Subscribe to the Free Print Edition!
Celebrating 25 Years

GCN Home > 09/17/07 issue

Technology aids expansion of eavesdropping powers

Court ruling strikes down wiretap authority but not the technology

By Wilson P. Dizard III

A combination of technological and legal circumstances are preserving and even expanding the Justice Department’s eavesdropping powers despite a recent court ruling that undercuts the government’s wiretapping authority granted by the Patriot Act.

The U.S. District Court for the Southern District of New York issued a decision in John Doe [and others] v. Alberto Gonzales [and others] that would cancel the Patriot Act’s sweeping grant of secret-wiretapping authority, passed by Congress in late 2001. Judge Victor Marrero also rejected the act’s provision that imposed perpetual gag orders. Recipients of gag order letters are prevented from disclosing the existence of the directives, even to their closest family members.

Listening in
Marrero’s decision may eventually halt the use of National Security Letters (NSLs) under the Patriot Act, and it collides with expanded eavesdropping powers that President Bush signed into law this summer, but four other federal laws also grant secret-eavesdropping powers to the FBI and the Justice Department.

Technological developments are compounding the debate. Innovations in telecommunications systems, for instance — especially the changeover to packet-switched phone systems — have rendered existing wiretapping laws obsolete, the White House said.

Congress acquiesced with legislation granting the government greater powers to eavesdrop on communications between foreigners that pass through switches located in this country and calls between persons overseas and those in this country. Congress granted the extra powers for a six-month period. Marrero stayed the effect of his wiretapping decision for 90 days to allow Justice time to prepare a response.

“We are reviewing the ruling and considering our options,” Justice Department spokesman Dean Boyd said.

The decision follows widespread concern about abuse and poor oversight of NSLs. In testimony earlier this year, the FBI said its employees had extensively abused their NSL authority. The bureau’s admission came on the heels of a critical report from Justice’s inspector general that cited hundreds of examples of improper NSL actions.

FBI Director Robert Mueller, who was also named in the suit, stated in testimony before the House Judiciary Committee that “the bureau is in the process of implementing numerous reforms. These reforms will ensure that we comply fully with both the letter and the spirit of the authorities entrusted to us.”

John Doe is the pseudonym of an Internet service provider that received an NSL. Under the law, Doe is forbidden from revealing his identity on pain of incarceration.

Marrero ruled that the Patriot Act’s gag order provision was unconstitutional and so closely meshed with the law’s NSL authority that the two could not be separated. Accordingly, his decision canceled both provisions.

Demands dropped
During the lengthy process of the case, the FBI had dropped its original demands for the Internet records they originally sought from Doe. But the gag order has stayed in place.

The additional four laws that provide NSL authority to the bureau are the Electronic Communications Privacy Act (ECPA), Fair Credit Reporting Act (FCRA), National Security Act (NSA) and the Right to Financial Privacy Act (RFPA). ECPA is the most commonly used authorization for the secret wiretaps.

It provides authority to gather billing and signaling information about phone calls and electronic messages but not their content.

Billing and signaling data can provide the basis for link analysis and traffic analysis that law enforcement agencies use to try to deduce the relationships among criminal and terrorist groups.

Link analysis has come under fire from some observers. They have charged that applications such as Analyst Notebook, the most commonly used investigatory tool, can create spurious links among people who in fact are separated by several degrees of acquaintance and telecommunication.

FCRA provides for three types of NSLs to be issued to credit-reporting agencies to get various types of creditor data.

The credit reporting law authorizes gathering two categories of relatively limited data for domestic investigations. But if the bureau specifies that it is asking a credit union for data about a person potentially involved in international terrorism, the law authorizes comprehensive disclosure of financial and employment records.

Under RFPA, the FBI has authority to obtain records from banks and other financial institutions. The bureau relies on its RFPA authority to investigate terrorist financing, the FBI said.

NSA authorizes secret wiretaps related to disclosure of classified information by government employees, the FBI said in a legal analysis.

Irregular warfare
The Patriot Act created the NSL process shortly after the 2001 terrorist attacks in New York and Washington as a special tool for federal law enforcement agencies to use against jihadist and other irregular-warfare groups.

Allowing the FBI to issue them without any oversight by a federal judge at any stage of the process raised immediate concerns.

Marrero’s decision referred to the Constitution’s requirement that all warrants receive a judge’s approval.

Doe has received legal assistance from the American Civil Liberties Union and the ACLU Foundation during the case.

“As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power,” said Melissa Goodman, an ACLU staff attorney. “Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions or targeting people for the wrong reasons and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power.”

“A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional,” said Jameel Jaffer, director at the ACLU’s National Security Project.

1 2 >> Next

More news on related topics: Communications / Networks, Mobile & Wireless, Homeland Security



GCN Popup