Author Archive
Online Privacy and the Commerce Clause
I fear that with the PATRIOT Act on the brain, I’ve been remiss in continuing the colloquy on behavioral ads and privacy regulation that I’d been having with Jim Harper—who flattered me by responding in a long and thoughtful essay a couple weeks back. Because there’s so much interesting stuff there, I hope he won’t mind if I restrict myself to the first part of his reply here, in the interest of making this all a bit more digestible to those whose fascination with the topic may not be quite as consuming as ours. I’ll consider briefly the constitutional issue Jim raises, and turn to some of the specifics of the issue—and the relative merits of the common law alternative—in another post.
So like every good dorm room bull session, we begin in the weeds of policy and quickly find ourselves breathing the rarefied air of constitutional theory. Supposing for the moment that we thought it were a good idea on policy grounds, would it be within the power of Congress to set ground rules for online advertisers who gather personal data from Web browsers? Recall that there are two particular rules that I’ve said I’d be tentatively open to, but which Jim rejects: a requirement of notice when information is being collected (say via a small link from the adspace to a privacy policy) and a rule establishing that privacy policies are enforceable, so that individual users can sue for damages if a company knowingly violates its stated policy (thus far, courts have not generally found these to be binding). Does this fall within the power to “regulate commerce … among the several states”? I think so. I’ll start with what I hope will be some uncontroversial arguments and go from there.
PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
If You Can’t Trust a Spy, Who Can You Trust?
As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require. The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.
In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.
But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.
That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:
A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”
So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.
Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”
Misleading on PATRIOT Reauthorization
It’s nice to see that some media outlets are starting to pay attention to deliberation in the Senate over the reauthorization of expiring PATRIOT Act provisions. It’s less nice when, as in this FOX News report, “paying attention” means “peddling outrageous falsehoods.” To be sure, the issue can be dauntingly complicated, but these are enormous howlers that the most elementary fact checking ought to catch. Many of the false claims appear to echo this Wall Street Journal op-ed by former attorney general Michael Mukasey, which is similarly misleading. Let’s review.
First, the report begins by suggesting that there’s some risk that the three sunsetting powers in question—roving wiretap authority, “lone wolf” targeting, and section 215 orders for “tangible things”—are in real jeopardy of expiring altogether. “Some Democrats,” we’re told, would like them to “go bye-bye.” This is false. About roving wiretaps and 215 orders, there is no disagreement whatever. As I outlined in a previous post, the most aggressive reform proposal was Russ Feingold’s, and he’d keep both of these with some added safeguards. The legislation that appears to be on its way to winning the support of the Judiciary Committee—including a majority of Democrats—would renew all three provisions. And that legislation would leave two of the three—the “lone wolf” and the roving wiretap authority—totally unchanged.
Second, the FOX report and the Mukasey op-ed both claim that it was because investigators lacked the ability to investigate “lone wolves” under the Foreign Intelligence Surveillance Act that the FBI was unable to target “20th hijacker” Zacarias Moussaoui. This, too, is false. I’ll have a piece up at Reason early next week making the broader case against the lone wolf provision, but for the moment it’s worth noting that a bipartisan Senate report investigated this claim back in 2003 and found it to be without merit. The report concluded that the FBI could have obtained a FISA warrant under existing law, but failed to do so because supervisors failed to forward relevant information along to FBI lawyers, and because they misunderstood some of FISA’s key definitions and requirements. Furthermore, it notes that the FBI later obtained a criminal warrant to search Moussaoui’s laptop on the basis of the exact same evidence they already had, so even in the absence of FISA authority, the search could have been conducted earlier. The problem was not that they lacked sufficient surveillance authority, but that, as the report puts it, “FBI Headquarters personnel failed miserably” in a variety of ways. Of course, it’s always easier to say “we need more power” than “we screwed up.” But again, only Feingold’s proposal would allow this provision to expire, and it seems fairly clear that there’s no real support for doing so among legislators of either party.
