Entries Tagged "FISA"

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NSA and Bush's Illegal Eavesdropping

When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place to protect Americans against widespread government eavesdropping. The reason may have been to tap the NSA’s capability for data-mining and widespread surveillance.

Illegal wiretapping of Americans is nothing new. In the 1950s and ’60s, in a program called “Project Shamrock,” the NSA intercepted every single telegram coming into or going out of the United States. It conducted eavesdropping without a warrant on behalf of the CIA and other agencies. Much of this became public during the 1975 Church Committee hearings and resulted in the now famous Foreign Intelligence Surveillance Act (FISA) of 1978.

The purpose of this law was to protect the American people by regulating government eavesdropping. Like many laws limiting the power of government, it relies on checks and balances: one branch of the government watching the other. The law established a secret court, the Foreign Intelligence Surveillance Court (FISC), and empowered it to approve national-security-related eavesdropping warrants. The Justice Department can request FISA warrants to monitor foreign communications as well as communications by American citizens, provided that they meet certain minimal criteria.

The FISC issued about 500 FISA warrants per year from 1979 through 1995, and has slowly increased subsequently—1,758 were issued in 2004. The process is designed for speed and even has provisions where the Justice Department can wiretap first and ask for permission later. In all that time, only four warrant requests were ever rejected: all in 2003. (We don’t know any details, of course, as the court proceedings are secret.)

FISA warrants are carried out by the FBI, but in the days immediately after the terrorist attacks, there was a widespread perception in Washington that the FBI wasn’t up to dealing with these new threats—they couldn’t uncover plots in a timely manner. So instead the Bush administration turned to the NSA. They had the tools, the expertise, the experience, and so they were given the mission.

The NSA’s ability to eavesdrop on communications is exemplified by a technological capability called Echelon. Echelon is the world’s largest information “vacuum cleaner,” sucking up a staggering amount of voice, fax, and data communications—satellite, microwave, fiber-optic, cellular and everything else—from all over the world: an estimated 3 billion communications per day. These communications are then processed through sophisticated data-mining technologies, which look for simple phrases like “assassinate the president” as well as more complicated communications patterns.

Supposedly Echelon only covers communications outside of the United States. Although there is no evidence that the Bush administration has employed Echelon to monitor communications to and from the U.S., this surveillance capability is probably exactly what the president wanted and may explain why the administration sought to bypass the FISA process of acquiring a warrant for searches.

Perhaps the NSA just didn’t have any experience submitting FISA warrants, so Bush unilaterally waived that requirement. And perhaps Bush thought FISA was a hindrance—in 2002 there was a widespread but false believe that the FISC got in the way of the investigation of Zacarias Moussaoui (the presumed “20th hijacker”)—and bypassed the court for that reason.

Most likely, Bush wanted a whole new surveillance paradigm. You can think of the FBI’s capabilities as “retail surveillance”: It eavesdrops on a particular person or phone. The NSA, on the other hand, conducts “wholesale surveillance.” It, or more exactly its computers, listens to everything. An example might be to feed the computers every voice, fax, and e-mail communication looking for the name “Ayman al-Zawahiri.” This type of surveillance is more along the lines of Project Shamrock, and not legal under FISA. As Sen. Jay Rockefeller wrote in a secret memo after being briefed on the program, it raises “profound oversight issues.”

It is also unclear whether Echelon-style eavesdropping would prevent terrorist attacks. In the months before 9/11, Echelon noticed considerable “chatter”: bits of conversation suggesting some sort of imminent attack. But because much of the planning for 9/11 occurred face-to-face, analysts were unable to learn details.

The fundamental issue here is security, but it’s not the security most people think of. James Madison famously said: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Terrorism is a serious risk to our nation, but an even greater threat is the centralization of American political power in the hands of any single branch of the government.

Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful.

After watching tyrannies rise and fall throughout Europe, this seemed like a prudent way to form a government. Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It’s time we brought back the security system that’s protected us from government for over 200 years.

A version of this essay originally appeared in Salon.

I wrote another essay about the legal and constitutional implications of this. The Minneapolis Star Tribune will publish it either Wednesday or Thursday, and I will post it here at that time.

