The Right to Privacy vs. National Security

1. The Right to Privacy vs. National Security CSE 100 - Info Tech & Its Impact on Society

2. Privacy: Telephones (Recap) • Federal Communications Act (FCA) (1934) • FCC created. Prohibits “interception and divulgence” of wire communications. (similar to Radio Act of 1927) • Nardone v. United States (1937) • Supreme Court: Warrantless wiretap information not admissible, nor is evidence derived from such wiretaps, from FCA. • Katz v. United States (1967) • “a person in a telephone booth may rely upon the protection of the Fourth Amendment…. Wherever a man may be, he is entitled to know that he will remain free from unreasonable search and seizures.” • Allowed short surveillances of a few conversations, if approved by a judge based on a special showing of need. • Clarified by Title III (“The Wiretap Act”) of the Omnibus Crime Control … Act of 1968. CSE 100 - Info Tech & Its Impact on Society

3. Privacy: Pen Registers (Pen register: A log of all phone numbers called from a particular phone. Trap and trace: A log of all phone numbers that call a particular phone.) United States v. Miller (1976)No constitutional right to business records held by third party. Smith v. Maryland (1979)Given US v Miller, pen registers are not forbidden by the Fourth Amendment CSE 100 - Info Tech & Its Impact on Society

4. The FBI Ignores Nardone/Katz: 1940-1972 CSE 100 - Info Tech & Its Impact on Society

5. From WW II on, FBI reinterprets Nardone • 1940: J. Edgar Hoover pushes Justice department to interpret Nardone to forbid “intercepting” and “divulging” information. • 1956: FBI wiretaps NAACP and “Southern governors and congressmen” • 1960: Atty Gen RF Kennedy taps lobbyists, Congressional staffers, gov’t officials re wiretapping. CSE 100 - Info Tech & Its Impact on Society

6. Nothing Changes After Katz v. USA (1967) • 1969: LBJ taps Kissinger aide for 21 months. • 1971: Nixon breaks into Ellsberg’s psychiatrist office, taps Ellsberg’s phone. (leads to mistrial against Ellsberg) • 1972: “Reports by FBI agents on electronic surveillance had caused the Department [of Justice] ‘deep embarrassment’ many times. – former Atty General Ramsey Clark CSE 100 - Info Tech & Its Impact on Society

7. Wiretapping & National Security: The other side • In Katz v. United States, the Supreme Court explicitly declined to extend its holding to cases "involving the national security." • Congress in Title III stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government." CSE 100 - Info Tech & Its Impact on Society

8. Congress Acts to Protect Privacy CSE 100 - Info Tech & Its Impact on Society

9. Foreign Intelligence Surveillance Act (1978) • Electronic surveillance of foreign agents allowed under secret court order, given probable cause that target is agent of foreign power. • No notice need be given • Evidence can be used in criminal proceedings with qualifications. Any FISA investigation must have foreign intelligence information collection as its ‘primary purpose.’ CSE 100 - Info Tech & Its Impact on Society

10. Secret Court Says F.B.I. Aides Misled Judges in 75 Cases By PHILIP SHENON (NYT) WASHINGTON, Aug. 22, 2002 — The nation's secret intelligence court has identified more than 75 cases in which it says it was misled by the Federal Bureau of Investigation in documents in which the bureau attempted to justify its need for wiretaps and other electronic surveillance, according to the first of the court's rulings to be released publicly. The opinion by the Foreign Intelligence Surveillance Court, which was issued in May but made public today by Congress, is stinging in its criticism of the F.B.I. and the Justice Department, which the court suggested had tried to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators. CSE 100 - Info Tech & Its Impact on Society

11. After 9/11: USA Patriot Act (2001) • Changes FISA standard to permit wiretap use when collecting information about foreign spies or terrorists [even US citizens] is "a significant purpose," rather than "the purpose", of such an investigation. • Authorizes "roving wiretaps" in foreign intelligence cases — meaning that law enforcement can listen in on multiple phones and devices with one warrant — if the court finds that the actions of the suspect "may have the effect of thwarting" surveillance • Expands pen register authority to cover the Internet, but forbids collection of "content" under such orders; allows nationwide service of such orders CSE 100 - Info Tech & Its Impact on Society

12. ACLU Assessment of USA Patriot Act I – (Will be discussed in Friday’s recitation) • “The USA Patriot Act allows the government to use its intelligence gathering power to circumvent the standard that must be met for criminal wiretaps. … The new law allows use of FISA surveillance authority even if the primary purpose were a criminal investigation. Intelligence surveillance merely needs to be only a "significant" purpose. This provision authorizes unconstitutional physical searches and wiretaps: though it is searching primarily for evidence of crime, law enforcement conducts a search without probable cause of crime.” CSE 100 - Info Tech & Its Impact on Society

13. ACLU Assessment of USA Patriot Act III – (Will be discussed in Friday’s recitation) • “In allowing for "nationwide service" of pen register and trap and trace orders, the law further marginalizes the role of the judiciary. It authorizes what would be the equivalent of a blank warrant in the physical world: the court issues the order, and the law enforcement agent fills in the places to be searched. This is not consistent with the important Fourth Amendment privacy protection of requiring that warrants specify the place to be searched.” CSE 100 - Info Tech & Its Impact on Society