By Allan B. Colombo

Folks,

I've been writing stories about multi-point wiretap technology for years, as well as the NSA's original plan to implement the Clipper Chip. For those who care, the following two stories may prove interesting. As you can see, the DoJ has long had it in their sights to negate our Constitutional right to provacy. Robert Barr recently said that their attempt to sneak this and other anti-privacy bills through the 105th at the last hour seems more like a read from a conspiracy novel rather than true life in Congress. These men and women should be ashamed of themselves. I surely am.

The Implications of Roving Wiretap Technology at:

http://www.tpromo.com/gk/american/wiretap.htm

The Implications of the Digital Telephony Act of 1994 at:

http://www.tpromo.com/gk/american/telephon.htm

Al Colombo

http://www.tpromo.com/gk/colombo.htm

Friends:

In what must be the ultimate sneak attack on personal privacy, the Intelligence Committees have inserted into Section 604 the 1999 Intelligence Authorization Bill an expansion of FBI Roving Wiretap Authority in criminal cases. See 10/5/98 Congressional Record at page H5927. A "roving" wiretap order need not specify the phone to be tapped. Rather, it allows for tapping any phone the subject of the wiretap order might use because he or she is "reasonably proximate" to the phone. The cases for which the FBI would obtain expanded roving wiretap authority have nothing whatsoever to do with intelligence. Nonetheless, the intelligence committees have taken it upon themselves to expand what is strictly a criminal wiretapping statute. No hearings. No mark-up. And, the roving wiretap provision was not even in EITHER of the intelligence bills that were passed by the respective chambers (S.2052; HR 3694). The bill is to be considered on the House floor tomorrow.

The Intelligence Authorization Bill also grants the FBI access in counterintelligence investigations to electronic surveillance information from pen registers and trap and trace devices, and to travel records maintained by businesses, such as hotels, airlines, car rental agencies, etc. See sections 602 and 603. All of these provisions were deleted from the 1996 terrorism bill because they undermine personal privacy and expand the scope of federal law enforcement power at the expense of civil liberties.

For more on the intelligence-relate provisions, see the following memo:

MEMORANDUM

To: Interested Persons

From: Gregory T. Nojeim, ACLU Legislative Counsel

Re: Electronic Surveillance & Access To Travel Records: Intelligence Bill S.2502

Date: September 30, 1998

The Senate Intelligence Authorization Bill resurrects anti-privacy proposals the Congress rejected in 1996 because they would unduly expand the government's power at the expense of personal privacy and individual liberty. Under Section 601 of the Senate Intelligence Authorization Bill for FY 1999 (S. 2502) the FBI would secure for use in criminal proceedings electronic surveillance information surreptitiously obtained for "intelligence" and "international terrorism" purposes without any showing of probable cause of crime. Under Section 602 of S. 2502, the FBI would shed the constraints of probable cause of crime and be granted mandatory access in intelligence and international terrorism investigations to business records indicating:

* which airplane flights a person has taken;

* with whom they flew;

* when and where they rented a car;

* what train or bus or boat they boarded and where it went; and * where and when they slept in a hotel room, and if it is in the hotel records, with whom.

In each case, the FBI would obtain this information merely upon the ex parte certification of a designated FBI official to a federal magistrate, or to the secret court established under the Foreign Intelligence Surveillance Act.

BACKGROUND

Federal law enforcement asserts the authority to conduct "counterintelligence investigations" as an aspect of the executive power to protect national security. Without identifying a potential violation of law, the Executive claims the power to investigate U.S. citizens to prevent foreign intelligence activities and identify persons acting as agents of a foreign power. It asserts similar powers in connection with international terrorism investigations.

Most foreign intelligence activities that could be conducted within the United States, as well as most acts of international terrorism, violate provisions of U.S. criminal law and could give rise to a lawful criminal investigation. Nevertheless, law enforcement asserts that it needs to be able to conduct non-criminal counterintelligence investigations under a national security rationale. S. 2502 would expand the statutory authority to employ various investigative techniques in such non-criminal, counterintelligence investigations.

The ACLU opposes the investigation of persons in this country without a criminal basis and believes that such investigations are generally unconstitutional infringements on individual liberty which are essentially unrestrained by law. The additional investigatory powers sought for counterintelligence investigations in the bill are already available to law enforcement authorities conducting criminal investigations.

