I-P: Telecom Firms Are Deluged With Homeland Security Subpoenas

[R. A. Hettinga]

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Status:  U
From: VMontgo32 at aol.com
Date: Sat, 13 Apr 2002 09:52:27 EDT
Subject: I-P: Telecom Firms Are Deluged With Homeland Security Subpoenas
To: ignition-point at theveryfew.net
Sender: owner-ignition-point at theveryfew.net
Reply-To: VMontgo32 at aol.com

In the Name of Homeland Security,
Telecom Firms Are Deluged With Subpoenas
By MILES BENSON


http://www.newhouse.com/archive/story1a041002.html

WASHINGTON -- Operating under new powers to combat terrorism, law
enforcement agencies are making unprecedented demands on the
telecommunications industry to provide information on subscribers, company
attorneys say.

These companies and Internet service providers face an escalating barrage
of subpoenas for subscriber lists, personal credit reports, financial
information, routing patterns that reveal individual computer use, even
customer photographs.

Behind the rising pressure for the fullest use of new technology and
surveillance is homeland security. As police and intelligence agencies seek
to deter future terrorist threats, the government is testing the limits of
the expanded authority Congress provided when it passed the Patriot Act
with broad bipartisan support in October.

"The amount of subpoenas that carriers receive today is roughly doubling
every month -- we're talking about hundreds of thousands of subpoenas for
customer records -- stuff that used to require a judge's approval," said
Albert Gidari, a Seattle-based expert in privacy and security law who
represents numerous technology companies.

The Sunnyvale, Calif., headquarters of Yahoo, an Internet search engine
used by millions, now has a voicemail prompt that refers law enforcement
authorities to a special telephone number to which they can fax criminal
investigation subpoenas.

"Everything is an emergency now," Gidari said, though he believes "a lot of
it is just fishing."

Gidari's clients include AT&T Wireless, AOL, the Cellular
Telecommunications and Internet Association, Cricket Communications,
Nextel, VoiceStream, Cingular Wireless, Rural Cellular Corp., Connexion by
Boeing, Terabeam and Infospace.

At the FBI, spokesman Bill Carter referred all inquires about the volume of
Patriot Act subpoenas to the Justice Department. At the Justice Department,
spokesman Bryan Sierra said it might take "a long time" to determine how
many subpoenas have been issued, and that it may not be possible to make
the information public.

But clearly the heat is on.

"It's not just volume but the scope of the subpoenas we are seeing, where
instead of a rifle shot it's more of a shotgun approach," said Michael
Altschul, legal counsel for the Cellular Telecommunications & Internet
Association.

Altschul said carriers are struggling "as good citizens" to comply with
complex and comprehensive surveillance demands that may sometimes "require
adding three shifts around the clock." The subpoenas are beginning to
impose a financial burden on companies, Altschul said.

Gidari agreed, saying that companies "should be compensated for reasonable
costs" and immunized from lawsuits claiming privacy rights were violated,
and that new federal regulations should be drafted to spell out the rights
and obligations of service providers.

Edward Black, president of the Computer & Communications Industry
Association, said the industry is in "uncharted legal waters" -- caught
between customer expectations of privacy and government demands for
information. "Either way we might appear to be breaking some kind of law."

Particularly troublesome, Black said, is when law enforcement authorities
move swiftly and "short-circuit" regular legal procedures. "I think we must
be careful not to create a process whereby using a private company somehow
empowers the government to do things they cannot legally do under the new
laws," Black said.

"In many respects authorities are doing what most Americans want them to be
doing," said Stewart Baker, law enforcement and national security
specialist at Steptoe and Johnson, a Washington law firm. "In the long run,
though, it does mean there's an awful lot of information about people in
law enforcement files, not because the police are bad or corrupt, but
because an investigation has to track down a lot of leads.

"What happens to that information four or five years from now? The FBI
doesn't throw anything away."

Technology has opened many new windows for law enforcement officers.

A typical subpoena to a cell phone service provider, Gidari said, can be
used to identify all calls on a certain date between 10:15 and 10:30 a.m.
by everyone in a small town, or within a few square blocks of a big city.

Prosecutors, acting under the authority of grand jury investigations, may
issue subpoenas without prior approval of a judge. Critics complain that
the Patriot Act makes it possible for CIA agents working with law
enforcement officers to jointly draw up subpoenas, obtain information, and
never have to appear in court to explain how the information was used.

Online booksellers can be forced to divulge lists of customers who have
expressed interest in books about explosives, poisons or other subjects
that arouse suspicion. The government is also collecting photographs of
customers to include in databases for later matches against computerized
facial recognition systems, Gidari said.

"Without a judge's order, it used to be they could only get records of
someone they suspected was acting on behalf of a foreign government or a
terrorist organization," said Kate Martin, director for the Center for
National Security Studies, a nonprofit civil liberties group. "Now they can
get the records of anyone if they simply say it is `in connection' with a
terrorism investigation."

Under the Patriot Act, said James X. Dempsey, director of the Center for
Democracy & Technology and author of "Terrorism and the Constitution," the
FBI "can go into a public library and ask for the records on anybody who
ever used the library, or who used it on a certain day, or checked out
certain kinds of books.

