The Right to Privacy vs. National Security

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The Right to Privacy vs. National Security
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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.

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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

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The FBI Ignores Nardone/Katz 1940-1972
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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, govt officials re
  wiretapping.

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Nothing Changes After Katz v. USA (1967)

• 1969 LBJ taps Kissinger aide for 21 months.
• 1971 Nixon breaks into Ellsbergs psychiatrist
  office, taps Ellsbergs 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

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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."

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Congress Acts to Protect Privacy
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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.

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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.

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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

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ACLU Assessment of USA Patriot Act I (Will be
discussed in Fridays 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.

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ACLU Assessment of USA Patriot Act III (Will be
discussed in Fridays 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.