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Comments on Criminal Issues
September 19, 2007
POLICE POWERS VERSUS RIGHT OF PRIVACY/FREE SPEECH
Criminal Defense Attorneys Will Face Expanded Use of State WireTapping
The Texas Legislature recently increased the powers of law enforcement to conduct electronic surveillance. The new legislation (SB823) allows cities with populations of 500,000 or more to operate their own “pen register” devices that have the capacity to capture real time outgoing telephone numbers dialed from a targeted telephone.
Article 82.21(6) of the Texas Code of Criminal Procedure defines “pen registers” as follows:
"Pen register" means a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, if the information does not include the contents of the communication. The term does not include a device used by a provider or customer of a wire or electronic communication service in the ordinary course of the provider's or customer's business for purposes of:
(A) billing or recording as an incident to billing for communications services; or
(B) cost accounting, security control, or other ordinary business purposes.
This new law “deregulates” wiretapping in Texas. Under the previous law, a Department of Public Safety specialized unit controlled the wiretapping process. The new law authorizes local law enforcement agencies, after receiving specialized training, to request and run wiretaps on their own. That poses serious threats to the public’s right of privacy and free speech.
The nation’s law enforcement and intelligence gathering agencies have become obsessed with the need to conduct covert spying activities on the American public. In 2001 the Bush administration secretly authorized a wiretap program that allows the National Security Agency to intercept telephone calls and e-mails between this country and overseas without court approval. After the program was revealed in 2005, the Bush administration and NSA tried to justify its use by saying that its targets only those with links to terrorism.
A federal district court in Detroit last month ruled this portion of the warrantless surveillance program unconstitutional. “It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” the judge wrote in a 43-page opinion. “ … There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.”
“Secrecy” in government surveillance has become the rule rather than the exception. The Texas Legislature also passed new legislation that amends Article 18.11 of the Texas Code of Criminal Procedure to allow a prosecutor to request that a judge seal a search warrant affidavit from public view. The prosecutor must establish a “compelling state interests” that:
• Public disclosure would jeopardize the safety of a victim, witness, confidential informant, or lead to destruction of evidence; or
• The affidavit contains information from a court-ordered wiretap that hasn’t expired.
A judge’s order sealing an affidavit upon which the search warrant is based lasts for 30 days and is subject to one 30-day renewal.
Texas and other states are clearly following the lead of the United States Congress which has continuously since 9/11 expanded federal police powers. For example, the FBI under the USA Patriot Improvement and Reauthorization Act of 2005, 18 U.S.C. § 2709, is authorized to issue “National Security Letters” (NSLs) requesting a range of information about electronic communication service providers (ECSPs) subscribers and their telephone or internet activities. See: Doe v. Gonzales, ___ F.Supp.2d ____, 2007 WL 2584559 (S.D.N.Y. 09/06/07)
18 U.S.C § 2709(a) provides that an ECSP “shall comply” with the FBI request for “subscriber information and toll billing records information, or electronic communication transactional records” made by the FBI. 18 § 2709(b) provides that before the FBI can request “the name, address, length of service, and local and long distance toll billing records” of a person or an entity, the FBI director (or his designee) must certify that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Doe v. Gonzales, supra, at WL 2.
Earlier this year FBI Director Robert Mueller announced that his agency had repeatedly abused its authority under the Patriot Act by gathering information about American citizens that had nothing to do with terrorism investigations. In March 2007 the Office of Inspector General issued a report entitled “A Review of the Federal Bureau of Investigation’s Use of National Security Letters.” The report addressed the FBI’s use of NSLs for calendar years 2003 through 2005. The district court in Doe v. Gonzalez discussed the OIG report:
The OIG Report confirms that the Patriot Act transformed NSLs into a much more frequently employed investigatory tool. Specifically, it states that “the FBI issued approximately 8,500 NSL requests in 2000, the year prior to passage of the Patriot Act. After the Patriot Act, according to FBI data, the number of NSL requests increased to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 47,000 in 2005.” FN13 (OIG Report 120.) While the number of NSL requests issued under each separate NSL provision is not publicly available, the report does indicate that “the overwhelming majority of the NSL requests sought telephone toll billing records information, subscriber information (telephone or e-mail), or electronic communication transactional records” under § 2709. ( Id. 36-37.) In considering these statistics, it is important to distinguish between “NSLs” and “NSL requests”-a single NSL may contain multiple requests for information. ( See id. 120.) The OIG Report specifies that “the 39,000 NSL requests in 2003 were contained in approximately 12,000 letters, and the 47,000 requests in 2005 were contained in approximately 19,000 letters.” ( Id.)
