A key Sept. 11 legacy: more domestic surveillance

Tuesday, 30 August, 2011 22:26 | comments (0)


“It used to be the case that if
the government wanted to find out what you read and what you wrote, it would
have to get a warrant and search your home,” said Daniel J. Solove, a law
professor at George  Washington University and the author of numerous books and articles on
privacy law.

Now, “it just obtains your Amazon purchase records, your Facebook
posts, your Internet browsing history — without you even knowing.”

There is
nothing necessarily wrong with that, advocates argue.

“As we put more
data in the cloud, as we share more data online, we become less shocked when the
police have access to it,” said Stewart Baker, a former NSA general counsel and
policy chief at the Homeland Security Department.

Privacy activists

“I think it’s a world of difference between what a person
decides to post publicly and what the FBI collects about them secretly,” said
Gregory Nojeim, senior counsel at the Center for Democracy & Technology, a
Washington-based civil liberties group.

U.S. intelligence officials insist that the new surveillance powers

have been crucial to stopping terrorist plots.

They cite the case of Najibullah
, an Afghan American who planned to bomb New York City subways in 2009.
Warrants were obtained under the Foreign Intelligence Surveillance Act, or FISA,
to search Zazi’s vehicle and eavesdrop on his calls. The evidence was used to
secure his guilty plea to terrorism charges.

Unlike a search warrant in a
criminal case, obtaining a FISA warrant does not require convincing a judge that
there is probable cause to believe a crime was committed. Instead, the
government must show probable cause that the target is an agent of a foreign
power. Because of the different legal standard, information gathered from FISA
warrants tended not to be used in criminal cases a decade ago.

Now that line has been blurred. In the Zazi case, the wiretapped conversations were
revealed during pretrial discovery and are believed to have helped persuade him
to plead guilty.

“Zazi is a very good example of the melding of
intelligence authorities and criminal authorities,” said a senior law
enforcement official, speaking on condition of anonymity. “We needed to move
quickly, and we never could have done it like that” before Sept. 11.

The  Zazi case revealed another new reality. Earlier this year, the government
disclosed it had recorded 43 conversations between Zazi’s codefendant, Adis
Medunjanin, and his lawyer, Robert Gottlieb. With rare exceptions, such
conversations are off-limits to investigators in criminal cases — unless they
obtain a FISA warrant.

FISA warrants also enabled the FBI to bug the
phones and break into the home of Oregon lawyer Brandon Mayfield, a convert to
Islam, after a faulty FBI fingerprint analysis linked him to the 2004 Madrid
train bombings.

The FBI initially refused to tell Mayfield or his family
why or where he was being held. He wasn’t released until Spanish authorities
announced that the fingerprint belonged to an Algerian suspect.

Two years
later, the U.S. government formally apologized to Mayfield and paid him a
reported $2-million settlement.

A federal judge later ruled in Mayfield’s
favor that provisions of the Patriot Act, allowing the FBI to use FISA to
conduct “surveillance and searches of American citizens without satisfying the
probable-cause requirements of the 4th Amendment,” were unconstitutional. The
ruling was overturned on appeal in 2009.

By then, the Obama
administration had largely embraced the surveillance strategies and systems
developed under President
George W. Bush

Bush gave the NSA the authority to eavesdrop on
Americans communicating with foreigners abroad without first obtaining a FISA
warrant, deeming the process too slow.

As a U.S. senator, Obama condemned
the so-called wireless wiretapping after the New York Times made it public in
2005. But when he ran for president in 2008, Obama voted for legislation that
granted retroactive legal immunity to telecommunications companies that had
secretly helped the government eavesdrop.

The law also retroactively
legalized other forms of surveillance, former intelligence officials say,
including “bulk” monitoring that allows the government to intercept all email
traffic between America and a range of suspect email addresses in, say, Pakistan.

government’s goal is “to find the kind of patterns that maybe will lead them to
evidence of some kind of terrorist plot, and maybe thereafter they can then zero
in on a suspect,” said Joel Margolis, a regulatory consultant for Subsentio, a
Colorado firm that helps telecommunications companies comply with law
enforcement requests. “It’s just the opposite of what we’ve done in our
tradition of law, where you start with a suspect.”

Privacy advocates say
the government should acknowledge how many Americans have had their
communications intercepted in recent years. But after Democrats
on the House Intelligence Committee requested that information, the Obama
administration responded in July that it was “not reasonably possible to
identify the number.”

Merrill, the Internet entrepreneur, was so
disturbed by the FBI’s demand for his customer’s records that he became an
anonymous plaintiff in a legal challenge to the Patriot Act provisions on
National Security Letters.

A federal judge in New York ruled parts of the
law unconstitutional in 2004 and again in 2007, calling it “the legislative
equivalent of breaking and entering.” Last year, Merrill won the right to
identify himself as the recipient of a letter, although he is still prohibited
from saying much about it. But the FBI withdrew its request for his customer’s
data, so higher courts didn’t rule on whether the request itself was

“I want the America back that I was taught about in
school,” Merrill said. “The one where there’s checks and balances, and where one
branch of government can’t do everything on its own.”


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