The Wall Street Journal’s Surveillance Fantasies
There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal‘s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.
Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “Waziristan Taliban talking about ‘our American brother Faisal,’ which could have been cross-referenced against Karachi flight manifests,” or “maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.” Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified. They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.
Your Year in Wiretaps
The 2009 Wiretap Report has just been released by the Administrative Office of the U.S. Courts. The headline findings: 2,376 wiretaps were authorized for criminal investigations last year, of which 663 were federal and 1,713 were issued at the state level. (NB: These numbers don’t include Foreign Intelligence Surveillance Act wiretaps, “pen register” requests for communications metadata, or orders to acquire stored e-mails sitting on a server.) The vast majority of wiretaps—86 percent—were part of the drug war, with the average wiretap bill running about $52,200.
In line with recent years, only about 19 percent of intercepted communications contained anything incriminating. As you can see by eyeballing the chart, the 2009 numbers reflect a sharp 70 percent increase in federal taps over the previous year, but only because 2008 was a decade low-point. Though the number is still relatively high, criminal federal wiretap warrants were long ago eclipsed by broader and more secretive intelligence wiretaps under FISA—of which there were 2,082 in 2008.
Since drug dealers seldom have fixed offices, it probably won’t come as any surprise that 96 percent of the orders targeted mobile devices. Since a full wiretap order also permits the acquisition of the highly detailed GPS information phones can provide, it would be nice to know how many of these orders involve the use of a cell phone as a mobile tracking device. There’s a campaign underway to update our grossly outdated surveillance laws, and better reporting on this relatively novel form of surveillance should be part of a larger geotracking reform providing a single process and a single clear standard for seeking such information, rather than the patchwork of warrants and other sorts of court orders currently employed.
As another data point for the need to reform federal surveillance law, only four of last year’s orders involved any kind of “electronic communication,” as opposed to traditional voice communications. Does that mean law enforcement agencies are just ignoring the Internet? Of course not. But current law, perversely, establishes a much higher standard for the interception of “live” communications in transit over the network than for e-mails that have landed on a user’s server. As soon as you open that e-mail, the level of protection it’s afforded by statute is radically diminished, and the constitutional protections given to stored emails are still embarrassingly unclear, at least as far as the courts are concerned.
The irony here is that the outdated federal surveillance laws actually leave us hard pressed to accurately gauge how badly they’re outdated. The primary problem is that the crazy-quilt of statutes and standards doesn’t map the way people actually communicate today, or line up with their real-world expectations of privacy in those communications. But the secondary problem is that the reporting requirements don’t line up either. I’m probably a little abnormal here, but I communicate via e-mail, Twitter, or IM vastly more than I talk on the telephone. I send dozens of e-mails on an average day (many from a GPS-enabled phone), but I doubt I average more than one actual voice phone call per week. There are, of course, many reasons to expect criminals to prefer the ephemeral nature of voice communication, but the disconnect still ought to be worrying. The numbers in the Wiretap Report make us feel as though we have a handle on the scope of government surveillance, when in fact we probably don’t have a very clear picture at all.
A Response to Intel Abuses at Last?
As I explain in yesterday’s BloggingHeads dialogue with Eli Lake, I’m chary of relying too much on legislative “sunset” provisions to check abuse of power, especially in the shadowy world of intelligence. (For the fleshed-out version of the argument, see Chris Mooney’s 2004 piece in Legal Affairs.) After all, in January, the Office of the Inspector General had released an absolutely damning report showing that for years, FBI agents systematically manipulated their incredibly broad National Security Letter authorities to get information about Americans telephone usage without following any legitimate legal process at all. To cover those abuses, officials compounded their crimes by lying to federal courts and refusing to use an auditable computer system for their information requests. The report was released amid debate over what reforms should be included in the reauthorization of several controversial Patriot Act provisions, with proposed changes to the NSL statutes front and center—not least because several courts had found constitutional problems with the gag orders accompanying NSLs. Yet just a month later, Congress consented to an extension of those Patriot provisions without implementing any of the various rather mild changes that had won approval in the House or Senate Judiciary Committees. If a sunset-inspired review didn’t yield any real consequences then, I thought, what would it take?
