Tag: Patriot Act

‘Wait and Hurry Up’ in Debate over Patriot Act

If Senate leaders believed that expiring portions of the Patriot Act constituted an immediate increase in the risk of terrorism, it’s amazing that they waited until now to even nod toward debating the law’s renewal. A few thoughts from Cato Research Fellow Julian Sanchez on the current Patriot Act debate ripped from today’s podcast:

… Democrats have had no interest in pointing out how closely President Obama has followed the playbook written by George (W.) Bush. And of course Republicans are the ones who helped write that playbook, so they don’t have much interest in revisiting it.

On Section 215 of the Patriot Act:

It seems extremely likely from what we know so far that this business records authority has been transformed into a large-scale people-tracking authority. … It strikes me as extraordinarily subject to abuse. It strikes me as a dangerous power to grant, even in this most vital task.

Listen to the whole thing. And subscribe (iTunes).

Tuesday Links

The Risks of ‘John Doe’ Wiretaps

The Electronic Frontier Foundation has unearthed an interesting case of an improper use of surveillance in an investigation where the FBI had obtained “roving wiretap” authority. In a bizarre turn, the Bureau ended up eavesdropping on young children rather than their adult suspects for five days. The case is generating some attention because that same “roving wiretap” authority is one of the three surveillance powers set to expire in late May. The thing is, on the basis of what I can glean from the heavily redacted document EFF obtained via a Freedom of Information Act request, it’s not a case involving misuse of the roving authority. But it is a good concrete example of why the roving authority needs to be modified.

First, a bit of background: Roving wiretaps in criminal cases have been around since the 1980s, and were designed to let investigators follow a target across multiple telephone or Internet accounts when there’s reason to believe the suspect is frequently changing lines to frustrate surveillance. The Patriot Act extended the same power to intelligence investigations—fine in principle—but with a crucial difference. On the criminal side, there’s a tradeoff: For a conventional warrant, you have to specify every phone line and e-mail address covered by a wiretap warrant, but as long as you’ve got probable cause to link each line to criminal activity, you don’t necessarily need the identity of target. For a roving criminal wiretap, you don’t have to be limited to phones and accounts identified in advance, but you do have to name a target, and then directly ascertain that this named target is “proximate to” every facility you’re about to start collection on. Having both is even better, but you must have one or the other: either a named, known suspect or a list of specific facilities. Not so in the Patriot Act version used for intelligence wiretaps: They only require a “specific” description of the target. Critics argue that these “John Doe” warrants fall short of the Fourth Amendment’s requirement that warrants “particularly [describe] the place to be searched, and the persons or things to be seized,” and worry that they dramatically magnify the risk of erroneous collection of innocent people’s communications, especially given that intelligence wiretaps are, in many ways, already much more broad—and sweep in a lot more communications—than their counterparts on the criminal side.

The report EFF obtained concerned an investigation in which, it appears, roving wiretap authority was granted by at least one of two orders authorizing surveillance of two subjects, implied to be a married couple. Because it’s so heavily redacted, it’s necessary to read between the lines a bit, but as best I can reconstruct it, here’s what appears to have happened. In the course of the surveillance, an analyst was surprised to find that the conversations on one monitored line sounded like they involved “young children” who were not speaking the same language as the targets of the investigation. The Bureau nevertheless continued monitoring it for five days. Eventually, someone realized that they’d already been informed that the targets had disconnected that phone line a while ago—at which point, presumably, it was reassigned to the kids the FBI ended up wiretapping. In fact, the Bureau had initially refrained from collecting on that line, because the techies had determined that the subjects of the investigation had already disconnected it by the time surveillance was ready to begin. When the request for a renewal of the surveillance order was made, however, the lawyer at DOJ who drafted the renewal request mistakenly included that old number in the application, even though the case agents hadn’t put it in their request, and seemingly noted explicitly that it wasn’t being used by the targets anymore. But it got into the renewal order, at which point whoever was charged with implementing it dutifully began tapping some child’s phone line.

On face, the improper collection here was not the result of a “John Doe” warrant. Again, it’s hard to be absolutely sure through all the redactions, but the wording of the report strongly suggests that both targets were known, named individuals from the outset. Neither does the mistake here seem to have been a direct result of the roving authority. The wording suggests that the phone number at issue was actually specified in the initial order, rather than being selected as an exercise of roving discretion by the case agents. Even if it had initially been identified that way, the Bureau realized the subjects weren’t using it anymore before they actually went up on the number… at least originally. So one might think this is just a case of an error with conventional intel wiretapping, with no obvious implications for the roving authority as such. But I think there are a couple of important lessons to draw from it.

