Topic: Law and Civil Liberties

Online Privacy and the Commerce Clause

I fear that with the PATRIOT Act on the brain, I’ve been remiss in continuing the colloquy on behavioral ads and privacy regulation that I’d been having with Jim Harper—who flattered me by responding in a long and thoughtful essay a couple weeks back. Because there’s so much interesting stuff there, I hope he won’t mind if I restrict myself to the first part of his reply here, in the interest of making this all a bit more digestible to those whose fascination with the topic may not be quite as consuming as ours. I’ll consider briefly the constitutional issue Jim raises, and turn to some of the specifics of the issue—and the relative merits of the common law alternative—in another post.

So like every good dorm room bull session, we begin in the weeds of  policy and quickly find ourselves breathing the rarefied air of constitutional theory. Supposing for the moment that we thought it were a good idea on policy grounds, would it be within the power of Congress to set ground rules for online advertisers who gather personal data from Web browsers? Recall that there are two particular rules that I’ve said I’d be tentatively open to, but which Jim rejects: a requirement of notice when information is being collected (say via a small link from the adspace to a privacy policy) and a rule establishing that privacy policies are enforceable, so that individual users can sue for damages if a company knowingly  violates its stated policy (thus far, courts have not generally found these to be binding). Does this fall within the power to “regulate commerce … among the several states”? I think so. I’ll start with what I hope will be some uncontroversial arguments and go from there.

So first, let’s grant that there’s one type of “original intent” that everyone ought to care about, whatever their more general interpretive stance: what Ronald Dworkin calls the linguistic intent of the Framers. That is, if words like “commerce” and “regulate” had narrower meanings in 1787 than they do today, we must, of course, read them now in that light: “Commerce” means actual interstate traffic in goods and services, rather than economic activity more generally, and “regulation” is centrally about establishing uniform rules and procedures.  With these appropriately narrowed readings in mind, I think it’s still a slam-dunk that online ads are covered.

There are, in fact, at least three different senses in which behavioral ads might be classed as interstate commerce. First, the purchase of the ad space itself is obviously a commercial transaction—frequently though not necessarily between entities in different states—and there’s a reasonable question of whether a host site with posted privacy policy is implicitly committed to applying that policy as a condition on ad space sold to third parties. The ads themselves will typically propose a commercial transaction, and in a more direct way than other ads are, can plausibly be seen as the first step in the transaction itself, as clicking on the ad will often bring you directly to a page where you can complete the purchase it recommends. Finally, the personal and behavioral user data collected is itself a valuable commodity, and many sites function with a pretty explicit informational quid pro quo: You will receive access to our content in exchange for registering and providing us with certain data. Since the Internet is borderless, most sites will be getting most of their traffic from people located in different states or countries, and even narrowly state-focused sites are likely to have substantial border-crossing traffic. So on a pretty straight reading of the constitutional language, I find very little reason to doubt that Congress may set uniform default rules for these interstate transactions, rather than leaving it to a patchwork of state rules.

Now, Jim’s reason for questioning this seems to be that the primary concern of the Framers was to prevent states from creating trade barriers. That may be, but if we skip ahead to Article 1, Section 10, we find that Congress knew perfectly well how to enact general and purely prohibitory bans on such shenanigans  using more apt “no state shall” language. Instead, they used precisely the same language for interstate commerce as they did for international commerce, where history suggests that the Framers (many of them steeped in the mercantilist economic theories of the day) had been above all concerned to preserve the ability to erect protectionist trade barriers. So we’re left with a choice between ascribing to the Framers a frankly stunning level of linguistic incompetence or supposing that the Constitution actually does grant the affirmative power that a facial reading suggests.

