Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (52 page)

12. (p. 67) Pub. L. 416.

13. (p. 67) Nardone v. United States, 302 U.S. 379 (1937).

14. (p. 68) Nardone v. United States, 308 U.S. 338 (1939).

15. (p. 68) Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385 (1920).

16. (p. 68) Weiss v. United States, 302 U.S. 321 (1939).

17. (p. 68) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report of the Select Committee to
Study Governmental Operations with Respect to Intelligence Activities: Supplementary
Detailed Staff Reports on Intelligence Activities and the Rights of Americans: Book III,
Report 94-755 (Washington, DC: Government Printing Office, April 23, 1976), 278.

18. (p. 68) Franklin Delano Roosevelt, memo to Attorney General Jackson, May 21,
1940, in U.S. Congress, Senate, Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, Final Report: Book III, 279.

19. (p. 68) In the 1946 reauthorization request to President Truman, the limitation
to aliens was removed (Tom Clark, letter to the president, July 17, 1946, in U.S.
Congress, Senate, Select Committee to Study Governmental Operations with Respect
to Intelligence Activities, Final Report: Book III, 282). It is unknown who removed
that requirement: Attorney General Tom Clark or FBI Director J. Edgar Hoover.

20. (p. 68) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report: Book III, 343.

21. (p. 68) One such case was that of Judith Coplon, a DoJ employee who was caught
as she was about to give twenty-eight confidential FBI files to a Soviet UN employee. Coplon's trial was dismissed after it was revealed that the FBI had been wiretapping
her (Edward Ranzal, "Coplon Conviction Voided on Appeal: Court Declares
Her `Guilt Is Plain' in Spy Case but FBI Used Illegal Methods," New York Times, December 6, 1950).

22. (p. 68) This includes Martin Luther King, Ralph Abernathy, the Student NonViolent Coordinating Committee, and the Jewish Defense League (U.S. Congress,
Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report of the Select Committee to Study Governmental Operations
with Respect to Intelligence Activities: Supplementary Detailed Staff Reports on Intelligence
Activities and the Rights of Americans: Book II, Report 94-755 (Washington, DC:
Government Printing Office, April 23, 1976), 105).

23. (p. 68) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report: Book III, 320.

24. (p. 68) U.S. Congress, Senate, Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, Final Report: Book III, 339-340; Final Report:
Book II, 63.

25. (p. 68) Athan Theoharis, "FBI Wiretapping: A Case Study of Bureaucratic Autonomy," Political Science Quarterly 107, no. 1 (Spring 1992): 108-109; U.S. Congress,
Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report, Book III.

26. (p. 68) The latter list includes Supreme Court Justices Hugo Black, Stanley Reed,
William O. Douglas, Abe Fortas, and Potter Stewart (Alexander Charns, Cloak and
Gavel: FBI Wiretaps, Bugs, Informers, and the Supreme Court (Urbana: University of
Illinois Press, 1992), 17, 25, 87; J. Edgar Hoover, Letter to H. R. Haldeman, June 25,
1970, in U.S. Congress, Senate, Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, Final Report: Book III, 345). The list also includes
the clerk for the House of Representatives Committee on Agriculture (Final Report:
Book III, 64) as well as members of the Nixon administration. Many of the taps that
occurred during the Nixon administration were at the request of the president.

27. (p. 68) FBI files included transcripts of an affair during World War II that John
Kennedy had with a woman briefly suspected of being a German spy. These files
were transferred to Hoover's office on July 14, 1960, the day after Kennedy won the
Democratic nomination for president (Theoharis, "FBI Wiretapping," 111).

28. (p. 69) Diffie and Landau, Privacy on the Line, 185-186.

29. (p. 69) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report: Book III, 173-174.

30. (p. 69) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report: Book III, 123.

31. (p. 69) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report: Book III, 326.

32. (p. 69) This was the wiretapping of a well-connected Washington lobbyist:
Thomas Corcoran.

33. (p. 70) 316 U.S. 129 (1942).

34. (p. 70) 347 U.S. 128 (1954).

35. (p. 70) 365 U.S. 505 (1961).

36. (p. 70) 389 U.S. 347 (1967).

37. (p. 70) Charles Katz v. United States, 349.

38. (p. 70) Charles Katz v. United States, 352.

39. (p. 70) Charles Katz v. United States, 359.

