March 24, 2018

Twenty-First Century Wiretapping: Reconciling with the Law

When the NSA’s wiretapping program first came to light, the White House said, mysteriously, that they didn’t get warrants for all of their wiretaps because doing so would have been impractical. Some people dismissed that as empty rhetoric. But for the rest of us, it was a useful hint about how the program worked, implying that the wiretapping was triggered by the characteristics of a call (or its contents) rather than following individuals who were specifically suspected of being terrorists.

As I wrote previously, content-based triggering is a relatively recent phenomenon, having become practical only with the arrival of the digital revolution. Our laws about search, seizure, and wiretapping mostly assume the pre-digital world, so they don’t do much to address the possibility of content-based triggering. The Fourth Amendment, for example, says that search warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” Wiretapping statutes similarly assume wiretaps are aimed at identified individuals.

So when the NSA and the White House wanted to do searches with content-based triggering, there was no way to get a warrant that would allow them to do so. That left them with two choices: kill the program, or proceed without warrants. They chose the latter, and they now argue that warrants aren’t legally necessary. I don’t know whether their legal arguments hold water (legal experts are mostly skeptical) but I know it would be better if there were a statute that specifically addressed this situation.

The model, procedurally at least, would follow the Foreign Intelligence Surveillance Act (FISA). In FISA, Congress established criteria under which U.S. intelligence agencies could wiretap suspected spies and terrorists. FISA requires agencies to get warrants for such wiretaps, by applying to a special secret court, in a process designed to balance national security against personal privacy. There are also limited exceptions; for example, there is more leeway to wiretap in the first days of a war. Whether or not you like the balance point Congress chose in FISA, you’ll agree, I hope, that it’s good for the legislature to debate these tradeoffs, to establish a general policy, rather than leaving everything at the discretion of the executive branch.

If it took up this issue, Congress might decide to declare that content-based triggering is never acceptable. More likely, it would establish a set of rules and principles to govern wiretaps that use content-based triggering. Presumably, the new statute would establish a new kind of warrant, perhaps granted by the existing FISA court, and would say what justification needed to be submitted to the court, and what reporting needed to done after a warrant was granted. Making these choices wisely would mitigate some of the difficulties with content-based triggering.

Just as important, it would create a constructive replacement for the arguments over the legality of the current NSA program. Today, those arguments are often shouting matches between those who say the program is far outside the law, and those who say that the law is outdated and is blocking necessary and reasonable intelligence-gathering. A debate in Congress, and among citizens, can help to break this rhetorical stalemate, and can re-establish the checks and balances that keep government’s power vital but limited.


  1. Another Kevin says:

    The legal analysis here is thin. We have to consider what can be accomplished under the current legal framework, and what would require a Constitutional amendment. (For instance, I can hardly imagine that an act of Congress giving the Executive Branch unbridled power to conduct warrantless entry to search individuals’ homes could withstand Constitutional scrutiny under the Fourth Amendment; repeal of the Fourth would be necessary.)

    The case law of wiretapping and the Fourth Amendment is well presented at – which contains links to the landmark cases. I’ll sumamrize only briefly.

    Olmstead (for many years the law of the land) held that the Fourth Amendment does not protect against wiretapping for two reasons: (1) wiretapping does not involve a physical trespass, and (2) conversations cannot be “seized” within the meaning of the Fourth Amendment. Goldman further refined this concept in terms of passive eavesdropping: a conduction microphone affixed to a party wall in an apartment building was not “search and seizure,” since no physical trespass was involved. Silverman underlined this; a “spike mike” penetrating the party wall into a heating duct in the apartment being searched was held to be unlawful.

    The Berger case cut off one of the legs of the Court’s argument in Olmstead, by rendering obsolete the argument that conversations cannot be seized. The other leg falls in the Katz case, where a passive listening device on a public telephone was held to be in violation.

    The “US vs US District Court” case is also informative in its delineation of executive power with regard to wiretapping.

    With that background out of the way, let me say that Ed’s contention that there would be no way to seek a warrent for content-based monitoring of telephone conversations is less than convincing. The Fourth requires that a warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” It does not require that a particular suspect be named; if an unnamed conspiracy is suspected of operating an unlawful distillery in a particular place, a warrant can issue even though the identity of the moonshiners is not known (Ventresca,

    With regard to particularity, the case law as I understand it is still the requirement in Marron that “[a]s to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” My understanding, therefore, is that a plausible case can be made for a warrant detailing that the place to be searched is a telephone switching system located at 123 Main St, and that the thing to be seized is a recording of any conversation that matches a given search pattern, and the reason for suspecting such conversations to be criminal evidence is (insert facts to show probable cause here). No new legislation would be needed; simply a willingness of the Executive to pursue the matter before a magistrate.

    The disdain that our current Administration is accused of holding for such trivialities as seeking a warrant from an impartial magistrate is a political issue entirely separate from whether such a warrant can be supported under the law.

  2. That doesn’t seem to match any of the hypoteticals you have given, and I bet they havn’t found anythng genuinely related to national security with this technique.

  3. Let’s say we get an idea that will work, because they’re all talking about one specific item or event or person that isn’t common knowledge. What words do we use? What language? If it’s Arabic, what dialect? Unfortunately, even Google can’t build a search system that can tell what your words MEAN, so assuming that voice recognition is perfect and can scan everything, we have to be specific. It’s very easy to forget how flexible language is.

  4. MathFox says:

    For V; the hypothesis is that the NSA has a big number of phone lines they monitor and send the phonecalls to a filter that flags the calls containing “interesting” words or sentence fragments. After the automatic scan the “interesting” calls are sent to human analysts for evaluation.