ELECTRONIC SURVEILLANCE EXPANSION

Section 601 of S.2052 would expand the permissible uses of and lower the showing required to obtain authorization to use a pen register or a trap and trace device in a counterintelligence or international terrorism investigation. A pen register records the telephone numbers of outgoing calls.1 Conversely, a trap and trace device is like Caller I.D.: it records the telephone numbers of incoming calls.2

Under current law, the government may obtain a court order authorizing a pen register or trap and trace device by certifying to a court that "the information likely to be obtained is relevant to an ongoing criminal investigation" being conducted by the requesting law enforcement agency.3

However, in order to obtain authorization for a pen register or trap and trace device in a counterintelligence investigation, it appears4 that the government must satisfy the requirements for issuance of a court order under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. Section 1801 et seq. The applicant must establish by probable cause that (1) "the target of the electronic surveillance is a foreign power or an agent of a foreign power" and (2) "each of the facilities at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power5 or an agent of a foreign power."6 50 U.S.C. Section 1805(3). In addition, the application must certify that the purpose of the surveillance is to obtain foreign intelligence information and that the information cannot be obtained by normal investigative techniques. 50 U.S.C. Section 1804(a)(7). Finally, FISA requires the use of "minimization procedures," that is, specific procedures designed to "minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons."7 50 U.S.C. Section 1801(h)(1).

Section 601 of S.2052 would replace the showing required under FISA with one similar to that required in a criminal investigation. Specifically, Section 601 would allow either the FISA court or a U.S. Magistrate judge appointed under chapter 43 of title 28 to authorize the installation and use of a pen register or trap and trace device upon a certification that "the information likely to be obtained is relevant to an ongoing foreign counterintelligence investigation or international terrorism investigation." The official seeking the order would also have to certify that the telephone line to which the device would be attached has been or is about to be used in communication with either: (i) an individual who has been or is engaged in international terrorism or clandestine intelligence activities may involve criminal conduct, or (ii) a foreign power or agent of a foreign power under circumstances giving reason to believe that the communication concerns international terrorism or clandestine intelligence activities that may involve a crime.

There would be no judicial determination of probable cause of anything, or even of the much lower showing that the information likely to obtained would be "relevant" to an investigation. The judicial officer would authorize the electronic surveillance upon a determination that the official seeking the authorization had made the necessary certifications, not that the facts certified were true. This change would not simply reduce the showing required to utilize these devices in a counterintelligence or international terrorism investigation. It would also permit magistrates, for the first time, to authorize electronic surveillance in counterintelligence -- as opposed to criminal -- investigations. Magistrates would be given this power when the volume of requests for pen registers and trap and trace devices in intelligence and international terrorism investigations was so great that it overwhelmed the FISA court.8

Virtually all foreign intelligence activities potentially violate one or more federal criminal laws. It should therefore not be difficult, in an appropriate case, to open a criminal investigation and obtain authorization for pen registers and trap and trace devices under existing 18 U.S.C. Section 3123. The standard for obtaining such an order is already far too low, and requires merely a certification that the information likely to be obtained is relevant to an ongoing criminal investigation. If the FBI insists on proceeding through a counterintelligence investigation, it should be required to make the heightened showing currently required by FISA before utilizing such devices.

There are other reasons, too, to reject this proposal. First, it gives the Attorney General the power to authorize use of pen registers and trap and trace devices in foreign intelligence and international terrorism investigations without a prior court order in "emergencies," without defining the circumstances that constitute an "emergency." A court order would have to be obtained within 48 hours for the surveillance to continue. This additional power is not only subject to abuse, it is unnecessary. The Attorney General and any law enforcement officer she designates already has the power to authorize the installation of a pen register or trap and trace device for 48 hours without a prior court order in the criminal context whenever that person reasonably determines that an emergency situation involves the immediate danger of death or serious bodily injury to any person. 18 U.S.C. Section 3125. Under Section 601 of S. 2502, no consideration of immediate danger of death or serious bodily injury restrains the Attorney General from authorizing use of a trap and trace device without a prior court order. Second, in time of war, Section 601 allows the Attorney General to authorize use of a pen register or trap and trace device without a prior court order for 15 days, even when a court order could readily be obtained.

