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Wiretapping, FISA, and the NSA
Mark Rasch, 2006-01-11

U.S. wiretapping laws, FISA and Presidential powers given to the NSA to intercept communications make for interesting times when coupled with technology. What are the issues surrounding privacy, search, seizure and surveillance?

Whenever a new technology is developed, or a new threat that causes us to deploy these technologies, questions invariably arise about their legality. When the telephone was first developed and used, it was not clear that the constitutional dictates on unreasonable searches and seizures applied to conversations that were neither "searched" nor "seized." The recent revelations that the U.S. Department of Defense, through the National Security Agency, was targeting the international communications of U.S. citizens for interception as part of a classified program raises questions about the constitutionality and legality of the program itself.

NSA targeting U.S. citizens

The first thing to emphasize is that we don't know anything at all about this program. It has been alternatively described as a vacuum cleaner which sits on the main routers and international trunk lines of communication and "sucks up" all data for later analysis, as a "spider" program that starts with leads of phone numbers and e-mail addresses found from interception or by analysis of al Qeada targets that does brief analysis any of these addresses or phone numbers, or most recently by the White House as a narrow rifle shot. As a White House spokesman told The New York Times on December 27, "[t]his is a limited program. . . . These [intercepts] are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches." So there you have it, according to the White House. The people targeted (even U.S. citizens) are very bad people. And they are calling them very bad people. Which, more than anything else raises the question - why not get a warrant?

Can the President of the United States, during a time of war (albeit a war on terror, or terrorism, or fundamentalism without any end in sight whatsoever) assert plenary executive authority to intercept communications, including e-mails and other electronic communications originating from the United States and from U.S. citizens without any kind of judicial warrant?

The U.S. Constitution

The first place to start any analysis of privacy, search, seizure and surveillance is with the U.S. Constitution itself. The Fourth Amendment provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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." So you would read that to mean that you would need a warrant to search for and seize things - including electronic mail messages, right? Wrong. You see, there are two independent clauses there - no unreasonable searches and seizures, and a necessity for warrants. It there is a search without a warrant, but it is reasonable, then it's okay. In fact, there are probably more searches and seizures without warrants than with them. If the search is done with consent (and here is the tough part - maybe with just the consent of the ISP), or because of some imminent harm or exigent circumstance, or to protect the safety of the police, or for a whole host of other exceptions carved out by the Supreme Court (including because its in a car), then no warrant is necessary.

Balanced against this Constitutional provision is that of Article II Section 2, which designates that the President of the United States is the Commander in Chief. There are certain things that the government has historically done in wartime, which might have been otherwise illegal, but hey - as General William T. Sherman said, "War is all hell." Indeed, during his famous march on Atlanta near the close of the Civil War, he did not get court orders authorizing the seizure of southern farms, livestock or property - he just took it - cause that's what you do in wartime. If you suspect that someone (back in the Civil war, that meant a U.S. citizen) was working with the enemy, you arrested them. We would hardly expect General Sherman's army to follow the niceties of search warrants or special writs to be able to listen in on telegraph communications between Confederate Generals. That is the nature of the power of the government in time of war. Warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades. The Supreme Court has noted that warrantless electronic surveillance "has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946. Warrantless electronic surveillance has been used by the Executive to collect intelligence information since at least the mid-1800s" .

Under that authority, you could lock up editors and publishers (that was, northern editors and publishers) for writing unfavorable articles, prevent newspapers from having mailing privileges, and even seize the property (slaves) of southerners (The Emancipation Proclamation) to cause hardship and economic suffering to the enemy. You can punish as seditious libel that which would otherwise be free speech (the Alien and Sedition Acts passed under President John Adams), and lock up tens of thousands of U.S. citizens based upon nothing more than their ethnicity (the Japanese detention cases during World War II.) Historically, the Courts have been reluctant to look beyond the declarations of the executive branch during time of war concerning the necessity of some acts to protect the American people. Indeed, only when President Truman attempted to use the Korean War (a conflict?) as justification for seizing the steel mills did the courts deny his assertion of Presidential war power.

