25. Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters, Department of Justice, March 2007.
26. “Important Information Every Schwab Account Holder Needs to Know,” Charles Schwab & Co., Inc., June 2007.
27. 15 U.S.C. § 1681.
28. 12 U.S.C. § 3414.
29. 18 U.S.C. § 2709.
30. 50 U.S.C. § 436.
31. The number of letters, as opposed to requests contained in letters, rose rapidly after the Patriot Act was passed in 2001. One letter may contain many requests, as in 2004, when nine letters requested information on 11,000 phone numbers, thereby causing the jump in figures for that year. Statistics, legal history, and data on FBI abuses derive from Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters, Department of Justice, March 2007, and Office of the Inspector General, Report to Congress on Implementation of Section 1001 of the USA Patriot Act, Department of Justice, Feb. 2010. After investigators found abuses, the FBI pulled back somewhat, issuing 16,804 in 2007 and 24,744 in 2008. Ronald Weich, assistant attorney general, letter to chairs of Senate and House Committees on Judiciary and Intelligence, May 14, 2009.
32. Mark Mazzetti and Eric Lichtblau, “Pentagon Review Faults Demands for Bank Records,” New York Times, Oct. 14, 2007, p. A30. Based on heavily censored documents obtained by the ACLU under the FOIA. See http://www.aclu.org/safefree/nationalsecurityletters/32145
prs20071014.html.
33. Patriot Act, § 505.
34. Additional officials are authorized under the Fair Credit Reporting Act, 15 U.S.C. § 1681(v), which empowers supervisory officials of an agency investigating or analyzing international terrorism, and the National Security Act, 50 U.S.C. § 436, empowering officials down to the level of assistant secretary or assistant director of agencies with employees with access to classified material.
35. “U.S. persons” also include U.S. corporations and associations containing a substantial membership of citizens or lawful permanent residents. 50 U.S.C. § 1801 (i).
36. The reason for the inaccurate FBI records was that the computer default for NSLs under the Electronic Communications Privacy and Right to Financial Privacy Acts was set to “non-U.S. person,” meaning that if no information was entered, the NSL’s target was recorded as a non-U.S. person. Twenty-six of 212 approvals found U.S. persons listed as non-U.S. persons. The default has since been changed to U.S. person. Office of Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters, p. 35.
37. Executive Order 12333, § 2.4 of Dec. 4, 1981.
38. Patriot Act, § 358(g), amending the Fair Credit Reporting Act.
39. OIG report, National Security Letters, p. 113 n. 150.
40. OIG report, National Security Letters, p. 114 nn. 151, 152.
41. James Bamford, The Shadow Factory (New York: Doubleday, 2008), pp. 19–20.
42. “Summary of the White House Review of the December 25, 2009 Attempted Terrorist Attack,” White House, Jan. 8, 2010.
43. Lawrence Wright, “The Spymaster,” The New Yorker, Jan. 21, 2008, p. 55.
44. Transactional Records Access Clearinghouse of Syracuse U., “Criminal Terrorism Enforcement in the United States During the Five Years Since the 9/11/01 Attacks,” http://www.trac.syr.edu/tracreports/terrorism/169/ and “Who Is a Terrorist?” http://www.trac.syr.edu:80/tracreports/terrorism/215/. The turndown rate jumped from 31 percent in fiscal year 2002 to 73 percent in fiscal year 2008.
45. Dina Temple-Raston, “Terrorism Case Shows Range of Investigators’ Tools,” NPR, Oct. 3, 2009.
46. Report from the Field: USA Patriot Act at Work, U.S. Dept. of Justice, March 2004, p. 7.
47. Ibid., p. 6.
48. Glenn A. Fine, Gordon S. Hedell, Patricia A. Lewis, George Ellard, and Roslyn A. Mazer, Inspectors General of the Dept. of Justice, Dept. of Defense, CIA, NSA, and Director of National Intelligence, “Unclassified Report on the President’s Surveillance Program,” July 10, 2009, p. 9.
49. Jack Goldsmith, The Terror Presidency (New York: W. W. Norton, 2007), p. 180.
50. Jane Mayer, The Dark Side (New York: Doubleday, 2008), pp. 68–69.
51. Goldsmith, The Terror Presidency, p. 181.
52. Deb Reichmann, “Bush Calls for Expansion of Spy Law,” AP, Sept. 19, 2007.
53. James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” New York Times, Dec. 16, 2005, p. A1; Risen and Lichtblau, “Spying Program Snared U.S. Calls,” New York Times, Dec. 21, 2005, p. A1. See also James Risen, State of War (New York: Free Press, 2006), and Eric Lichtblau, Bush’s Law: The Remaking of American Justice (New York: Pantheon, 2008).
