McConnell Suggests the U.S. Monitor All Internet Use

Michael McConnell, U.S. Director of Intelligence, thinks the threat of cyber 9/11 is so great that the U.S. government should have unfettered and warrantless access to U.S. citizens' Google search histories, private e-mails and file transfers, in order to spot the cyberterrorists in our midst.^[1]

In May of 2007 McConnell convinced President Bush that a massive cyber-attack on a single U.S. bank would be worse for the economy than the terrorist attacks of September 11.^[2] In response, the NSA developed a plan to eavesdrop on internet goings on -- in order to protect it. this frightening circular argument seems to be gaining more ground.

Ed Giorgio, who is working with McConnell on the plan, asserted that in order for cyberspace to be policed, internet activity will have to be closely monitored; that would entail giving the government the requisite authority to examine the content of any e-mail, file transfer, or Web search.^[3]

The greenlight for any wiretaps currently comes from the Foreign Intelligence Surveillance Court; and that entity only has the ability to grant intercepts that physically happen within the borders of the United States.^[4] The NSA has always been free to intercept foreign communications overseas -- the mission for which they were created and funded -- even if the call passes through a U.S. switch.^[5] The FISA law is intended to prevent the NSA from operating inside the United States, thus making McConnell’s plan all the more troubling.^[6]

Since 2005, the warrantless wiretapping program has become the topic of 40 lawsuits.^[7]Federal criminal defense attorney Douglas McNabb has previously blogged about the U.S. government’s warrantless wiretapping, here.

---

^[1] Ryan Singel, NSA Must Examine All Internet Traffic to Prevent Cyber Nine-Eleven, Top Spy Says, Wired, January 15, 2008, available at http://blog.wired.com/27bstroke6/2008/01/feds-must-exami.html (last visited January 16, 2008).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] John Leyden, US warrantless wiretapping predates 9/11, The Register, December 18, 2007, available at http://www.theregister.co.uk/2007/12/18/warrantless_wiretapping_latest/ (last visted December 28, 2007).

U.S. Has Been Wiretapping Since Before 9/11

Brand new evidence has emerged that the U.S. government's warrantless wiretapping program predates the 9/11 terrorist attacks.^[1] Secret surveillance operations that enabled the National Security Agency (NSA) to access telecommunications traffic data have been in place since the 1990s.^[2] In an attempt to gain intelligence on narcotics trafficking the NSA forged an uneasy alliance with telecommunication companies to gather data on phone calls and emails from the US to Latin America.^[3]

The alliance between the US government and telecommunication companies to gather call records involving thousands of US and foreign citizens was constrained by legal worries and fears of public exposure.^[4] Even so, it took until 2004 for one unnamed carrier to break ranks and refuse to provide customer data.^[5]

Separately, US carrier Qwest refused to provide NSA spooks with access to local communications switches; this would have allowed surveillance of domestic phone calls without a court order.^[6] This occurred in early 2001, months before the World Trade Center attacks in September that year.^[7]

Negotiations between the NSA and AT&T in February 2001 allegedly involved replicating a New Jersey network centre to allow the US signals intelligence "access to all the global phone and email traffic that ran through it," an incident that has become one aspect of a lawsuit which also brings in allegations that Verizon set up a dedicated fibre-optic line from New Jersey to a large military facility in Quantico.^[8] An AT&T technician at the time has provided evidence supporting the allegations. However, other AT&T technicians are due to testify that the project was confined to improving internal communications within the NSA.^[9]

Since 2005, the warrantless wiretapping program has become the topic of 40 lawsuits.^[10]

Federal criminal defense attorney Douglas McNabb has previously blogged about the U.S. government’s warrantless wiretapping, here.

---

^[1] John Leyden, US warrantless wiretapping predates 9/11, The Register, December 18, 2007, available at http://www.theregister.co.uk/2007/12/18/warrantless_wiretapping_latest/ (last visted December 28, 2007)
^[2] Eric Lichtblau, James Risen and Scott Shane, Wider Spying Fuels Aid Plan for Telecom Industry, New York Times, December 16, 2007, available at http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=1&_r=1 (last visited December 28, 2007).
^[3] Id.
^[4] Id.
^[5] Leyden, supra note 1.
^[6] Lichtblau, et al, supra note 2.
^[7] Id.
^[8] Leyden, supra note 1.
^[9] Id.
^[10] Id.

Telecommunications Companies May Get Immunity from Senate in Wiretapping Bill

Telecommunications companies won a skirmish in the Senate on Monday as a bill to protect them from lawsuits for cooperating with the Bush administration’s eavesdropping programs easily overcame a procedural hurdle and passed on a vote of 76 to 10.^[1] A measure to block it, led by Senator Christopher Dodd, fell short as those who wanted the bill to reach the floor got 16 votes more than the 60 needed to advance the bill for consideration.^[2]

In his unsuccessful bid to block the legislation, Senator Dodd urged his colleagues not to immunize the telecommunications industry for cooperating with the National Security Agency’s secret program of eavesdropping without warrants.^[3] Dodd asserted that “[f]or the last six years, our largest telecommunications companies have been spying on their own American customers…..Secretly and without a warrant, they delivered to the federal government the private, domestic communications records of millions of Americans — records this administration has compiled into a data base of enormous scale and scope….I have seen six presidents — six in the White House — and I have never seen a contempt for the rule of law equal to this.”^[4]

What happens next is not immediately clear. A different bill, which would not grant immunity to the companies, was also expected to be introduced by, head of the Senate Judiciary Committee, Senator Patrick J. Leahy; whichever bill emerges from the Senate may have to be reconciled with a House version that does not include immunity.^[5]

The measures are meant to renew the controversial Foreign Intelligence Surveillance Act, which currently expires in February.^[6] We have previously talked about FISA in this blog, here.

