Intercepting Communications

Intercepting Communications Title III of the Omnibus Crime Control and Safe Streets Act & Foreign Intelligence Surveillance Act (FISA) By: Adam Springer and Dave Higgs

Section 2511 • Section 2511 makes it illegal to: • intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; • intentionally use, endeavor to use, or procure any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when: (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or (iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;

Additionally, 2511 makes it illegal to: (c) intentionally disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; (d)intentionally use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or (e) (i) intentionally disclose, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.

4(a) Whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both(b) Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted--(i) to a broadcasting station for purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, is not an offense under this subsection unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both.

Definitions: §2510 • Electronic communication- any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce. • Wire communication- any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce; • Oral communication- means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication;

What’s an Interception?

U.S. v. Smith, 155 F.3d 1051 (9th Cir. 1998) • Smith participated in insider trading and sold his stock before a big loss • A coworker guessed his voicemail password and forwarded a voicemail detailing the insider trading to himself. • The coworker then told the authorities and gave them the voicemail • Smith challenged the evidence as having been an illegally intercepted communication and therefore barred • The court defined “intercept” broadly, as it pertains to wire communication, saying that it actually encompasses the term “acquisition” and Smith’s wire communication was intercepted under the meaning of § 2515 • Fraser v. Nationwide, 135 F.Supp.2d 623 (E.D. Penn. 2001) • Court recognized distinction between an e-mail in transit and a e-mail that was sent previously and reviewed • An e-mail already sent and reviewed cannot be intercepted because the wiretap act protects only communications in transit • Global Policy Partners, L.L.C. v. Yessin, 2009 WL 4307459 (EDVA) • Held emails already at destination server cannot be intercepted even if they have not yet been read

Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002) • Konop maintained a private website that was critical of his employers • The website was password protected • Executives used other’s login names and passwords to access the site • Konop sued. . . • The court held that “for a website such as Konop's to be “intercepted” in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic storage.” • However, Konop still had a cause of action through the Stored Communications Act. • Text Messages- United States v. Jones, 451 F. Supp. 2d 71 (D.D.C. 2006) • Criminal defendant argued that police needed wiretap authorization to obtain messages on his cell phone • Held: text messages were stored communications, thus couldn’t be intercepted under the wiretap act and could be accessed.

Where does an interception occur?? United States v. Luong, 471 F.3d 1107 (9th Cir. 2006)- An interception occurs both at the telephone and at the place where the transmissions are being recorded at.

Minimization • Rules for Police who have obtained wiretaps: • Must identify targeted phones and targeted individuals • Keep a log of all intercepted communications • Only listen to pertinent conversations • Spot check to find out • If not pertinent, spot check must be ended immediately • Think casino, when Ace and Nicky made their wives talk for two minutes before they would speak on the telephone • United States v. Carter, 449 F.3d 1287 (D.C. Cir. 2006)- • Defendant must allege specific conversations listened to that were non-pertinent in as-applied challenge to wiretap. • US v. Fernandez, 526 F.3d 1247 (9th Cir. 2008) • Police discovered target was using an alias previously unknown to them during the course of a wiretap. • Held: Police don’t need to get a new wiretap when they discover their target is using an alias

Extraterritorial Effect? • Zheng v. Yahoo! Inc., 2009 WL 4430297 (N.D. Cal.). • Yahoo! China disclosed to the Chinese government information about plaintiffs’ identity and communications, and those disclosures allegedly led to the torture of the plaintiffs and other serious injuries. • Held: No cause of action because the interception did not occur within U.S. and wiretap act has no extraterritorial effect

Necessity • In order to obtain a wiretap, police must show that it is necessary to their investigation • United States v. Tomero, 462 F. Supp. 2d 565 (S.D.N.Y. 2006) • FBI attempted surveillance on organized crime targets • Defendants were wary of surveillance, they found the bugs in 3 of 4 restaurants where meetings took place • So the FBI placed roving bugs in defendant’s cell phones that recorded any conversation near them, regardless of whether the phone was on or being used • Defendants argued that FBI never showed necessity to use a wiretap because FBI didn’t fully exhaust other investigative techniques • Held: Government must only show that normal investigative techniques would prove difficult, a requirement that the government satisfied in the application for the roving bug. Confidential informants, physical surveillance, and undercover operations were all discussed in the application, as well as the difficulties and problems associated with each method.