Needless to say, this does not require us to adopt the post–New Deal reading that places anything with the least potential influence on economic activity under Congressional purview. But we’re pretty close to the core here. Indeed, one of the early cases I know Jim considers a lodestone for the “no trade barriers” reading, Gibbons v. Ogden, involves a congressional grant of a license to operate steamboats. The court found that this superseded the monopoly New York had sought to grant another steamboat operator, which fits Jim’s point to an extent, but it’s crystal clear from that (1824) ruling that the power of Congress here is a broad authority to grant or withhold a privilege to operate interstate vessels, and establish conditions on such vessels, including restrictions on ownership and personnel. It seems to me you’d have to get awfully creative to read the clause in a way that authorizes that kind of authority over an “instrumentality” of commerce (water navigation) but forbids Congress from specifying the kind of notice a merchant must provide when initiating an actual interstate commercial transaction.

A slightly more controversial suggestion: When the specific substantive intent of the Framers is not explicitly embedded in the Constitution’s language—by which I mean, the specific use they thought a wise Congress would make of enumerated powers in light of contemporary economic theories, whether liberal or mercantilist—I am not inclined to give it very great weight. Or more bluntly, when the legal language is abstract, I don’t think we’re bound by an original conception of how or where it applied in specific cases—to the extent such a consideration is even intelligible when we’re talking about Internet advertising. Manifestly, very few people at the time of the passage of the Fourteenth Amendment believed that the abstract guarantee of “equal protection” entailed a substantive right of black children to attend public schools the states restricted to whites. But insofar as what they wrote into law was the abstract guarantee, I don’t think we’re required to care what they believed. Our modern reading should be constrained by the original sense of the words used, and to some extent by the original structural purpose served (translated as necessary). But in specific application—whether privacy rules for online ads are encompassed within “regulation” of “commerce”—then even if you pulled out the Ouija board and got a personal verdict from James Madison, it would just be one more opinion.

Finally, and maybe most controversially: What kind of recommendations should we make in a world where our preferred interpretation of the Constitution lost the fight a long time ago? If the question is what we should recommend to judges, presumably we want to recommend that they start shifting back in the direction of a reading we regard as better justified. But what about when, as Jim imagines, we’re advising legislators? Should we only recommend what we believe to be authorized by what we hold to be the best reading of the Constitution, or will it sometimes make sense to endorse legislation that is plainly allowed by the current regnant interpretation, but that might be outside the scope of the interpretation we regard as superior? I think it will, partly for theoretical, and partly for pragmatic reasons.

At a practical level, both legislators and citizens widely believe Congress to have broader policy discretion than most of the authors here. So very generally speaking, I don’t think it serves limited government to refrain from weighing in on the relative merits of policy options that wouldn’t be on the table at all if our arguments had fared better at the meta-level. (Recall the old joke about the principled pacifist answer to how to respond to World War II: Don’t sign the Treaty of Versailles!) Now, on this particular question it’s not a sure thing that Congress or the FTC will act, and maybe “hands off” is the best advice to give. But there are plenty of areas where there’s no realistic chance that Congress is going to abstain altogether, even if we think that’s what the best interpretation of the Constitution requires. In those cases, I think it’s at least sometimes appropriate to flag the meta objection and then say something about the policy merits. Obviously there are limits—I don’t expect I’ll ever express a view on the “best” way to run a torture chamber—but there are plenty of issues where it seems perverse for the people most concerned with limited government to sit out the day-to-day debates and focus on getting Wickard v. Filburn overturned, glad as I am that there are folks hammering that.

That dovetails with the theoretical reason, which has to do with the broader question of why constitutional principles are binding on us at all. I assume it is not because the Founders, brilliant though they were, enjoyed some divine right of command that the inheritors of their institutions are compelled to obey. Partly it’s that the principles embedded in the Constitution are good ones, but a substantial piece of the answer, I think, is that they provide a stable framework within which we conduct our political and private lives. Judges give weight to stare decisis even when they think the case at the fountainhead of a line of precedent was poorly decided, in part because the legitimacy and authority of law are to a great extent a function of its predictability, of the way it allows us to take actions and make agreements and know pretty much what the legal consequences will be, however much else may remain unpredictable. Constitutional restraints do this one level up, establishing (albeit roughly) a domain of legal variation over the longer term. This is  not, for what it’s worth, wacky postmodern Critical Legal Studies stuff; it’s an extrapolation from Hayek. To imagine that you can remake a society’s institutions wholesale—even if your guide is the best interpretation of a founding document, and even if you’re pretty sure that interpretation held sway a couple centuries ago—is the fallacy of constructivist rationalists.

