Government Surveillance of the Internet:
The Means to Spy – the Government Forces Telecom Cooperation:
CALEA is the Communication Assistance for Law Enforcement Act, and it requires telecoms to adopt or modify their equipment and services so as to make it accessible for law enforcement surveillance. Check out this 2007 Congressional Research Service report for an overview (read through “CALEA’s Main Provisions”).
Browse the Electronic Frontier Foundation’s CALEA page to get an idea of some of the arguments against having the law extend to the internet and VoIP services.
How Government Surveillance Works – the Technicalities:
The government’s spying programs are obviously classified materials, however, there is limited information available.
FBI: It is well-documented that the FBI used a program called Carnivore from the mid-to-late 1990s through 2001. It first came into the public spotlight in 2000, when an ISP (Earthlink) refused to allow Carnivore to be installed on their network because of privacy and performance concerns. The FBI solicited an external review of the program, an ultimately decided to discontinue its use. The FBI now uses unnamed commercial products.
NSA: The NSA also engages in internet surveillance through a program called Project ECHELON (CBS News story from 2000).
Optional: This Register article (Kieren McCarthy, 2001) suggests which words may trigger ECHELON
This BBC article Echelon: Big Brother without a Cause? (Martin Asser, 2000) suggests that the US may be abusing the system to try and gain an edge over Europe for business contracts (instead of trying to stop terrorists and organized crime)
However, this 2003 Guardian article How mobile phones and an £18m bribe trapped 9/11 mastermind (Oliver Burkeman) cites Echelon as a tool in catching Khalid Sheikh Mohammed, who has admitted to being the mastermind behind the 9/11 attacks.
Data-Mining:
Data-mining is one way the government uses these CALEA-configured networks. These programs serve a variety of purposes, from tracking consumer trends to trying to track terrorists.
This Washington Post article Government Increasingly Turning to Data Mining shows the widespread use of data-mining.
Data Mining and Internet Profiling: Emerging Regulatory and Technological Approaches focuses on government data-mining in the wake of 9/11 (read through Part I).
Who the Government is Allowed to Spy On - the Laws Governing Electronic Surveillance:
FISA (Foreign Information Surveillance Act) and ECPA (Electronic Communications Privacy Act) are the two main statutes covering electronic surveillance by the government (it is not necessary to read these, but skim to get a sense of their structure)
Reconstructing Electronic Surveillance Law (Daniel Solove, George Washington Law Review 2004) gives a good background on both electronic surveillance laws, and some of the issues associated with them.
More on ECPA – Fourth Amendment Issues:
Warshak v. US (This case concerns the Stored Communications Act, Title II of ECPA, and determines that the issue of whether the Fourth Amendment protects a right for a reasonable expectation of privacy is not yet ripe)
United States v. Forrester (This case concerns the Pen Register statute, Title III of ECPA, and determines that the government’s monitoring of e-mail and internet activity is not a Fourth Amendment “search”)
Optional: This recent Note Amend the ECPA: Fourth Amendment Protection Erodes as E-Mails Get Dusty (Achal Oza, Boston University Law Review 2008) calls for ECPA reform due to Fourth Amendment constitutional violations (here is the text of §2703 of ECPA that the author refers to)
FISA’s Many Twists and Turns – the Warrantless Wiretapping Controversy:
December 2005 - This NYTimes article Bush Lets U.S. Spy on Callers Without Courts (James Risen and Eric Lichtblau) brought FISA into the limelight when it exposed the NSA’s extensive warantless wiretapping and internet monitoring
February 2006 - Attorney General Alberto Gonzalez gave a statement that this program was both lawful and necessary under AUMF (Authorization for the Use of Military Force) as part of an overall “terrorist surveillance program.
June 2006 - the Supreme Court Hamdan decision came down, greatly curbing the administration’s powers under the AUMF (no need to read the entire case unless you are interested – this Hot Air blog entry goes over some of the highlights)
August 2007 – at the administration’s request, Congress enacts the Protect America Act of 2007 (CNet FAQs)
VP Cheney Makes Strong Pitch For Telecom Immunity (Ars Technica, Ryan Paul, Jan. 24, 2008) The new Act led to telecom immunity, derailing lawsuits brought by the EFF against telecommunication companies like AT&T.
July 2008 - Since the Protect America Act expired in February of this year, Congress passed the FISA Amendments of 2008 (Congressional Research Service summary of changes), which makes many of the Protect America Act provisions permanent
Ars Technica criticism: The new FISA compromise: It's Worse Than You Think (Timothy B. Lee, July 7, 2008) (note: the amendment was not altered after it passed in the House)
Recent FISA News
1. EFF Strikes Back with another lawsuit (NYTimes, Scott Shane, Sept. 18, 2008)
Update: Recently this case, Jewel v. NSA, has been combined with an EFF Case from January 2006, Hepting v. AT&T (a class action suit against AT&T for collaborating with the NSA) (District Court of N. Cal. order here) (glance through these to get an idea of what the lawsuit is about)
2. The Electronic Privacy Information Center (EPIC) and ACLU filed a lawsuit against the DOJ to release documents relating to Bush’s warantless wiretapping program under FOIA. On Friday October 31st, the District Court for DC ordered the DOJ to submit White House memos to the court for review by November 17th. Here is the AP Press Release, and this is the opinion and order (skim).
Return to the syllabus.