IP: Re: "Lawful access" vs warrants: I found the difference

[Dave Farber <farber () cis upenn edu>]

Date: Mon, 20 Apr 1998 09:46:15 -0400
From: denning () cs georgetown edu (Dorothy Denning)


The conditions for getting wiretaps -- including w/out a court
order under FISA  -- are outlined in a paper I co-authored with
people in law enforcement in 1993 -- Wiretap Laws and Procedures.
Here's the URL and the snippet on FISA.




http://www.cs.georgetown.edu/~denning/wiretap/Wiretap.txt


FISA authorizes electronic surveillance of foreign powers and agents of
foreign powers for foreign intelligence purposes.  Normally, a court
order is required to implement a wiretap under FISA.  There are,
however, two exceptions.  The first is when the communications are
exclusively between or among foreign powers or involve technical
intelligence other than spoken communications from a location under the
open and exclusive control of a foreign power; there is no substantial
risk that the surveillance will acquire the communications to or from a
U.S.person; and proposed minimization procedures meet the requirements
set forth by the law.  Under those conditions, authorization can be
granted by the President through the Attorney General for a period up
to one year.  The second is following a declaration of war by
Congress.  Then the President, though the Attorney General, can
authorize electronic surveillance for foreign intelligence purposes
without a court order for up to 15 days.


Dorothy Denning


> From farber () cis upenn edu Sun Apr 19 20:13:03 1998
Date: Sun, 19 Apr 1998 20:01:56 -0400
From: Dave Farber <farber () cis upenn edu>
Subject: IP: "Lawful access" vs warrants:  I found the difference today!
To: ip-sub-1 () majordomo pobox com




Date: Sun, 19 Apr 1998 14:54:16 -0700
From: John Gilmore <gnu () toad com>


Remember how in the Clipper debate, the government insisted on using
the term "lawful access" when talking about what the government had to
do to get keys out?  They implied it meant a warrant issued by a
judge, but actually the proposed rules said any "lawful access" would
do.  That phrase kept reappearing in government proposals.


I've been looking for years in the laws to find what secret loophole
they've been trying to protect.  Today I ran across it!


It's Executive Order 12333, signed by our favorite senile president,
Ronald Reagan, in 1981.  It says:


    2.5 Attorney General Approval.  The Attorney General hereby is
    delegated the power to approve the use for intelligence purposes,
    within the United States or against a United States person abroad,
    of any technique for which a warrant would be required if
    undertaken for law enforcement purposes, provided that such
    techniques shall not be undertaken unless the Attorney General has
    determined in each case that there is probable cause to believe
    that the technique is directed against a foreign power or an agent
    of a foreign power. Electronic surveillance, as defined in the
    Foreign Intelligence Surveillance Act of 1978, shall be conducted
    in accordance with that Act, as well as this Order.




In other words, if the Attorney General claims that someone is an
agent of a foreign power, no warrants are needed; the target has no
Constitutional rights any more.


    Fourth Amendment


    The right of the people to be secure in their persons, houses,
    papers, and effects, against unreasonable searches and seizures,
    shall not be violated, and no warrants shall issue, but upon
    probable cause, supported by oath or affirmation, and particularly
    describing the place to be searched, and the persons or things to
    be seized.


You will recall that the Attorney General made exactly this claim
about Martin Luther King (that he was an agent of a foreign power), to
justify the years of FBI surveillance.  For all we know, they have
been claiming that anyone who advocates crypto legalization must be
an agent of a foreign power.  It really wouldn't surprise me.


We shouldn't stop looking for more loopholes -- they may have several --
but I think this is the big one.


        John


PS: It isn't clear that the President has the authority to do this.
The claimed authority is "the National Security Act of 1947, as
amended".  I doubt it delegates to the President the right to approve
warrantless searches of US citizens.  Even if it did, I doubt whether
such a provision would be Constitutional.  I'd be very interested in
knowing if any court has ever looked at whether this Executive Order
has any effect at all on the civil rights of US persons.