But supporters of the administration’s program of surveillance without warrants have described it as necessary to protect Americans from terrorists, and they insist the program strikes a sensible balance between national security and personal liberty.^[7] President Bush has threatened to veto any measure that does not grant immunity to the companies.[8] The House version of the legislation, enacted a month ago, was approved by 227 to 189, which is dozens of votes short of the two-thirds needed to overcome a presidential veto.^[9]

Senator Harry Reid of Nevada, the Democratic majority leader, said he agreed to have both Senate measures considered at the same time because “this process will give senators the opportunity to fully debate the various issues.”^[10]

Federal criminal defense attorney Douglas McNabb has previously blogged about the U.S. government’s warrantless wiretapping, here.

---

^[1] David Stout, Telecom Industry Wins a Round on Eavesdropping, New York Times, December 17, 2007, available at http://www.nytimes.com/2007/12/17/washington/17cnd-nsa.html?_r=1&ref=business&oref=slogin (last visited December 18, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.

NSA is Planning to Secure Domestic as Well as Government Information

The National Security Agency is drawing up plans for its new domestic assignment which will entail helping protect government and private communications networks from cyberattacks and infiltration by terrorists and hackers, according to current and former intelligence officials.^[1]

This is a major step since electricity grids, subways, nuclear power plants, and national defense all depend more than ever on Internet-based control systems that could be manipulated remotely in a terrorist attack.^[2]

Director of National Intelligence Mike McConnell is coordinating the initiative, where the plan calls for the NSA to work with the Department of Homeland Security and other federal agencies to monitor such networks to prevent unauthorized intrusion; the plan is known internally as the "Cyber Initiative."^[3]

The NSA's new domestic role would require a revision of the agency's charter, because up to now, the NSA's cyberdefense tools have been used to guard the government's classified networks and not the massive unclassified networks that now are the responsibility of other federal agencies.^[4]

"As the lead agency responsible for assuring the security, resiliency and reliability of the nation's information technology and communications infrastructure, our department is working to unify further and integrate the security framework for cyber operations throughout the federal government," asserted Homeland Security spokesman Russ Knocke.^[5]

However intelligence officials, including several NSA veterans, warned that the agency's venture into domestic computer and communications networks even if limited to protecting them could raise new privacy concerns.^[6] The problematic issue is that to protect a network, the government must constantly monitor it.

The NSA, as has been previously reported on this blog, is already mired in controversy for their warrantless wiretapping programs. Is taking over cybersecurity for the whole nation something that the public will tolerate or allow? President Bush seems to think so.

President Bush called on Congress to make permanent a law that gives the government broad authority to eavesdrop without warrants on phone calls, e-mail and other communication between people in the United States and suspected terrorists abroad.^[7]

The president wants Congress to extend the law, set to expire in February that allows spy agencies to intercept the communications of suspected terrorists that pass through U.S. switching facilities.^[8] "It is the job of Congress to give the professionals the tools they need to do their work as effectively as possible," Bush said during a visit to the headquarters of the National Security Agency in Fort Meade.^[9]

This may prove to be a tough sell to a public that is already skeptical about the security measures taken by this administration. However Mike McConnell is trying to assuage those fears, asserting to the House Judiciary Committee that since he took office the government has conducted electronic surveillance only after seeking court-approved warrants.^[10]

McConnell’s testimony Tuesday, Sept. 18, was the first time he has publicly said that the warrantless wiretapping of Americans has actually been ended.^[11] Perhaps this statement was an effort to make the news that the NSA will be in charge of all cyber security, an easier pill for the public to swallow.

---

^[1] Siobhan Gorman, NSA to defend against hackers, Baltimore Sun, September 20, 2007, available at http://www.baltimoresun.com/news/nation/bal-te.nsa20sep20,0,5183239,full.story (last visit September 20, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Michael A. Fletcher, Bush Asks Congress to Extend NSA Program, Washington Post, September 19, 2007 available at http://www.washingtonpost.com/wp-dyn/content/article/2007/09/19/AR2007091901111.html?hpid=topnews (last visited September 20, 2007).
^[8] Id.
^[9] Id.
^[10] James Risen, Warrantless Wiretaps Not Used, Official Says, New York Times, September 19, 2007, available at http://www.nytimes.com/2007/09/19/washington/19nsa.html (last visited September 20, 2007).
^[11] Id.

Director of National Intelligence Asks to Extend Wiretapping Laws

Director of National Intelligence Mike McConnell will be seeking to extend the government's power to read e-mails, listen to telephone calls and carry out other surveillance within the USA in national security cases this week.^[1] Democrats are criticizing McConnell's proposals asserting that judges should oversee that type of surveillance.^[2]

Many Democrats also object to a second item on McConnell’s wish list: immunity from lawsuits for telecom companies that helped the federal government intercept calls between U.S. and foreign intelligence targets without warrants from late 2001 until last January.^[3]

A 1978 law requires the national intelligence services (CIA, FBI, NSA, etc.) to get a warrant from the Foreign Intelligence Surveillance Court before eavesdropping in a national security case on a target in the USA.^[4] Overseas targets, such as two al-Qaeda operatives speaking on cellphones in Pakistan, generally may be tapped without a warrant.^[5]

Recent changes in fiber-optic technology, though, cause many foreign-to-foreign phone calls, e-mails and other electronic messages to pass through American-based switching points.^[6] Earlier this year, a foreign intelligence court judge ruled that warrants were required to intercept those calls as they passed through American lines.^[7] McConnel complains that this is an undue burden because the warrant process takes 200 hours per phone number, is unnecessarily time consuming, and results in lost opportunities to collect intelligence.^[8]

This spring, with the backing of President Bush, McConnell and other intelligence officers lobbied hard for a bill that would eliminate the need for a warrant in such cases, and last month, Congress passed a temporary fix that currently allows intercepts without a warrant.^[9] It applies to wire communications involving foreign parties and to calls and e-mails in which one participant is U.S.-based, provided the overseas party is the object of a national security investigation; the law expires in February.^[10]

Democrats will offer their own legislation addressing what they called the "many deficiencies" in the law.^[11] Chief among them is the lack of "even limited court oversight" of the decision to tap a phone or read an e-mail.^[12] “[Under the new law the court's role has been marginalized……do we really want the attorney general and the director of national intelligence doing the oversight on their own decisions?" says American Civil Liberties Union attorney Tim Sparapani.^[13]

Federal criminal defense attorney Douglas McNabb has previously written about the Government’s warrantless wiretapping program in his national security crimes blog, these posts can be found here.