    Theory is that you can track more potential terrorists (one or two orders of magnitude) and so fight terrorism more effectively. In practice you need to account for false positives and false negatives, so it is not clear that this new system of taps delivers a net gain.

    There also are significant privacy issues associated with large scale wiretaps: Who has access to the call contents? How long will the call contents be stored after being flagged as “uninteresting”? I don’t mind the NSA creating files on terrorists; but they have no job in collecting data on innocent subjects. Most of the raw data (99.9%?) that the NSA collects will be non-criminal.

  5. Another Kevin,

    Perhaps I’m missing the legal nuances here. I’m not an expert on this part of the law. Still, I would like to see Congress set down some guidelines.

  6. I think you’re giving the administration too much credit. The administration didn’t have to choose between shutting the program down or breaking the law. They could have gone to Congress and asked to change the law. It strikes me as a dangerous precedent to allow the president to ignore laws he considers impractical.

    I also think it’s a mistake to throw up our hands in resignation at the “shouting match” over the legality of the program. Yes, we need to have a debate over whether the law should be changed to accommodate this kind of program. But I don’t think we should be agnostic about the administration’s extraordinary claim that it doesn’t have to follow laws it finds inconvenient. Perhaps Congress should change the law, but until then, the president should follow the law.

  7. Tim,

    Yes, the administration could have asked Congress to change the law. Obviously that would have been better than simply ignoring the law.

    My general practice in this series has been to avoid discussion of what is legal under current law. Not because that question isn’t important, but because I want to focus on what the law should be, not what it is. But the nature of current law is particularly hard to separate from the topic of this particular post, and I can see that I probably should have said more.

  8. Does Ed or anyone else have a good sense of the state of the art in this kind of voice recognition/analysis? A few years back it was definitely at the “suggestive research” stage; it might have advanced by leaps and bounds, or it might still just be suggestive research (as with the social-network analysis stuff that the NSA has been using to send the FBI on so many wild goose chases).

    Unless this stuff can be shown to be incredibly accurate, I can’t imagine a well-informed court accepting “the stuff our black-box algorithm selects” as a particular description of the conversations to be seized by a mass tap order. Of course, it’s hard see how a court would become well-informed on the matter without a huge amount of self-initiated effort, since the only evidence it would have before it would be the claims made by investigators seeking a warrant; only years down the line, if at all, might anyone be in a position to challenge those claims.

    Anyone remember the early years of DNA evidence, where prosecutors routinely overstated the accuracy (and relevance) of swabs by factors of a million or more?

  9. MathFox says:
    “In practice you need to account for false positives and false negatives, so it is not clear that this new system of taps delivers a net gain.”

    There are two possibilities: 9/11 happened with at least the tacit approval, if not participation, of the government, or it did not. If it did not, that it was not prevented shows the wiretap programs have failed this objective (if they’ve been going on that long — and I know I’ve heard “echelon” mentioned for years, if not a decade or more); from the 9/11 commission report, firehose syndrome may have a lot to do with it.

    If 9/11 did have tacit governmental approval, the wiretap program is useless if it doesn’t work, and damned dangerous if it does, being in the control of a government gone rogue.

    Any way you slice it, and whatever you believe about 9/11, it looks like this one’s a wash.

  10. Another Kevin says:

    Ed writes:
    “I would like to see Congress set down some guidelines.”

    If the Administration were not being intransigent, we’d be able to see how far it gets with what’s already in the law. To me, there isn’t an obvious reason that the Administration couldn’t pursue a warrant to search a telephone switch and seize transactional records or call recordings of all traffic matching a stated pattern. At that point, a magistrate can rule whether the search passes Constitutional muster. And I’d be more confident that justice would be done if we could get the judiciary to rule on the point, for two reasons: (1) they’re not running for re-election, and (2) even if the Congress authorizes it, the law still has to be Constitutional, and so we’d be back in court anyway to test it.

  11. MathFox says:

    Neo, I have worries about a government that employs torture and imprisons people without legal process. I regularly speak out against THAT (your?) government. I don’t need additional proof that the Bush administration is leading the USA on a very dangerous road.

    With respect to 11/9 it seems that foreign (French?) intelligence agencies had provided the Americans with warnings about the attack. Here the CIA failed, likely because of a bad network of informers. (“The CIA let it happen” shows lower on my list of viable options.) Is large scale phonetapping a substitute for intelligence? No, terrorists can decide to meet in bars, shopping centers, airport lounges, etc. Could “perfect phone tapping” have prevented the Oklahoma bombing?

    So, phone tapping has limited benefits in the fight against terrorism and, as you indicate, large scale phone tapping is a dangerous weapon in the hands of an oppressive government. The American people should be involved (through their “representatives”) in the debate about what weopons a government may use against its citicens (suspects are citicens too).

  12. Curious says:

    Harkening back to your discussion of content-based triggers, there’s a potential pitfall. I would argue that if your triggers are too broad, the system degenerates into surveillance.

    In this discussion, you note that the Fourth Amendment requires search warrants to “particularly describ[e] the … things to be seized.” I think this may offer a solution.

    You mentioned a specific verbal handshake as an example. I think that curious sequence of words would be a sufficiently “particular” description of the phone calls “to be seized.”

    But if you simply made the trigger “robbery” (say, in an attempt to reduce the number of bank robberies), it seems that this system is then universal surveillance.

    But perhaps the distinction here isn’t so much the specificity of the trigger, but rather the accuracy — but even if the trigger could perfectly flag all criminal conversation, would it be desirable? For example, if all laws could be perfectly enforced, would everyone be a criminal?