Now, I think the right account of why we should regard the Constitution as binding starts with considerations along these lines, but this has the (perhaps unfortunate) consequence that even if you had a super-awesome unanswerable argument for why the Constitution mandates libertopia, at least when read properly absent the accretions of precedent, you still wouldn’t have an argument that judges, legislators, and government officials must all start acting on this understanding as of tomorrow. What you’d have is a good starting point for a much more gradual process of paring government back down. Not, to be clear, because I think the Constitution “means whatever the Supreme Court says it does”—that would be incoherent, since the court’s practice is unintelligible, and its legitimacy illusory, unless we assume there’s an independent meaning for them to strive toward.  But an “independent” meaning can be located in a community of interpretation and practice that extends beyond the framing generation. By analogy: If I want to use language “correctly” to communicate, I don’t get to just assign whatever meanings I like to words. It’s even possible to make a strong argument that the majority of speakers at a particular historical moment are using a word—like “decimate” or “hopefully” or “brutalize”—improperly. But neither does it mean that the first person to coin the term gets to specify its legitimate uses forever. And, in fact, anyone who insisted on using “decimate” to mean only “reduce by ten percent” would probably find his attempts at communication misfiring badly. To say that meaning is necessarily public and independent—consult Hayek’s cousin Wittgenstein here—does not require a baptismal view of meaning. Or at any rate, whether it does or not depends on the function your interpretive practice serves.

So yeah, that’s all pretty far removed from our original discussion—and I’m hoping far enough below the fold that it doesn’t put me on the wrong end of another dozen arguments with colleagues. I’ll do another post later this week where I actually get to the policy question, and some potent objections that both Jim and Tim Lee have raised.

Drug War Insanity Goes Up in Smoke

As my colleague David Rittgers notes below, the announcement by the Department of Justice that it will no longer seek to arrest medical marijuana users is a breakthrough for common sense in federal drug policy.

It is bizarre that it takes a major policy announcement to spell out what a waste of police and court time it is to investigate the ill people who use medical marijuana. Historians will surely look back on this period and ponder how our government could have seriously embraced the opposite policy, in the same way we look back at the strange days of alcohol prohibition.

The Obama administration should be taking much bolder steps to stop the criminalization of drug use more generally. More and more people have come to recognize that the drug war has been given a fair chance to work, but it has proved to be a grand failure.

Good News on Medical Marijuana

The Department of Justice is changing its long-standing policy of ignoring state laws that allow marijuana use for medicinal purposes. This federalism question played out several years ago in the Supreme Court in the Raich case; Cato’s amicus brief is available here.

Cato hosted Rob Kampia of the Marijuana Policy Project in March, and you can view the event here. Glenn Greenwald wrote an influential study for Cato on the successful decriminalization of drugs in Portugal. Greenwald notes that he gets more invitations to speak on the subject now than he did when it was published.

A good first step. Fourteen states permit medical marijuana dispensaries; I suspect more are on the way now that this hurdle has been cleared.

Totalitarian Leftovers in Eastern Europe

The Berlin Wall fell 20 years ago.  A hideous symbol of the suppression of liberty, it should remind us of the ever-present threat to our freedoms.  Even two decades later the legacy of repression continues to afflict many people in Eastern Europe.  For instance, those in countries formerly behind the Iron Curtain still struggle with the knowledge that their friends and neighbors routinely spied on them.

Reports the Associated Press:

Stelian Tanase found out when he asked to see the thick file that Romania’s communist-era secret police had kept on him. The revelation nearly knocked the wind out of him: His closest pal was an informer who regularly told agents what Tanase was up to.

“In a way, I haven’t even recovered today,” said Tanase, a novelist who was placed under surveillance and had his home bugged during the late dictator Nicolae Ceausescu’s regime.

“He was the one person on Earth I had the most faith in,” he said. “And I never, ever suspected him.”