---

^[1] Richard Willing, Intel chief pushes new spy law, USA Today, September 18, 2007, available at http://www.usatoday.com/news/washington/2007-09-16-intel_N.htm (last visited September 18, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.
^[12] Id.
^[13] Id.

DNI Confirms Illegaltiy of Warrantless Wiretaps

Director of National Intelligence J. Michael McConnell, the nation's top intelligence official, has confirmed that a federal court did rule the Bush administration's warrantless wiretapping program was in violation of the law, prompting the mad rush in Congress this month to overhaul key espionage provisions.^[1]

In an interview with the El Paso Times,^[2] McConnell also disclosed that the number of people in the United States who are under surveillance by the nation's spy services is "100 or less," a figure he said showed that the government was not engaged in widespread spying on Americans.^[3]

His comments represent an exceedingly rare candid public description of one of the nation's most closely guarded and controversial espionage operations.^[4] Many of the details he described -- such as the deliberations of the special intelligence court and the scope of the surveillance operation -- are usually considered classified.^[5]

The Foreign Intelligence Surveillance Court's adverse ruling earlier this year delivered a major blow to U.S. spying operations, even as intelligence analysts were expressing growing alarm that the Al Qaeda terrorist network was regrouping, "[w]e found ourselves in a position of actually losing ground," McConnell asserted.^[6]

Initially, he said, one of the judges on the 11-member panel supported the government's position and ruled that individual warrants were not needed to intercept communication between two people overseas whose e-mails or calls happened to travel through data networks inside the United States.^[7] But in a subsequent review, a second judge took a different position which meant that the government had to get a court order to trace calls or e-mails that traveled on networks inside the United States, even if the parties at both ends were overseas.^[8] However the government managed to obtain a temporary stay allowing it to continue intercepting e-mails and phone calls without individual warrants through May 31.^[9]

McConnell then began banging the table at Capitol Hill alerting all who would listen that a key piece of the nation's counter-terrorism capabilities was about to be cut of at the knees. Those warnings fueled a frantic, end-of-summer push in Congress to rewrite the laws,^[10] the emergency legislation, which is set to expire in six months,[11] allowed the government to resume its eavesdropping operations without individual warrants.^[12]

But the changes, and the hurried atmosphere in which they were adopted, have prompted many Democrats to express misgivings about the revisions; they have pledged to revisit the issue next month after Congress returns from its August recess.^[13]

In defending the wiretapping program, McConnell did assert that, "[t]here's a sense that we're doing massive data mining, [i]n fact, what we're doing is surgical. A telephone number is surgical. So, if you know what number, you can select it out." he said, referring to the practice of searching for suspicious content by combing through calling data surrendered by telephone companies.^[14]

McConnell's statement suggests that the government, which has access to most major telecommunications networks inside the United States, pulls out for review only the contents connected to phone numbers that are already under suspicion for ties to terrorism or other foreign intelligence priorities.^[15]

McConnell said the nation's spy agencies obtained warrants any time they targeted someone inside U.S. borders. "It's a manageable thing, [o]n the U.S. persons side, it's 100 or less…….[o]n the "foreign side, it's in the thousands." McConnell said.^[16]

---

^[1] Greg Miller, Spy chief reveals details of operations, Los Angeles Times, August 23, 2007, http://www.latimes.com/news/nationworld/nation/la-na-intel23aug23,1,2267586.story?coll=la-headlines-nation&ctrack=1&cset=true (last visited August 28, 2007).
^[2] McConnell was interviewed by the El Paso Times after addressing a border security conference in the city Aug. 14. On Wednesday, the newspaper posted a transcript of the interview on its website at www.elpasotimes.com/news/ci_6685679 (last visited August 28, 2007).
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Which were passed in the 1970’s as a response to problems caused when U.S. intelligence agencies had been caught spying on student groups and other domestic targets.
^[11] Ryan Singel, Analysis: New Law Gives Government Six Months to Turn Internet and Phone Systems into Permanent Spying Architecture – UPDATED, Wired.com, August 06, 2007, available at http://blog.wired.com/27bstroke6/2007/08/analysis-new-la.html (last visited August 28, 2007) (The bill, known as the Protect America Act, removes the prohibition on warrantless spying on Americans abroad and gives the government wide powers to order communication service providers such as cell phone companies and ISPs to make their networks available to government eavesdroppers.)
^[12] Id.
^[13] See, Comments made by Sen. Leahy in this blog, here.
^[14] Id.
^[15] Id.
^[16] Id.