This Means War!

In addition to the general war powers, the President and the Attorney General have relied on an act of Congress - the Authorization for Use of Military Force (AUMF) passed on September 18, 2001 - indeed while the embers of the Pentagon and World Trade Centers were still burning. This is important because the wiretapping laws make it a crime to engage in warrantless wiretaps unless otherwise authorized by statute. The administration is reading the AUMF as the "statute" that authorizes the wiretapping, even while Members of Congress are emphasizing that they intended no such thing.

The AUMF empowered the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks. The President's war powers, even during this "war on terrorism" or "war on Islamic fundamentalism" or "Global War on Terror," have traditionally trumped limiting statutes. It was pursuant to this authority, for example, that the President ordered the detention of Yaser Esam Hamdi, a U.S. citizen, and the Supreme Court affirmed his authority to do so, citing in part the AUMF resolution. Similarly, the United States Court of Appeals for the 4th Circuit affirmed the authority of the government to seize U.S. citizen Jose Padilla also under the AUMF resolution, although they later rejected the government's efforts to remove him to Florida as a potential pretext to moot a US Supreme Court review. Both courts held that the AUMF, although silent on the issue, authorized the President to detain U.S. citizens on U.S. soil if he designated them as combatants.

The Law of Wiretaps

Let's start with a little reality check here. Much of what the NSA and the intelligence community does is in violation of some law somewhere. Indeed, much of what the military does is as well. When the NSA intercepts a communication from France to Afghanistan, it probably violates the privacy and electronic surveillance laws in both countries. When it installs alligator clips on a phone in Turkmenistan, it probably violates some local burglary or trespass law. Espionage - the staple of the CIA - is a felony in almost every nation, and a capitol offense in the U.S. In fact, it is part of the intelligence community's job to try to get people to commit treason. So we are hardly shocked or offended that our government or any government is violating the law. What the so-called NSA domestic spying scandal addresses is whether the process violates U.S. law.

In the December 2000 criminal prosecution of Osama Bin Laden for the first World Trade Center attack, the Court found that the Fourth Amendment warrant requirement did not apply to searches conducted on foreign nationals overseas - indeed, there was no mechanism for a judge in Manhattan to order a search or interception in Nairobi. But that is overseas. So if the wiretaps were done by the U.S. government against foreign targets overseas, everything would have been ok. But the revelations were that the government was targeting U.S. persons for intercepts based upon some "connection" to some overseas person.

The first assumption under federal law is that all wiretapping done in this country or wiretapping directed against U.S. citizens or permanent residents is illegal. Three separate laws make it a crime to engage in electronic surveillance unless specifically authorized by statute. 50 USC 1809(a); 47 USC 605 and 18 USC 2511. There are several exceptions to this presumption, including consent of one or all of the parties to the communication, interception by the provider of telecommunications services in the ordinary course of business for certain purposes. These are interceptions that do not implicate a reasonable expectation of privacy, and finally, interceptions done pursuant to court orders. That is, orders by the judicial branch.

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Mark D. Rasch is an attorney and technology expert in the areas of intellectual property protection, computer security, privacy and regulatory compliance. He formerly worked at the Department of Justice, where he was responsible for the prosecution of Robert Morris, the Cornell University graduate student responsible for the so-called Morris Worm and the investigations of the Hannover hackers featured in Clifford Stoll’s book, "The Cuckoo’s Egg."
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Wiretapping, FISA, and the NSA 2006-01-12
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Wiretapping, FISA, and the NSA 2006-01-12
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Wiretapping, FISA, and the NSA 2006-01-12
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Wiretapping, FISA, and the NSA 2006-01-12
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Good article 2006-01-18
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Wiretapping, FISA, and the NSA 2006-09-28
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