Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (54 page)

158. (p. 92) In United States v. Reynolds, 345 US 1 (1953), the Supreme Court ruled
that there did indeed exist a state-secrets privilege, but its role was left unclear,
"Judicial control over the evidence in a case cannot be abdicated to the caprice of
executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be
accepted in any case." In the particular case at hand, it turned out that the Air Force
accident report describing a plane crash had no classified material but rather demonstrated negligence on the part of the military. The report was withheld until 1996.

159. (p. 92) Tash Hepting et al. v. AT&T Corporation, United States District Court for
the Northern District of California, Case 3:06-cv-00672-vrw.

160. (p. 93) Pub. L. 107-40, 115 Stat. 224.

161. (p. 93) Arlen Specter, "The Need to Roll Back Presidential Power Grabs," New
York Review of Books, May 11, 2009, 50.

162. (p. 93) Pub. L. 110-55, 121 Stat. 552.

163. (p. 93) Four former senior officials including the former head of counterterrorism at the National Security Council, Richard A. Clarke, wrote the director of national
intelligence, Mike McConnell, saying that it was not clear that "the immunity debate
will affect our surveillance capabilities.... The intelligence community currently has
the tools it needs to acquire surveillance of new targets and methods of communication" (letter from Rand Beers, Richard A. Clarke, Don Kerrick, and Suzanne Spaulding
to Mike McConnell, February 25, 2008, http://www.nsnetwork.org/node/727).

164. (p. 93) Pub. L. 110-261. The official name is "Foreign Intelligence Surveillance
Act of 1978 Amendments Act of 2008," but it is rarely used.

165. (p. 94) In Re: National Security Agency Telecommunications Record Litigation,
Memorandum of Decision and Order, United States District Court for the Northern
District of California, MDL Docket No 06-1791 VRW, Case No C 07-0109 VRW.

166. (p. 94) Charles Savage and James Risen, "Federal Judges Finds N.S.A. Wiretaps
Were Illegal," New York Times, March 31, 2010.

167. (p. 94) New Signal Surveillance Act.

168. (p. 94) Spiegel Staff, "How German Spies Eavesdropped on an Afghan Ministry," Spiegel Online, April 28, 2008, http://www.spiegel.de/intemational/germany/
0,1518,550212-2,00.html.

169. (p. 94) At the end of World War II, the occupying powers, which included the
United States, required that the German constitution include protections of fundamental human rights.

170. (p. 94) Von Holger Stork, "BND infiltrierte Tausende Computer im Ausland,"
Spiegel Online, March 7, 2009, http://www.spiegel.de/netzwelt/web/0,1518,611954,00
.html.

171. (p. 94) Russell Tice, interview with Keith Olbermann, "Countdown: NSA
Whistleblower-Bush Administration Spying on Journalists-Recording 'Everything'."
http://www.youtube.com/watch?v=osFprWnCjPA, 5:00-5:26.

172. (p. 94) Interview with Lawrence Wright, On the Media, National Public Radio,
http://www.onthemedia.org/transcripts/2009/02/06/01.

173. (p. 94) Kim Zetter, "NSA Whistleblower: Wiretaps Were Combined with Credit
Card Records of U.S. Citizens," Wired, January 23, 2009, http://www.wired.com/
threatlevel/2009/01 /nsa-whistlebl-1 /.

174. (p. 94) James Risen, interview, http://www.youtube.com/watch?v=IRCm4O77gos&
feature=related, 3:48-4:17.

175. (p. 95) Mark Mazzeti and Neil A. Lewis, "Wiretap Said to Be Viewed as Serious
in Late 2005," New York Tirnes, April 24, 2009; Neil A. Lewis and David Johnston,
"U.S. to Drop Spy Case against Pro-Israeli Lobbyists," New York Dines, May 1, 2009.

176. (p. 95) Mazzeti and Lewis, "Wiretaps Said to Be Viewed as Serious in Late 2005."

177. (p. 95) Mazzeti and Lewis, "Wiretaps Said to Be Viewed as Serious in Late 2005."

178. (p. 95) Siobhan Gorman, "House Panel Chief Demands Details of Cybersecurity
Plan," Baltimore Sun, October 24, 2007.

Chapter 5

1. (p. 97) This includes pulse rate and sweat, for example. Such measurements are
the principle behind lie detectors.

2. (p. 97) One exception was the Total Information Awareness program, whose funding
was eliminated by Congress because of negative publicity surrounding the program.

3. (p. 97) The specific recommendation was: "U.S. government agencies should be
required to follow a systematic process ... to evaluate the effectiveness, lawfulness,
and consistency with U.S. values of every information-based program, whether classified or unclassified, for detecting and countering terrorism before such a system
can be deployed and periodically thereafter" (National Research Council, Protecting
Individual Privacy in the Struggle against Terrorists: A Framework for Program Assessment
(Washington, DC: National Academies Press, 2008), 5).

