POLICE POWERS VERSUS RIGHT OF PRIVACY/FREE SPEECH

Criminal Defense Attorneys Will Face Expanded Use of State Wire

Tapping

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.