PRINCIPLES:

1. Unreasonable searches and seizures: The Fourth Amendment to the United States Constitution says "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."
2. Right to Privacy: The right to privacy is not expressly stated in the United States Constitution, but it has been held by the United States Supreme Court to be one of our fundamental rights. The California Constitution at Article I, section 1 states: "All people are by nature free and independent and have inalienable rights. Among those are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
3. Freedom of Speech: The First Amendment to the United States Constitution says "...Congress shall make no law....abridging the freedom of speech..."
4. Separation of Powers: The United States Constitution calls for a separation of powers between the Legislative, Judicial and Executive branches of government to maintain a system of checks and balances.
5. Liberty and Equal Protection: The Fourteenth Amendment to the United States Constitution says "No state shall ... 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." The Supreme Court has applied this principle to the United States Government under the due process clause of the Fifth Amendment.

THE QUESTION

Can the President start a program of surveillance by wiretapping telephone calls and accessing email communications in the United States without a warrant, or do these acts violate the fundamental rights guaranteed for all people under the Constitution?

BACKGROUND

After the terrorist attacks of September 11, 2001, President Bush authorized the National Security Agency to start a program of warrantless wiretapping to access email and other communications within the United States. In 2006 a federal judge held that the President's program violated the United States Constitution. In January 2007, however, just days before the Court of Appeal was to hear the government's appeal from that judicial ruling, the Attorney General announced that the program was discontinued based on new orders from the Foreign Intelligence Surveillance Court. Those orders have been kept secret.

In 1978 the Foreign Intelligence Surveillance Act ("FISA") created the special court to issue secret warrants when the government is investigating foreign intelligence. FISA has be updated more than 50 times since it was enacted. It currently allows the government to proceed with surveillance in an emergency, as long as a warrant from the FISA court is requested within 72 hours. However, the President has stated that FISA is not adequate to permit the surveillance the Government needs to protect national security and prevent terrorism. The President has also stated that he has the power as President to institute the program of warrantless wiretapping.

In August 2007 Congress enacted the "Protect America Act of 2007" authorizing the U.S. Attorney General to issue "program warrants" to be directed at a person reasonably believed to be located outside of the United States. Current law allows foreign-to-foreign communications to be intercepted without a warrant, but this law allows the government to wiretap Americans without a warrant who are communicating with people in other countries. The "Protect America Act of 2007" will expire in February 2008 unless it is extended by Congress.

Also, the FBI continues to issue "national security letters" under the PATRIOT. Act demanding personal records about people directly from businesses, such as internet providers. These businesses are then not allowed to tell customers that the government has received their personal information. In September 2007 a Federal Court in New York held the National Security letter authorization to be unconstitutional.

Does the government's interception of the telephone calls, email communications, and personal information without a warrant violate the Constitution, or is it necessary to protect national security and to fight the war on terrorism?

For more information, see the following ACLU websites:

• www.aclu.org
• www.aclunc.org
• www.acluMontereyCounty.org

For cases and statutes see:

• www.findlaw.com
• www.supremecourtus.gov/opinions/opinions.html

Other websites on surveillance issues:

• The Electronic Frontier Foundation -- NSA's Warrantless Domestic Surveillance
• National Public Radio -- NSA Wiretapping: The Legal Debate
• Wikipedia -- NSA Warrantless Surveillance Controversy