40. (p. 70) Six months earlier the Court examined Berger v. New York, 388 U.S. 41
(1967), in which state-authorized wiretaps formed an important part of the evidence. The Court found the New York statute insufficiently "precise and discriminate" in granting warrants and reversed the conviction. The ruling was a clear hint
that a sufficiently "precise and discriminate" warrant procedure for wiretapping
would be constitutionally acceptable.

41. (p. 71) Diffie and Landau, Privacy on the Line, 131.

42. (p. 71) Diffie and Landau, Privacy on the Line, 132.

43. (p. 71) Steven M. Bellovin, Matt Blaze, Ernie Brickell, Clinton Brooks, Vinton
Cerf, Whitfield Diffie, Susan Landau, Jon Peterson, John Treichler, "Security Implications of Applying the Communications Assistance for Law Enforcement Act to Voice
over IP" (2006), http://www.cs.columbia.edu/--smb/papers/CALEAVOIPreport.pdf, S.

44. (p. 72) If the subscriber has caller ID, then the numbers of the calling parties
would be available to the wiretap; the content would not be (Bellovin et al., "Security
Implications," 5).

45. (p. 72) Electronic Switching System #4. This is AT&T's major toll switch that
can handle 130 thousand trunk lines (trunk lines connect telephone switchboards).
This switch was introduced in 1976 and is still the way most long-distance calls are
handled in the United States.

46. (p. 73) Diffie and Landau, Privacy on the Line, 190-192.

47. (p. 73) Sneak-and-peek warrants, authorized under §213 of the 2001 USA PATRIOT
Act, allow law enforcement officers to surreptitiously search private areas (e.g., a
home, a car, an office) for evidence without notice. Law enforcement is not allowed
to seize property but can take photographs, which may be used to apply for a regular search warrant. The suspect is informed about the sneak-and-peek warrant after the
search has occurred.

48. (p. 73) The 2006 German film, The Lives of Others, captures that aspect
extremely well.

49. (p. 73) These included President John Kennedy in 1963, Malcolm X in 1965,
and Martin Luther King Jr. and presidential candidate Robert Kennedy in 1968.

50. (p. 73) 18 U.S.C. §2510-2521 (1968).

51. (p. 74) The law originally listed twenty-six such crimes. The law has been
amended several times, and the number of crimes for which a wiretap warrant can
be obtained now stands at just under one hundred.

52. (p. 74) §2518 (3)(a-d). Wiretaps need not be the "last resort" for investigators,
but must be close to that standard. The Department of Justice manual on conducting
electronic surveillance states, "The application for a Title III order also (1) must show
that normal investigative procedures have been tried and failed, or that they reasonably appear to be unlikely to succeed or to be too dangerous" (U.S. Department of Justice,
Computer Crime and Intellectual Property Section, Criminal Division, Searching and
Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, July 2002).

53. (p. 74) If a warrant was not obtained within the forty-eight hours, then the
intercepted information could not be used in evidence (or even divulged, as per the
Nardone decision) (Omnibus Crime Control and Safe Streets Act §515).

54. (p. 74) Administrative Office of the United States Courts, James C. Duff, Director,
2009 Wiretap Report, 25.

55. (p. 74) Administrative Office of the United States Courts, James C. Duff, Director,
2009 Wiretap Report, 7.

56. (p. 74) Wiretap applications for criminal investigations at the federal level must
be approved by a member of the Department of Justice at least at the level of deputy
assistant attorney general; orders submitted by state investigators need approval by
the "principal prosecuting attorney of [the] state, or the principal prosecuting attorney of the political subdivision thereof." The latter was most recently codified in
the 1986 Electronic Communications Privacy Act 45, 18 U.S.C. §2516(2)).

5 7. (p. 74) In the case of multiple crimes being investigated, the most serious one is listed.

58. (p. 74) This resulted in a change in the market, with most companies no longer
offering products with weak cryptography.

59. (p. 74) Diffie and Landau, Privacy on the Line, 192-193.

60. (p. 74) U.S. Congress, House of Representatives, Subcommittee No. 5, Anti-Crime
Program, Hearings on HR 5037, 5038, 5384, 5385, and 5386, March 15, 16, 22, 23,
April 5, 7, 10, 12, 19, 20, 26, and 27, 1967, Ninetieth Congress, First Session, 545,
547, 554, and 560.

61. (p. 75) U.S. Congress, House of Representatives, Subcommittee No. 5, Anti-Crime
Program, Hearings on HR 5037, 5038, 5384, 5385, and 5386, March 15, 16, 22, 23,
April 5, 7, 10, 12, 19, 20, 26, and 27, 1967, Ninetieth Congress, First Session, 545,
547, 554, and 560, 320.