Third, the FOX report claims explicitly, and Mukasey’s op-ed strongly implies, that “these provisions” were somehow instrumental in the investigation and arrest of suspected terror plotter Najibullah Zazi. We don’t actually know that yet: investigators have said they plan to use evidence obtained under FISA, but we don’t know which parts of FISA were involved, and we certainly don’t have any reason to think that the reforms proposed even in Feingold’s ambitious bill would have made any difference in the investigation. We know for certain that the “lone wolf” provision was not invoked—first, because the Justice Department has stated clearly that they have never used that provision, and second, because news reports suggest that Zazi is either a citizen or a permanent resident, and in either case the “lone wolf” provision would not have been available. It appears that Zazi was wiretapped, and if he was switching phones frequently to evade surveillance, investigators may have used a “roving” wiretap. The renewal legislation favored by most Democrats on the Senate Judiciary Committee would preserve that roving authority exactly as it exists now; under Feingold’s proposal they would have to have “identified” Zazi at the time they got the order in order to make it eligible for roving, which it seems extremely likely that they had.
Incredibly Mild PATRIOT Reform too Much for Dems
At hearings last week on reform and renewal of parts of the PATRIOT Act, Sen. Al Franken (D-MN) made a big show of reading the full text of the Fourth Amendment to Assistant Attorney General David Kris (who, just going out on a limb, had probably seen it). On Thursday, a notably less vocal Franken joined his a bipartisan majority of his Senate Judiciary Committee colleagues in a lopsided vote that torpedoed even the most modest of proposals to introduce elementary civil liberties safeguards into the USA PATRIOT Act.
As I noted in a post earlier this week, there were two main reform proposals on the table: An impressively comprehensive and careful one floated by Sen. Russ Feingold (D-WI), and a much more limited one from Sen. Patrick Leahy (D-VT) that nevertheless would have tightened the rules to require that so-called “pen/trap” surveillance and broad “section 215″ orders for private records only target individuals with at least some plausible connection to terrorists or terrorism. Some of us had nourished a foolish hope that the Committee might see fit to incorporate some of the most important elements of Feingold’s reform into the Leahy bill. Instead, Sen. Dianne Feinstein (D-CA) swooped in at the last minute with substitute legislation that stripped away even the mild but important limitations that were already there. There’s a single bizarre exception for records obtained from libraries, presumably because librarians have long been at the forefront of opposition to PATRIOT and section 215 authority, where the higher standard obtains. So if you surf the Web or check out books from your public library, your activities enjoy greater privacy protection than when you surf the web or order books off Amazon from your home or workplace.
The rationale for this was the fear, articulated by Feinstein, that a higher standard might interfere with an important “ongoing investigation.” First, it should be a little distressing if the current investigative methods in use would be utterly disrupted without the ability to broadly acquire records that don’t pertain to terrorists, nor to suspected activities of terrorists, nor even to people directly in contact with suspected terrorists. Second, even granting that it might be better not to change the rules for investigations currently underway, this explanation doesn’t hold up to scrutiny. The authority under 215 to compel the production of records or other “tangible things” (a blood or DNA sample from your doctor’s office, say) has always had a built-in expiration or “sunset” date, which all the proposals under consideration would have extended for another four years. But the sunset provisions have always included a grandfather clause, allowing the new PATRIOT powers and standards to remain in place for ongoing investigations, even as they expired for new investigations. There’s no reason a similar clause couldn’t have been added to Leahy’s reforms in order to avoid disrupting searches already underway. Finally, Marcy Wheeler of Firedoglake has a guess as to what that “ongoing investigation” entailed, and without going into great detail, it sounds like a sufficiently narrowly tailored order probably should have been available for the kind of investigation Wheeler envisions even under the more stringent standard Leahy had proposed. Back in 2005, incidentally, those slightly stricter standards had won the unanimous acceptance of the Judiciary Committee—so apparent we’ve achieved Change in the level of concern for civil liberties, albeit maybe not the sort for which some of us had Hoped.
But wait, it gets worse.
Supremes to Hear PATRIOT ‘Material Support’ Challenge
As I mentioned in passing in my post yesterday, one of the reforms in Russ Feingold’s JUSTICE Act involves tweaking the USA PATRIOT Act’s definition of “material support” for terrorism to ensure that it doesn’t cover things like humanitarian aid or legal assistance. Today, the Supreme Court agreed to hear a case concerning that very issue:
The key plaintiff in the current appeal is the Humanitarian Law Project, a Los Angeles, California-based non-profit that says its mission is to advocate “for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law.” HLP sought to help the Kurdistan Workers’ Party, a group active in Turkey. Known as PKK, the party was founded in the mid-1970s and has been labeled a terror organization by the United States and the European Union. Its leaders have previously called for militancy to create a separate Kurdish state in parts of Turkey, Iraq, Syria and Iran, where Kurds comprise a population majority. [...]
Another plaintiff is an American physician who wanted to help ethnic Tamils in his native Sri Lanka. Much of the island nation is controlled by the rebel Liberation Tigers of Tamil Eelam, which has also fought for decades to carve an independent state. The government claims the Tamil Tigers have “used suicide bombings and political assassinations in its campaign for independence, killing hundreds of civilians in the process.”
HLP and a group of Tamil doctors say they merely wanted “to provide their expert medical advice on how to address the shortage of medical facilities and trained physicians” in the region but “they are afraid to do so because they fear prosecution for providing material support.”
A federal appeals court agreed with the groups that the statute as written is unconstitutionally vague; the government wants to preserve the current broad language. Arguments won’t take place until early next year, but if you can’t wait for a preview, check out this exchange between David Cole and Paul Rosenzweig on PATRIOT’s material support provision, part of a highly illuminating series of debates on aspects of the law (as originally written) hosted by the American Bar Association.
Contempt of (Secret) Court?
At last week’s House Judiciary Committee hearing on the PATRIOT Act, Rep. Hank Johnson (D-GA) raised an interesting question I haven’t seen discussed much: What happens to someone who willfully violates an order of the highly secretive Foreign Intelligence Surveillance Court? (FISA)
Generally, courts have the right to enforce their own orders by finding those who disobey in contempt, and a line from a rare public version of an opinion issued by the Foreign Intelligence Surveillance Court of Review suggests that the same holds here, noting that a service provider who challenged the (now superseded) Protect America Act “began compliance under threat of civil contempt.” (There is, interestingly, some redacted text immediately following that.) Contempt proceedings normally fall to the court that issued the original order.
A finding of civil contempt will typically result in the incarceration of the offending party until they agree to comply—and on the theory that the person “holds the keys to their own cell,” because they’ll be released as soon as they fall in line, normal due process rules don’t apply here. Of course, there are ways of violating the order that make it impossible to comply after the fact, such as breaching the gag rule that prevents people from disclosing that they’ve been served with orders, or (getting extreme now) destroying the records or “tangible things” sought via a Section 215 order. In those cases, presumably, the only recourse would be criminal contempt, for which you’re supposed to be entitled to a jury trial if the penalty is “serious” and involves more than six months incarceration.
That obviously raises some interesting problems given the extraordinarily secret nature of the FISA Court. In the public version of the opinion I linked above, the name of the petitioner and all identifying details are redacted, even the ruling was released six months after it was handed down, so as to avoid tipping off targets about specific providers that have received orders.
Now, I’m going to take a leap of faith and assume we’re not at the point of “disappearing” folks off our own streets, but it is a puzzle how you’d actually carry out enforcement and penalty, if it ever came to that, consistent with the secrecy demanded in these investigations.
A Preliminary Assessment of PATRIOT Reform Bills
Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post-9/11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.
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The “Read the Bill” Debate and Government Growth
There’s an interesting back-and-forth over at the Volokh Conspiracy about whether legislators should have to read the actual legislative text of bills they vote on. Most people’s intuitive reaction is: “Duh, of course!” But if you’ve ever actually spent time poring over legislative text, you know that reading the bill itself seldom leaves you with a very good sense of what it does. Legislation is typically a tangle of modifications along the lines of “Strike paragraph 2, replace the period with a semicolon, insert the word ‘reasonable’ in the following sentence…”—which is why legislators have staffers who prepare plain-English summaries of the effects of legislation. Now certainly it would be possible to render bills somewhat more readable to ordinary people. Saving paper is not a huge concern in the digital era, so there’s no good reason legislation couldn’t simply contain the full text of the statutory provisions it amended, perhaps including a side-by-side comparison highlighting the changes. Even this, however, wouldn’t necessarily be all that illuminating. I’ve got a reference book on my desk that contains the 80-or-so pages of the Foreign Intelligence Surveillance Act, and then a few hundred pages explaining what it actually means. It’s not enough to know what the verbatim text says; you need to understand how it interacts with other statutes, how key terms are defined in the law, how courts have interpreted the law’s provisions, and so on.