Twenty years ago this autumn, communism collapsed across Eastern Europe. But its dark legacy endures in the unanswered question of the files — whether letting the victims read them cleanses old wounds or rips open new ones.

Things have never been so bad here, obviously, but that gives us even more reason to jealously guard our liberties.  Defend America we must, but we must never forget that it is a republic which we are defending.

Even Lawyers Should Be Paid More for Good Performance

Another oral argument I attended this week was in the case of Perdue v. Kenny A., in which Cato filed a brief at the end of August.  The issue is whether a court can ever increase the statutorily set fees attorneys receive from the government when they successfully bring civil rights challenges to state action.

In order to enforce civil rights guarantees, Congress had two choices: either expand the Department of Justice to cover all civil rights cases, or privatize the system and allow free market principles to encourage private attorneys to prosecute violations. Congress chose the latter, creating a system of market incentives to encourage private attorneys to enforce civil rights and hold elected representatives responsible for the waste of taxpayer dollars lost in the defense of legitimate civil rights violations and repayment of “reasonable” attorney fees.

Here a group of attorneys won an important case for foster children in Georgia, and the court awarded them $6 million in fees based on prevailing hourly rates — the “lodestar” method — and an additional $4.5 million enhancement for the exceptional quality of work and results achieved. At Georgia’s request, the U.S. Supreme Court decided to review the case and determine whether quality of work and results are appropriately considered components of a reasonable fee.

Cato, joining six other public interest legal organizations, filed an amicus brief supporting the attorneys. We argue that the enhancement in this case is necessary to preserve incentives in the privatized market. Not only does it encourage attorneys to pursue civil rights abuses, but it provides a powerful disincentive for governments to draw out litigation in the hope that attorneys will no longer be able to afford pursue it. In addition, quality of performance and attained results are rightly considered as part of the attorney fee calculus. The enhancement here helps to promote the free market of privatized civil rights prosecutions and encourages governments to resolve civil rights cases quickly.

Unfortunately, the Court didn’t seem to be convinced at oral argument that there was a problem with the way civil rights attorneys are compensated under the lodestar method.  Chief Justice Roberts and Justice Scalia, in particular, were aggressive in questioning a very well prepared Paul Clement (the former solicitor general, with whom I had the privilege to work on a different case that will be argued next month).  They expressed concern about how to evaluate the “exceptional results” needed to justify a fee enhancement.  Clement said that the Court could leave this to the trial judges’  discretion,to which Justice Scalia replied: “You say discretion.  I say randomness.”

Only Justice Sotomayor, who was again an active questioner, suggested a standard to guide judges, citing such factors as a discrepancy between the market in which the attorney practices and the market on which fees are based, as well as the attoney’s experience (for example, the justices frequently referred to a “brilliant” second-year associate who might be paid at a partner rate).  But several justices, at least, would never agree to such a standard. Even Justice Breyer, typically friendly to civil rights claims, expressed skepticism over whether millions of taxpayer dollars should be paid to already well-compensated lawyers.

Still, while it would be strange for district judges to have the ability to reduce fee awards for various reasons (such as inferior performance, even if technically victorious) while not being able to increase them, that’s the result we’ll have if the Court rules as all indications now suggest.

Duncan Blows Off Constitution, Facts

It never ceases to amaze me how effortlessly federal “educators” blow off the Constitution. Amazing me today is none other than U.S. Secretary of Education Arne Duncan, who in an address to the National Association of State Boards of Education offered the following cavalier dismissal of the Supreme Law of the Land:

I’d like to talk to you today about the federal role in education policy. It’s often noted that the Constitution doesn’t mention education, and that the provision of education has always been a state and local responsibility.

Yet, it is also true that American leaders have always considered education to be an important priority. They’ve always believed that a strong and innovative education system is the foundation of our democracy and an investment in our economic future.

This national commitment to education predates even the ratification of the Constitution. In the Northwest Ordinance governing the sale of land in the Northwest Territories, the fledgling government required townships to reserve money for the construction of schools.