4. (p. 98) Administrative Office of the United States Courts, James C. Duff, director,
2008 Wiretap Report, http://www.uscourts.gov/wiretap08/contents.html, 8.

5. (p. 98) Wiretaps showed that Ames's wife knew about his illegal activities. The
government used this to pressure Ames into revealing information in exchange for
a reduced sentence for his wife.

6. (p. 98) Don Van Natta Jr. and Desmond Butler, "How Tiny Swiss Cellphone Chips
Helped Track Global Terror Web," New York Times, March 4, 2004.

7. (p. 98) Van Natta and Butler, "How Tiny Swiss Cellphone Chips." Fighters in
Somalia and Bosnia also stayed off the airwaves once they discovered that the NSA
was monitoring them (Matthew Aid, Secret Sentry: The Untold History of the National
Security Agency (New York: Bloomsbury Press, 2009), 202).

8. (p. 98) Kenneth Dam and Herbert S. Lin, Cryptography's Role in Securing the
Information Society (Washington, DC: National Academy Press, 1996),, 4.

9. (p. 99) Right to Financial Privacy Act, Pub. L. 99-569, §404, 100 Stat. 3197 (1986).

10. (p. 99) Charles Doyle, National Security Letters in Foreign Intelligence Investigations:
Legal Background and Recent Amendments, CRS Report for Congress, RS33320 (March
28, 2008), CRS-3.

11. (p. 99) Pub. L. 107-56, §505, 115 Stat. 365-366 (2001).

12. (p. 100) U.S.C. §2709. This provision was struck down in 2008 (John Doe, Inc.,
John Doe, American Civil Liberties Union, American Civil Liberties Union Foundation
Plaintiffs-Appellees, v. Michael B. Mukasey, Robert Mueller, Valerie Caproni, United States
Court of Appeals for the Second Circuit, Docket No. 07-4943-cv, December 15,
2008). Under the current ruling, there can still be a "gag" order on an NSL, but it
is not automatic; the FBI has to go to court to obtain one.

13. (p. 100) U.S. Department of Justice, Office of the Inspector General, A Review of
the FBI's Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 (March 2008), 9.

14. (p. 100) U.S. Department of Justice, Office of the Inspector General, A Review of
the FBI's Use of National Security Letters, 110.

15. (p. 100) U.S. Department of Justice, Office of the Inspector General, A Review of
the FBI's Use of National Security Letters, 28.

16. (p. 100) U.S. Department of Justice, Office of the Inspector General, A Review of
the FBI's Use of National Security Letters (March 2007), 48. The DoJ Inspector General has characterized the NSLs as an "important tool" in FBI national-security investigations (DoJ OIG, Assessment and Examination of NSL Usage in 2006, 114). That description appears to be based on anecdotal evidence rather than a careful comparison of
potential alternatives.

17. (p. 100) U.S. Department of Justice, Federal Bureau of Investigation, FOIA: DCS3000 and Red Hook, Other Documents Released (July 2, 2007), part 6 (agency emails),
http://www.eff.org/directory/3673/228 082707-dcs0l.pdf, 41.

18. (p. 100) Heather Timmons, "London Suspect Betrayed by Cellphone," New York
Times, August 2, 2005. Adus also used the alias Hussain Osman.

19. (p. 101) Over three weeks in October 2002, a sniper in the Washington, D.C.,
metropolitan area killed ten people and critically wounded three others; the attacks
occurred in parking lots, gas stations, and schools, and terrified area citizens until
the perpetrators were found.

20. (p. 101) On April 10, 2009, a paid escort was bound and robbed in a room at
the Westin Copley Place Boston after an arrangement made through craigslist. On
April 14, 2009, a masseuse who had also made such an arrangement through craigslist was found murdered in a room at the Boston Marriott Copley Place.

21. (p. 101) Al Gidari, personal communication, July 27, 2009.

22. (p. 101) Al Gidari, personal communication, July 27, 2009.

23. (p. 101) Al Gidari, personal communication, July 27, 2009.

24. (p. 101) Actually they scan all Subscriber Identity Module (SIM) cardselectronic cards that provide a unique ID for the phone to enable billing and so on.
This is the actual phone identifier.

25. (p. 101) Vanessa Gratzer and David Naccache, "Cryptography, Law Enforcement, and Mobile Communications," IEEE Security and Privacy 4, no. 6 (November/
December 2006): 68.

26. (p. 101) The user may have shut the phone "off," but it may still be able to
transmit and receive radio signals. The only thing "off" is the user interface.

27. (p. 101) Gratzer and Naccache, "Cryptography, Law Enforcement, and Mobile
Communications."

