Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (53 page)

90. (p. 81) There were two different ways that doubts were cast in the claims. See
Betsy Anderson and Todd Buchholz, "Memo for Jim Jukes," May 22, 1992; in Banisar, 1994 Cryptography and Privacy Sourcebook, and Diffie and Landau, Privacy on the Line,
218-219.

91. (p. 81) Speech by FBI Director Louis Freeh to the Executives' Club of Chicago,
February 17, 1994.

92. (p. 81) Diffie and Landau, Privacy on the Line, 219-220.

93. (p. 81) U.S. General Accounting Office, Briefing Report to the Chairman, Subcommittee on Telecommunications and Finance, Committee on Energy and Commerce, House of Representatives, FBI: Advanced Telecommunications Technologies Pose
Wiretapping Challenges, July 1992.

94. (p. 81) U.S. Congress, Telecommunications Carrier Assistance, 17.

95. (p. 82) U.S. Congress, Telecommunications Carrier Assistance, 17.

96. (p. 82) Pub. L. 103-414; 47 U.S.C. 1001 et seg.

97. (p. 82) U.S. Congress, Telecommunications Carrier Assistance, 18.

98. (p. 82) Pub. L. 103-414, §107 (a)(1).

99. (p. 82) Such documents often guide court decisions on the intent of legislation.

100. (p. 82) U.S. Congress, Telecommunications Carrier Assistance, 20.

101. (p. 82) Administrative Office of the United States Courts, Wiretap Report (Washington, DC: Government Printing Office, 1994); Diffie and Landau, Privacy on the Line, 221.

102. (p. 82) Diffie and Landau, Privacy on the Line, 222-223.

103. (p. 84) United States Telecom Association v. FCC (277 F.3d 450 D.C. Cir. 2000).
The case was against the FCC because that agency was in charge of setting the actual
regulations and determining service-provider compliance.

104. (p. 84) Federal Communications Commission, In the matter of Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, Order on Remand
(adopted: April 5, 2002), 34.

105. (p. 84) Pub. L. 103-414, §103(a)(2)(B).

106. (p. 84) U.S. Department of Justice, Office of the Inspector General, Audit Division, The Implementation of the Communications Assistance for Law Enforcement Act by
the Federal Bureau of Investigation, Audit Report 08-20, March 2008, 4.

107. (p. 84) U.S. Department of Justice, Office of the Inspector General, Audit Division, Implementation of the Communications Assistance for Law Enforcement Act, 16.

108. (p. 84) Freeh said, "Well, the computer companies would widen that hole.
You're correct, we are excluding them, excluding them for a couple of reasons; one,
to narrow the impact and focus of the legislation. We could have incorporated in there [sic], as we did in the proposal two years ago, which was rejected out of hand"
(U.S. Congress, Senate, Technology and Law Subcommittee of the Senate Judiciary
Committee, and House of Representatives, Civil and Constitutional Rights Subcommittee of the House Judiciary Subcommittee of the House Judiciary Committee, and
House of Representatives, Wiretapping: Joint Hearing, One Hundred and Third Congress, Second Session (March 18, 1994)).

109. (p. 84) §103(b)(2)(A).

110. (p. 84) Specifically, in §102(8), CALEA says that the term "'telecommunications
carrier'-(A) means a person or entity engaged in the transmission or switching of
wire or electronic communications as a common carrier for hire; and (B) includes(i) a person or entity engaged in providing commercial mobile service (as defined
in section 332(d) of the Communications Act of 1934 (47 U.S.C. 332(d))); or (ii) a
person or entity engaged in providing wire or electronic communication switching
or transmission service to the extent that the Commission finds that such service
is a replacement for a substantial portion of the local telephone exchange service
and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this title; but (C) does not include- (i) persons
or entities insofar as they are engaged in providing information services; and
(ii) any class or category of telecommunications carriers that the Commission
exempts by rule after consultation with the Attorney General."

111. (p. 85) American Council of Education v. Federal Communications Commission, 371
U.S. App. D.C. 307; 451 F.3d 226; 2006 U.S. App., Edwards, dissenting.

112. (p. 85) Federal Communications Commission, Enforcement Bureau, "Enforcement Bureau Outlines Requirements of November 28, 2005 Interconnected Voice
Over Internet Protocol 911 Compliance Letters WC Docket No. 04-36 WC Docket
No. 05-196" (November 7, 2005). The VoIP provider had to do this or else inform
their customer of their inability to do so.

113. (p. 85) Neil KingJr. and Ted Bridis, "FBI Wiretaps to Scan E-Mail Spark Concern,"
Wall Street Journal, July 11, 2000.

114. (p. 85) As with CALEA, the device had been designed by the government rather
than the ISPs. The latter include user privacy as part of their business model.