Report States That FBI is Not Co-operating With ICE

Immigration and Customs Enforcement (ICE) agents have ignored or dropped federal criminal leads, or entire federal criminal cases, involving terrorist activities.^[1]

A report by federal officials released Monday, Aug. 13 asserted that the reason was because of ICE disputes with the FBI.^[2]

The report examined 10 cases that began at ICE and were taken over by the FBI, the inspectors general of the Homeland Security and the Justice departments found that seven suffered from lack of cooperation until they were taken over by the Joint Terrorism Task Forces, which the FBI controls.^[3]

''We were ... extremely troubled that ICE agents would say that their agents declined to undertake a case of potential national security significance for such petty reasons…[although] while the hostility to the FBI's dominance in the field of terrorist financing investigations is palpable, we have no direct evidence that any ICE agent has actually been derelict.'' the inspectors general wrote in the report; the report stated that the FBI delayed and refused investigative actions that needed court approval, which led ICE agents to avoid leads and cases that would have required FBI involvement.^[4]

Monday Sen. Charles Grassley, R-Iowa, a member of the Judiciary Committee had asked the inspectors general to examine the effectiveness of an agreement between the Homeland Security and Justice departments aimed at addressing the coordination of terrorist financing investigations.^[5] Grassley said he initially looked into complaints about friction between ICE and FBI agents after reports from retired ICE agent Joe Webber, who led the Houston field office.^[6] Webber said the FBI blocked a request for a wiretap on a person who was communicating with someone the Treasury Department had designated a terrorist, according to the senator.^[7]

''It seems obvious that the findings of this report justify concerns about a lack of trust between our two largest federal law enforcement agencies. They need to work together in order to do everything possible to protect Americans in the war on terror,'' Grassley said in a statement.^[8]By way of a hypothetical example, the report asserted that if a case involved two leads – one involving illegal drugs and the other involving terrorism – an agent would pursue the drug lead in order to avoid working with the FBI; in such cases, the agent did not always forward the terrorism lead to the joint task force.^[9]

---

^[1] AP Staff, Report: Disputes Impede Terrorism Probes, Associated Press Newswire, August 14, 2007, available at available at LEXIS, News Library, Wire News Services File.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.

Al-Haramain Islamic Foundation May Have Best Case Againt Government for Warrentless Wiretapping

In open court and legal filings it's referred to simply as ''the Document,'' and federal officials claim its contents are so sensitive to national security that it is stored in a bombproof safe in Washington and viewed only by prosecutors with top secret security clearances and very few select federal judges.^[1] “The Document,” has been described by those who have seen it as a National Security Administration log of calls intercepted between an Islamic charity and its American lawyers, and it is at the heart of what legal experts say may be the strongest case against the Bush administration's warrant-less eavesdropping program.^[2] The federal appeals court in San Francisco plans to hear arguments in the case Aug. 15.^[3]

Federal attorney Jon Eisenberg, the charity's lawyer, thinks the often surreal lengths the government has taken to keep the Document under wraps are ridiculous, ''believe me, if this appeared on the front pages of newspapers, national security would not be jeopardized,'' he asserted.^[4] Eisenberg represents the now-defunct U.S. arm of the Al-Haramain Islamic Foundation, a prominent Saudi charity that was shut down by Saudi authorities after the U.S. Treasury Department declared it a terrorist organization that was allegedly funding Al-Qaida.^[5]

He and his colleagues sued the U.S. government in Portland, Ore.'s federal court, alleging the NSA had illegally intercepted telephone calls without warrants between Soliman al-Buthi, the Saudi national who headed Al-Haramain's U.S. branch, and his two American lawyers, Wendell Belew and Asim Ghafoor.^[6]

Unlike dozens of other lawyers who have sued alleging similar violations of civil liberties stemming from the Bush administration's secret terrorism surveillance program, Eisenberg's team had what they claimed was, “the Document.”^[7] They obtained it in 2004, from the Treasury Department. The U.S. Treasury was considering whether to include the group on its list of terrorist organizations and Al-Haramain's lawyer asked to see the evidence.^[8] So the Treasury officials mistakenly handed over the “the Document,” which has the words ''top secret'' stamped on every page, along with press clippings and other unclassified documents deemed relevant to the case.^[9] Once the Government realized what they had done – albeit six weeks later – the FBI was dispatched to retrieve it; by copies had been passed out to five other lawyers, a Washington Post reporter and two Al-Haramain directors.^[10]

Still, the lawyers were unsure what they'd been given until December 2005, when The New York Times published a story exposing the Bush administration's warrantless wiretapping program.^[11] The attorneys involved in the Al-Haramain case suddenly realized that the call log was proof their clients had been eavesdropped on, and they sued.^[12]

An Oregon judge soon ordered Eisenberg and his colleagues to turn over all copies, but in an odd legal twist, U.S. District Court Judge Garr King allowed the suit to go forward with Eisenberg's team forced to rely on their memories of the Document.^[13] Each time the judges want to view the Document, a Department of Justice ''court security officer'' hand carries it from Washington to San Francisco, then returns home with it and any notes the judges made that are deemed sensitive, according to court documents.^[14]

Even without the Document itself, legal observers say Eisenberg's case may have the best chance of succeeding among the many legal challenges to the wireless wiretapping program, which the Bush administration discontinued earlier this year.^[15] Belew and Ghafoor, the two lawyers whose calls were allegedly intercepted by NSA, appear to be the only U.S. citizens with actual proof that the government eavesdropped on them. They're demanding $1 million each from the federal government and the unfreezing of Al-Haramain's assets.^[16]

Federal criminal defense attorney Douglas McNabb has previously blogged about the U.S. government’s warrantless wiretapping, here, and here.

---

^[1] Paul Elias, Secret call log at heart of wiretap challenge, Associated Press Newswire, August 6, 2007, available at LEXIS, News Library, Wire News Services File.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.
^[12] Id.
^[13] Id.
^[14] Id.
^[15] Id.
^[16] Id.