I didn’t talk about the political dynamics in either essay, but they’re fascinating. The White House kept this secret, but they briefed at least six people outside the administration. The current and former chief justices of the FISC knew about this. Last Sunday’s Washington Post reported that both of them had misgivings about the program, but neither did anything about it. The White House also briefed the Committee Chairs and Ranking Members of the House and Senate Intelligence Committees, and they didn’t do anything about it. (Although Sen. Rockefeller wrote a bizarre I’m-not-going-down-with-you memo to Cheney and for his files.)

Cheney was on television this weekend citing this minimal disclosure as evidence that Congress acquiesced to the program. I see it as evidence of something else: if people from both the Legislative and the Judiciary branches knowingly permitted unlawful surveillance by the Executive branch, then the current system of checks and balances isn’t working.

It’s also evidence about how secretive this administration is. None of the other FISC judges, and none of the other House or Senate Intelligence Committee members, were told about this,­ even under clearance. And if there’s one thing these people hate, it’s being kept in the dark on a matter within their jurisdiction. That’s why Senator Feinstein, a member of the Senate Intelligence Committee, was so upset yesterday. And it’s pushing Senator Specter, and some of the Republicans in these Judiciary committees, further into the civil liberties camp.

There are about a zillion links worth reading, but here are some of them you might not yet have seen. Some good newspaper commentaries. An excellent legal analysis. Three blog posts. Four more blog posts. Daniel Solove on FISA. Two legal analyses. An interesting “Democracy Now” commentary, including interesting comments on the NSA’s capabilities by James Bamford. And finally, my 2004 essay on the security of checks and balances.

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”—William Pitt, House of Commons, 11/18/1783.

Posted on December 20, 2005 at 12:45 PM • View Comments

The Military is Spying on Americans

The Defense Department is collecting data on perfectly legal, peaceful, anti-war protesters.

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One “incident” included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald’s National Salute to America’s Heroes—a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: “US group exercising constitutional rights.” Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense—yet they all remained in the database.

The DOD has strict guidelines (PDF link), adopted in December 1982, that limit the extent to which they can collect and retain information on U.S. citizens.

Still, the DOD database includes at least 20 references to U.S. citizens or U.S. persons. Other documents obtained by NBC News show that the Defense Department is clearly increasing its domestic monitoring activities. One DOD briefing document stamped “secret” concludes: “[W]e have noted increased communication and encouragement between protest groups using the [I]nternet,” but no “significant connection” between incidents, such as “reoccurring instigators at protests” or “vehicle descriptions.”

Personally, I am very worried about this increase in military activity inside our country. If anyone should be making sure protesters stay on the right side of the law, it’s the police…not the military.

And it could get worse.

EDITED TO ADD (12/16): There’s also this news :

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials…..

Mr. Bush’s executive order allowing some warrantless eavesdropping on those inside the United States including American citizens, permanent legal residents, tourists and other foreigners is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

And:

….officials familiar with it said the N.S.A. eavesdropped without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands over the past three years, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.

This is a very long article, but worth reading. It is not overstatement to suggest that this may be the most significant violation of federal surveillance law in the post-Watergate era.

EDITED TO ADD (12/16): Good analysis from Political Animal. The reason Bush’s executive order is a big deal is because it’s against the law.

Here is the Foreign Intelligence Surveillance Act. Its Section 1809a makes it a criminal offense to “engage in electronic surveillance under color of law except as authorized by statute.”

FISA does authorize surveillance without a warrant, but not on US citizens (with the possible exception of citizens speaking from property openly owned by a foreign power; e.g., an embassy.)

FISA also says that the Attorney General can authorize emergency surveillance without a warrant when there is no time to obtain one. But it requires that the Attorney General notify the judge of that authorization immediately, and that he (and yes, the law does say ‘he’) apply for a warrant “as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”

It also says this:

“In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof”.

Nothing in the New York Times report suggests that the wiretaps Bush authorized extended only for 72 hours, or that normal warrants were sought in each case within 72 hours after the wiretap began. On the contrary, no one would have needed a special program or presidential order if they had.

According to the Times, “the Bush administration views the operation as necessary so that the agency can move quickly to monitor communications that may disclose threats to the United States.” But this is just wrong. As I noted above, the law specifically allows for warrantless surveillance in emergencies, when the government needs to start surveillance before it can get a warrant. It explains exactly what the government needs to do under those circumstances. It therefore provides the flexibility the administration claims it needed.