62. (p. 75) Congressional Quarterly Weekly 25, Washington, DC, February 10, 1967, 222.

63. (p. 75) 407 U.S. 297 (1972).

64. (p. 75) William Funk, "Electronic Surveillance of Terrorism: The Intelligence/
Law Enforcement Dilemma-a History," Lewis and Clark Law Review 11, no. 4
(2007): 1105.

65. (p. 75) The tools involved include open-source intelligence, operations intelligence, human intelligence (HUMINT), signals intelligence (SIGINT), photo intelligence
(PHOTINT), measurement and signatures intelligence (MASINT), and communications intelligence (COMINT) (Diffie and Landau, Privacy on the Line, 88-93).

66. (p. 76) Funk, "Electronic Surveillance of Terrorism," 1116-1117.

67. (p. 76) These are, respectively, Robert Woodward and Carl Bernstein, John Sirica,
Sam Ervin, and Samuel Dash.

68. (p. 77) U.S. Congress, Senate, "A Resolution to Establish a Committee to Study
Government Operations with Respect to Intelligence," Senate Resolution 21, NinetyFourth Congress, First Session, 1975.

69. (p. 77) U.S. Congress, Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report: Book II, 291.

70. (p. 77) 50 U.S.C. 1801 et seq.

71. (p. 77) In 2004 this was extended to allow a FISA tap if the target was believed to
be a "lone wolf" engaging in international terrorism even if not a member of a
recognized group (Intelligence Reform and Terrorism Prevention Act, Pub. L. No.
108-458).

72. (p. 77) §1802(a).

73. (p. 78) §1805(f).

74. (p. 78) §1805(a)(3)(A).

75. (p. 78) For FISA, these are assistant to the president for national security and
other national security or defense executive branch officials designated by the president. The latter are typically the FBI director for FBI applications and the secretary
or deputy secretary of defense for applications originating at the NSA (David Kris,
Modernizing the Foreign Intelligence Surveillance Act, Working Paper of the Series on
Counterterrorism and American Statutory Law, a joint project of the Brookings
Institution, the Georgetown University Law Center, and the Hoover Institution,
493-494).

76. (p. 78) In 2008, 2, 083 were approved and none denied. Two needed changes
(Ronald Weich, assistant attorney general, letter to Senate Majority Leader Harry
Reid, May 14, 2009).

77. (p. 78) The requirement is not explicit in the law, which says only that "the
purpose of the surveillance is to obtain foreign intelligence information" (§1804(a)
(7)(B)). However, this formulation appears in the history of the bill as well as in a
series of court cases that uphold this interpretation (Funk, "Electronic Surveillance
of Terrorism," 1112-1123).

78. (p. 79) 425 U.S. 435 (1976).

79. (p. 79) Miller v. United States, 440.

80. (p. 79) 442 U.S. 735 (1979).

81. (p. 79) Miller v. United States, 443.

82. (p. 79) Daniel Solove and Marc Rotenberg, Information Privacy Law (New York:
Aspen, 2003), 305.

83. (p. 80) Pub. L. 99-508; 18 U.S.C. §2510.

84. (p. 80) Kenneth Dam and Herbert Lin, Cryptography's Role in Securing the In formation Society (Washington, DC: National Academy Press, 1996), 397.

85. (p. 80) The "electronic communication" definition also excluded tone-only
paging devices, communications from tracking devices, and electronic funds transfer
(§2510(12)).

86. (p. 80) There was an exception if they were voice communications partially
carried by radio and partially by wire or switches, in which case they were considered
wire communications.

87. (p. 81) 18 U.S.C. §2518(4).

88. (p. 81) U.S. Congress, House of Representatives, Committee on the Judiciary,
Telecommunications Carrier Assistance to the Government: Report Together with Additional Views (to accompany H.R. 4922), One Hundred and Third Congress, Second
Session, Report 103-827, Part 1 (October 4, 1994), 15.

89. (p. 81) U.S. Department of Justice, Federal Bureau of Investigation, "Benefits and
Costs of Legislation to Ensure the Government's Continued Capability to Investigate
Crime with the Implementation of New Telecommunication Technologies," in
David Banisar, ed., 1994 Cryptography and Privacy Sourcebook: Documents on Wiretapping, Cryptography, the Clipper Chip, Key Escrow, and Export Controls (Upland, PA:
Diane Publishing Co., 1994).