GoogleIt Mail IT Print IT PermaLinkWho Says That Using The NSA For Domestic Surveillance Without Warrants Is Illegal?
11:15:40 PM
Written By : Richard SchwartzCategory : News And Comment
Location : Nashua, NH

The NSA's own web site does!

Americans expect NSA to conduct its missions within the law. But given the inherently secret nature of those missions, how can Americans be sure that the Agency does not invade their privacy?

The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust.

Since my previous blog entry about warrantless domestic surveillance, it has become increasingly clear that the President called on the NSA in order to turn the "vacuum cleaner" of their signals intelligence (a.k.a. SIGINT) capability on domestic communication. SIGINT is about tracking patterns of communication, without necessarily looking at the content of any of the communications, and doing "data mining", statistical analysis and network analysis to glean information about potential threats. When we hear about an increase in "chatter" as the reason for a change in the DHS's color coded threat level, that's SIGINT at work. It's an important tool for figuring out which people or places that should be monitored at a more detailed level at any given time, and the NSA's capabities are both amazing and frightening. Former Senator Frank Church hasd this to say about the NSA's capabilities:

I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.

Let's see what the NSA's web site has to say about SIGINT:

NSA's SIGINT mission protects the nation by:

  • Providing information in the form of SIGINT products and services that enable our government to make critical decisions and operate successfully.

  • Protecting the rights of U.S. citizens by adhering to the provisions of the 4th amendment to the Constitution.

It will be very interesting to see where this goes over the next few months. Despite the fact that the NSA says so, it's not actually clear to me that "pure" SIGINT without a warrant is unconstitutional. My cousin, Susan Landau, Ph.D., co-authored Privacy On The Line with Whitfield Diffie (the private sector co-inventor of public key encryption). In the early pages, they address the question of why there isn't an explicit right to privacy written into the constitution. Privacy was simply assumed:

Prior to the electronic era conversing in complete privacy required neither special equipment nor advanced planning.Walking a short distance away from other people and looking around to be sure that no one was hiding nearby was sufficient. Before tape recorders, parabolic microphones, and laser interferometers, it was not possible to intercept a conversation held out of sight and earshot of other people. No matter how much George III might have wanted to learn the contents of Hancock's private conversations with Adams, he had no hope of doing so unless he could induce one or the other to defect to the Crown

Despite the lack of specific language in the constitution, the general right to privacy inferred by the courts from the constitution, and the specific right to private communications established in various statutes that cover communications -- including FISA --are now well established, but the boundaries are not. The question of whether or not we have a right to privacy that prohibits domestic SIGINT without warrants is one of the boundaries. By the same 1790s analogy that my cousin used, though, if George III had wanted to track patterns of communications he would have dispatched agents to watch specific people to see who they talked to, and he would have stationed spies to watch the roads to see who went where. I don't think you can make the case that the constitution requires warrants for that, and it seems to me that SIGINT collection today is merely a rather more efficient version of watching people and roads. I can't find my copy of my cousin's book at the moment. I'll have to dig it up to see how she would counter that argument, but in a recent paper she wrote this:

Wiretaps intrude on a conversation between two people and thus require the high level of wiretap search warrant before tapping can commence. But there is no similar level of protection for transactional information on what number is being called and what number is calling. The legal rationale is that such transactional information is already being shared with a third party (in this case, the telephone switch) and the communicating parties do not have any expectation of privacy on the data. Thus a subpoena, which can be obtained from a magistrate, suffces for pen registers and trap-and-trace devices,

(Emphasis mine.) That does seem to confirm my impression that domestic SIGINT doesn't require warrants -- but note the mention of subpoenas. I've heard nothing at all about the administration issuing subpoenas to the telecomm companies.

Social network analysis is a subject that I learned in college and used in my undergraduate thesis. About ten years ago the field of Knowledge Management began to show how these techniques could be used to identify centers of expertise, and more recently the social software community has developed a variety of applications that many of us believe are changing the way people collaborate for the better. I take it for granted that social network analysis yields valuable inferences about relationships of many kinds, and I also take it for granted that the NSA's researchers have probably come up with bettter analytical techniques than the private and academic sectors have yet dreamed up. I have no doubt that it's a valuable tool for fighting terrorist organizations, and as such I'm not uncomfortable that it is being used -- even domestically. The NSA site refers to "oversight committees within all three branches of the U.S. government" ensuring citizen's privacy. This is the part that is missing from the administration's current policy. Warrants may not be the appropriate means of oversight for domestic SIGINT operations, but there must be some oversight by the legislature or the judiciary -- and even judicially issued subpoenas to telecomm companies aren't enough.

BTW: Bruce Schneier has a great post titled The Security Threat of Unchecked Presidential Power. It only briefly touches on the question Echelon-type SIGINT activities, but I'm sure we can expect more from him on this subject soon.

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Comments :v

1. Chris Whisonant12/26/2005 08:30:09 AM

Richard, thanks for the information - I was wondering how you knew so much about this. It seems to be something that you're rather passionate about.

Regarding the "oversight committees", we do know that a handful of Senators (the Intelligence Committee, maybe?) knew of the program. Like you said, though, we don't know of the Judicial Branch's involvement. I believe they may have been too busy saying that it's OK for the Government to confiscate property for the sake of larger tax revenues...

2. Richard Schwartz12/26/2005 04:57:24 PM

Knowing of the program is not nearly the same as exercising oversight. Not when it's presented as a fait acomplis that can not be discussed, not to mention subjected to open hearings. Overight without the ability to legislate change is not oversight!