They had no need to go around the law. They could easily have obeyed it. They just didn’t want to.

Posted on December 16, 2005 at 6:49 AM • View Comments

Surveillance and Oversight

Christmas 2003, Las Vegas. Intelligence hinted at a terrorist attack on New Year’s Eve. In the absence of any real evidence, the FBI tried to compile a real-time database of everyone who was visiting the city. It collected customer data from airlines, hotels, casinos, rental car companies, even storage locker rental companies. All this information went into a massive database—probably close to a million people overall—that the FBI’s computers analyzed, looking for links to known terrorists. Of course, no terrorist attack occurred and no plot was discovered: The intelligence was wrong.

A typical American citizen spending the holidays in Vegas might be surprised to learn that the FBI collected his personal data, but this kind of thing is increasingly common. Since 9/11, the FBI has been collecting all sorts of personal information on ordinary Americans, and it shows no signs of letting up.

The FBI has two basic tools for gathering information on large groups of Americans. Both were created in the 1970s to gather information solely on foreign terrorists and spies. Both were greatly expanded by the USA Patriot Act and other laws, and are now routinely used against ordinary, law-abiding Americans who have no connection to terrorism. Together, they represent an enormous increase in police power in the United States.

The first are FISA warrants (sometimes called Section 215 warrants, after the section of the Patriot Act that expanded their scope). These are issued in secret, by a secret court. The second are national security letters, less well known but much more powerful, and which FBI field supervisors can issue all by themselves. The exact numbers are secret, but a recent Washington Post article estimated that 30,000 letters each year demand telephone records, banking data, customer data, library records, and so on.

In both cases, the recipients of these orders are prohibited by law from disclosing the fact that they received them. And two years ago, Attorney General John Ashcroft rescinded a 1995 guideline that this information be destroyed if it is not relevant to whatever investigation it was collected for. Now, it can be saved indefinitely, and disseminated freely.

September 2005, Rotterdam. The police had already identified some of the 250 suspects in a soccer riot from the previous April, but most were unidentified but captured on video. In an effort to help, they sent text messages to 17,000 phones known to be in the vicinity of the riots, asking that anyone with information contact the police. The result was more evidence, and more arrests.

The differences between the Rotterdam and Las Vegas incidents are instructive. The Rotterdam police needed specific data for a specific purpose. Its members worked with federal justice officials to ensure that they complied with the country’s strict privacy laws. They obtained the phone numbers without any names attached, and deleted them immediately after sending the single text message. And their actions were public, widely reported in the press.

On the other hand, the FBI has no judicial oversight. With only a vague hinting that a Las Vegas attack might occur, the bureau vacuumed up an enormous amount of information. First its members tried asking for the data; then they turned to national security letters and, in some cases, subpoenas. There was no requirement to delete the data, and there is every reason to believe that the FBI still has it all. And the bureau worked in secret; the only reason we know this happened is that the operation leaked.

These differences illustrate four principles that should guide our use of personal information by the police. The first is oversight: In order to obtain personal information, the police should be required to show probable cause, and convince a judge to issue a warrant for the specific information needed. Second, minimization: The police should only get the specific information they need, and not any more. Nor should they be allowed to collect large blocks of information in order to go on “fishing expeditions,” looking for suspicious behavior. The third is transparency: The public should know, if not immediately then eventually, what information the police are getting and how it is being used. And fourth, destruction. Any data the police obtains should be destroyed immediately after its court-authorized purpose is achieved. The police should not be able to hold on to it, just in case it might become useful at some future date.

This isn’t about our ability to combat terrorism; it’s about police power. Traditional law already gives police enormous power to peer into the personal lives of people, to use new crime-fighting technologies, and to correlate that information. But unfettered police power quickly resembles a police state, and checks on that power make us all safer.

As more of our lives become digital, we leave an ever-widening audit trail in our wake. This information has enormous social value—not just for national security and law enforcement, but for purposes as mundane as using cell-phone data to track road congestion, and as important as using medical data to track the spread of diseases. Our challenge is to make this information available when and where it needs to be, but also to protect the principles of privacy and liberty our country is built on.