54. Eric Lichtblau, James Risen, and Scott Shane, “Wider Spying Fuels Aid Plan for Telecoms,” New York Times, Dec. 16, 2007, p. A1.
55. Bamford, The Shadow Factory, pp. 189–94.
56. Lichtblau and Risen, “Spy Agency Mined Vast Data Trove, Officials Report,” New York Times, Dec. 24, 2005, p. A1.
57. Bamford, The Shadow Factory, p. 194.
58. Ibid., pp. 130–31.
59. Lesley Cauley, “NSA Has Massive Database of Americans’ Phone Calls,” USA Today, May 11, 2006, p. A1.
60. Fine et al., “President’s Surveillance Program,” pp. 33, 34, 35.
61. Plea agreement, United States v. Iyman Faris, 03-189-A (E.D. Va. 2003). After pleading guilty to two counts of providing, and conspiracy to provide, material support to a foreign terrorist organization, Faris was sentenced to twenty years. Dept. of Justice, “Iyman Faris Sentenced for Providing Material Support to Al Qaeda,” Oct. 28, 2003.
62. Dept. of Justice, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” Jan. 19, 2006.
63. James B. Comey, testimony, House Committee on the Judiciary, June 8, 2005.
64. Comey’s account comes from his testimony before the Senate Judiciary Committee, May 15, 2007, plus his subsequent written answers.
65. Fine et al., “President’s Surveillance Program,” pp. 24–28. This report is used throughout to fill in gaps in Comey’s testimony.
66. Comey, written answers to questions from Senator Patrick Leahy submitted May 22, 2007, released June 7, 2007, http://leahy.senate.gov/press/200705/052507ComeyResponse.
pdf.
67. Besides the FBI director, those prepared to resign were Jack Goldsmith, Patrick Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, and David Israelite, plus “a large portion” of Comey’s staff. Comey, written answers.
68. Fine et al., “President’s Surveillance Program,” p. 27.
69. Lichtblau, Bush’s Law, p. 184.
70. Comey, written answers. Richard B. Schmitt, “Cheney Is Said to Have Halted Promotion,” Los Angeles Times, June 7, 2007, A13.
71. Ruth Marcus, “Guilty of Insufficient Overreaching,” Washington Post, May 23, 2007, p. A21.
72. The presiding judges were, first, Royce Lamberth, and then, Colleen Kollar-Kotelly.
73. Risen, State of War, p. 53.
74. Fine et al., “President’s Surveillance Program,” p. 18.
75. Bamford, The Shadow Factory, p. 113. Del Quentin Wilber, “Surveillance Court Quietly Moving,” Washington Post, March 2, 2009. Weich, letter to chairs, May 14, 2009.
76. All Lamberth quotes from Royce Lamberth, American Library Association, June 20, 2007, at http://www.ala.org/ala/washoff/washevents/woannual/
annualconfwo.cfm#events.
77. Wadih el-Hage, an American citizen, was sentenced to life.
78. Dept. of Justice, “Legal Authorities.”
79. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001).
80. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
81. Beth Nolan et al., “On NSA Spying: Letter to Congress,” The New York Review of Books
, Feb. 9, 2006. Signed by Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, and William Van Alstyne.
82. 18 U.S.C. § 2511(3) (1976).
83. FISA § 201(c), 92 Stat. 1797.
84. FISA reads: “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C., § 1811. John Yoo omitted reference to this provision in his memos arguing that FISA did not address the president’s wartime powers, and thus left them unimpeded. Yoo’s omission gave weight to internal Bush administration criticisms of the legal rationale for the NSA program.
85. Alberto Gonzales, letter to Senators Patrick Leahy and Arlen Specter, Senate Committee on the Judiciary, Jan. 17, 2007, http://graphics8.nytimes.com/packages/pdf/politics/20060117
gonzales_Letter.pdf.
