In the wake of the horrifically successful September 11 terrorist attacks on the World Trade Center and the
Pentagon, we are interrupting our regular schedule to focus on more immediately relevant topics.
We will start by focusing on the potential use of the Internet by terrorists to plan and coordinate these sorts
of attacks. Later in the semester we will discuss other relevant topics, including the issues raised by encryption
technology and the vulnerability of the Internet infrastructure to terrorist attack. We will need to
learn a bit more about the technology before we can meaningfully discuss these topics.
For now, we will look at the issue of electronic surveillance and the extension of wiretapping rules
(originally put in place for the telephone) to Internet communications. This discussion raises fundamental issues
about the balance between civil liberties and security in free societies.
A struggle
over this balance was already in full swing before September 11. The US and
many other countries are likely to adjust this balance to place more weight on
security in response to the attacks.
Terrorism has been a central focus of the US Federal Bureau of Investigation (FBI) ever since the first World Trade Center bombing
in 1993. The FBI has directed several important initiatives at communication networks including the Internet. The following
summary is quoted from the FBI's official history.
The FBI spearheaded initiatives to prepare for both domestic and foreign lawlessness in the 21st century.
For example, the law
enforcement made an effort to ensure its ability, in the face of telecommunications advances, to carry out court-authorized electronic
surveillance in major investigations affecting public safety and national security. This ability was secured when Congress passed the
Communications Assistance for Law Enforcement Act in October 1994. In 1998, to combat cybercrime, the National Infrastructure Protection
Center (NIPC) was established. Located in FBI Headquarters, NIPC brings together representatives from U.S.
government agencies, state and local government, and private enterprises to protect the nation's
critical infrastructures.
Several groups have questioned the scope of the FBI's efforts, particularly in the area of electronic surveillance.
US law protects the privacy of electronic communications from monitoring
without a court order; important legislation since the 1930s
specifies
when and how the FBI and other agencies
may act to intercept electronic communications.
The recognized right of privacy is grounded in interpretations
of the US Constitution, specifically the Fourth
Amendment of the Bill of Rights, which states: "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 byOath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."
Legal protections against electronic
eavesdropping were first established in US law
by the Communications Act of 1934 after early court rulings
questioned the applicability of
the Fourth Amendment to electronic communications.
In 1967 the US Supreme Court ruled in Katz vs. the US
that government wiretapping without a warrant violates the Fourth
Amendment. Click here for a summary
of US Supreme Court jurisprudence on this issue.
Several pieces of subsequent legislation sought to define the policies for electronic surveillance. The landmark Electronic Communications Privacy Act (ECPA), signed by President Reagan in 1986, extended these provisions to a wide range of telecommunications technologies. As telecommunications technologies continued to develop, it became clear that the FBI and other agencies would need technical cooperation from telecommunications infrastructure providers to intercept communications as provided by ECPA and related legislation. The FBI's recent steps in this area are supported by the recent Communications Assistance for Law Enforcement Act (CALEA). Quoting from the US FCC site on CALEA:
CALEA was passed in 1994 in response to rapid advances in telecommunications technology, such as the implementation of digital technology and wireless services, that have threatened the ability of law enforcement officials to conduct authorized electronic surveillance. CALEA requires telecommunications carriers to modify their equipment, facilities, and services to ensure that they are able to comply with authorized electronic surveillance. These modifications were originally scheduled to be completed by October 25, 1998, but in accord with an extension granted by the Commission, must now generally be completed by June 30, 2000. However, for wireline, cellular, and broadband Personal Communications Services (PCS) carriers, implementation of a packet-mode capability and six Department of Justice/Federal Bureau of Investigation "punch list" capabilities must be completed by September 30, 2001.
The US Congress passed significant counterterrorism legislation in 1996, but stripped it of provisions expanding wiretapping powers due to concern for civil liberties. The Electronic Privacy Information Centre (EPIC) has a site on counterterrorism legislation that is currently somewhat out of date, but it gives a nice summary of the 1996 Clinton initiative and the debate surrounding it. There is a related site on the aviation security measures also instituted at that time.
The FBI developed its Carnivore system for Internet wiretapping to extend its telephone wiretapping capabilities to Internet communications such as e-mail and Web traffic. Carnivore is a key weapon in the War on Drugs as well as the now-declared War on Terrorism. Carnivore has attracted attention from civil libertarians as well as congressional representatives across the political spectrum, who have sought more information about the goals and capabilities of the secret Carnivore system through the Freedom of Information Act, which was instituted at the end of the Watergate era in the mid-1970s.
FBI statements on
Carnivore
How Carnivore works
Representative Dick Armey
threatens FBI budget over
Carnivore
EPIC
repository of Carnivore FOIA documents
Center for Democracy and Technology: government surveillance
stopcarnivore.org
Combating
Terrorism Act of 2001
Class perspectives and "tidbits"
Legal protections against government surveillance have evolved over many years in response to fears that the FBI, CIA and others may abuse the powers granted them. In part these fears stem from experiences during the Cold War. In the 1950s, many Americans feared a Communist conspiracy within the US, and anti-communist elements in the government waged a no-holds-barred war on domestic communism, real or perceived. Ultimately these actions were extended to a wide range of politically active groups judged by various administrations to be potentially dangerous dissident groups. These included church organizations and others involved with the civil rights movement, the environmental movement, and opposition to the Vietnam War and US policies in Central America during the Reagan and Bush administrations. During the Nixon administration the FBI conducted a campaign against a wide range of groups under the code name COINTELPRO. While many of the actions of COINTELPRO are still secret, subsequent congressional hearings and FOIA releases revealed that this campaign involved not just surveillance but also deception, disinformation, and extra-legal activities such as breakins and violence. Targets of FBI activity have included Martin Luther King, John Lennon, and the first nationwide Earth Day celebration in 1970. The official FBI history states:
By 1971, with few exceptions, the most extreme members of the antiwar movement concentrated on more peaceable, yet still radical tactics, such as the clandestine publication of The Pentagon Papers. However, the violent Weathermen and its successor groups continued to challenge the FBI into the 1980s. No specific guidelines for FBI Agents covering national security investigations had been developed by the Administration or Congress; these, in fact, were not issued until 1976. Therefore, the FBI addressed the threats from the militant "New Left" as it had those from Communists in the 1950s and the KKK in the 1960s. It used both traditional investigative techniques and counterintelligence programs ("Cointelpro") to counteract domestic terrorism and conduct investigations of individuals and organizations who threatened terroristic violence. Wiretapping and other intrusive techniques were discouraged by Hoover in the mid-1960s and eventually were forbidden completely unless they conformed to the Omnibus Crime Control Act. Hoover formally terminated all "Cointelpro" operations on April 28, 1971.
Web searches using the search string COINTELPRO or related strings will turn up a wide range of perspectives and allegations regarding FBI and CIA activities during this period. During the Reagan, and Bush administrations, the government continued to target "leftist" groups including nuclear freeze groups, CISPES, and environmental groups including Earth First, leaving a large number of Americans suspicious of their government's use of its powers. During the Clinton administration, actions by Janet Reno's FBI at Ruby Ridge and Waco TX created similar fears among many libertarian conservatives. In the 1990s, some of the strongest advocates for privacy protections have been deeply conservative politicians including Phil Gramm and Dick Armey. Most recently, concern has been renewed by rumors of a super-secret National Security Agency (NSA) program called Echelon for international electronic eavesdropping.