First as the report notes, the lawyer who drafted the renewal application and the case agents who reviewed and signed off on it all dropped the ball in failing to notice that it included a number they’d already concluded wasn’t being used by their targets. The FISA Court itself, however, was not really in any position to detect the error. So while it is an unqualified improvement that roving authority, since 2006, has included a notice requirement to the court within ten days of a wiretap roving to a new number or account, we need to be realistic about how much that’s going to accomplish. If an investigation starts going up on some conspicuously excessive number of accounts, or adding them with explanations to the court that sound wildly implausible, you might see a judge step in. But for the most part, when a tap goes up on the wrong person, we’re going to have to count on the agents and analysts themselves to notice.

Second, this is a good illustration of an important difference between criminal wiretap orders and FISA warrants. With a criminal order, interception is “minimized” in realtime—meaning you wouldn’t have had five days of automatic recording of every conversation on the line. Someone would listen to the start of the call, and as soon as it became apparent they couldn’t positively identify a known target as party to the communication, or that it was a personal call unrelated to the crime under investigation, monitoring would (in theory) stop. There’s necessarily some flexibility in practice, but the default on the criminal side is not “record everything”; on the intel side, it is.

Third, consider how important a named and identified target is to quickly catching an error. In this case, one of the technicians responsible for executing the wiretap noticed that the people named in the warrant had already disconnected service to one of the targeted phone lines. Having an actual identity for your target is also a decent proxy for having many other types of information about them: In this case, the analyst monitoring the recordings had a set of expectations about what the subjects sounded like and what language they would be speaking. In other cases, it might become apparent that a phone is making calls from one location when the target specified in the warrant is known to be elsewhere. Could these things be known for a target whose name isn’t? Sure. But as a rule, a description specific enough to guide initial targeting isn’t necessarily data-rich enough to enable very robust error-correction. Since the presumption is that people wiretapped under FISA warrants do not get notified even after the fact, this internal correction is the only real check on erroneous targeting. When wiretaps are limited neither by facility nor a known target identity, it’s not just that there’s greater risk of tapping the wrong line—it’s that it becomes much more likely nobody will be able to detect with any certainty that a mistake has been made.

Julian Sanchez Talks Online Privacy on Monday, March 28 at 1pm ET on Facebook

Please join us this coming Monday, March 28 at 1pm Eastern on our Facebook page for a live video presentation, powered by Livestream, from Cato research fellow Julian Sanchez on the current state of online privacy policy.

Here is a brief list of topics he’ll cover:

  • An update on current challenges to overturn FISA, and what it means for you and me if those challenges succeed or fail
  • How this relates to current and recent efforts to reauthorize the Patriot Act, including a recap of testimony Sanchez recently delivered to the U.S. Senate Subcommittee on Crime, Terrorism, and Homeland Security
  • What’s on the FBI’s surveillance wish list
  • Reflections on the idea of an “online privacy bill of rights

We hope you can join us next Monday at 1pm Eastern for this event. Be sure to log in to Livestream with your Facebook account so you can chat with each other and submit questions–we’ll try to take as many as we can.

Not a fan of the Cato Institute yet? Join us below:


Obama’s Military Tribunals

This week Obama announced that he intends to prosecute prisoners before military tribunals.  The administration is taking pains to point out that Obama is not embracing the Bush policy.  These will be Obama’s tribunals, not Bush’s.  But since Mr. Obama’s executive order can be revised or withdrawn at any time, the new and improved procedures do not amount to much.   The tribunals were wrongheaded under Bush and the critique applies equally well to Obama’s “new” policy.

As others have noted, Obama has now embraced tribunals, Gitmo, and the Patriot Act.    Bad news, but at least Obama kept his promises to end the wars and get us on a sound financial footing.

For additional Cato work related to military tribunals, go here and here.

How Many 215 Orders?

There was an interesting exchange during a Senate Intelligence Committee hearing yesterday concerning the use of the Patriot Act’s §215 orders for business records and other tangible things. FBI Director Robert Mueller hinted that the orders may have been used to track purchases of hydrogen peroxide purchases in the investigation of aspiring bomber Najibullah Zazi, while Sen. Ron Wyden (D-Oreg.) asserted that there is “a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved.”

Let’s leave our curiosity about that by the wayside for the moment, though. I’m curious about one simple empirical claim Mueller made in his testimony: That the provision has been used over 380 times since 2001. I assume he’d know, but that seems inconsistent with what’s been publicly reported to date. It’s worth noting that there are actually minor discrepancies between the numbers provided in Congressional Research Service reports, audits from the Office of the Inspector General, and the Justice Department’s annual reports to Congress. But there are plenty of legitimate reasons these numbers might vary depending on how you count, and the total variance is a difference of about 17 orders total over the years.

We know from those Inspector General reports that the majority of those 215 orders issued were “combination” orders issued in tandem with another type of surveillance order called a “pen register” so that investigators could get subscriber information about the people whose communications patterns they were tracking. When Congress amended the Patriot Act in 2006, it built that authority right into the pen register statute, making it unnecessary to seek those “combination” orders. Prior to the amendment, the government got 173 of those “combination” orders. “Pure” 215 orders, which are now the only type needed, have been used much more sparingly. None were issued at all until 2004, and from 2004 through 2009 (depending on whose tally you want to use) there were between 75 and 92 orders issued (for an average of 12–15 annually since 2004). Throw in the combination orders and the upper-bound number through the end of 2009 is 265 orders.