District Judge Criticizes Warrantless Wire-Taps

Royce Lamberth, a district judge in Washington, said Saturday it was proper for executive branch agencies to conduct such surveillance, however the federal judge, who used to authorize wiretaps in terrorist and espionage cases, criticized President Bush's decision to order warrantless surveillance after the 9/11 attacks.^[1]

"What we have found in the history of our country is that you can't trust the executive.........We have to understand you can fight the war (on terrorism) and lose everything if you have no civil liberties left when you get through fighting the war," he told the American Library Association convention.^[2] He continued saying, "[t]he executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs.....We still have to preserve our civil liberties. Judges are the kinds of people you want to entrust that kind of judgment to more than the executive."^[3]

He was named chief of the Foreign Intelligence Surveillance Court (FISA) and served until 2002. The court meets secretly to review applications from security agencies for warrants to wiretap or search the homes of people in the U.S. in terrorist or espionage cases.^[4] Each application is signed by the attorney general, thus far the court has approved more than 99 percent of them.^[5]

Shortly after the 2001 attacks, Bush authorized the NSA to spy on calls between people in the U.S. and suspected terrorists abroad without FISA warrants, citing time constraints as the reason, and asserting that the president had authority to order warrantless domestic spying.^[6]

---

^[1] Michael J. Sniffen, Judge: Bush wrong on warrantless spying, Associated Press Newswire, June 24, 2007, available at LEXIS, News Library, Wire News Services.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.

Domestic Surveillance-Verizon

U.S. District Judge John Woodcock held Thursday that the "potential risk" to national security is significant enough to grant a Justice Department motion to keep the Maine Public Utilities Commission (PUC) from forcing Verizon to reveal whether it has cooperated with the National Security Agency’s (NSA) warrantless wiretap program. ^[1]

We have written extensively about the wiretap program here and domestic surveillance programs here.

"It is painfully obvious that, in making assessments about the impact of its order on national security, the PUC is acting beyond its depth," Woodcock wrote. ^[2]

"The PUC’s statutory area of responsibility and expertise is to regulate public utilities, it is not charged with evaluating threats to national security, investigating the NSA, or holding businesses in contempt when their silence was mandated by the federal government.”^[3]

"When confronted with a divergence of opinion as to the national security implications of the PUC order, as between the NSA, which is charged with ensuring national security, and the PUC, which is charged with state utility regulation, the court would be hard-pressed to rely on the assurances of the PUC over the warnings of the NSA," he said.^[4]

In May, a multicustomer complaint was filed with the PUC after news reports about domestic surveillance by the NSA came out, seeking to force Verizon to say whether it provided telephone call records to the government without warrants.^[5]

Similar lawsuits were filed in federal courts in Missouri, Connecticut and New Jersey and those lawsuits are being combined and sent to U.S. District Court in San Francisco under the federal court’s multidistrict litigation program. ^[6]

Verizon moved to dismiss the complaint and attached two press releases it had issued to the motion stating that the company could not comment on whether it had any relationship to the NSA program, but also said it had not shared records with the agency.^[7] Last summer, the PUC asked Verizon to submit sworn affirmations about the truth of the statements in the press releases.^[8]

The Justice Department in August sued the PUC and Verizon seeking an injunction and declaratory judgment to keep commissioners from asking questions about what phone records the company has turned over to NSA, if any, and to keep Verizon from answering questions from the PUC. ^[9]

The executive director of the Maine Civil Liberties Union, which represented the Verizon customers who brought the complaint to the PUC, disagreed with Woodcock’s ruling.^[10]

"We don’t think it’s a national secret that the federal government and many phone companies conspired to conduct surveillance of phone customers in the U.S. and very possibly Maine," Shenna Bellows said. "It’s hard to believe that confirmation under oath about statements made widely in the press would violate state secrets." ^[11]

---

[1] Judy Harrison, Judge Scuttles Verizon Hearing, Bangor Daily News, February 9, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.

FBI Internet Surveillance Techniques Broaden

The FBI appears to have adopted an invasive Internet surveillance technique that collects far more data on Americans than previously has been disclosed according to a digital age search and seizure symposium held at Stanford Law School. ^[1]

Instead of recording only what a particular suspect is doing, agents conducting investigations appear to be assembling the activities of thousands of Internet users at a time into massive databases, according to current and former officials.^[2] That database can subsequently be searched for names, e-mail addresses or keywords. ^[3]

This “full-pipe surveillance” can record all Internet traffic like Web browsing or only certain subsets such as all e-mail messages.^[4] Interception takes place inside an Internet provider's network at the junction point of a router or network switch. ^[5]

It's employed when police have obtained a court order and an Internet service provider can't "isolate the particular person or IP address" because of technical constraints.” ^[6] Full-pipe recording has become federal agents' default method for Internet surveillance according to former officials. ^[7]

This technique is broader and potentially more intrusive than the FBI's Carnivore surveillance system which was abandoned two years ago.^[8] Carnivore, which did not perform “full-pipe recording,” was the subject of congressional scrutiny but the FBI's current Internet eavesdropping techniques have received little attention.^[9]

However, the full-pipe technique raises legal questions because under federal law, the FBI must perform what's called "minimization." ^[10]

Agents must "minimize the interception of communications not otherwise subject to interception" and keep the supervising judge informed in order to limit eavesdropping on innocent conversations. ^[11]

18 U.S.C. 2518 governs Interception of wire, oral and electronic communications.^[12] The law mentions only real-time interception but states: "In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception." ^[13]

Because digital communications amount to a foreign language or code federal agents are legally permitted to record everything and sort through it later. ^[14]
However, the FBI may be collecting and storing the communications in violation of the Wiretap Act and the 4th Amendment to the Constitution. ^[15]

In a 1978 Supreme Court decision, Scott v. United States, the justices upheld police wiretaps of people suspected of selling illegal drugs. ^[16] But in his majority opinion, Justice William Rehnquist said that broad monitoring to get one suspect might go too far.^[17] "If the agents are permitted to tap a public telephone because one individual is thought to be placing bets over the phone, substantial doubts as to minimization may arise if the agents listen to every call which goes out over that phone regardless of who places the call," he wrote. ^[18]

Another unanswered question is whether a database of recorded Internet communications can legally be mined for information about unrelated criminal offenses and whether those discussions could be used against a defendant in a criminal prosecution. ^[19]

In response, the Department of Justice issued a statement stating that “Nothing has changed from our long-standing practice in implementing court-authorized law enforcement interception orders.” Read the full statement here.^[20]

---

[1] Declan McCullagh, FBI Turns to Broad New Wiretap Method, C-Net.News.com, January 30, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] 18 U.S.C. 2518 (2006).
[13] Id.
[14] McCullagh, supra note 1.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Declan McCullagh, Justice Department takes Issue with Net-Wiretapping Report, C-Net.News.com January 30, 2007.