"It can do the same at any bank, telephone company, hotel or motel,
hospital or university -- merely upon the claim that the information is
`sought for' an investigation to protect against international terrorism or
clandestine intelligence activities."

Law enforcement officials have begun to press sources to deliver
information without a formal subpoena, according to company lawyers.
"Investigators have quickly learned that they don't need to leave a paper
trail anymore so nobody can judge the lawfulness of a request," Gidari said.

At America Online, spokesman Andrew Weinstein said the company always
insists on a court order, a subpoena or a search warrant before turning
over information to the government.

But Peter Swire, a law professor at Ohio State University who served as a
privacy counselor to the Clinton White House, said he is hearing complaints
about "requests for cooperation from law enforcement agencies with the idea
that it is unpatriotic if the companies insist too much on legal subpoenas
first."

Brent Scowcroft, who a decade ago was national security adviser to the
first President Bush and who now serves as an outside adviser to the White
House, acknowledges that homeland security requires "a kind of trade-off"
of privacy and civil liberties.

"The war on terrorism is basically a war of intelligence," Scowcroft said.
"Every time they move, every time they get money or spend money, there's a
trace, somewhere. What we need to do is get as many of those traces as we
can and put them together into a mosaic which will allow us to uncover the
al-Qaida network."

It is necessary to cast a wide net, Scowcroft suggested.

"There are a lot of things floating around that form a pattern that
probably defies our own mental ability to put together, but the computer
capacity we have now gives you great ability to link similar, apparently
very disparate and unconnected patterns together," he said.

There has been little public outcry against the trend, possibly because
"there is something that people just haven't grasped, though government
investigators have," Gidari said. "A network economy yields so much more
information about personal lives that can be collected and manipulated in
ways most people don't understand."

In fact, since Sept. 11, pollsters have tracked a dramatic shift in public
attitudes about government and privacy. In a national survey March 28,
pollster John Zogby found 55 percent in favor of allowing police to search
their purses, handbags, backpacks or packages at random anywhere, while 48
percent would allow their cars to be searched, 36 percent would allow their
mail to be searched and 26 percent said they would not object to having
telephone conversations monitored by authorities.

Prior to Sept. 11, rights to privacy in such areas were "inviolable, the
most cherished rights Americans had," Zogby said.

While polls indicate widespread public support for vigorous government
action to avert terrorist threats, some privacy experts and civil liberties
advocates worry about the possibility of mistakes compounding in an
overloaded information system and the long-term danger of abuses when
intrusions become routine.

Some government officials and others say that the war justifies broad use
of surveillance capabilities and new technologies, even at the cost of
diminishing privacy and civil liberties.

"When you engage in this debate, you're either going to fall on the side of
saying, `I more or less trust law enforcement even if they don't do the
right thing 100 percent of the time, and I don't mind them being empowered'
-- or you're going to say, `I don't trust law enforcement, and I don't
think they should be empowered,"' said Robert Atkinson, formerly a senior
analyst for the Congressional Office of Technology Assessment, now vice
president of the Progressive Policy Institute, a Democratic think tank.

But it's not simply a matter of trust, said Dempsey of the Center for
Democracy & Technology, another Washington think tank.

"We endow government with tremendous power -- power to arrest you, take
away your property, take away your life, destroy your reputation, take your
children away from you," Dempsey said. "I think those powers in the hands
of human beings, acting under pressure, with the best of intentions, facing
time deadlines in a world of limited resources, those kinds of powers need
to be surrounded with a thicket of rules."

The problem that law enforcement and intelligence agencies face is not
insufficient information -- "they are choking on information," Dempsey
said. The deficiency is in targeting and analysis. The Patriot Act was
based on "the assumption if you pour more data into the system, then the
picture would become clearer, and I think that's a false presumption,"
Dempsey said.

The danger, said John Baker, a law professor at Louisiana State University,
is applying the government's war powers to domestic activities. "We've
never had such a mix-up between the president's wartime powers and law
enforcement," Baker said. "The president has wide powers under war and
national defense, but the national government does not have wide powers for
law enforcement."

In the '60s and '70s, the FBI ran a massive program called COINTELPRO that
included secret investigations, surveillance, infiltration and disruption
of political activist groups that were not engaged in illegal conduct,
including the civil rights movement, anti-war protesters and feminists.

Today, it is the accumulation of personal information about ordinary
citizens that most disturbs civil libertarians, who believe the nation is
commencing "the golden age" of wiretapping.

"Consumers should know that the information they give to America Online or
Microsoft may very well wind up at the IRS or the FBI," said Jeffrey A.
Eisenach, president of the Progress & Freedom Foundation, a think tank that
studies technology and public policy. "Security is not costless," Eisenach
said.

Writing in the American Spectator recently, Eisenach said high-speed data
networks and new technologies "will indeed soon give governments the
ability to monitor the whereabouts of virtually everyone."

The aphorism "If you build it, they will come" is apt, said attorney
Gidari. "And `they' are the law enforcement authorities."

(Miles Benson can be contacted at
<mailto:miles.benson at newhouse.com>miles.benson at newhouse.com)

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-- 
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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