115. (p. 85) This was EarthLink. This dispute caused Carnivore's existence to come
to light (Diffie and Landau, Privacy on the Line, 382, note 30).

116. (p. 85) Beryl Howell, "Seven Weeks: The Making of the USA PATRIOT Act,"
George Washington Law Review 72 (August 2004): 1153.

117. (p. 86) Despite strong concerns in the summer of 2001 that Al-Qaeda was
poised to attack the United States, the CIA was slow to inform the FBI of the U.S.
presence of two suspected terrorists (National Commission on Terrorist Attacks upon
the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (New York: Norton, 2004), 269-272). A
Phoenix FBI agent wrote FBI headquarters about a possible Bin Laden effort to send
people to train in U.S. aviation schools, noting an unexpected number of "individuals of investigative interest" doing so (p. 273). The FBI discovered a suspicious
individual "with little knowledge of flying" seeking to learn how to take off and
land Boeing 747s, but the suspect's background, which included clear connections
to Al-Qaeda, was not adequately probed (p. 273). No one "put the dots together"
and the plan was not averted.

118. (p. 86) Howell, "Seven Weeks," 1148.

119. (p. 86) Howell, "Seven Weeks," 1159-1161. It took thirty days for a bill to pass
the Senate, thirty-one for the House of Representatives (p. 1173). Normally there
would have been a conference between the legislative bodies to reconcile the bills,
but with Democrat Senator Patrick Leahy chairing the meeting and other liberal
senators likely to attend, House Republicans maneuvered to prevent that conference.
A Senate staff member observed that ironically the resulting bill, which included
portions of the House version, was more protective of civil liberties than the Senate's
version of the bill had been (Howell, "Seven Weeks," 1174-1177).

120. (p. 86) This section also required that the court that issued the order have jurisdiction over the case, and made explicit that laws governing pen registers and trapand-trace devices exclude the interception of communication content. In addition,
it required that if a wiretapping device was installed by law enforcement (as was the
case with Carnivore), it must provide an audit trail of who accessed the device, what
the configuration was at the time of operation, and what data was collected.

121. (p. 86) Such permission was needed because the computer owner was not part
of the communication and therefore could not simply grant permission.

122. (p. 86) Howell, "Seven Weeks," 1997.

123. (p. 86) Daniel A. Bryant, assistant attorney general, letter to Patrick J. Leahy,
chair, Committee on the Judiciary, November 29, 2001 (on file with George Washington Law Review).

124. (p. 86) Howell, "Seven Weeks," 1202-1203.

125. (p. 86) These included §203(b), 206, 214, and 217.

126. (p. 87) U.S. Senate, Committee of the Judiciary, Legislative History P.L. 95-511
Foreign Intelligence Surveillance Act, Report 95-604, Ninety-Fifth Congress, First Session
(15 Nov. 1977), 34.

127. (p. 87) At least a third of overseas communications went by transoceanic cable
(Kris, "Modernizing," 11-12).

128. (p. 87) Steven M. Bellovin, Matt Blaze, Whitfield Diffie, Susan Landau, Peter
Neumann, and Jennifer Rexford, "Risking Communications Security: Potential Hazards of the `Protect America Act,"' IEEE Security and Privacy 6, no. 1 (January/
February 2008): 25.

129. (p. 88) James Risen and Eric Lichtblau, "Bush Lets U.S. Spy on Callers without
Courts," New York Times, December 16, 2005.

130. (p. 88) Eric Lichtblau and James Risen, "Eavesdropping Efforts Began Soon
After Sept. 11 Attacks," New York Times, December 18, 2005.

131. (p. 88) Leslie Cauley, "NSA Has Massive Database of Americans' Phone Calls,"
USA Today, May 11, 2006.

132. (p. 89) Pub. L. 104-104.

133. (p. 89) Whitfield Diffie and Susan Landau, "Communications Surveillance:
Privacy and Security at Risk," Communications of the ACM 52, no. 11 (November
2009): 42-47

134. (p. 89) Mark Klein, affidavit in Tash Hepting et al. v. AT&T Corporation et al.,
United States Second District Court for Northern California, Case 3:06-cv-0672-vrw
(June 8, 2006), 4.

135. (p. 89) Marcus, affidavit in Hepting, 24.

136. (p. 89) Mark Klein, Wiring Up the Big Brother Machine ... And FightingIt (Charlestown, SC: BookSurge, 2009), 42.

137. (p. 90) President Bush referred to the program publicly as the "Terrorist Surveillance Program." Within the administration the program was known as the "President's Surveillance Program" (Offices of the Inspector General of the Department of
Defense, Department of Justice, Central Intelligence Agency, National Security
Agency, Office of the Director of National Intelligence, Unclassified Report on the
President's Surveillance Program, Report 2009-0013-AS, July 10, 2009, 1).

