Peter Swire on "Justice Intelligence Coordinating Council" [priv]

[Declan McCullagh <declan () well com>]

---

From: "Peter Swire" <peter () peterswire net>
To: "'Declan McCullagh'" <declan () well com>
Subject: RE: [Politech] DoJ announces "Justice Intelligence Coordinating 
Council"
Date: Wed, 25 Feb 2004 21:56:27 -0500


Declan:

        Having a Coordinating Council of this sort could be a helpful
step, creating an institution that has oversight of intelligence
activities and carefully considers the legal and civil liberties issues
that arise from intelligence.  It is the sort of institutional check and
balance that we need more of.

        Unfortunately, the comforting words in the press statement don't
turn out to be very reassuring. The statement says: "The Department Is
Committed to Exercising Its Intelligence Functions within the Bounds of
the Constitution, Laws and Guidelines that Protect the Privacy of
Law-Abiding Americans."

        Let's take those one at a time.

        The Constitution.  The Supreme Court has basically said there is
no "reasonable expectation of privacy" in records that are stored by
third parties, such as your bank or phone company.  So the 4th Amendment
warrant requirement currently does not apply to the vast array of
digitally stored records.  Next, there may be widespread caching of VOIP
and other phone conversations -- so stored records might come to phone
calls themselves, eliminating the "reasonable expectation of privacy"
even for wiretaps.  I have a new law review article called "Katz Is
Dead.  Long Live Katz" on this subject,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=490623.

        Laws.  This is the realm of the Patriot Act.  Section 215 says
there can be secret, binding searches for any record or other tangible
object. It is a criminal violation even to tell that such a search has
occurred.  Plus, the broader scope for National Security Letters in
Section 505 allows the government to secretly get many records without
any order from a judge. In addition, the Administration has sought to
expand the scope of NSLs, including for use by the CIA and the Pentagon
to search domestic records.  See Eric Lichtblau & James Risen, "Broad
Domestic Role Asked for C.I.A. and the Pentagon," N.Y. Times, May 2,
2003.

        Guidelines.  Attorney General Levi in 1976 (under President
Ford) issued substantial guidelines that, among other things, limited
the ability of the FBI to open investigations based on protected First
Amendment activities.  Attorney General Ashcroft in 2002 very
substantially cut back on these restrictions.  There is a careful
comparison by Jim Dempsey and Jerry Berman at
http://www.cdt.org/wiretap/020626guidelines.shtml.

        In short, it sounds very good to have protections by "the
Constitution, the laws, and the Guidelines."  The protections in all
three have shrunk substantially in recent years, though, so the
reassuring language deserves a large grain of salt.

        We likely should have the Coordinating Council as well as better
actual protections in the Constitution, the laws, and the Guidelines.

        Peter

Prof. Peter Swire
Moritz College of Law of the
    Ohio State University
John Glenn Scholar in Public Policy Research
Formerly, Chief Counselor for Privacy in the
    U.S. Office of Management & Budget
(240) 994-4142, www.peterswire.net

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