Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (15 page)

The frame was the location preferred by law enforcement-but it was a
location that would prove problematic once more advanced switching
technology appeared. The difficulty is that the local loop receives exactly
the information that passes through the loop, no more, no less. Some
advanced services, such as call forwarding, work at the switch, and never
pass information through the local loop.44 This was the set of problems for
which the FBI sought resolution in the early 1990s.

Surveillance for intelligence purposes may be for a specific target, in
which case, if agents have access to communications facilities, the collection works as previously described. (If agents do not have such access, they
have to break in one way or another.) Or it may be a broader intercept
capable of accessing all communication through a pipe. Such interception
facilities may be in the air, on the ground, or on ships (all intercepting
signals from the air), from submarines (which can tap into underwater
fiber-optic cables), from satellites, or from such covert locations as embassies, including, it is alleged, not just the U.S. embassy, but also other
friendly ones. But the capability for total access does not mean that national
security collects all signals that are available. Collecting all communications from a country, from a small city, or even from a single 4ESS45 switch
is simply overwhelming: there is far too much to process.

The issue is locating the traffic of interest. Choices about collection must
be made in fractions of a second. Such decisions may be determined by
the transactional information of the communication-the phone number,
the URL, the email address, the serial number of the phone card-or by
content-a particular voice, language, words, the text in an email or fax.
If the traffic is interesting, it is recorded.

This is simply gathering and storage, or, as is called in the trade, access
and collection. In a sense, it is the easy part of the job. The work of intelligence and counterintelligence-analysis, processing, and disseminationis the real heart of the matter. That subject, however, is outside the scope
of this book.

4.3 U.S. Wiretap Laws

For reasons that perhaps the FBI director knew-though never publicly
shared-for decades, Hoover denied the existence of organized crime. He
may have feared that investigating such a corrupting criminal group would
inevitably result in some corruption of his own agency; he may have preferred to avoid the messy, long-term, high-risk investigations that might
fail to net anything but low-level criminals; he may have simply preferred the cut-and-dried statistical summaries he could present to Congress each
year of so-many-stolen-cars recovered, so-many-bank-robbers captured.
Organized crime investigations rarely net clean statistics. Regardless of
Hoover's lack of acknowledgment, organized crime was a problem from
Prohibition onward.

Probes into organized crime present special problems. For one thing,
organized crime embeds its tentacles into local law enforcement, corrupting both the police and the court system. For another, organized crime
tends to focus on crimes where the victims are often unwilling to go to
the police. This combination severely complicates investigations.

Once alcohol was legalized, organized crime turned to other "victimless
crimes," including gambling, loan-sharking, and prostitution. In 1957 a
New York state trooper uncovered a major meeting of organized crime
bosses at an estate deep in the countryside; this discovery created headlines
in newspapers across the country. Then in 1963, a minor member of the
Genovese crime family, Joseph Valachi, testified in the Senate about
the structure and system of bosses and soldiers within organized crime.
The combination of these events provided public notice about criminal
activities that were not supposed to exist.46 The FBI belatedly aimed its
sights on the syndicates. President Johnson created a commission on law
enforcement and justice; the well-respected report, The Challenge of Crime
in a Free Society, issued in 1967, recommended the use of wiretaps for
investigating organized crime.

Wiretaps are a particularly intrusive form of search. Unlike other searches
permitted under the Fourth Amendment, wiretapping occurs without the
knowledge of the suspect.47 The hidden nature of this practice threatens
accountability48-something that members of Congress were well aware
from their experiences with the FBI director. Surveillance is, after all, reminiscent of a police state. So the commission's proposal gave rise to
significant concern that the wiretapping be carefully controlled and done
only with sufficient oversight. The recommendation occurred during the
midst of social upheaval resulting from the civil rights movement and the
anti-Vietnam War protests, which was splitting the country and bringing
great numbers of people to protest in the nation's capital. The period saw
a number of political assassinations,49 and in the middle of the decade
there were race riots in Watts, Newark, Detroit, and elsewhere. It was a
complicated time in U.S. history, and many Americans sought more "law
and order."