28. (p. 101) 18 U.S.C. §3126(8).

29. (p. 101)This report was found by Patricia Bellia of the University of Notre Dame
Law School (Paul Schwartz, "Reviving Telecommunications Surveillance Law,"
University of Chicago Law Review 75 (2008): 296).

30. (p. 102) William Moschella, assistant attorney general, letter to Representative
John Conyers, November 3, 2004, http://www.paulschwartz.net/penregister-report.pdf.

31. (p. 102) While the official number of approved pen-register plus trap-and-trace
orders were 5,007, 4,972, 4,579, 5,778, and 7,323 and the number of approved Title
III warrants for 1994-1998 were 1,154, 1,058, 1,149, 1,186, and 1,329, respectively,
gives a 5:1 ratio of pen-register and trap-and-trace orders to Title III wiretaps
(Electronic Privacy Information Center, "Approvals for Federal Pen Register and Trap
and Trace Devices 1987-1998," http://epic.org/privacy/wiretap/stats/penreg.html),
this represents a major understatement of the number of pen registers actually
implemented. Each wiretap order applies only to a single telephone number, while
a pen-register order may-and usually does-result in records for multiple numbers.
This one order for multiple lines has been the pen-register experience of the
telephone companies; its prevalence is further corroborated by the estimates made
by the FBI for CALEA capacity requirements (U.S. Department of Justice, Federal
Bureau of Investigation, "Implementation of the Communications Assistance for
Law Enforcement Act," Federal Register 60, no. 199: 53643-53646).

32. (p. 102) Marc Rotenberg, John Verdi, and Christopher Soghian, letter to Senator
Patrick Leahy, April 29, 2009, 4.

33. (p. 102) Rotenberg, Verdi, and Soghian, letter to Senator Patrick Leahy.

34. (p. 102) U.S. Department of Justice, Federal Bureau of Investigation, FOIA:
DCS-3000 and Red Hook, Other Documents Released, July 2, 2007, part 6 (agency
emails; miscellaneous statements and reports), 148.

35. (p. 103) Judicious Use of Surveillance Tools in Counterterrorism Efforts (JUSTICE) Act,
S. 1686.

36. (p. 103) JUSTICE Act, §101 (b)(1)(B)(i)(ii).

37. Specifically, "someone who has been in contact with a suspected agent of a
foreign power or an individual who is the subject of a national-security investigation
... or if they pertain to the activities of a suspected agent of a foreign power, where
those activities are the subject of an ongoing and authorized identified national
security investigation (other than an assessment)," JUSTICE Act, §101 (b)(1)(B)(i)(ii).

38. (p. 103) U.S. Department of Justice, Electronic Surveillance Manual: Procedures and
Case Law Forms, ( 2005), 40.

39. (p. 103) U.S. Department of Justice, Electronic Surveillance Manual: Procedures and
Case Law Forms, ( 2005), 40.

40. (p. 103) Triggerfish technology can also easily obtain call content; of course, a
wiretap order is required if this is to be done.

41. (p. 103) http://www.pathintelligence.com/website-demo/ui-demo.html.

42. (p. 104) On Lee v. United States, 343 U.S. 747 (1952).

43. (p. 104) Administrative Office of the United States Courts, Leonidas Ralph
Mecham, director, 2001 Wiretap Report, 11.

44. (p. 104) Administrative Office of the United States Courts, Wiretap Report (Washington, DC: Government Printing Office, 1998), 11.

45. (p. 105) Herman Schwartz, The Costs and Benefits of Electronic Surveillance, ACLU
Report, 1973, 185-186.

46. (p. 105) Herman Schwartz, testimony in National Commission for the Review
of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Cornrnission Hearings, vol. 2 (Washington, DC: Government Printing Office, 1976), 1098.

47. (p. 105) Herman Schwartz, "Reflections on Six Years of Legitimated Electronic
Surveillance," in National Commission for the Review of Federal and State Laws
Relating to Wiretapping and Electronic Surveillance, Commission Hearings, vol. 1
(Washington, DC: Government Printing Office, 1976), 1141.

48. (p. 105) Arlen Specter, testimony in National Commission for the Review of
Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Cornrnission Hearings, vol. 1, 257.

49. (p. 106) Administrative Office of the United States Courts, Wiretap Report (Washington, DC: Government Printing Office, 1979), xiv.

50. (p. 106) Whitfield Diffie and Susan Landau, Privacy on the Line: The Politics of
Wiretapping and Encryption, rev. ed. (Cambridge, MA: MIT Press, 2007), 211.

51. (p. 106) Patrick Fitzgerald, testimony at the Twelfth Public Hearing, National
Commission on Terrorist Attacks on the United States, June 16, 2004.