Protecting Individual Privacy in the Struggle Against Terrorists A Framework for Program Assessment (2008) / Chapter Skim
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Appendix F: Privacy-Related Law and Regulation: The State of the Law and Outstanding Issues
Appendix F: Privacy-Related Law and Regulation: The State of the Law and Outstanding Issues
Pages 150-165
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From page 150... ...
The purpose of the Fourth Amendment was to forbid general searches by requiring that all search and seizures must be reasonable and that all warrants must state with particularity the item to be seized and the place to be searched. The Fourth Amendment requires that warrants be issued only "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fed 0
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From page 151... ...
On the other hand, the Court has determined, for example, that warrants are not required to search or seize items in the "plain view" of a law enforcement officer,3 for searches that are conducted incidental to valid arrests,4 or to obtain records held by a third party, even if those records are held under a promise of confidentiality.5 The Court has interpreted this last exception broadly to find that the Fourth Amendment is inapplicable to telecommunications "attributes" (e.g., the number dialed, the time the call was placed, the duration of the call, etc.) , because that information is necessarily conveyed to, or observable by, third parties involved in connecting the call.6 Moreover, the Fourth Amendment poses no limits on how the government may use information, provided that it has been obtained legally, and some limits on the use of data obtained illegally.
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From page 152... ...
F.1.3 Searches and Surveillance for National Security and Intelligence Purposes That Involve U.S. Persons Connected to a Foreign Power or That Are Conducted Wholly Outside the United States The Fourth Amendment applies to searches and surveillance conducted for domestic law enforcement purposes within the United States, and those conducted outside of the United States if they involve U.S.
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From page 153... ...
which differ from those already prescribed for specified crimes in Title III."9 The Court left open the question of whether the Fourth Amendment applies to searches and surveillance for national security and intelligence purposes that involve U.S. persons who are connected to a foreign power or are conducted wholly outside of the United States,10 and the Congress has not supplied any statutory language to fill the gap.
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From page 154... ...
The Electronic Communications Privacy Act (ECPA) is a collection of three different statutes that also regulates government collection of evidence in the context of telecommunications networks.
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From page 155... ...
The court must provide the order -- there is no room for judicial discretion -- if the government certified that "the information likely to be obtained by such installation and use is relevant to an ongoing investigation."17 The exclusionary rule does not apply to violations of the act. F.3 THE FOREIGN INTELLIGENCE SURVEILLANCE ACT While the ECPA regulates surveillance for law enforcement purposes, successive presidents insisted that it did not limit their power to engage in surveillance for national security purposes.
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From page 156... ...
All that the government must show is that there is "probable cause to believe that the target of the electronic surveillance is a foreign power or agent of a foreign power"21 and that gathering foreign intelligence is "the purpose" of the requested order.22 In 2001, the USA Patriot Act changed this standard to "a significant purpose."23 This change and a decision from the three-judge FISA review court created by the statute to hear appeals brought by the government have resulted in making information obtained from FISA surveillance freely available in criminal prosecutions.24 In 2003, for the first time, the federal government sought more surveillance orders under FISA than under ECPA.25 As this report is being written (November 2007) , changes to the FISA act are being contemplated by the U.S.
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From page 157... ...
For example, information contained in an agency's records can be disclosed for "civil or criminal law enforcement activity if the activity is authorized by law."31 An agency can disclose its records to officers and employees within the agency itself, the Census Bureau, the National Archives, Congress, the Comptroller General, and consumer reporting agencies.32 Information subject to disclosure under the Freedom of Information Act is exempted from the Privacy Act.33 And under the "routine use" exemption,34 federal agencies are permitted to disclose personal information so long as the nature and scope of the routine use was previously published in the Federal Register and the disclosure of data was "for a purpose which is compatible with the purpose for which it was collected." According to the Office of Management 27 Id.
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From page 158... ...
For example, courts have found that the following entities do not constitute an "agency": a federally chartered production credit association, an individual government employee,39 state and local government agencies,40 the White House Office and those components of the Executive Office of the President whose sole function is to advise and assist the President,41 grand juries,42 and national banks.43 As a result, the Privacy Act plays little role in providing guidance for government intelligence activities or limiting the government's power to collect personal data from third parties. Moreover, the Privacy Act only 35 Privacy Act of 1974, 5 U.S.C.
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From page 159... ...
These types of information include "information that is publicly available or collected with the consent of the person concerned; information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations; information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation; information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations; information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure; information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility; information arising out of a lawful personnel, physical or communications security investigation; information acquired by overhead reconnaissance not directed at specific United States persons; incidentally obtained information that may indicate involvement in activities that may violate 44 The full text of EO 12333 can be found at http://www.tscm.com/EO12333.html.
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From page 160... ...
F.6 THE ADEQUACY OF TODAY'S ELECTRONIC SURVEILLANCE LAW The law applicable to surveillance and intelligence gathering and the attention to limitations in the law suggests that the law suffers from what Professor Daniel Solove has described as "profound complexity." 45 Professor Orin Kerr has written that "the law of electronic surveillance is famously complex, if not entirely impenetrable."46 Courts agree with these assessments and have "described surveillance law as caught up in a ‘fog,' ‘convoluted,' ‘fraught with trip wires,' and ‘confusing and uncertain.'"47 Why is today's law regarding electronic surveillance complex? Some of the complexity is certainly due to the fact that the situations and circumstances in which electronic surveillance may be involved are highly varied, and policy makers have decided that different situations and situations call for different regulations.
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From page 161... ...
person." Yet these distinctions are difficult to apply in a world of digital communications and networks that do not easily recognize national borders, terrorist threats of foreign origin that are planned or executed within the borders of the United States, and the growing integration of foreign intelligence, domestic intelligence, and law enforcement. Another important distinction is the historical separation between criminal and national security investigations.
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From page 162... ...
Meanwhile, the much weaker protection of FISA does apply. "Foreign agents therefore receive protection against silent video surveillance whereas United States citizens do not."53 Similarly, protection for stored communications hinges on whether the message has been stored for more than 180 days.
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From page 163... ...
The Supreme Court initially refused to apply the Fourth Amendment to wiretapping at all,56 and it took the Court 39 years to reverse that decision.57 Conversely, in 1934 Congress prohibited wiretapping in any form and for any purpose.58 It took 34 years before Congress recognized the potential of electronic surveillance, properly regulated, to aid law enforcement,59 and another twelve before it statutorily authorized its use to advance national security.60 Congress also receives only limited information about surveillance conducted under ECPA and FISA, and even less about the Administration's surveillance conducted outside of this statutory framework. There is no federal reporting requirement about electronic surveillance by states, which account for the majority of wiretaps, and only half of the states in fact report statistics about their wiretap orders.61 54 Computer Crime and Intellectual Property Section, U.S.
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From page 164... ...
Such inconsistencies, the report argued, reflected "the historical divide in the United States between laws applicable to law enforcement and those applicable to foreign intelligence and national security activities, as well as the different departments, contexts, and times in which those programs were developed." It also noted that depending on which department developed the tools, the use of data mining to protect the homeland was either required or prohibited and that today's laws regulating the collection and use of information about U.S. persons were created in the 1970s, and thus do not take into account recent developments in digital technologies, including the Internet.
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From page 165... ...
It is time to update the law to respond to new challenges."62 62 U.S. Department of Defense, Technology and Privacy Advisory Committee, Safeguarding Priacy in the Fight Against Terrorism, March 2004, p.
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