Tag: roving wiretaps

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.

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.

Patriot Reauthorization Vote Fails… Now What?

First, the good news: Last night, civil libertarians had a rare excuse to pop champagne when an effort to fast-track a one-year reauthorization of three controversial Patriot Act provisions–set to expire at the end of the month–failed in the House of Representatives. As Slate’s Dave Weigel notes, the vote had been seen as such a sure thing that Politico headlined its story on the pending vote “Congress set to pass Patriot Act extension.” Around this time last year, a similar extension won House approval by a lopsided 315-97 vote.

Now the reality check: The large majority of representatives also voted for reauthorization last night: 277 for, 148 against. The vote failed only because GOP leadership had sought to ram the bill through under a “suspension of the rules”–a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments–which required a two-thirds majority for passage. Given last week’s developments in the Senate, it’s still a near certainty that the expiring provisions will be extended again before the end of the month. In fact, there’s a Rules Committee meeting today to get the bill back on the House floor. Also, while the defection of 26 Republicans who voted against reauthorization is the first real pushback against leadership we’ve seen since the GOP took the House, some of the talk that’s circulated about a Tea Party backlash against the surveillance state seems premature. As Weigel notes, just eight of the 26 Republican “no” votes were incoming freshmen, and many representatives prominently associated with the Tea Party were on the other side. Some of the resistance seems to have been generated by the fast-track approach, as there haven’t been any hearings or mark-ups on Patriot legislation.

That said, the tide does seem to be shifting somewhat. The failure of the fast-track vote means that we may see the reauthorization introduced under rules that would allow amendments aimed at remedying the civil liberties problems with the three expiring provisions, or with the still more controversial Patriot expansion of National Security Letter authority, which under current law does not expire. For those just tuning in, the sunsetting Patriot provisions are:

Lone Wolf

So-called “lone wolf” authority allows non-citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other “foreign power.” It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”–but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional–and constitutionally significant–distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.

Roving Wiretaps

Roving wiretap authority allows intelligence wiretap orders to follow a target across multiple phone lines or online accounts. Similar authority has been available in criminal investigations since 1986, but Patriot’s roving wiretaps differ from the version available in criminal cases, because the target of an order may be “described” rather than identified. Courts have stressed this requirement for identification of a named target as a feature that enables criminal roving wiretaps to satisfy the “particularity” requirement of the Fourth Amendment. Patriot’s roving taps, by contrast, raise the possibility of “John Doe” warrants that name neither a person nor a specific “place” or facility–disturbingly similar to the “general warrants” the Founders were concerned to prohibit when they crafted the Fourth Amendment. Given the general breadth of FISA surveillance and the broad potential scope of online investigations, John Doe warrants would pose a high risk of “overcollecting” innocent Americans’ communications. Most civil liberties advocates would be fine with making this authority permanent if it were simply modified to match the criminal authority and foreclose the possibility of “John Doe” warrants by requiring either a named individual target or a list of specific facilities to be wiretapped.

Section 215

Section 215 expanded the authority of the FISA Court to compel the production of business records or any other “tangible thing.” While previously such orders were limited to narrow classes of businesses and records, and required a showing of “specific and articulable facts” that the records sought pertain to an agent of a foreign power, Patriot stripped away those limits. The current law requires only a showing of “reasonable grounds” to believe records are “relevant” to an investigation, not probable cause, and has no requirement that people whose information is obtained be even suspected of any connection to terrorism. And the recipients of these orders are barred from Proposals to restore some of the previous checks on this power–requiring some demonstrable connection to terroris–initially received bipartisan support last year, but were torpedoed when the Justice Department objected that this limitation would interfere with a secret “sensitive collection program.” Several senators briefed on the program have expressed concern that this sweeping collection authority was being reauthorized without adequate public understanding of its true purpose.

So those are the sunsetting provisions–though a lot of the debate last year very justifiably centered on the need to reform National Security Letters, which we know to be constitutionally defective, and which have already been subject to serious abuses. One reason reform keeps getting postponed is that Congress is busy and tends not to make time for these issues until the sunset deadlines are right around the corner–at which point a reliable band of pundits and legislators imply that absolute bedlam will ensue unless every single surveillance authority is extended–meaning reform will have to wait until later, at which point it will be an emergency all over again. Once you start looking at the numbers, though, all these Chicken Littles begin to look faintly ridiculous.

The Lone Wolf provision is such an essential intelligence tool that it has never been used. Not a single time. And again, by the terms of the statute, it only applies under circumstances where a criminal wiretap warrant would already be available if Lone Wolf authority didn’t exist. Roving authority is granted by the FISA Court an average of 22 times per year, and in many (if not most) of those cases it never actually has to be used–surveillance is limited to named facilities. To put that in context, the FISA court issued 1,320 electronic surveillance orders in 2009, and that was the first time in 5 years the number fell below 2,000. So we’re talking about maybe 1 percent of FISA surveillance, which judging by internal oversight reports, is a good deal less than the portion that ends up sitting untranslated for months anyway. Similarly, there were 21 business records orders under §215 issued in 2009–and remember, that authority doesn’t disappear if this provision sunsets, it just reverts to its narrower, pre–Patriot version, where the court needs to see actual evidence that the records have some connection to a suspected terrorist. Surveys by the Inspector General’s office found no instances in which a major case development resulted from 215 information. The idea that we’d somehow be in grave danger if these provisions lapsed for a few months just doesn’t hold up, but there’s no reason Congress can’t pass a two-month extension while they consider some of the reforms already on the table, just as they did last year.

So let’s stop living in a state of perpetual panic. Some of these provisions we’d be better off without. Some, like roving wiretaps, just need minor tweaks to close loopholes for misuse. Some–I’m looking at you, National Security Letters–require substantial reform. Many of these changes ought to be common sense, and have attracted bipartisan support in the past. But let’s stop kicking the can down the road and saying we’ll debate the proper limits on the surveillance state when there’s time. It’s important enough that Congress can make time.