In the middle of the Civil War, President Lincoln signed the Morrill Act to create land grant colleges and universities. Today, those institutions are some of the best teaching and research institutions in the world…

Here you see a textbook example of how you can brush off the Constitution in just a few easy steps! First, you acknowledge (actually, this part is optional) that authority over education is nowhere among the federal government’s specifically enumerated powers. Next, you shamelessly imply that all the founders really wanted power over education to be in the Constitution. After that, you always mention the Northwest Ordinance, even though it had nothing to do with the Constitution. Finally, you laud blatantly unconstitutional things other people have done and – voila! – the Constitution disappears!

Of course, making a factually or logically sustainable argument that you are not violating the Constitution when you obviously are is not the real goal here. This is just the standard political kabuki dance, a necessary bit of deference-payment to those few rubes who might still think that the Constitution serves some legitimate purpose.

That said, don’t you expect more from our secretary of education? After all, he has undertaken the incredibly noble job of teaching all of our children. Don’t you expect complete honesty from him, and maybe even some respect for the Constitution that he has taken an oath to uphold?

Of course you don’t. Neither do I – not one bit.

PATRIOT Powers: Roving Wiretaps

Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers.  In this edition: Section 206, roving wiretap authority.

The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?


To understand the reasons for potential concern, we need to take a little detour into the differences between electronic surveillance warrants under Title III and FISA. The Fourth Amendment imposes two big requirements on criminal warrants: “probable cause” and “particularity”. That is, you need evidence that the surveillance you’re proposing has some connection to criminal activity, and you have to “particularly [describe] the place to be searched and the persons or things to be seized.” For an ordinary non-roving wiretap, that means you show a judge the “nexus” between evidence of a crime and a particular “place” (a phone line, an e-mail address, or a physical location you want to bug). You will often have a named target, but you don’t need one: If you have good evidence gang members are meeting in some location or routinely using a specific payphone to plan their crimes, you can get a warrant to bug it without necessarily knowing the names of the individuals who are going to show up. On the other hand, though, you do always need that criminal nexus: No bugging Tony Soprano’s AA meeting unless you have some reason to think he’s discussing his mob activity there. Since places and communications facilities may be used for both criminal and innocent persons, the officer monitoring the facility is only supposed to record what’s pertinent to the investigation.

When the tap goes roving, things obviously have to work a bit differently. For roving taps, the warrant shows a nexus between the suspected crime and an identified target. Then, as surveillance gets underway, the eavesdroppers can go up on a line once they’ve got a reasonable belief that the target is “proximate” to a location or communications facility. It stretches that “particularity” requirement a bit, to be sure, but the courts have thus far apparently considered it within bounds. It may help that they’re not used with great frequency: Eleven were issued last year, all to state-level investigators, for narcotics and racketeering investigations.

Surveillance law, however, is not plug-and-play. Importing a power from the Title III context into FISA is a little like dropping an unfamiliar organism into a new environment—the consequences are unpredictable, and may well be dramatic. The biggest relevant difference is that with FISA warrants, there’s always a “target”, and the “probable cause” showing is not of criminal activity, but of a connection between that target and a “foreign power,” which includes terror groups like Al Qaeda. However, for a variety of reasons, both regular and roving FISA warrants are allowed to provide only a description of the target, rather than the target’s identity. Perhaps just as important, FISA has a broader definition of the “person” to be specified as a “target” than Title III. For the purposes of criminal wiretaps, a “person” means any “individual, partnership, association, joint stock company, trust, or corporation.” The FISA definition of “person” includes all of those, but may also be any “group, entity, …or foreign power.” Some, then, worry that roving authority could be used to secure “John Doe” warrants that don’t specify a particular location, phone line, or Internet account—yet don’t sufficiently identify a particular target either. Congress took some steps to attempt to address such concerns when they reauthorized Section 206 back in 2005, and other legislators have proposed further changes—which I’ll get to in a minute. But we actually need to understand a few more things about the peculiarities of FISA wiretaps to see why the risk of overbroad collection is especially high here.