Domestic Spying Program-Warrants Now Required

The Bush administration will now have a secret but independent panel of federal judges oversee the government's controversial domestic spying program. ^[1] Officials say the Foreign Intelligence Surveillance Court has already approved at least one warrant to conduct monitoring of a person suspected to having ties to al-Qaida. ^[2] The Foreign Intelligence Surveillance Court was created by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)). Senate Democrats pressed Attorney General Alberto Gonzales on Thursday to explain why it took the Bush administration five years to give the national security court control over government eavesdropping on suspected terrorists.


In a letter to senators on Wednesday, Gonzales said that "any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court." ^[3] Until now, the National Security Agency's domestic surveillance program, launched in the months after the Sept. 11 terrorist attacks, has monitored overseas phone calls and other electronic communications involving Americans without court warrants. ^[4] Gonzales said the new program complies with the Foreign Intelligence Surveillance Act, or FISA, the 1978 law that created the court and gave it a lower threshold for approving wiretaps and other surveillance in national security investigations. ^[5]

After it was revealed in 2005, the administration defended the program as essential to national security. ^[6]

After the revelation in the press, along with a sharp increase in subpoenas for reporters' notes and telephone records, there are have been threats of prosecution under the Espionage Act of 1917 for reporting classified information. ^[7] We have previously written about criminal prosecutions of journalists here. The Espionage Act^[8] makes it a crime for a person to receive or obtain or agree or attempt to receive or obtain from any person, or from any source, any document (among many other items) of anything connected with the national defense.^[9] The person must receive the information “for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” ^[10] The receiver must also know or have reason to believe that the information “has been or will be obtained, taken, made, or disposed of by any person” contrary to law.”^[11]

From the start, Bush maintained the warrantless program's existence was "fully consistent with my constitutional responsibilities and authorities," and said he would continue to reauthorize it "for as long as our nation faces a continuing threat from al-Qaida and related groups." ^[12] Circumventing the court, he said, "enables us to move faster and quicker." ^[13]
But last August, a federal judge in Detroit declared the spying program unconstitutional and is currently being appealed. ^[14] That appeal, which was scheduled to be heard on Jan. 31, will now likely be rendered moot, if the government drops its case. ^[15]


[1] Lara Jakes Jordan, Bush Agrees to Court Oversight of Domestic Spying, Associated Press, January 22, 2007
[2] Id.
[3] Id.
[4] Greg Gordon, Senators Seek Domestic Spying Data, Myrtle Beach Sun, January 19, 2007.
[5] Id.
[6] Jordan, supra, note 1.
[7] Nat Hentoff, The Enemy Within, The Village Voice, January 21, 2007.
[8] Recodified in 1948 as 18 U.S.C. § 793.
[9] Id. § 793(c).
[10] Id. (incorporating by reference 18 U.S.C. § 793(a)).
[11] Id. § 793(c).
[12] Jordan, supra note 1.
[13] Id.
[14] Id.
[15] Id.

Warrantless Surveillance—Arson Investigation

The issue of warrantless wiretaps, which we have discussed a number of times before, has cropped up in a case which seems to have a very weak international component, though it does have a quasi-terrorism component—if eco-terrorism counts as terrorism, and if you discount the fact that none of the defendants have been charged with terrorism crimes.

A federal judge in Eugene, Oregon “has given prosecutors until Sept. 26 to say if they used warrantless wiretaps against 13 defendants facing arson charges in cases believed linked to the radical Earth Liberation Front and Animal Liberation Front.”^[1] The defendants—facing charges in a number of arson cases including fires at tree farms, an SUV dealership, a meatpacking plant, and a lumber mill—have requested the disclosure of “whether there is or is not NSA surveillance material.”^[2]

If there were such wiretaps, “and a court finds them unconstitutional, the largest indictment of radical environmental activists ever could be thrown out.”^[3] AUSA Stephen Peifer told US District Judge Ann Aiken “that the NSA played no role in the investigation,” which has been ongoing for nearly 10 years, but he also said “nobody on the prosecution team has the security clearance to completely answer defense lawyer’s request for NSA information.”^[4]

The request was made in a solitary line in the defendants’ March 2006 Joint Motion for Discovery, which stated, merely, “This request encompasses any information and material obtained by the National Security Agency.”^[5] In a subsequent memorandum of support, the defendants say that there “at least two reasons to believe that the government’s surveillance programs extend to persons the government claims are connected to or know about activities claimed by the Earth Liberation Front and the Animal Liberation Front.”^[6] First, the government has repeatedly labeled the ELF and ALF as extremist and terrorist movements, and the activities of which the defendants are accused are typically characterized as “terrorism.”^[7] Second, the defendants argue, the government has repeatedly “noted international ties in its analyses of the ELF and ALF,” and has noted some of the overseas ties of the defendants, as well as alleging that some of the defendants had received financial support from outside the United States.^[8] Thus, the logic holds that “the unequivocal assertions that the defendants in this case are among the most serious domestic terrorist threats the nation faces, coupled with claims of international connections and support, make any purported member of the ELF or ALF a prime target of a comprehensive program to monitor the communications of ‘terrorists.’”^[9]

---

[1] Warrantless Wiretap Issue Arises in Arson Case, Coos Bay World, Sep. 9, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] United States v. McGowan, No. CR 06-60011-AA (D. Ore. 2006), at 14, docket entry no. 90.
[6] Id. docket entry no. 147, at 2.
[7] Id.
[8] Id. at 2-3.
[9] Id. at 3.