This essay originally appeared in the Minneapolis Star-Tribune.

Posted on November 22, 2005 at 6:06 AM • View Comments

U.S. Medical Privacy Law Gutted

In the U.S., medical privacy is largely governed by a 1996 law called HIPAA. Among many other provisions, HIPAA regulates the privacy and security surrounding electronic medical records. HIPAA specifies civil penalties against companies that don’t comply with the regulations, as well as criminal penalties against individuals and corporations who knowingly steal or misuse patient data.

The civil penalties have long been viewed as irrelevant by the health care industry. Now the criminal penalties have been gutted:

An authoritative new ruling by the Justice Department sharply limits the government’s ability to prosecute people for criminal violations of the law that protects the privacy of medical records.

The criminal penalties, the department said, apply to insurers, doctors, hospitals and other providers—but not necessarily their employees or outsiders who steal personal health data.

In short, the department said, people who work for an entity covered by the federal privacy law are not automatically covered by that law and may not be subject to its criminal penalties, which include a $250,000 fine and 10 years in prison for the most serious violations.

This is a complicated issue. Peter Swire worked extensively on this bill as the President’s Chief Counselor for Privacy, and I am going to quote him extensively. First, a story about someone who was convicted under the criminal part of this statute.

In 2004 the U.S. Attorney in Seattle announced that Richard Gibson was being indicted for violating the HIPAA privacy law. Gibson was a phlebotomist ­ a lab assistant ­ in a hospital. While at work he accessed the medical records of a person with a terminal cancer condition. Gibson then got credit cards in the patient’s name and ran up over $9,000 in charges, notably for video game purchases. In a statement to the court, the patient said he “lost a year of life both mentally and physically dealing with the stress” of dealing with collection agencies and other results of Gibson’s actions. Gibson signed a plea agreement and was sentenced to 16 months in jail.

According to this Justice Department ruling, Gibson was wrongly convicted. I presume his attorney is working on the matter, and I hope he can be re-tried under our identity theft laws. But because Gibson (or someone else like him) was working in his official capacity, he cannot be prosecuted under HIPAA. And because Gibson (or someone like him) was doing something not authorized by his employer, the hospital cannot be prosecuted under HIPAA.

The healthcare industry has been opposed to HIPAA from the beginning, because it puts constraints on their business in the name of security and privacy. This ruling comes after intense lobbying by the industry at the Department of Heath and Human Services and the Justice Department, and is the result of an HHS request for an opinion.

From Swire’s analysis the Justice Department ruling.

For a law professor who teaches statutory interpretation, the OLC opinion is terribly frustrating to read. The opinion reads like a brief for one side of an argument. Even worse, it reads like a brief that knows it has the losing side but has to come out with a predetermined answer.

I’ve been to my share of HIPAA security conferences. To the extent that big health is following the HIPAA law—and to a large extent, they’re waiting to see how it’s enforced—they are doing so because of the criminal penalties. They know that the civil penalties aren’t that large, and are a cost of doing business. But the criminal penalties were real. Now that they’re gone, the pressure on big health to protect patient privacy is greatly diminished.

Again Swire:

The simplest explanation for the bad OLC opinion is politics. Parts of the health care industry lobbied hard to cancel HIPAA in 2001. When President Bush decided to keep the privacy rule—quite possibly based on his sincere personal views—the industry efforts shifted direction. Industry pressure has stopped HHS from bringing a single civil case out of the 13,000 complaints. Now, after a U.S. Attorney’s office had the initiative to prosecute Mr. Gibson, senior officials in Washington have clamped down on criminal enforcement. The participation of senior political officials in the interpretation of a statute, rather than relying on staff attorneys, makes this political theory even more convincing.

This kind of thing is bigger than the security of the healthcare data of Americans. Our administration is trying to collect more data in its attempt to fight terrorism. Part of that is convincing people—both Americans and foreigners—that this data will be protected. When we gut privacy protections because they might inconvenience business, we’re telling the world that privacy isn’t one of our core concerns.

If the administration doesn’t believe that we need to follow its medical data privacy rules, what makes you think they’re following the FISA rules?

Posted on June 7, 2005 at 12:15 PM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.