Year in review: The politics of privacy

Nearly 30 years after its passage, a once-obscure wiretapping law, and the secret federal court created by it, roiled the waters in Washington, D.C. And the debate is far from over.

The 1978 law in question is the Foreign Intelligence Surveillance Act, which was enacted in the post-Watergate era as a way to rein in abuses by U.S. intelligence agencies. After September 11, 2001, President Bush authorized his administration to bypass FISA when conducting wiretaps--a mechanism that he defended as necessary but that a chorus of opponents said amounted to a violation of the law, and perhaps the U.S. Constitution itself.

But a newly Democratic Congress, distracted by the ongoing occupation of Iraq and a flap over U.S. Attorneys, proved unwilling to risk a direct confrontation with the president over the limits of FISA. Instead, it bowed to the White House's requests for pro-surveillance amendments to FISA and approved the Protect America Act, which Bush signed into law in early August.

It was an unusually hasty process. Republicans tried to accelerate a vote on the legislation by disclosing a secret ruling by the secret FISA court that allegedly imperiled ongoing electronic surveillance. The ruling was not public, and press reports about it were vague, but congressional leaders decided to schedule a quick vote on the bill before leaving for their summer holiday. After arranging a vote on the Protect America Act, House Speaker Nancy Pelosi said the measure "does violence to the Constitution of the United States."

One question that the Protect America Act leaves unresolved is whether telecommunications companies will receive retroactive legal immunity for unlawful cooperation with the Bush administration. Because the law expires after 180 days, debates over its renewal have centered on that question.

On one side of the argument are intelligence-community representatives, who say a retroactive grant of immunity from lawsuits alleging privacy violations is only fair to executives who believed that cooperation with the National Security Agency would aid antiterror efforts. The other argues that companies should be held liable for illegal cooperation with spooks--and any immunity would set a terrible precedent.

Forcing the matter are dozens of lawsuits that have been filed against telecommunications companies and consolidated before a federal judge in San Francisco. One of those lawsuits, brought by the Electronic Frontier Foundation against AT&T, has advanced to the 9th Circuit Court of Appeals. The Bush administration asked it to pull the plug on the suit during oral arguments in August, and a decision is expected at any time.

As of the time of this writing, the debate in Washington remained unsettled. The House of Representatives rejected retroactive immunity by a reasonably close 227-180 vote in November. A Senate committee liked the idea, but after stiff opposition from senior Democrats, U.S. Senate Majority Leader Harry Reid withdrew the bill from a floor vote on December 17. That means the debate will continue next year.

Also continuing through next year will be a growing controversy over the Real ID Act, which would create the first federal identity card for Americans. In January, Maine became the first state to formally reject the scheme, and a few months later anti-Real ID Act senators had some success with an amendment limiting its future expansion.

But the Department of Homeland Security pressed forward with its regulations, which means that starting on May 11, 2008, residents of noncompliant states won't be able to use their driver's licenses as ID at airports or while entering federal buildings. The next five months will tell whether DHS will actually enforce those rules.