As for the courts being too busy allowing confiscation of property, nice try but wrong court. This issue, however, is something I've been intending to write about at length. It's a disturbing -- but entirely correct ruling. I will write about it eventually, but for now I'll just say read the fifth and tenth amendments to the Constitution. [br>[br>The fifth explicitly allows taking private property for "public use" so long as there is "due process" and "just compensation". The Constitution says absolutely nothing else about property rights. The one thing that it says affirms that there are ways to take it!

The tenth amendment basically says that powers not given to the federal government and not denied to the states by the Constitution, reside with the states or the people. It doesn't specify the order of precedence. Some people would say that the ninth amendment says that the people's rights must come first, but it doesn't say that. All it says is that the list of rights of the people enumerated in the Constitution isn't the complete list of rights. It doesn't say anything about whether the people's rights are superior to the states' or vice versa.[br>[br>What the courts ruled in the case you're referring to is that since the Constitution does not define "public use", it is mostly up to the states to do so. The constitution also doesn't define "due process", but it does say a lot more about protecting the rights of the accused than it does about protecting the rights of property! Because of that, the courts do step in with some significant bounds on due process, but this case was not about due process. It was about "public use".

The state in question allowed the city in question to define "public use" as "enhancing the tax base". That's a definition that strikes most of us as being flat out wrong -- but simple logic shows that this was a strict constructionist, states rights decision. The court toook the "modest" (that's a word that came up repeatedly in the Roberts confirmation hearings) position that it had no authority to stop the state from defining "public use" that way. There's nothing in the Constitution to provide guidance for disallowing that

There's no absolute right being infringed here. It comes down to a question of who gets to define "public use". Is it the people? Or is it the states? The ninth and tenth amendments are of no use here. Yes, the people have rights that aren't listed in the Constitution, but so do the states. There is no way to sensibly define things so that individual property-holders define what "public use" is. No property-holder would ever define it to allow their property to be taken -- and that wouldn't make sense because the Constitution explicitly says that land can be taken. And there's also no sensible way to allow the people to define "public use" collectively except through referendum (which was not done) or through their elected government officials (which is what happened). And since there are no federal laws providing limits on this power of the states, and nothing in the Constitution either, the conclusion is simple: the state's definition of "public use" had to stand.

Conservatives make lots of noise about supporting strict construction and states' rights, but here it turns out they support it only when it suits their agenda. And by the way, the majority of liberals are opposed to this ruling, too -- but the ones I know realize that the way to correct it is through legislation at the state level, or possibly federal legislation although more likely through Constitutional amendment. The conservative argument in this case ought to be with an activist state, not with the restrained court that says it has no right to impose its will on the state... but I guess that doesn't make nearly as good press, talk radio, and blog fodder though.

3. Chris Whisonant12/27/2005 11:36:37 AM

Thanks Richard. I believe you may be missing the Conservatives' views of personal freedom. You have a good point about States' rights and there is a fine line between the jurisdiction of Federal and State government - especially with the Eminent Domain case. Perhaps the government should take a cue from the private sector on this:

It's interesting that these mobile home owners are being offered over 1 million dollars each! This developer could have come out far better going through Eminent Domain to confiscate the land. How much would a mobile home lot be worth at "fair market value"? From the article, one of the more expensive lots is $150 grand. But instead, the developer is giving a far better offer and in the end more tax revenue may be generated too.

But really, you have to also consider the intent of the framers. Do you think for a minute that they would have allowed the Boston Tea Company to take grandma's family plot so that more money could be brought into the government? I don't see that happening!

What's the correct ruling on it? I can't tell you - I can only say that I don't believe this is correct. You may be right that on the surface the states should make that decision. I'm not arguing with that at all. But intent really needs to be considered as well - although many times that's merely an argument from silence that both sides could believe.

4. hal12/27/2005 10:25:38 PM

Unfortunately you are using SIGINT in such a broad sense that it conflates very different activities. Specifically you are not distinguishing between surveilling the content of conversations and routing information. As you note, the legal requirements for the latter are much lower than for the former.

The issue at hand is not whether the NSA is routinely watching routing information. The question is whether they are paying attention to the content of what people are saying, looking for keywords or otherwise listening to what is being said.

Another distinction you are ignoring when you say that the NSA is engaging on SIGINT of domestic communications is whether one endpoint is international. There is a legal distinction between communications that cross U.S. borders and those that take place entirely within the borders. At this point the only admitted fact is that the communication is for the case that it crosses the border. There have been some rumblings and accusations that it might have been broader and cover purely domestic communications, but that is far from established. The controversy at this point is the fact that the U.S. endpoint of the trans-border communication may have been a U.S. citizen or legal alien, which should require FISA approval (at least for paying attention to content).

5. Richard Schwartz12/27/2005 11:19:19 PM

@Hal -- I think I did, in fact, specifically mention the distinction between routing information and content. AFAIK, if the NSA is going beyond watching routing information and looking at the content, then that's COMINT rather than SIGINT. Perhaps I've got my terms wrong on that. I tried to allude to that distinction when I used the phrase "pure SIGINT", by which I mean strictly the routing information. It's not clear to me at all that there are any constitutional issues with pure SIGINT, even entirely within US borders, so for pure SIGINT purposes it might or might not matter whether one point is outside the US. That distinction may only be important if this secret NSA program involves a "vacuum cleaner" technology that does look at content. There's clearly a lot that we don't know -- which isn't surprising given that this program is, well... secret

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