Privacy SOS
Omnibus Crime Control and Safe Streets Act of 1968

The Omnibus Crime Control and Safe Streets Act is a good example of legislation cobbled together to form a compromise. Facing rising violent crime rates, and a hard push from the right by Barry Goldwater during the 1964 election, President Lyndon Johnson formed a committee to study crime and make recommendations to the federal government. Many of these recommendations became law in the OCCSSA of 1968.

The law was a compromise because it attempted both to regulate how police can operate in investigations and to give the justice system broader powers to get convictions. For example, lawmakers included a provision that they hoped would allow law enforcement to skirt around the Miranda v. Arizona (1966) Supreme Court ruling, which decided that police couldn't use a voluntary confession if the suspect hadn't been made aware of his right not to incriminate himself. Congress hoped that the provision in OCCSSA would allow such confessions, but a series of further Supreme Court decisions reversed the law, maintaining its original Miranda ruling.

On the other hand, Title III of the Act created some regulations related to police wiretapping. Even though wiretapping had been made completely illegal (even by police) in the Communications Act of 1934, law enforcement regularly listened in on private conversations. In the Supreme Court's decisions in Berger v. New York (1967) and Katz v. United States (1967), the Court ruled that wiretapping constitutes a “search and seizure” under the Fourth Amendment, and that people have a reasonable expectation of privacy in phone conversations. Congress wanted the police to be able to listen in when appropriate, so they instituted court procedures for wiretaps.

The development of new technologies like cell phones has created a new legal environment. In a big win for civil liberties advocates, a December 2010 decision maintains that wiretap rules apply to cell phone location tracking and historical phone records.

Privacy Act of 1974

In the wake of the Watergate scandal, Congress strengthened the 1966 Freedom of Information Act by passing the Privacy Act amendments over President Ford’s veto.   The Privacy Act grew out of concerns at the threat to individual privacy presented by the growth of computerized databases.  It gave US citizens and permanent residents the right to see records held about them (apart from those protected by a lengthy list of exemptions), and to correct inaccuracies.  It also placed restrictions on how agencies could share that information.

Foreign Intelligence Surveillance Act of 1978

The revelations of the extent of government spying on groups exercising their First Amendment activity prompted Congress to finally take up the task given it by the US Supreme Court. In its 1972 ruling in US v. US District Court (Keith), the Court decided that the government could not conduct wiretapping on national security grounds without judicial authorization, and suggested that Congress should establish rules for how wiretapping in response to foreign threats should be carried out.

In October 1978 Congress enacted legislation introduced by Senator Edward Kennedy (D-MA).  The Foreign Intelligence Surveillance Act of 1978 set up a secret Foreign Intelligence Surveillance court composed of seven members of the federal district court appointed by the US Supreme Court chief justice. The court granted the government warrants to wiretap phones and conduct physical searches of Americans and legal permanent residents suspected of acting on behalf of foreign powers or being involved in international terrorism. Carrying out electronic surveillance that is not authorized by statute is punishable by a fine of up to $10,000, or imprisonment for not more than five years, or both.

By 2004, the FISA court had granted nearly 18,000 warrants and denied only a handful.  In November 2002, the government appealed the denial of a warrant, leading to the first meeting of the Foreign Intelligence Surveillance Court of Review (FISC).  The case involved the change to FISA made by the USA PATRIOT Act, permitting easier sharing of information between intelligence agencies and criminal law enforcement agencies.  The FISC found for the government, enabling information obtained without a showing of the Fourth Amendment’s probable cause requirement to be introduced in criminal court.

FISA’s oversight over domestic surveillance on intelligence-gathering grounds was undermined by post 9/11 warrantless domestic spying by the NSA and the FISA Amendments Act of 2008.

© 2022 ACLU of Massachusetts.