In part because courts have suggested that the constraints of the Fourth Amendment bind more loosely in the foreign intelligence context, FISA surveillance is generally far more sweeping in its acquisition of information. In 2004, the FBI gathered some 87 years worth of foreign language audio recordings alone pursuant to FISA warrants. As David Kris (now assistant attorney general for the Justice Department’s National Security Division) explains in his definitive text on the subject, a FISA warrant typically “permits aquisition of nearly all information from a monitored facility or a searched location.” (This may be somewhat more limited for roving taps; I’ll return to the point shortly.) As a rare public opinion from the FISA Court put it in 2002: “Virtually all information seized, whether by electronic surveillance or physical search, is minimized hours, days, or weeks after collection.” The way this is supposed to be squared with the Fourth Amendment rights of innocent Americans who may be swept up in such broad interception is via those “minimization” procedures, employed after the fact to filter out irrelevant information.

That puts a fairly serious burden on these minimization procedures, however, and it’s not clear that they well bear it. First, consider the standard applied. The FISA Court explains that “communications of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime… may not be logged or summarized” (emphasis added). This makes a certain amount of sense: FISA intercepts will often be in unfamiliar languages, foreign agents will often speak in coded language, and the significance of a particular statement may not be clear initially. But such a deferential standard does mean they’re retaining an awful lot of data. And indeed, it’s important to recognize that “minimization” does not mean “deletion,” as the Court’s reference to “logs” and “summaries” hints. Typically intercepts that are “minimized” simply aren’t logged for easy retrieval in a database. In the 80s, this may have been nearly as good for practical purposes as deletion; with the advent of powerful audio search algorithms capable of scanning many hours of recording quickly for particular words or voices, it may not make much difference. And we know that much more material than is officially “retained” remains available to agents. In the 2003 case U.S. v. Sattar, pursuant to FISA surveillance, “approximately 5,175 pertinent voice calls .. were not minimized.”  But when it came time for the discovery phase of a criminal trial against the FISA targets, the FBI “retrieved and disclosed to the defendants over 85,000 audio files … obtained through FISA surveillance.”

Cognizant of these concerns, Congress tried to add some safeguards in 2005 when they reauthorized the PATRIOT Act. FISA warrants are still permitted to work on descriptions of a target, but the word “specific” was added, presumably to reinforce that the description must be precise enough to uniquely pick out a person or group. They also stipulated that eavesdroppers must inform the FISA Court within ten days of any new facility they eavesdrop on, and explain the “facts justifying a belief that the target is using, or is about to use, that new facility or place.”

Better, to be sure; but without access to the classified opinions of the FISA Court, it’s quite difficult to know just what this means in practice. In criminal investigations, we have a reasonable idea of what the “proximity” standard for roving taps entails. Maybe a target checks into a hotel with a phone in the room, or a dealer is observed to walk up to a pay phone, or to buy a “burner.” It is much harder to guess how the “is using or is about to use” standard will be construed in light of FISA’s vastly broader presumption of sweeping up-front acquisition. Again, we know that the courts have been satisfied to place enormous weight on after-the-fact minimization of communications, and it seems inevitable that they will do so to an even greater extent when they only learn of a new tap ten days (or 60 days with good reason) after eavesdropping has commenced.

We also don’t know how much is built into that requirement that warrants name a “specific” target, and there’s a special problem here when surveillance roves across not only facilities but types of facility. Suppose, for instance, that a FISA warrant is issued for me, but investigators have somehow been unable to learn my identity. Among the data they have obtained for their description, however, are a photograph, a voiceprint from a recording of my phone conversation with a previous target, and the fact that I work at the Cato Institute. Now, this is surely sufficient to pick me out specifically for the purposes of a warrant initially meant for telephone or oral surveillance.  The voiceprint can be used to pluck all and only my conversations from the calls on Cato’s lines. But a description sufficient to specify a unique target in that context may not be sufficient in the context of, say, Internet surveillance, as certain elements of the description become irrelevant, and the remaining threaten to cover a much larger pool of people. Alternatively, if someone has a very unusual regional dialect, that may be sufficiently specific to pinpoint their voice in one location or community using a looser matching algorithm (perhaps because there is no actual recording, or it is brief or of low quality), but insufficient if they travel to another location where many more people have similar accents.