Unless I’ve miscounted or missed something significant—you can get the reports at the links above and check my math—that leaves 115 orders unaccounted for, assuming Mueller’s number is accurate. There are two possibilities, then: Either the government got ten times as many orders in 2010 as the historical average (the figures should be out sometime in April) or there are a whole lot of these missing from the public reporting. Possibly these have something to do with the “sensitive collection program” in which these orders play a key role, alluded to in a Justice Department official’s testimony at a hearing during the 2009 reauthorization debate. Either alternative seems like it would merit additional scrutiny. I sent an e-mail seeking clarification this morning to some of the experts at the Congressional Research Service responsible for keeping legislators informed on these issues, but haven’t yet heard back.

I’m not belaboring this because it’s inherently hugely significant whether the government has used this authority 265 times or 380. Ideally, in the coming months we’ll see a substantial narrowing of National Security Letter authority, which would predictably lead to a large increase in the number of 215 orders issued. And that would be entirely proper, since it would mean more information being sought pursuant to a judicial order rather than FBI fiat. What I do think is significant, however, is that this reminds us how little we know—and how little the vast majority of legislators know—about the use of these powers. In contrast with criminal investigative tools, these powers are entirely covert: People whose records are swept up by the government almost never learn about it, and the recipients of the orders are subject to an effectively permanent gag on speaking about them. Rulings of the secret FISA Court interpreting the scope of these authorities are never made public. Our assurance that they have been or will continue to be used properly rests entirely on the minimal required reporting to Congress and the findings of internal audits. And yet it’s hard to pin down the facts on even this most elementary factual question about 215 orders: How many times have they been used?

Despite this, we have legislators confident enough that these expanded powers are both so necessary and so well controlled that they’re advocating making them permanent. I wish I were as confident.

Why the Senate’s Vote on the Patriot Act Is Actually Pretty Good News

Last night, By an overwhelming 86-to-12 margin, the Senate approved a temporary 90-day extension of three controversial provisions of the Patriot Act scheduled to sunset at the end of the month. The House just voted to move forward on a parallel extension bill, which will presumably pass easily. Because I’m seeing some civil libertarian folks online reacting with dismay to this development, I think it’s worth clarifying that this is relatively good news when you reflect on the outlook from just a couple of weeks ago.

The House has already approved a one-year extension that would plant the next reauthorization vote on the right eve of primary season in a Presidential election cycle, all but guaranteeing a round of empty demagoguery followed by another punt. As of last week, everyone expected the Senate to bring Sen. Dianne Feinstein’s three year reauthorization—which also extends the odious FISA Amendments Act of 2008—to the floor. The discussion on the Senate floor last night makes it clear that this didn’t happen because of pushback from legislators who were sick of kicking the can and wanted time to hold hearings on substantive reforms.

This is actually a better outcome than simply letting the three sunsetting powers lapse—which, realistically, was not going to happen anyway. First, because at least one of the expiring authorities, roving wiretaps, is a legitimate tool that ought to be available to intelligence investigators if it’s amended to eliminate the so-called “John Doe” loophole. Second, because while all three of these provisions have serious defects that raise legitimate concerns about the potential for abuse, they are collectively small beer compared with National Security Letters, which have already given rise to serious, widespread, and well documented abuses. One of the three sunsetting powers has never been used, and the other two are invoked a couple dozen times per year. All three involve court supervision. The FBI issues tens of thousands of National Security Letter requests each year, the majority targeting American citizens and legal residents, without any advance court approval. The vast majority of the thousands of Americans whose financial and telecommunications records are seized each year are almost certainly innocent of any wrongdoing, but their information is nevertheless retained indefinitely in government databases. With very few exceptions, these people will never learn that the government has been monitoring their financial transactions or communication patterns. Forcing a debate now on the expiring provisions opens a window for consideration of proposals to rein in NSLs—including a new sunset that would create pressure for continued scrutiny.

A new Pew poll released this week reports that Americans remain fairly evenly split on the question of whether the Patriot Act is “a necessary tool that helps the government find terrorists” or “goes too far and poses a threat to civil liberties.” (Perhaps unsurprisingly, with the change of administration, Democrats have become more supportive and Republicans somewhat more skeptical.) But this is actually a signally unhelpful way to frame debate about legislation encompassing hundreds of reforms to the byzantine statutory framework governing American intelligence investigations—more a toolbox than a “tool.” The question shouldn’t be whether you’re “for” or “against” it, but whether there are ways to narrow and focus particular authorities so that legitimate investigations can proceed without sweeping in so much information about innocent people. A three-month extension signals that Congress is finally, belatedly, ready to start having that conversation.