86. Lawrence Wright, “The Spymaster,” p. 46.
87. Despite the sunset provision, surveillance orders issued during the law’s term remained in effect for a year.
88. George W. Bush, statement, Office of the Press Secretary, White House, July 10, 2008.
89. FISA Amendments Act of 2008, H.R. 6304, amending the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801.
90. Fine et al., “President’s Surveillance Program,” p. 31.
91. H.R. 6304. § 702 (b)(5).
92. Judge Anna Diggs Taylor, ACLU et al. v. NSA et al., 06-CV-10204 (E.D. Mich. So. Div. Aug. 17, 2006).
93. ACLU et al. v. NSA et al., 06-2095/2140 (6th Cir. 2007).
94. Complaint for Declaratory and Injunctive Relief, July 10, 2008, Amnesty International et al. v. John M. McConnell et al., 08-cv-06259 (S. D. N.Y. 2008). Plaintiffs include Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay, and Sylvia Royce. Judge John G. Koeltl dismissed on Aug. 20, 2009. Reversed by Second Circuit, which ruled that the groups had standing. Amnesty International et al. v. James R Clapper, Jr., et al.,, 09-4112-cv. Another case proceeded thanks to a government slipup. An Islamic charity, al-Haramain, won in federal district court after the government inadvertently revealed that the organization had been monitored without FISA warrants. The judge rejected the Obama administration’s argument for dismissal on state-secrets grounds. The victory had limited application, both because of the unusual disclosure of monitoring and because the judgment of illegality related only to Bush’s Terrorist Surveillance Program, which was superseded by the 2008 FISA amendments that legalized the secret surveillance. Al-Haramain v. Obama, 07-0109 (N.D. Cal. March 31, 2010).
95. George W. Bush, speech at the Alfalfa Club, Jan. 2006, quoted by Michael Gawenda, The Age, Jan. 31, 2006.
CHAPTER 7: THE RIGHT TO BE LET ALONE
1. Olmstead v. United States, 277 U.S. 438 (1928).
2. Katz v. United States, 389 U.S. 347 (1967). From Harlan’s concurring opinion. Stewart framed the concept more generally in his majority opinion.
3. Thomas L. Friedman, “Naked Air,” New York Times, Dec. 26, 2001, p. A29.
4. Jonathan Starkey, “Quick Airport Screening Service Shuts Down,” Washington Post, June 24, 2009. Several other companies made bids to buy the customer lists and revive the program.
5. Katie Hafner, “Internet Users Thinking Twice Before a Search,” New York Times, Jan. 25, 2006, p. A1.
6. City of Ontario v. Quon, 08-1332 (2010).
7. Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1973).
8. Olmstead v. United States, 277 U.S. 438 (1928). Author’s emphasis.
9. http://blogs.abcnews.com/theblotter/2006/12/can_you_hear_me
.html.
10. Brandon C. Welsh and David P. Farrington, “Crime Prevention Effects of Closed Circuit Television,” Home Office Research Study 252, Aug. 2002, http://www.homeoffice.gov.uk/rds/pdfs2/hors252.pdf.
11. Jeffrey Rosen, The Naked Crowd (New York: Random House, 2004), p. 47.
12. Ibid., p. 48.
13. Dana Canedy, “Tampa Scans the Faces in Its Crowds for Criminals,” New York Times, July 4, 2001, and “About Face,” St. Petersburg Times, Aug. 23, 2003, p. 16A.
14. Allison Klein, “Gunshot Sensors Are Giving D.C. Police Jump on Suspects,” Washington Post, Oct. 22, 2006, p. A1.
15. ACLU, “Closure of DHS Domestic Spy Satellite Program a Positive Step, Says ACLU,” June 24, 2009.
16. Rick Weiss, “Dragonfly or Insect Spy? Scientists at Work on Robobugs,” Washington Post, Oct. 9, 2007, p. A3.
17. The technology was first used by the military to determine if a wounded soldier was alive before risking a medic to save him. “It can detect the respiration signature of an individual standing up to 5 meters behind a 20 centimeter hollow core concrete block wall and wooden doors typical of those found on most homes and which are almost transparent to the system.” Eugene F. Greneker, “Radar Flashlight for Through-the-Wall Detection of Humans,” Georgia Tech Research Institute, http://gtresearchnews.gatech.edu/newsrelease/FLASH_SP.html. Greneker and others were awarded a patent in 2007. http://www.patentstorm.us/patents/7199749.html.
18. Dept. of Homeland Security, “Privacy Impact Assessment for the Future Attribute Screening Technology,” Dec. 15, 2008, at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_st_fast
.pdf.
19. 47 C.F.R. § 20.18(h)(1). See also In the Matter of the Application of the United States of America for an Order Authorizing the Installation and Use of a Pen Register and a Caller Identification System on Telephone Numbers [Sealed] and [Sealed] and the Production of Real Time Cell Site Information, 05-4486 JKB, (D. Md. 2005) (Magistrate Judge Bredar).
