ויאמר אל-נא יחר לאדני ואדברה אך-הפעם
אולי ימצאון שם עשרה ויאמר לא אשחית בעבור
העשרה:
Genesis 18:32
An increasing number of people are concerned about President Bush’s Terrorist Surveillance Program. We feel that the issue merits some examination here not because of TSP itself or because of the politics involved, but because an understanding of how these issues are thought through helps us to understand how corporate senior management should approach similar issues where the propriety and impropriety – or the appearance of propriety and impropriety – are not entirely clear.
There are actually two (at least two of which we are aware) sets of activities in TSP that are being lumped together.
Warrantless wiretaps
The less interesting case is the use of warrantless wiretaps of calls where one party is outside of the United States, one party is a United States person, and it is reasonably believed that at least one party to the conversation “is a member or agent of Al Qaida or an affiliated terrorist organization.”
While we would personally be more concerned over being tapped by Anthony Pellicano, a vocal minority take the position that warrantless wiretaps of United States persons violates, at minimum, Fourth Amendment rights. The administration on the other hand believes passionately in the executive power of the President under Article 2, and of the Commander-in- Chief in time of war, which power they maintain to be free from all legal constraint. They have argued that the phrase “the President is authorized to use all necessary and appropriate force” in S.J. Res. 23, the Authorization for Use of Military Force makes legal any action taken, and trumps the Fourth Amendment, as well as all others. For those who haven’t read S.J. Res. 23, it says (emphasis ours):
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.
The War Powers resolution, which for the sake of brevity we have not included, may be found at
Since the Constitutionality of warrantless wiretapping of United States persons is receiving so much public scrutiny, we will forego addressing it here.
We must note however, that we are puzzled that this option – at best so fraught with the appearance of impropriety that its use must finally be addressed by the courts – would be chosen when there existed the option of going to a very accommodating Congress to make changes as needed to the FISA court, so as to allow the process to go forward with obvious transparency, legality, and oversight.
Pen registers
The more interesting case is the largely overlooked collection of all pen register data, which is the listing of who called whom. By the term all, we mean the pen register data for every long distance call made in the United States (there is some question as to whether local call data is always stored, though we would posit that if the pen register information is available it will be included), including every call you make and we make and everyone you know and don’t know makes. While a 1986 federal law requires a court order for collection of pen register data for any given individual, a prosecutor does not have to justify the request, and judges are required to approve the request. Largely this is because you know that the phone company captures this information for billing (which is felt to reduce your expectation of privacy), combined with the fact that the uninitiated consider simply knowing who called whom to be relatively benign.
Benign as the warrant for a single pen register might be, Qwest apparently refused to provide the government, which had neither a warrant nor approval from the FISA courts, with access to all pen register data from of all of its 15 million customers after deciding the request violated privacy law.
From any perspective, large amounts of data that can be analyzed using modern data mining techniques are extremely attractive. Indeed, in the January 2006 issue of ÆGIS we discussed Admiral Poindexter’s Total Information Awareness (TIA) data mining program, which was eventually shut down. TSP looks to be a start at reconstituting TIA under a slightly different set of letters.
But how valuable is pen register data itself, even if not combined with other information? In the November 2002 issue of ÆGIS we discussed the fact that the Colombian drug cartel purchased the pen register data for all of Colombia. Using sophisticated data mining techniques, the cartel was able to identify drug informers, whom they could then kill. While we don’t know the size of the NSA’s budget, nor how much of it is devoted to data mining, we like to think that that they have a greater institutional skill with computers than do the Colombian drug cartels, who spend only a fraction of their estimated ten to fifteen billion dollar annual revenues on data mining.
While everyone wants to stop terrorism, and we know that responses to attacks should not be the same as responses to challenges, our Constitutional protections were put in place to stem the history of abuse of power that has flowed through the millennia. The question becomes whether, lacking oversight, information and power would, once again, be misused. Imagine, for example, that a journalist was receiving leaked classified data, and that some of the information was passed via the telephone on switches for which pen register data was trapped. It would be but the work of a moment to connect the source with the journalist, no matter how many intermediaries were used. A few judicious prosecutions and major sources of embarrassment would be eliminated. While revealing classified information about government misfeasance or malfeasance might be as illegal as the misfeasance or malfeasance itself, we note that for minority party members of the Senate Intelligence Oversight Committee, reading the newspaper is the only way that they get the information required to do their jobs.
Plus, the logical train of thought in this era of inter-agency cooperation must surely be that if the results of data mining would help prevent or solve crime as well as deter terrorism, wouldn’t it be criminal not to share this information with law enforcement? After all, while the Supreme Court has said that “It is not better that all felony suspects die than that they escape,” does this concept really extend to other areas of search and seizure where there is no lethal force involved, but merely the likelihood of a sharing of information that may inconvenience criminals?
And we certainly understand the view that the Fourth Amendment hinders the work of law enforcement. Indeed, we still remember when Miranda appeared on the scene, how clear it was to some that nobody would ever be able to get another conviction in court.
This turned out to be the case neither when it came to Miranda nor in any other case where temporal exigencies prompted the abrogation of civil liberties. The benefit has not outweighed the costs. One would, for example, be hard pressed to believe that putting Americans of Japanese ancestry into camps during World War II was any more helpful, long term, than was Lincoln’s suspension of habeas corpus during the Civil war.
But isn’t it justified to intrude on the privacy of some innocents in today’s special and exigent circumstances, since without this we may not catch the bad guys? Unfortunately, we have many examples of people, up to and including many Presidents of the United States, who are unable to resist the temptation to misuse information.
Every generation seems to think that its problems are novel and pressing, and justify abrogation of civil rights. And that this abrogation will not be abused. However, most of the Amendments to the Constitution 1 serve a real purpose in protecting the people from the government and from themselves. And they serve this purpose largely because, when these civil rights are put aside, and when no oversight exists, governments are unable to resist the misuse of available information, and bad things happen.
And how this applies to us – and you
Privacy issues and issues of the appearance of propriety or impropriety are not faced only on the government level. We ourselves face these issues on a daily basis. For example, when doing recoveries of stolen assets, or in searching for witnesses, we often need to have access to information by Social Security number. This is clearly information that can be, and often is, misused, and so we recognize the need for oversight in this area, as well as our responsibility to the owners of the information: We do not necessarily give our clients information that we deem inappropriate for them to have.
Could we work without Social Security numbers? Yes and no. If we are doing a recovery of $500 million dollars, the resources are likely there for us to get information using several approaches which might be less cost- effective. If we are doing a case where the client has been stripped of resources – a divorce case in which one spouse has taken all the assets, or a case in which we are trying to locate a deadbeat dad for an impoverished mother – and there is no money for extensive searching, then no, we are unlikely to be able to distinguish which of the thousands of John Smiths is the one whose assets we are trying to locate.
In terms of appearances, in an early case we were asked, in our capacity as licensee for Ross Engineering, to do some bug sweeping. When we did our customary background check on the potential client (we don’t work until we know for whom we are working, and why they want us to do what we do), it appeared to us that he was a mobster. We declined to take the job. While it would certainly legal for us to perform the sweep, we felt that working for people that we would prefer to see in jail would present the appearance as well as the actuality of impropriety. It is a decision that we have made many times since, and continue to feel that it is the right decision for us.