Warrantless Domestic Surveillance—Oversight

Republican Senator Arlen Specter has “revealed a bill that would require a court to review the constitutionality of the National Security Agency’s controversial intelligence-gathering program.”^[1] The White House has stated that it would “accept [Sen.] Specter’s legislation if Congress does not change it dramatically.”^[2]

The bill would “require[] the Foreign Intelligence Surveillance [C]ourt to review the program’s constitutionality.”^[3] It would also “give the government seven rather than the current three days to obtain a warrant in an emergency and grant the attorney general greater flexibility in requesting such an emergency. It would also provide for roving wiretaps that target individuals rather than specific telephones.”^[4] Furthermore, the FISC would conduct only a one-time review of the program, rather than conduct on-going oversight.^[5] It also would create “a new offense if government officials misuse information.”^[6] At this time, there are few additional details on the legislation.

Democratic Senator Patrick Leahy has noticed an interesting quirk in the proposed legislation: submission to the FISC is voluntary in the new legislation, but “an administration official who spoke on condition of anonymity … said that [President] Bush will submit to the court review as long as the bill is not changed.”^[7] In other words, notes Sen. Leahy, Pres. Bush “could submit the program to the court right now, if he wished,” meaning that the White House is essentially saying, in Sen. Leahy’s words, “if you do every single thing I tell you to do, I’ll do what I should have done anyway.”^[8]

---

[1] Deal Reached on Eavesdropping Program Oversight, AP (via CNN.com), Jul. 13, 2006.
[2] Id.
[3] Id.
[4] Thomas Ferraro, Bush Agrees to Court Review of Spy Program, Reuters, Jul. 13, 2006.
[5] Katherine Shrader, White House OKs Eavesdropping Court Review, AP (via Yahoo!), Jul. 13, 2006.
[6] Id.
[7] Id.
[8] Id.

NSA Surveillance—Officials Sued

The Bush Administration, it seems, is committed to making sure that absolutely no person gets any information whatsoever in its zealous protection of “state secrets” and the NSA phone records controversy.^[1] And it isn’t just ordinary citizens which the administration wants to keep from succeeding, its States’ Attorneys General.^[2]

The New Jersey Attorney General and other officials have been sued by the federal government “to stop them from seeking information about telephone companies’ cooperation with the [NSA].”^[3] Atty. Gen. Zulima Farber and other officials “sent subpoenas to five carriers on May 17, asking for documents that would explain whether they supplied customer records to the NSA,” suspecting that “state consumer protection laws may have been violated.”^[4]

The federal government however, says that the New Jersey officials “are treading on federal turf and that the companies, if forced to comply with the subpoenas, would be confirming or denying the existence of the program.”^[5] Furthermore, Assistant Attorney General Peter Keisler, “also warned lawyers for the phone companies that responding to the subpoenas ‘would violate federal laws and executive orders.’”^[6] Not responding, however, could be seen as a violation of State law, which could establish a very exciting battle of legal primacy. The federal government obviously does not want this battle, and has asked for New Jersey to “withdraw the subpoenas, so that litigation over this matter can be avoided.”^[7]

In related news, Senator Arlen Specter last week accused “Vice-President Dick Cheney of trying to influence an inquiry into the legality” of the investigation.^[8] In an open letter to Mr. Cheney, “Mr. Specter accused the vice-president of lobbying other Judiciary Committee members to dissuade them from holding a hearing. ‘It is neither pleasant nor easy to raise these issues with the administration of my own party, but I do so because of their importance,’ he wrote. ‘I was advised…that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing—even a closed one—with the telephone companies.”^[9] Completely unsurprisingly, Mr. Cheney has “defended his actions in a letter to [Mr.] Specter … saying his intention was to avert testimony that may involve ‘extremely sensitive classified information.’”^[10]

---

[1] Mark Sherman, Officials Sued Over Phone Records Access, AP (via Yahoo!), Jun. 14, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Cheney Accused Over Wiretap Probe, BBC News, Jun. 8, 2006.
[9] Id.
[10] Michael A. Fletcher, Cheney Plays Down Dispute With Specter, Wash. Post, Jun. 9, 2006.

Wiretaps—“Gobbledygook”

Two telecommunications lawsuits involving national security interests are providing some exceptional problems for the federal government. While the cases may involve civil litigation, they still involve issues that effect criminal investigations.

The first case involves new FCC regulations that are supposed to go into effect in May of 2007.^[1] At issue is whether the new rules, promulgated under the 1994 Communications Assistance for Law Enforcement Act [hereinafter CALEA], exceeded the FCC’s authority.^[2] These rules would make the CALEA apply to broadband internet access and Voice Over IP [hereinafter VOIP] services.^[3] Under the FCC’s interpretation and new rules, CALEA—which deals with circuit-switching technology, and which obligates telecommunications providers to intercept wire and communications carried by the carrier to or from a subject and to access call-identifying information that is reasonably available to the carrier^[4]—would also apply to packet-switching technology such as VOIP. Thus, under the new rules, information obtainable from broadband service providers and VOIP providers, could include information about the subject’s access sessions, information about changes to the user’s service or account profile, and information about packets sent and received by the subject, “including source and destination IP addresses.”^[5]