In 1968 Congress passed the Omnibus Crime Control and Safe Streets
Act,50 Title III of which delineated the circumstances for obtaining a wiretap warrant for a criminal investigation. There needs to be probable cause that
the suspect is committing, has committed, or is about to commit a serious
offense (from a list of crimes enumerated in the laws'), that the targeted
communications device is being used in commission of the crime, that
communications about the crime will be obtained as a result of the surveillance, and that the information sought cannot reasonably be obtained by
normal investigative techniques.52 Any state law authorizing wiretap warrants in criminal investigations had to be at least as restrictive as the federal
law (approximately half of all wiretaps for criminal investigations in the
United States are done under state wiretap warrants). There was also a
provision for emergency access in which, for up to forty-eight hours, a
wiretap can be placed without an intercept order.53 Wiretap orders are good
for at most thirty days, with extensions requiring judicial approval.

Surveillance must minimize interceptions unrelated to the crime-the
teenage daughter on the phone, the call that is about buying milk (when
"buying milk" is not code for something nefarious). This minimization
requirement is privacy protective in two ways: directly and, by making law
enforcement wiretapping expensive, preventing overuse of the tool. The
average cost per Title III order in 2009 was over $52,000.54 The cost is in
agent time; in 2009 the average surveillance ran for fifty-seven days (an
initial run of twenty-nine days, plus an extension of twenty-eight days for
94 percent of the wiretaps).55

Various kinds of wiretapping oversight were built in. Only a limited
number of people may approve a wiretap application.56 The target of a Title
III order must be informed once surveillance has ended. To give wiretaps
public oversight, each year the Administrative Office of the U.S. Courts
publishes the Wiretap Report, which lists every Title III surveillance, which
judge approved the intercept order, how long the wiretap ran, what crime
was being investigated, 57 the length of the surveillance, how many interceptions and incriminating interceptions there were, how many arrests,
and how many convictions. And, after the change in regulations permitting the export of products with strong cryptography,58 the Wiretap Report
now lists the number of times that encrypted communications is encountered in Title III wiretaps.

Even while Title III became law, not all law enforcement agents believed
the law was necessary.59 Various prosecutors had opposed federal laws
permitting wiretapping,60 and Attorney General Ramsey Clark testified to
Congress that "I know of no Federal conviction based upon any wiretapping or electronic surveillance.... I also think that we make cases effectively without wiretapping or electronic surveillance. I think it may well be that with the commitment of the same manpower to other techniques,
even more convictions could be secured, because in terms of manpower,
wiretapping and electronic surveillance is very expensive."" President
Johnson himself suggested that wiretapping be limited to national-security
investigations and only be performed by federal officials.62 Nonetheless the
law passed and Johnson signed it.

Title III lays out requirements for wiretaps in law enforcement cases but
left the issue of surveillance in national-security investigations open. In
1972, in the case of United States v. United States District Court for the Eastern
District of Michigan et al.,63 the need for new legislation became clear.

Three men were accused of bombing a CIA office in Ann Arbor, Michigan;
one had been wiretapped without a warrant. He sought copies of the
tapes to see if the government's case was tainted by wiretap evidence. The
U.S. District Court had ordered the government to hand over the tapes.
When the federal government refused, the case went to the Supreme
Court, which ordered an end to warrantless wiretapping for "domestic
national-security" cases.