Today, however, I see a there are glimmers of interest in something more closely resembling serious oversight. In a letter to Attorney General Eric Holder, sent last month but released yesterday, Senate Judiciary Committee Chair Patrick Leahy (D-VT) urges DOJ to implement many of the reforms in the SJC’s bill voluntarily—above all procedures to guarantee a detailed record of the grounds on which various types of information sought, and to govern the retention, use, and distribution of information obtained. Leahy also signals his intent to ask department watchdogs to conduct audits of the use of Patriot authorities, as the Senate’s bill had stipulated. These are all, needless to say, good ideas—provided we don’t accept voluntary and mutable internal guidelines as a substitute for statutory limits with teeth.
Meanwhile, Rep. Jerry Nadler (D-NY) is holding Wednesday morning hearings on the abuses detailed in the Inspector General’s report. FBI General Counsel Valerie Caproni and IG Glenn Fine are slated to testify. (There are links to their prepared testimony already, though the documents themselves aren’t there yet as I write.) Extrapolating from past performances, I predict Caproni will allow that the abuses described were Very Serious Indeed (though, really, perhaps not quite as serious as all that…) but all cleaned up now. Nobody should be satisfied with this, and if Fine doesn’t broach the subject himself, somebody really ought to ask Caproni about some minimization procedures for the 25,000–50,000 National Security Letters the department issues annually. As Fine noted in recent testimony, the Bureau has been promising this for years now:
In August 2007, the NSL Working Group sent the Attorney General its report and proposed minimization procedures. However, we had several concerns with the findings and recommendations of the Working Group’s report, which we discussed in our March 2008 NSL report. In particular, we disagreed with the Working Group about the sufficiency of existing privacy safeguards and measures for minimizing the retention of NSL-derived information. We disagreed because the controls the Working Group cited as providing safeguards predated our NSL reviews, yet we found serious abuses of the NSL authorities.
As a result, the Acting Privacy Officer decided to reconsider the recommendations and withdrew them. The Working Group has subsequently developed new recommendations for NSL minimization procedures, which are still being considered within the Department and have not yet been issued. We believe that the Department should promptly consider the Working Group’s proposal and issue final minimization procedures for NSLs that address the collection of information through NSLs, how the FBI can upload NSL information in FBI databases, the dissemination of NSL information, the appropriate tagging and tracking of NSL derived information in FBI databases and files, and the time period for retention of NSL obtained information. At this point, more than 2 years have elapsed since after our first report was issued, and final guidance is needed and overdue.
Way, way overdue—much like some kind of serious congressional response to the Bureau’s NSL Calvinball.
State Secrets, Courts, and NSA’s Illegal Wiretapping
As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.
Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.
But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.
If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.
Bush Wiretapping Illegal
That’s the finding by Federal Judge Vaughn Walker in a ruling made late yesterday. As the news reports note, Obama’s lawyers came into court to defend Bush’s policy–so that’s two administrations acting contrary to law.
The ruling itself can be found here (H/T to the How Appealing blog). For related Cato work, go here and here.
Some Thoughts on the New Surveillance
Last night I spoke at “The Little Idea,” a mini-lecture series launched in New York by Ari Melber of The Nation and now starting up here in D.C., on the incredibly civilized premise that, instead of some interminable panel that culminates in a series of audience monologues-disguised-as-questions, it’s much more appealing to have a speaker give a ten-minute spiel, sort of as a prompt for discussion, and then chat with the crowd over drinks.
I’d sketched out a rather longer version of my remarks in advance just to make sure I had my main ideas clear, and so I’ll post them here, as a sort of preview of a rather longer and more formal paper on 21st century surveillance and privacy that I’m working on. Since ten-minute talks don’t accommodate footnotes very well, I should note that I’m drawing for a lot of these ideas on the excellent work of legal scholars Lawrence Lessig and Daniel Solove (relevant papers at the links). Anyway, the expanded version of my talk after the jump:
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.
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