20. Stored Wire and Electronic Communications and Transactional Records Access, or “Stored Communications Act,” 18 U.S.C. § 2703 (d).
21. Pen/Trap Statute, 18 U.S.C. § 3121.
22. In Re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 2005 WL 2656621 (S.D. Tex. Oct. 14, 2005) (Magistrate Judge Smith).
23. In the Matter of the Application (Magistrate Judge Bredar), pp. 12–13.
24. Ellen Nakashima, “Cellphone Tracking Powers on Request,” Washington Post, Nov. 23, 2007, p. A1.
25. In Re Application of the United States of America for an Order for Disclosure of Telecommunications Records and Authorizing the Use of a Pen Register and Trap and Trace, 05 Mag. 1763 (S.D. N.Y. 2005) (Magistrate Judge Gorenstein).
26. Charlie Savage, “Judges Divided Over Growing GPS Surveillance,” The New York Times, Aug. 14, 2010. See United States v. Maynard, 08-3030 (D.C. Cir., 2010).
27. Chris L. Jenkins, “Stalkers Go High Tech to Intimidate Victims,” Washington Post, Apr. 14, 2007, p. A1.
28. Rosen, The Naked Crowd, p. 61.
29. Joshua D. Wright, “The Constitutional Failure of Gang Databases,” Stanford Journal of Civil Rights & Civil Liberties, Vol. 2, 2005, p. 115. See also Molly Bruder, “Say Cheese! Examining the Constitutionality of Photostops,” American University Law Review, Vol. 57, p. 1693.
30. United States v. United States District Court, 407 U.S. 297 (1972). The Supreme Court ruled 8–0 that the Fourth Amendment precluded warrantless surveillance of Americans for national security purposes when they were not agents of foreign powers. Wiretaps authorized only by Attorney General John N. Mitchell, not a judge, were used against three political dissidents accused of conspiring to destroy government property, one of whom allegedly bombed a CIA office in Michigan. The Supreme Court upheld the lower courts, which had ordered the contents of the overheard conversations di
sclosed to the defendants.
31. Newton Minow et al., Technology and Privacy Advisory Committee, Department of Defense, Safeguarding Privacy in the Fight Against Terrorism, March 1, 2004, p. 35. Quotes from Jeremy Bentham, The Panopticon Writings, Miran Bozovic, ed. (London, New York: Verso, 1995). Christopher Slobogin, “Symposium: Public Privacy; Camera Surveillance of Public Places and the Right to Anonymity,” Mississippi Law Journal 213, p. 240 (2002).
32. “Learning to Live with Big Brother,” The Economist, Sept. 27, 2007.
33. Rachel L. Swarns, “Senator? Terrorist? A Watch List Stops Kennedy at Airport,” New York Times, Aug. 20, 2004, p. A1.
34. “TSA and FBI Ordered to Pay $200,000 to Settle ‘No Fly’ Lawsuit,” ACLU press release, Jan. 24, 2006, http://www.aclu.org/safefree/general/23926prs20060124.html.
35. Glenn A. Fine, Statement before the House Committee on Homeland Security, Nov. 8, 2007.
36. Dennis C. Blair, director of national intelligence, and Michael E. Leiter said that tighter controls had come in 2009. “I should not have given in to that pressure,” said Blair. Eric Lipton, “Officials Regret Curbs on Adding to Terror Watch List,” New York Times, Jan. 21, 2010, p. A18.
37. Julia Preston, “Judge Suspends Key Bush Effort in Immigration,” New York Times, Oct. 11, 2007, p. A1. The Bush administration decided not to appeal the judge’s order, and the Obama administration rescinded the matching requirement. ACLU, “Government Terminates ‘No Match’ Rule Harmful to Legal Workers,” Oct. 7, 2009.
38. Editorial, “Watching Orwell,” New York Times, Sept. 6, 2007.
39. Brinegar v. United States, 338 U.S. 160 (1949).
40. Ryan Singel, “Newly Declassified Files Detail Massive FBI Data-Mining Project,” Wired, Sept. 23, 2009. ACLU, “FBI Data Mining and Collection Program Threaten Privacy of Innocent Americans,” Sept. 24, 2009. FBI, “The National Security Analysis Center,” white paper draft of Apr. 21, 2006, at http://www.wired.com/images_blogs/threatlevel/2009/09/nsac
The Rights of the People Page 48