MANDATORY ACCESS TO TRAVEL RECORDS

Section 602 of the Senate Intelligence Authorization Bill, S. 2052, would authorize the FBI to obtain from the FISA court or a magistrate judge an order granting mandatory access to common carrier and public accommodations records in foreign counterintelligence investigations and international terrorism investigations. This provision, like Section 601 discussed above, violates the principle that the government should be obliged to abide by criminal investigatory processes when investigating persons within its borders, and authorizes magistrate judges to get into the counterintelligence business, presumably on account of the expected volume of requests.

Section 602 of S. 2052 applies to the records of air carriers, bus companies, hotels and motels, physical storage facilities, and car rental outlets. It would allow the FBI to obtain a court order requiring such entities to turn over their records whenever the FBI asserts that the records are necessary for international terrorism or foreign counterintelligence purposes, and that there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power, or an agent of a foreign power. The magistrate or the FISA court would not determine probable cause of anything, or even that the records sought are merely relevant to such investigation. Rather, the mere certification by the FBI that records about where and when a consumer has traveled or slept, or how they got there, is relevant to the investigation would be enough to trigger the order compelling disclosure of this highly personal information.

The proposal represents an unwise and unnecessary expansion of the FBI's power to conduct noncriminal investigations. All of these records about consumers can easily be obtained already by grand jury subpoena in a lawful criminal investigation. No showing has been made that the grand jury process is somehow inadequate to meet legitimate law enforcement needs in investigating bombings or other crimes associated with terrorism. Those are acts that may properly be investigated as crimes, with all of the investigative tools that are available to law enforcement, as well as the protections for violations of individual rights.

If the FBI is in a position to make a representation to a court that a person is an agent of a foreign power engaged in international terrorism or clandestine intelligence activities in violation of the laws of the United States, then the FBI has the "reasonable indication" necessary under the Attorney General's Guidelines to open a criminal investigation. Congress should insist that the FBI employ that process to obtain records on the activities of consumers in the U.S. If the consumer is not engaged in criminal activity, it is difficult to see why the FBI should have access to sensitive information about the consumer at all. This is particularly true given that the criteria for the commencement of a foreign counterintelligence investigation are secret.9

CONCLUSION

It is ironic that shortly after the Filegate incident, and at the same time it considers legislation to protect personal information on the internet and the privacy of medical records, Congress considers a bill that would give the FBI more authority to engage in more electronic surveillance and collect more personal information in secret without a criminal predicate and without adequate judicial oversight. The conferees on the Intelligence Authorization Bill should reject these expansions of surveillance authority.

END

1 A pen register is a "device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached," 18 U.S.C. Section 3127(3).

2 A trap and trace device "captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted," 18 U.S.C. Section 3127(4).

3 18 U.S.C. Sections 3122-23.

4 Pen registers and trap and trace devices are not expressly mentioned in the Foreign Intelligence Surveillance Act. Because they involve the interception of an electronic communication, they appear to be subject to the Act's general requirements for electronic surveillance orders.

5 A "foreign power" includes foreign governments, their components, any "faction" of a foreign nation, any foreign-based political organization not substantially composed of U.S. persons, and any entity controlled by a foreign government.

6 An "agent of a foreign power" includes any person acting on behalf of or under the direction of a foreign power who knowingly engages sabotage, international terrorism, or clandestine intelligence activities which may involve a crime. 50 U.S.C. Section 1801(b).

7 "U.S. person" is a U.S. citizen, permanent resident, unincorporated association with a substantial number of members who are citizens or permanent residents, or corporation incorporated in the U.S., unless such association or corporation or association is a foreign power as defined in 50 U.S.C. Section (a)(1), (2) or (3). 50 U.S.C. Section 1801(i).

8 S. Rep. No. 185, 85th Cong., 2nd. Sess. 28 (May 7, 1998).

9 Combating Domestic Terrorism: Hearings Before the Subcomm. on Crime of the House Comm. on the Judiciary, 104th Cong., 1st Sess., (May 3, 1995) (written testimony of Louis J. Freeh, Director, Federal Bureau of Investigation, p. 6).

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