138. (p. 90) U.S. Foreign Intelligence Surveillance Court, Memorandum Opinion, May
17, 2002, 11, in U.S. Congress, Senate, Committee on the Judiciary, USA PATRIOT
Act in Practice: Shedding Light on the FISA Process. Hearing, Serial No. J107102, One
Hundred and Seventh Congress, Second Session (September 10, 2002), 145-171.

139. (p. 90) U.S. Foreign Intelligence Surveillance Court, Memorandum Opinion, 12.

140. (p. 90) U.S. Foreign Intelligence Surveillance Court, Memorandum Opinion, 2-3.

141. (p. 90) U.S. Foreign Intelligence Surveillance Court of Review, In re: Sealed Case
No. 02-001, Consolidated with 02-002, On Motions for Review of Orders of the United States
Foreign Intelligence Surveillance Court (Nos. 02-662 and 02-968) (November 18, 2002).

142. (p. 90) The term "read into" means being approved for access to particularly
sensitive and restricted information about a classified program (Offices of the Inspector General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, Office of the Director of National Intelligence,
Unclassified Report on the President's Surveillance Program, Report 2009-0013-AS, July
10, 2009, 10).

143. (p. 90) John Yoo and Robert Delahunty, U.S. Department of Justice, Office of
Legal Counsel, Memorandum for Alberto R. Gonzales, Counsel to the President (October
23, 2001), 25.

144. (p. 90) 343 U.S. 579 (1952).

145. (p. 91) Eric Lichtblau, Bush's Law: The Remaking of American Justice (New York:
Pantheon, 2008), 173-174.

146. (p. 91) Lichtblau, Bush's Law, 179-183, and Offices of the Inspector General,
Unclassified Report on the President's Surveillance Program.

147. (p. 91) Out of 1,758 applications submitted in 2004, the court asked for substantive changes in 94 (William Moschella, assistant attorney general, letter to
Speaker of the House Dennis Hastert, April 1, 2005). In 2005, the situation was
slightly better: the court asked for substantive changes in 61 of the 2,074 applications (William Moschella, letter to Speaker of the House Dennis Hastert, April 28,
2006, http://www.fas.org/irp/agency/doj/fisa/2005rept.html). Again in 2006, it
asked for substantive changes in 73 of the 2,181 applications (Richard A. Hertling,
acting assistant attorney general, letter to Speaker of the House Nancy Pelosi,
April 27, 2007).

148. (p. 91) David Johnston and Neil A. Lewis, with Eric Lichtblau contributing,
"Domestic Surveillance: The White House; Defending Spy Program, Administration
Cites Law," New York Times, December 23, 2005.

149. (p. 91) Jarrett Murphy, "Error in Albany `Terror' Case: Terror Camp Document
Said Defendant Was `Brother,' Not `Commander,"' CBSNews.com, August 18, 2004.

150. (p. 91) Lowell Bergman, Eric Lichtblau, Scott Shane, and Don Van Natta Jr., "Spy
Agency Data After Sept. 11 Led FBI to Dead Ends," New York Times, January 17, 2006.

151. (p. 91) In Bush's Law, Eric Lichtblau states that it was between 10 and 20 percent
(p. 163), but other sources (Carol Leonnig, "Secret Court's Judges Were Warned about
NSA Spy Data," Washington Post, February 9, 2006) report a lower number.

152. (p. 92) In 2007 he said, "[FISA] worked in the 20th century; it works today"
(James Baker, "Spying on the Home Front," PBS Frontline, March 2, 2007).

153. (p. 92) Leonnig, "Secret Court's Judges Were Warned about NSA Spy Data."

154. (p. 92) Lichtblau, Bush's Law, 173.

155. (p. 92) American Civil Liberties Union et al. v. National Security Agency et al.
(United States District Court, Eastern District of Michigan, Southern Division, Case
No. 06-CV-10204), Anna Diggs Taylor, Memorandum Opinion.

156. (p. 92) American Civil Liberties Union et al., v. National Security Agency et al.,
Nos. 06-2095/2140, Appeal from the United States District Court for the Eastern
District of Michigan at Detroit, No. 06-10204, Anna Diggs Taylor, District Judge,
Decided and Filed: July 6, 2007.

157. (p. 92) Yale law professor Jack Balkin characterized the situation in the following way: "We won't answer hypothetical questions about what we can do legally or
constitutionally. We also won't tell you what we've actually done or plan to do;
hence every question you ask will [sic] about legality be in effect a hypothetical, and
therefore we can refuse to answer it" (Balkinization blog, http://balkin.blogspot
. com/ 2006 /0 2/ shorte r-attorney-general-go male s. html) .