US Circuit Judge Harry T. Edwards, however is extremely skeptical, saying that the government’s argument “makes no sense,” is “ridiculous,” and are “nonsense” and “gobbledygook.”^[6] The FCC was arguing that the 1994 law covered providers of high-speed Internet services “because their voice-transmission services can be considered separately from information services,” but Judge Edwards replied that “there’s nothing to suggest that in the statute,” and that “stating that does not make it so.”^[7] VOIP providers, however, may be a different story since “it offered ‘precisely the same’ functions as tradition telephone lines,” according to US Circuit Judge David B. Sentelle.^[8] The US DOJ, never missing an opportunity to cry “terror,” filed court papers in which it warned that “failure to expand the wiretap requirements to the fast-growing Internet phone industry ‘could effectively provide a surveillance safe haven for criminals and terrorists who make use of new communications services.’”^[9]

Across the country, in the extremely underreported case involving AT&T’s alleged siphoning of network data to the NSA, the federal government will ask a federal judge in California to dismiss the Electronic Frontier Foundation’s lawsuit against AT&T.^[10] The government will apparently argue that the “state secrets” privilege requires the suit to be dropped.^[11]

The “state secrets” privilege protects military and state secrets, and the court must determine whether “the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”^[12] Indeed, according to the Supreme Court, “Public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.”^[13]

---

[1] Ted Bridis, Judges Challenge Internet Wiretap Rules, Associated Press (via Yahoo!), May 5, 2006.
[2] Id.
[3] See FCC, Notice of Proposed Rulemaking and Declaratory Ruling 18, Aug. 9, 2004.
[4] Id. at 37.
[5] Id. at 38.
[6] Bridis, supra note 1.
[7] Id.
[8] Id.
[9] Id.
[10] Ryan Singel, Feds Go All Out to Kill Spy Suit, Wired News, May 2, 2006.
[11] Id.
[12] United States v. Reynolds, 354 U.S. 1, 7-8 (1957).
[13] Tenet v. Doe, 544 U.S. 1, 8 (2005) (emphasis in original) (citing Totten v. United States, 92 U.S. 105, 107 (1876)).

Classified Information—Criminal Prosecution of Journalists

When New York Times reporter Judith Miller was jailed for contempt after refusing to tell the grand jury investigating who disclosed the identity of Valerie Plame, there was considerable concern among journalists that the federal government was prosecuting journalists for protecting sources.^[1] It turns out that that may be the least of their concerns.

According to the New York Times, “the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.”^[2] The Times concedes that it is “not easy to gauge whether the administration will move beyond [subpoenas issued to reporters to testify about sources] to criminal prosecutions of reporters. In public statements and court papers, administration officials have said the law allows such prosecutions and that they will use their prosecutorial discretion in this area judiciously.”^[3] There is so far no indication that such prosecutions are imminent, and such a move is generally considered inconceivable^[4] because a healthy democracy relies on a press which will report on the government’s secrets.^[5]

These concerns are heightened after the prosecution of Steven J. Rosen and Keith Weissman, who we discussed on April 19. Journalists are concerned about their case because the facts of the case are substantially analogous to a journalistic scenario: the individuals are being charged with receiving and repeating national defense information, and while prosecutors say that lobbyists are different than journalists, “they would not rule out the possibility of also charging journalists under the law.”^[6]

There are two laws that are concerning so many people. The first is the Espionage Act of 1917,^[7] which makes it a crime for a person to receive or obtain or agree or attempt to receive or obtain from any person, or from any source, any

• document
• writing
code book
• signal book
• sketch
• photograph
• photographic negative
• blueprint
• plan
• map
model
• instrument
• appliance, or
• note

of anything connected with the national defense.^[8] The person must receive the information “for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”^[9] The receiver must also know or have reason to believe that the information “has been or will be obtained, taken, made, or disposed of by any person” contrary to law.^[10] Unpack the statute, and you can plainly see that there are a couple of issues. The purpose element itself is ambiguous. Who gets to decide what injures the United States? And what constitutes an injury? Take the CIA’s black sites, for example. Does disclosing that information injure the United States? It could, because other countries populations may not be pleased to discover that they are hosting secret prisons at which torture is allegedly conducted; if those populations decide to boycott the United States’ products, that could injure the United States. But on the flip side, could the disclosure of that information end up helping the United States by making US citizens concerned that the US is conducting operations that contradict stated US principles? The other aspect of the purpose requirement, the advantage to a foreign nation component, is also troubling. If the information was given to al Qaeda, for example, would that then exempt the person from prosecution because al Qaeda is not a foreign nation? And what constitutes an advantage to a foreign nation? If the information is related to national defense postures and troop levels, for example, and the information is given to an allied country, that information could be considered to be advantageous for that allied country, but it creates the counter-intuitive proposition that there is no real harm to the United States.^[11] Thus, on its face, the Espionage Act seems reasonable, but when its provisions are really examined and taken to their logical extensions, the statute becomes extremely problematic.

The other law causing consternation for journalists is the disclosure of classified information statute.^[12] It states that it is a crime for a person to “knowingly and willfully” communicate, furnish, transmit, or otherwise make available to an unauthorized person, or publish, or use in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information that

• concerns the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
• concerns the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
• concerning the communication intelligence activities of the United States or any foreign government; or
• is obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes.^[13]

Notice that this law seemingly deals with the concerns seen in the Espionage Act about whether information that is beneficial to a foreign allied nation should be criminalized by requiring that the information that is beneficial to a foreign country must also be detrimental to the United States. Nonetheless, the New York Times story about the NSA wiretaps was given to an unauthorized person who then published it, which would technically constitute an illegal disclosure of classified information. It is far from inconceivable that reporters and journalists could be prosecuted under these statutes, which could very well have chilling effects on the press’s ability to shed light on government secrets.

---

[1] See, e.g., Howard Kurtz, The Judith Miller Story: Not Ready Yet, Wash. Post, Oct. 13, 2005.
[2] Adam Liptak, In Leak Cases, New Pressure on Journalists, Apr. 30, 2006.