Russ Feingold (D-WI) has proposed amending the roving wiretap language so as to require that a roving tap identify the target. In fact, it’s not clear that this quite does the trick either. First, just conceptually, I don’t know that a sufficiently precise description can be distinguished from an “identity.” There’s an old and convoluted debate in the philosophy of language about whether proper names refer directly to their objects or rather are “disguised definite descriptions,” such that “Julian Sanchez” means “the person who is habitually called that by his friends, works at Cato, annoys others by singing along to Smiths songs incessantly…” and so on.  Whatever the right answer to that philosophical puzzle, clearly for the practical purposes at issue here, a name is just one more kind of description. And for roving taps, there’s the same kind of scope issue: Within Washington, DC, the name “Julian Sanchez” probably either picks me out uniquely or at least narrows the target pool down to a handful of people. In Spain or Latin America—or, more relevant for our purposes, in parts of the country with very large Hispanic communities—it’s a little like being “John Smith.”

This may all sound a bit fanciful. Surely sophisticated intelligence officers are not going to confuse Cato Research Fellow Julian Sanchez with, say, Duke University Multicultural Affairs Director Julian Sanchez? And of course, that is quite unlikely—I’ve picked an absurdly simplistic example for purposes of illustration. But there is quite a lot of evidence in the public record to suggest that intelligence investigations have taken advantage of new technologies to employ “targeting procedures” that do not fit our ordinary conception of how search warrants work. I mentioned voiceprint analysis above; keyword searches of both audio and text present another possibility.

We also know that individuals can often be uniquely identified by their pattern of social or communicative connections. For instance, researchers have found that they can take a completely anonymized “graph” of the social connections on a site like Facebook—basically giving everyone a name instead of a number, but preserving the pattern of who is friends with whom—and then use that graph to relink the numbers to names using the data of a differentbut overlapping social network like Flickr or Twitter. We know the same can be (and is) done with calling records—since in a sense your phone bill is a picture of another kind of social network. Using such methods of pattern analysis, investigators might determine when a new “burner” phone is being used by the same person they’d previously been targeting at another number, even if most or all of his contacts have alsoswitched phone numbers. Since, recall, the “person” who is the “target” of FISA surveillance may be a “group” or other “entity,” and since I don’t think Al Qaeda issues membership cards, the “description” of the target might consist of a pattern of connections thought to reliably distinguish those who are part of the group from those who merely have some casual link to another member.

This brings us to the final concern about roving surveillance under FISA. Criminal wiretaps are always eventually disclosed to their targets after the fact, and typically undertaken with a criminal trial in mind—a trial where defense lawyers will pore over the actions of investigators in search of any impropriety. FISA wiretaps are covert; the targets typically will never learn that they occurred. FISA judges and legislators may be informed, at least in a summary way, about what surveillance was undertaken and what targeting methods were used, but especially if those methods are of the technologically sophisticated type I alluded to above, they are likely to have little choice but to defer to investigators on questions of their accuracy and specificity. Even assuming total honesty by the investigators, judges may not think to question whether a method of pattern analysis that is precise and accurate when applied (say) within a single city or metro area will be as precise at the national level, or whether, given changing social behavior, a method that was precise last year will also be precise next year. Does it matter if an Internet service initially used by a few thousands—including, perhaps, surveillance targets—comes to be embraced by millions? Precisely because the surveillance is so secretive, it is incredibly hard to know which concerns are urgent and which are not really a problem, let alone how to think about addressing the ones that merit some legislative response.

I nevertheless intend to give it a shot in a broader paper on modern surveillance I’m working on, but for the moment I’ll just say: “It’s tricky.”  What is absolutely essential to take away from this, though, is that these loose and lazy analogies to roving wiretaps in criminal investigations are utterly unhelpful in thinking about the specific problems of roving FISA surveillance. That investigators have long been using “these” powers under Title III is no answer at all to the questions that arise here. Legislators who invoke that fact as though it should soothe every civil libertarian brow are simply evading their responsibilities.