The Rights of the People (62 page)

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.

  
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 disclosed 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
_data_sets.pdf
.

41.
Minow et al.,
Safeguarding Privacy
, p. 39.

42.
Markle Foundation,
Creating a Trusted Network for Homeland Security
, 2003, pp. 33, 38, 71, and 73. The panel, chaired by Zoë Baird and James Barksdale, included Michael A. Vatis, Robert D. Atkinson, Stewart Baker, Jerry Berman, Ashton Carter, Wesley P. Clark, Esther Dyson, Amitai Etzioni, Slade Gorton, Morton H. Halperin, Eric Holder, Abraham D. Sofaer, Mary McCarthy, and others.

43.
Unauthorized access to private information: Jenna Wortham, “Facebook Glitch Brings New Privacy Worries,”
New York Times
, May 5, 2010. Shopping information: Initially, users had no choice; the messages about buying activities were sent automatically. After 50,000 members signed a petition of protest, Facebook began asking users for approval after each purchase made through Facebook’s shopping portal, called My Shopping. Louise Story and Brad Stone, “Facebook Retreats on Online Tracking,”
New York Times
, Nov. 30, 2007, p. C1.

44.
Electronic Privacy Information Center,
http://www.epic.org/privacy/iei/attachment_a.pdf
.

45.
Markle Foundation,
Creating a Trusted Network
, Appendix H.

46.
Timothy Lynch, at Federalist Society annual conference, Mayflower Hotel,
Washington, D.C., Nov. 10, 2004. The requirement is to file Suspicious Activities Reports to the Treasury Department’s Financial Crimes Enforcement Network. Section 314(a) of the Patriot Act also authorizes government agents to request information about individuals suspected of terrorism.

47.
Don Van Natta, Jr., and Jo Becker, “Spitzer Fall Began with Bank Reports,”
New York Times
, March 13, 2008.

48.
Markle Foundation,
Creating a Trusted Network
, p. 146.

49.
“Important Information Every Schwab Account Holder Needs to Know: Privacy Policy, 2007 Annual Notification,” Charles Schwab & Co., June 2007, p. 3.

50.
See
Chapter 6
. Office of Inspector General,
A Review of the Federal Bureau of Investigation’s Use of National Security Letters
, Department of Justice, March 2007.

51.
Markle Foundation,
Creating a Trusted Network
, p. 164.

52.
Ibid., Vignette 4, p. 126.

53.
Minow et al.,
Safeguarding Privacy
, pp. vii–viii, citing Department of Defense Appropriations Act, 2004, Pub. L. No. 108-84, § 8183 (Sept. 25, 2003), and p. 19.

54.
Minow et al.,
Safeguarding Privacy
, p. viii.

55.
Visible Technologies, “Visible Technologies Announces Strategic Partnership with In-Q-Tel,” press release, Oct. 16, 2009. Noah Shachtman, “Exclusive: U.S. Spies Buy Stake in Firm That Monitors Blogs, Tweets,”
Wired
, Oct. 19, 2009.

56.
Lara Jakes Jordan, “Data on Americans Mined for Terror Risk,” AP, July 11, 2007.

57.
Minow et al.,
Safeguarding Privacy
, p. 5.

58.
“Data Mining and Homeland Security: An Overview,” Congressional Research Service, Jan. 18, 2007, p. 21.

59.
“The 2007 International Privacy Ranking,” Privacy International,
http://www.privacyinternational.org/article.shtml?cmd[347]=x-347-559597
.

60.
The Hanover Police Department has 20 full-time officers; Dartmouth Safety and Security has 28, including supervisors. In 2008, drug violations on campus resulted in 6 arrests and 21 referrals for disciplinary action, compared with 3 and 18 respectively, the previous year. Town of Hanover, Police Department Web site,
http://www.hanovernh.org/police
; “Annual Security and Fire Safety Report September 2009 Dartmouth College,” pp. 5, 14.
http://www.dartmouth.edu/~security/docs/Dartmouth%202009%20Annual%20Clery%20Report-3.pdf
.

61.
The State of New Hampshire v. Adam Nemser
, 2000-443, Oct. 25, 2002. The opinion reports that when the college’s proctor asked the Hanover police chief for an opinion on whether DSS officers “being private citizens, risked arrest if they took possession of contraband in the course of their duties,” the police chief replied that while they were not legally exempt from prosecution, in practice he would not arrest college security officers.

62.
Piazzola v. Watkins
, 442 F.2d 284 (5th Cir., 1971) and
State v. Hunter
, 831 P.2d 1033 (Utah App. 1992).

63.
Camara v. Municipal Court
, 387 U.S. 523 (1967). The Court ruled that a resident’s refusal to permit city inspectors to conduct a code-enforcement inspection without a warrant cannot be grounds for prosecution, but that the warrant can be issued on the grounds of “reasonable legislative or administrative standards for conducting an area inspection.”

64.
Government’s opening brief,
United States v. Ronald C. Kline
, 03-50349, 03-50585 (9th Cir. 2004), p. 10.

65.
Ibid., p. 7.

66.
Ibid., p. 8.

67.
Ibid., pp. 31–32. The earlier case,
United States v. Walther
, 652 F.2d 788, 790 (9th Cir. 1981), involved an airline employee who routinely opened suspicious cartons on behalf of the Drug Enforcement Administration, and was paid for finding significant amounts of narcotics. He was ruled an agent of government, subject to Fourth Amendment restrictions. See also
United States v. Sherwin
, 539 F.2d 1, 6 (9th Cir. 1976): “A private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence. In the absence of such official involvement, a search is not governmental.”

68.
Appellee’s brief,
United States v. Ronald C. Kline
, 03-50349, 03-50585 (9th Cir. 2004), pp. 12, 19. See also Gary Dimmock, “Canada’s Hero Unmasked,”
Ottawa Citizen
, June 29, 2002, p. A1.

69.
Appellee’s brief,
Kline
, p. 12. Carr portrayed Willman as a “citizen tipster,” not an “informant,” to help place him beyond the reach of the Fourth Amendment.