Disclosure • Boehner v. McDermott, 441 F.3d 1010 (DC Cir. 2006) • Civil suit between 2 congressmen • 3rd party recorded Boehner’s cell phone conversation using a police scanner • 3rd party then sent tape to McDermott with a description of how it was recorded • McDermott then gave the tape to at least one reporter • Boehner sued Held: Illegal to disclose communication if person is aware communication was illegally intercepted

Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801-1885 • Congress found a need to monitor foreign communications, which required a different statutory scheme from the domestic activities under Title III. • Intelligence gathering v. Criminal law enforcement • FISA enacted in 1978 to govern foreign intelligence surveillance, based on Title III, and includes some of the Title III concepts of necessity, minimization, and 4th Amendment concerns, and shares many of the definitions. • FISA encompasses a wide range of intelligence gathering activities, but the focus of this presentation is the electronic surveillance portion of the act.

FISA Definitions: §1801 • Foreign Power: • 1. Foreign Gov’t • 2. Foreign national faction • 3. Any entity acknowledged to be controlled by a foreign government • 4. A group engaged in international terrorism • 5. a foreign-based political organization • 6. Any entity known to be controlled by a foreign government • 7. An entity not substantially composed of US persons that is engaged in the proliferation of WMD’s.

FISA Definitions: §1801 • Agent of a foreign power: • Any non-US person who: • Acts in the US as an officer or employee of a foreign power • Acts on behalf of a foreign power which engages in spying • Engages in international terrorism or activities in preparation therefore (the “lone-wolf” statute) • Engages in international proliferation of WMD’s • Engages in international proliferation of WMD’s on behalf of a foreign power • Any person who: • Knowingly engages in clandestine intelligence gathering activities on behalf of a foreign power which may involve a violation of criminal law • Spies at the behest of a foreign intelligence service • Engages in sabotage or international terrorism • Knowingly enters the US under a false identity on behalf of a foreign power • Knowingly aids or abets any of the people and activities listed above

FISA Definitions: §1801 • Electronic Surveillance means: • The acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known US person who is in the US, if the contents are acquired by intentionally targeting that US person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes • The acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the US, without consent of any part thereto, if such acquisition occurs in the US • Intentional acquisition . . . Of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located in the US • The installation of a surveillance device in the US for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes

FISC • § 1803; Foreign Intelligence Surveillance Court • 11 federal judges each elected by the Chief Justice of SCOTUS • Reviews warrant applications and AG certifications ex parte and under complete secrecy • VERY rare for an application to be refused… they are exceedingly easy to get.

Types of Surveillance Activities Under FISA • FISA implements 3 distinct schemes for electronic surveillance, depending on the circumstances. • Type I: § 1802; Foreign Powers, Factions, and Acknowledged Entities • Allows WARRANTLESS surveillance for up to 1 year with only Attorney General certification • Communication must occur exclusively between foreign powers • Roving wiretaps must be done on property under control of that foreign power • No substantial likelihood that US person will be a party to a communication • Minimization procedures • AG must immediately transmit certification to FISC • AG may ask telecoms for assistance

Type 2: § 1804; Foreign Agents and Type 1’s that have reached time limitation. • Court ordered warrant required (probable cause that target is a foreign power or a foreign agent). • Application for warrant includes: • Identity of federal officer and intended target • Statement of probable cause • Locations and means of surveillance • Minimization requirements • Description of intelligence information sought • Whether or not physical entry is required to install surveillance equipment • Statement of the period of time—90 days or 120 days, extensions of a year possible

Type 3’s: In case of emergency… • § 1805; Emergency Order: allows warrantless surveillance for a period of 7 days. • AG must get a court order w/in week • If not, surveillance must be disclosed to parties • § 1811; Declaration of War: allows any warrantless electronic surveillance “to acquire foreign intelligence information” for a period of fifteen days following the declaration of war by Congress.

Civil Remedy Under §1810 • Aggrieved Person: anyone other than a foreign power or agent who has been the target of or subjected to surveillance. • Cause of action against any person who eavesdrops outside FISA’s guidelines • actual damages, punitive damages, attorney’s fees

But no one ever qualifies for the civil remedy… • Essentially no one ever knows that they were the subject of surveillance without a warrant… • And if somehow a person finds out that they are, the State Secrets Doctrine precludes evidence regarding the surveillance! • Even if the FISC court erroneously grants a warrant or certification, there is no redress.

Electronic Surveillance Post-9/11 • Bush Administration immediately expanded surveillance by enacting the President’s Surveillance Program, which was re-named the “Terrorist Surveillance Program” (TSP) when it was eventually revealed, utilized NSA. • Acting pursuant to the AUMF, the TSP granted the power for the AG to authorize WARRANTLESS wiretaps: • Of communications wherein a party was reasonably believed to be associated with Al-Qaeda • Basically carte blanche… completely circumvented the already extensive provisions of FISA and the FISC court • Had to be re-authorized every 45 days… one of those times was at the bedside of John Ashcroft, at a time when the DOJ had become worried that the program was likely illegal • The program was revealed in 2005 by the NY Times, and the Administration acknowledged it existence and the fact that the program had implemented warrantless surveillance for national security purposes • Since then, the program has been found to be at the best “flawed,” and at worst completely illegal because it came in direct conflict with FISA. • The program lasted in one form or another from 2001-2007. Some of its provisions were incorporated into the present form of FISA, which was enacted in 2008.