Legislation could be written in a somewhat more transparent way, but in light of all these complex interactions, it can’t actually be that much more transparent, for the same reason computer programs are a lot longer and more impenetrable than a plain-English description of what the program does. Achieving a result in a complex rule-based system requires a level of precision and sensitivity to how terms are used within the system that’s at odds with colloquial description. Of course, for precisely the same reason that summaries will give an ordinary person a better understanding of a law than scrutiny of the verbatim text, they also give a very incomplete understanding. An ordinary language description will tell you what a computer program is supposed to do. If you want to know whether it’s going to crash or open up a security vulnerability under certain conditions, perhaps when it interacts with other software running simultaneously, you need to have a look at the source code. Again, if you’ve spent any time digging through legislation, you know that the staff summary of a bill often glosses over many interesting little details and ambiguities you can ferret out while reading the text.
Most legislators, of course—even those with legal training—cannot possibly have the kind of expertise needed to undertake meaningful scrutiny of the details of legislative text outside a tiny number of issue areas. So does it make sense to insist that every member of Congress literally “read the bill”? Probably not. The actual text will contain important details not captured in a summary, but only an expert will really understand what those are on the basis of the text anyway. Crucially, this is not a function of needless obscurantism on the part of Congress: it is a necessary feature of legislation in a legal system as complex as ours. Which means that there’s a pretty basic tension between the value of democratic transparency and a large, complex government. Past a certain point, it’s more or less impossible for any individual legislator—let alone ordinary citizens—to really understand the vast majority of bills Congress takes up in any detailed way.
NYT: We Don’t Deserve First Amendment Protection!
I assume others have pointed this out already, but there’s something very odd about a Tuesday editorial in The New York Times arguing that campaign finance regulations that stifle the political speech of corporations must be upheld in the Citizens United case currently under consideration before the Supreme Court:
The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.
In that case, surely it’s time to revisit some of the 20th century’s seminal free speech rulings. The idea that public figures cannot use libel law to squelch criticism unless they can prove an attack is intentionally or recklessly false, for instance, comes to us by way of New York Times Company v. Sullivan—a case in which the so-called “protected speech” was a paid advertisement run by a filthy corporation! And what about the celebrated Pentagon Papers case, in which the Court found that only in the most extreme cases can the government resort to “prior restraint” of speech? Why that’s New York Times Company v. United States. In both cases, of course, the speech in question had political significance—perhaps even the potential to affect elections. In the Pentagon Papers case, by the way, the counsel for the Times was famed First Amendment lawyer Floyd Abrams, who also argued Citizens United.
Don’t worry, though, it’s only corporations like The New York Times that will lose speech protections. If you, as a brave individual, want to say something controversial on your blog—though you’ll probably want to do it on a server you own personally, just in case—you’re totally in the clear. And if the federal government decides to sue, you’ll be totally free to use as much of your personal savings as you want to fight back.
State Secrets, State Secrets Are No Fun
Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.
That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.
That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.
This Is Your Brain on Torture
We’ve all heard the argument that a subject under torture—or whatever this week’s euphemism is—may begin fabricating whatever they believe the interrogator wants to hear just to get the agony to stop. Now neuroscientists are suggesting that inflicting too much pain and stress on a subject may not just induce them to lie; it may cause them to lose track of what’s true and false altogether:
Fact One: To recall information stored in the brain, you must activate a number of areas, especially the prefrontal cortex (site of intentionality) and hippocampus (the door to long-term memory storage). Fact Two: Stress such as that caused by torture releases the hormone cortisol, which can impair cognitive function, including that of the prefrontal cortex and hippocampus. Studies in which soldiers were subjected to stress in the form of food and sleep deprivation have found that it impaired their ability to recall personal memories and information, as this 2006 study reported. “Studies of extreme stress with Special Forces Soldiers have found that recall of previously-learned information was impaired after stress occurred,” notes O’Mara. “Water-boarding in particular is an extreme stressor and has the potential to elicit widespread stress-induced changes in the brain.”
Stress also releases catecholamines such as noradrenaline, which can enlarge the amygdale (structures involved in the processing of fear), also impairing memory and the ability to distinguish a true memory from a false or implanted one. Brain imaging of torture victims, as in this study, suggest why: torture triggers abnormal patterns of activation in the frontal and temporal lobes, impairing memory. Rather than a question triggering a (relatively) simple pattern of brain activation that leads to the stored memory of information that can answer the question, the question stimulates memories almost chaotically, without regard to their truthfulness.
In brief, the subject may lose genuine memories, and come to believe that their confabulations are authentic ones. The full literature review, from Trends in Cognitive Science, can be downloaded in PDF form here.
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