Criminal investigations focus on solving a particular crime (or perhaps
a set of crimes). There is a known actor-known not necessarily by name,
but by action-and a (possibly partial) known set of activities. Criminal
investigations should not be fishing expeditions: broad searches without clear
evidence of a crime. Foreign-intelligence investigations are different. Their
purpose is to obtain information on "the intentions, capabilities, and activities" of those countries and foreign groups "able to harm the United
Statesi64 and to gather information for foreign policy decisions. There may
be no particular target and the set of issues may be unknown at the outset.
As investigators pull together pieces of information,65 patterns of behavior
and a picture of a group, a leader, or a function may emerge. If an intelligence effort uncovers criminal behavior by a foreign agent (or anyone else)
unrelated to foreign intelligence (say a bank robbery or cigarette smuggling), a crime report is sent to the Department of Justice. If an intelligence
effort turns up foreign-power or foreign-agent activity related to foreign
intelligence (say spying), then the counterintelligence side of the FBI would
be informed instead. Because much intelligence work involves collecting
information where no crime is being committed, such searches on U.S.
citizens and permanent residents can easily run contrary to the Fourth
Amendment. Thus the notion of "domestic national security" is at best
confusing-and, at its worst, of highly questionable constitutionality.

Title III was already sufficient to cover spying and terrorism cases if the
government's intent was obtaining evidence for a criminal prosecution; what was lacking was a warrant procedure if the purpose of the surveillance
was obtaining foreign intelligence. 66 Title III did not address such a situation and the Court recommended Congress attend to this gap. Instead
Watergate intervened.

The Watergate affair was set in motion by a burglary of the Democratic
National Committee (DNC) headquarters during the general election and
culminated in the first resignation of a standing U.S. president two years
later. The sequence of events began early on the morning of June 17, 1972,
when a security guard discovered a taped lock in the Watergate Office Building in Washington. A group of burglars, paid by the Committee to Re-Elect
the President, Nixon's campaign committee, had broken into the DNC
offices to install a bug on the phone of Lawrence O'Brien, the Democratic
Party chair. This was their second try. On their first effort, the burglars had
placed a bug in O'Brien's secretary's phone, but received no interesting
information on the party's political intentions-so the burglars had returned.

Discovery of the burglary led, over many months, to the uncovering of
numerous illegal activities perpetrated by the Nixon administration.
Within a week of the break-in, Nixon and his staff attempted to cover up
the campaign's connection to the incident. That attempt was just one of
many obstructions of justice that occurred during the Nixon presidency.
It took two years, two enterprising reporters (and a strong-willed editor
and publisher) at the Washington Post, a tough federal judge, a determined
chair and counsel of the Senate Watergate Committee,67 and many others
before sufficient evidence surfaced to make a clear case for President
Richard Nixon's impeachment. The president resigned, but if he had not,
Richard Nixon would have faced four impeachment counts, including:

[Nixon] misused the Federal Bureau of Investigation, the Secret Service, and other
Executive Personnel ... by directing or authorizing such agencies or personnel to
conduct or continue electronic surveillance or other investigations for purposes
unrelated to national security, the enforcement of laws, or any other lawful function
of his office; ... and he did direct the concealment of certain records made by the
Federal Bureau of Investigation of electronic surveillance (Article 2).

[Nixon] failed to take care that the laws were faithfully executed by failing to act
when he knew or had reason to know that his close subordinates endeavored to
impede and frustrate lawful inquiries ... concerning the electronic surveillance of
private citizens ... (Article 2).

Investigations by journalists, Congress, and special prosecutors had
revealed massive abuse of government investigatory powers. It was important to understand what allowed the "system" to fail; in January 1975 the
Senate created a special committee to investigate government intelligence operations to determine the extent of "illegal, improper, or unethical
activities" by government agencies.68

The committee-which became known as the Church Committee, after
its chair, Senator Frank Church-started with the year 1936, a year marked
by the reestablishment of U.S. domestic intelligence programs after a hiatus
of about a decade. The Church committee uncovered a forty-year history
of presidential, law enforcement, and national-security wiretaps of political
opponents, journalists, members of congressional staff, Supreme Court
justices, members of the administration, as well as law-abiding citizens
engaged in peaceful political protest. The committee observed that the
impact of such abuses was broad: