Over the next few weeks and months, civil libertarians and consumer advocates will wage a battle against the telecommunications companies and the Bush administration to preserve some semblance of privacy rights in Americans' communications.

Congress will be considering several versions of bills that will, one way or another, expand government access to phone calls and e-mails. These legislative proposals are complex and in flux, but there are two main issues at the center of the debate that citizens can focus on. One is whether eavesdropping on millions of Americans simultaneously is acceptable. The second is whether communications companies should get a free pass for breaking the law by allowing illegal warrantless surveillance of all Americans' communications.

In the 1960s and '70s, several Supreme Court cases held that citizens can reasonably expect that the government will not eavesdrop on their personal communications without first demonstrating to a court the need for this privacy invasion. Congress passed the Wiretap Act of 1968 to regulate eavesdropping for law enforcement purposes, and added the Foreign Intelligence Surveillance Act (FISA) of 1978 to establish procedures for the president to follow when conducting surveillance for national-security purposes. FISA established a "secret court" – the Foreign Intelligence Surveillance Court, or FISC – to review applications for national-security warrants. These could be obtained merely by showing that the target was an agent of a foreign power.

Targeted surveillance was the order of the day for two primary reasons. First, the Fourth Amendment prohibits "general warrants," those which do not specify the names of people to be observed, the inventory of things to be seized, or otherwise fail to narrow the discretion of the officer performing the search. Second – and it turns out, more importantly – it was prohibitively expensive to perform mass surveillance. Eavesdropping required paying someone to sit and listen to calls, because storage and voice-recognition technology were not available.

By 2001, things had changed. Digital networks, vast storage and powerful computer processing meant that it was now economically feasible to monitor entire networks – including the phone network – using computers, voice recognition and other modern technologies. The government began pushing to use these new technologies for wide-scale mass surveillance.

The Sept. 11 terrorist attacks also occurred in 2001. But while the attacks may have raised the American public's tolerance for privacy invasions, it was not the sole impetus for mass spying. The National Security Agency (NSA) was pressuring telcos to give it unfettered access to customer calling records seven months before the attacks. Regardless, Sept. 11 inspired Congress to modify FISA to give national security officers more leeway in hunting down terrorists. The USA Patriot Act modified FISA in several important ways, but none of them would have allowed the wholesale surveillance of American communications networks the NSA was pushing for behind the scenes.

Despite the missing legal authority, we now know that several telecommunications companies secretly cooperated in the mass diversion of phone calls and e-mails to the NSA. The New York Times revealed the existence of this warrantless surveillance program in December 2005. After this revelation, the Bush Administration admitted it was listening without warrants to known al-Qaida members who called, or were called by, people in the United States. However, the warrantless wiretapping went much further than that. A former AT&T engineer by the name of Mark Klein revealed that all internet traffic flowing through AT&T's backbone was regularly diverted to the NSA.

My employer, the Electronic Frontier Foundation, filed a class action lawsuit against AT&T on behalf of all its customers who had been intercepted without a warrant, as well as those who had had their phone records disclosed in a separate but apparently related program. A few months later, other class actions against the telcos were filed nationwide. The attorneys general of several states also began investigations to see whether the communications providers had violated their legal obligations as public utilities. The federal government has intervened in the litigation to kill all of these cases, alleging that telco cooperation is an official secret and that the lawsuits must be dismissed. That issue is currently on appeal to the 9th U.S. Circuit Court of Appeals, although at least one high-level administration official – Mike McConnell, the director of national intelligence – has since confirmed the phone company-government collaboration.

Now the administration is bringing the battle for mass surveillance to Congress. Just before this summer's recess, Congress passed the Protect America Act (PAA), which gave the U.S. attorney general and the director of national intelligence the power to authorize surveillance without a court order, so long as the target of that surveillance was reasonably believed to be overseas. This was a major expansion of executive power from what FISA had allowed. it also went well beyond what the Bush administration had said it needed: The president had claimed FISA needed some modest tweaking to allow for efficient eavesdropping on foreign-to-foreign communications that travel through the United States, while leaving the privacy of Americans intact.

The PAA is due to expire in February of 2008, so Congress is now considering new proposals to replace it. An admirable goal of well-balanced legislation would be to enable us to detect and fight terrorism, without losing judicial and legislative oversight of the surveillance process.

The Restore Act, which failed to pass the House last week, tried to strike this balance. It would have permitted warrantless surveillance of foreign-to-foreign communications and put surveillance review back in the hands of the FISC rather than administration officials. And it would not have immunized phone companies for their illegal behavior. However, it did allow for "blanket warrants" that would sanction mass, warrantless surveillance of Americans if the purported target was a foreign national.

The problem with such blanket warrants is practical, legal and technical.

On the technical side, the tactic produces far more false positives than we are capable of processing. Also, warrants for general surveillance are proven vehicles for abuse. Our Founding Fathers abhorred general warrants, which is why the Fourth Amendment specifically prohibits them, proscribing that "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."

The potential for abuse is extreme in the case of telecommunications, because the government is capturing and has access to every one of our calls or e-mails as they flow through telco offices, even if it's not supposed to look at most of it.

The legislation that just cleared the Senate subcommittee and is currently under consideration makes a different mistake. It would allow the attorney general in a closed-door session to unilaterally absolve any telco accused of illegally intercepting communications.

Communications carriers play an essential role in keeping the government honest about whether it's eavesdropping on us. Any working law must provide incentives to these companies to reject requests for unlawful surveillance by imposing liability when they fail to do so, while protecting companies that comply in good faith with valid legal process, just as FISA and the Wiretap Act already do.

It's not clear why the Senate thinks encouraging secret collusion between a president and a major industry is a good idea. Telcos accused of violations will donate money to the campaigns of those officials most likely to absolve their bad behavior. The bill also abandons the substantial oversight role that either Congress or courts could play in ensuring that laws are followed and effective. My employer, EFF, also objects to telco immunity because it is intended to kill our pending class action lawsuit.

Rather than offering a rational reason for the amnesty provision, the Senate seems to be acting out of confusion. Feeling left out, Congress said it would not consider amnesty unless the White House disclosed documents that would allow lawmakers to determine what exactly was going on with secret, warrantless surveillance in this country. Now that the Senate has received some documents, it is ready to pay off the administration for this small, belated courtesy of inclusion, while forgetting to exercise the oversight function that caused the legislators to ask for the information in the first place.

Sen. Russ Feingold's office says that the documents show that the surveillance was illegal, a very good reason to refuse any amnesty. Sen. Jay Rockefeller, who recently benefited from unusually large campaign contributions from the phone companies, supports amnesty.

As the legislative process plays out, the issues of when to authorize mass surveillance, how to minimize abuses and how to deter unlawful behavior will continue to be major parts of the debate. The American Revolution was fought in part against the abuses practiced by an unchecked executive power. Terrorism and new technologies are novel challenges, but the legal techniques developed over the past 200 years – separation of powers, checks and balances, individualized suspicion and special warrants among them – have and will continue to serve us well, if we let them.

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Jennifer Granick is civil liberties director at the Electronic Frontier Foundation.