The warrantless wiretapping controversy has taken a few twists and turns since The Spy Factory premiered last winter on NOVA. The show, which will be rebroadcast tonight on most PBS stations, reported on the National Security Agency's surveillance of vast streams of data--phone conversations, emails, faxes--from AT&T's regional switching center in San Francisco. But the biggest reversal came in March, when a federal judge ruled that domestic surveillance is illegal without court approval.
The National Security Agency (NSA) was first empowered to wiretap on American soil without a warrant just three weeks after the attacks of September 11, thanks to an executive order from then-President Bush. The Obama administration had sought to retain the NSA's surveillance privileges; the judge rejected the Justice Department's claim that pursuing the lawsuit would reveal state secrets.
What does this all mean? James Bamford, who wrote The Shadow Factory and wrote and produced The Spy Factory with producer/director C. Scott Willis, filled me in. "What it means is that the judge says what was done there--by both the NSA and AT&T--was illegal because it violated the Foreign Intelligence Surveillance Act." The Foreign Intelligence Surveillance Act (FISA), enacted in 1978, requires court authorization for domestic wiretaps. But, Bamford points out, that doesn't mean the telecoms which cooperated with the NSA will be on the hook: "AT&T and the other telecoms were later given immunity by Congress."