According to the OIG Report, there are three main reasons for the dramatic increase in the number of NSL requests issued starting in 2003. ( See id. 45.) First, the Patriot Act eliminated the requirement that an NSL be issued only if “there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power.” 18 U.S.C. § 2709(b) (2000). Instead, the information must currently satisfy only the lower standard of being “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b). Second, whereas previously an NSL had to be approved by a senior FBI official at FBI headquarters, NSLs can now be authorized by Special Agents in Charge at FBI field offices. As a result, approval is no longer a lengthy process, and generally takes only two to five days. ( See OIG Report 25.) Third, in 2003, the Attorney General issued revised guidelines governing the use of NSLs in FBI national security investigations (the “NSI Guidelines”). The revised NSI Guidelines permit NSLs to be issued during preliminary investigations; under the prior NSI Guidelines, they could be issued only during full investigations. FN14 ( See OIG Report 40.) The OIG Report concludes that “[t]aken together, these three expansions of the FBI's [NSL] authorities resulted in significantly greater use” of NSLs. ( Id. 45). Id., WL at 5..
The FBI claims that NSLs are “indispensable investigative tools that serve as building blocks in many counterterrorism and counterintelligence investigations.” Id. The agency also claims that NSLs are particularly important “to support FISA applications for electronic surveillance, physical searches, or pen register/trap and trace orders.” Id. The FBI defends its use of NSLs because they allow the agency to collect information “sufficient to eliminate concerns about investigative subjects and close national security investigations with a great degree of confidence.” Id. Finally, the FBI points to the fact that an NSL target is often not the main target of an investigation and, therefore, the NSL allows the agency to follow leads. On this final point, the OIG report observed, “[f]or example, if the response to an NSL for toll billing records on the subject’s telephone number identifies a telephone number that the subject contacted frequently during a time period relevant to the investigation, the FBI may issue another NSL requesting subscriber information for that telephone number.” Id.
It was after the OIG report that FBI Director Mueller was forced to concede that his agency had abused the Patriot Act. In addition to significantly under-reporting the number of NSLs issued, the OIG reported found that the FBI: “ (1) under-reported violations arising from the use of NSLs; (2) sought information not permitted by the statute; (3) issued NSLs without proper authorization; (4) issued over 700 ‘exigent letters’ requesting the type of information covered by § 2709 without following the process for obtaining an NSL; and (5) repeatedly failed to properly adhere to the FBI's own internal documentation requirements for the approval of an NSL. ( See id. 66-107.) In summary, while noting the significant challenges and major structural changes the FBI was facing during the period covered and the lack of any misuse rising to the level of criminal misconduct, the OIG Report nonetheless concluded that ‘the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.’ ( Id. 124.).” Id., at WL 6.
The question is really just how much invasive power is the American public willing to give its law enforcement and intelligence gathering agencies under the so-called “protection umbrella.” In the six years since 9/11, the invasive powers granted to law enforcement agencies by Congress and state legislatures have been frightening. The district court in Doe v. Gonzalez discussed the constitutional concerns spawned by these increased police powers:
… this case presents novel issues involving both the security of the nation and the rights of citizens under the First Amendment. The government's use of NSLs to obtain private information about activities of individuals using the internet is a matter of the utmost public interest. As the OIG Report evenhandedly documents, the NSL serves as a critical tool to enable the government to perform investigations and law enforcement functions vital to the nation's safety and security. But, as powerful and valuable as it may be as a means of surveillance, and as crucial the purpose it serves, the NSL nonetheless poses profound concerns to our society, not the least of which, as reported by the OIG, is the potential for abuse in its employment. Through the use of NSLs, the government can unmask the identity of internet users engaged in anonymous speech in online discussions. It can obtain an itemized list of all of the emails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may even be able to discover the websites an individual has visited and queries submitted to search engines. In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association-particularly of expression that is critical of the government or its policies-a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes. Id., WL at 9.
Just as the FBI had abused the Patriot Act in its information gathering process, law enforcement units in those Texas cities that can now conduct their own electronic surveillance without any oversight from the Department of Public Safety will most likely abuse their authority. Proactive information gathering by law enforcement is a dangerous weapon – a weapon that the late FBI Director J. Edgar Hoover used to accumulate and maintain and abuse corrupt power. The bottom-line, take-it-to-the-bank reality is that proactive information gathering does not respect the First Amendment’s constitutional guarantees of right of privacy and free speech.
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