FISA Amended in 2008, Telecom Immunity • The new amendments further broadened the surveillance powers under FISA, added international terrorists acting alone, and also added telecom immunity. • § 1885a; Protections for Electronic Communication Service Providers: • A civil action may not lie or be maintained . . . against any person for providing assistance to an element of the intelligence community . . . if that assistance was provided pursuant to a warrant, certification, OR • Authorized by the President during the period beginning 9/11/01 and ending 1/17/07

Pre-Immunity: Hepting v. AT&T • 2006 class action suit against AT&T, alleging illegal warrantless wiretaps pursuant to the TSP • The government joined AT&T and offered defenses under the TSP and the State Secrets Doctrine • State Secrets Doctrine (Common Law rule): • Evidentiary Rule: precludes secret information from evidence • Non-Justiciability Rule: if the substantive issue of a case is secret, then the case must be dismissed • State Secrets Doctrine can make it impossible for a plaintiff to establish standing

Hepting v. AT&T • Judge Vaughn Walker of the N.D. of Ca. found: • The TSP program was no longer a secret, so the doctrine did not apply to the entire case • Testimony of an AT&T employee who claimed to have seen a secret NSA room installed at his workplace was not allowed • Found that AT&T created an immense dragnet of basically all of its customers communications, so the plaintiffs were able to establish standing by showing a clear and concrete harm (aggrieved persons…) • Did not find the defense of coming to the aid of government valid, since AT&T went far beyond the scope of even the TSP. • Case went to the 9th Cir. for immediate appeal • Remanded without a decision after the passage of the 2008 FISA amendments granting telecom immunity

Standing: ACLU v. NSA (2006-7) • Plaintiffs were a group of “journalists, academics, and lawyers who the regularly communicate with individuals overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, and are therefore likely to be monitored under the TSP” • District court found standing, and also found that the warrantless surveillance under the TSP was illegal since it went against FISA. Judge stayed opinion pending an appeal • 6th Cir. overturns decision based on standing, and declines to comment on the constitutionality of the TSP • None of the plaintiffs were able to show any evidence that they had actually been subject to warrantless surveillance. • Once again the information was protected by the State Secrets Doctrine • Court found that the injury was too amorphous; the mere possibility of warrantless eavesdropping was insufficient

March 2010: Al-Haramain v. Obama • Began as Al-Haramain v. Bush, later consolidated under In re NSA Telecommunications Records Litigation • Case that originated in Ashland, OR • Decision was just issued by Judge Vaughn Walker last Wednesday (same judge who ruled on Hepting before telecom immunity) • Very strange circumstances allowed plaintiffs to show standing, injury, and win SJ

Al-Haramain v. Obama: Facts • Al-Haramain was a muslim charity with alleged connections to al-Qaeda, had a US office in Ashland OR. • Group’s assets were frozen in Jan. 2004 for possible tax violations • Lawyers communicated with group’s director in Saudi Arabia in March and April 2004, mentioned people associated with Osama bin-Laden • While Al-H’s lawyers were conducting discovery on the tax charges, they were mistakenly mailed a top secret document that was the transcript of the phone conversation above • Al-H was designated a terrorist organization in September of 2004, and the announcement was made publicly via a press release. • Gov’t further acknowledged using surveillance to gain information about Al-H, but disputed it had used the surveillance to determine a connection to al-Qaeda

Al-Haramain v. Obama • Al-H and its lawyers filed suit under §1810, using a copy of the document to establish “aggrieved person” status. • OR district court found that the case could go forward since the TSP was no longer a secret, but that the document was precluded because of State Secrets Doctrine • Case bounced around for a while, with amended complaints and defenses offered. • Ended up in front of Judge Walker again, made the following rulings: • Standing: even without the document, the very specific public comments made by government officials clearly establishes that the plaintiffs were subjected to surveillance • Plaintiffs presented enough evidence to make out a prima facie case under FISA. Burden was shifted to the defendant to provide a warrant for the surveillance activity. • Since Defendant was unable/unwilling to present a warrant, the plaintiffs win SJ. Plaintiffs explain that the Defense does not have a warrant, since it believed it was acting under the TSP. • Judge rules that for the purposes of this litigation, there was no warrant • Case could still be appealed by the Obama Administration.

Intercepting Communications