Rights and Responsibilities
I: Extremism in the Defense of Liberty--or Safety--is No Virtue
The escalating confrontations between the champions of public safety and civil rights
prevent us from seeing numerous middle of the road public policies whose merits any reasonable
person would recognize in a heartbeat. For weeks now both the Administration and its critics
have been conducting themselves as if they were in one of our courts of law. Here it is assumed
that out of extreme advocacy by both sides, justice and truth will arise. It is considered proper for
the defense to do "all it can" for the client, and similarly, the D.A.'s often pull out all the stops.
We now hear civil libertarians claiming that the new public safety measures are "shredding
the Constitution" (Senator Patrick Leahy) and "have undermined our most cherished rights" (the
ACLU). The government responds that without these measures we shall be easy marks for
terrorists carrying weapons of mass destruction, and that critics "only aid terrorists" (Attorney
General John Ashcroft). Both sides are pulling the courtroom trick of presenting highly emotive
horror stories to sway the jury of public opinion. The ACLU recounts the story of Dr. Al Badr Al
Hazimi, a Texas radiologist who was held, now hear this, for two and half hours before he could
contact his lawyer and investigated for two weeks before he was let go.
The other side reminds us that we might well have avoided 9/11 if the FBI agents had
been granted permission to search the computer of Zacarias Moussaoui, the possible "20th
hijacker" who did not make it because he was arrested before 9/11 on immigration charges. But
the request to search never made it past the Justice Department, who found insufficient evidence
to justify it.
If the advocates of civil rights and those of public safety would stop butting heads, we
would see all kind of ways to advance our security while minimizing intrusions on our liberty.
Take the recent relaxation of rules that allow the FBI to conduct surveillance on political and
It is absurd to leave a situation in which terrorist cells can meet in a place of worship,
without any concern that their plotting might be overheard by public authorities. Or, that if they
call their cell a "political club" it will be hands-off until they strike. If you believe that I am being
melodramatic, you might wish to note that in Britain (and elsewhere) Mosques are a major ground
for breeding and recruiting terrorists. Indeed, they were the source of some young men who left
the UK to fight with the Taliban. But, you say, there is no evidence that this is happening in the
United States. No wonder. Until a few days ago we were not allowed to cock an ear or take a
At the same time, no one wants to go back to the pre-1970s era, before the Church
commission imposed strict limitations on the FBI's surveillance. In those days, the FBI infiltrated
all kinds of civil rights and politically legitimate but dissenting groups. (I know. As a peacenick I
was on the target list.) But this was a very different FBI, one run by J. Edgar Hoover, accountable
to no one, feared by presidents and Congress because of files he kept on their personal lives and
because he succeeded in building a public myth around himself.
To ensure that the FBI will not slip back into its old habits, we need now a special
oversight of its new surveillance powers. Whether this should be provided by the General
Accounting Office, a sub-committee of the Congressional intelligence committees, or some other
body is a matter of small print. However, the public should get regular reports about the number
of wiretaps granted and whether they were found to be legitimate by some outside body. In an
imperfect world, this is about as close as we can get to enhancing safety and protecting rights.
The same holds for the trial of terrorists by military tribunals. There is a clear need to
avoid disclosing in open court our sources and methods. Indeed, there have been several cases in
which we let American spies bargain down their sentences only so that they would plead guilty
and we would not have to take them to open court. Terrorists should not benefit from threatening
us by demanding such trials. Otherwise we may not even get to hang bin Ladin.
At the same time, there is no reason in the world why those tried in these tribunals should
not be given a miliary advocate, cleared for classified material. And there is no reason I can find to
refuse a terrorist convicted by a miliary tribunal the right to appeal his sentence to a supra-military
court (of course, only if he or his advocate could show compelling reason).
More generally, we should stop pretending that any recalibration of our rights, in view of
the changed world in which we must defend our homeland, amounts to an attack on the
Constitution. If one refuses to treat the Constitution as a living document, and insist on going by
the text, one finds that non-Europeans are not counted as full persons and that privacy is not even
as much as mentioned. Moreover, as Judge Richard Posner just reminded us, most rights were
originally formulated in quite general terms in the Constitution. Their meaning has always been
subject to interpretation and reinterpretation.
At the same time, mindlessly waving aside all claims that might go overboard for safety's
sake is not warranted either. Societies have no precise control mechanisms; they tend to
oversteer. Hence, all major corrections in the delicate balance between public safety and civil
rights typically require corrections themselves. There was good reason to rush the legislation
expanding government authority, given the fear of more attacks. But now there is time to revise
and fine tune them. However, we shall be able to see the middle of the road only if both sides stop
trying to push the other one over the edge.
II: How Democracy is Lost
In the wake of numerous recent changes made in American law and that of numerous
many countries following the September 11 terrorist attack, civil libertarians, libertarians, and
many others have raised concerns that the nations involved are sacrificing their liberty to enhance
their safety. Senator Patrick Leahy expressed concern that the U.S. was "shredding the
Constitution."(1) Civil libertarian organizations such as the A.C.L.U. have described the
government's penchant toward obtaining new powers after September 11 as an "insatiable
appetite," characterized by government secrecy, a lack of transparency, rejection of equality under
the law, and "a disdain and outright removal of checks and balances."(2) Articles in the popular
press express similar sentiments. Writing in the American Prospect, Wendy Kaminer expressed
the fear that, "Give the FBI unchecked domestic spying powers and instead of focusing on
preventing terrorism, it will revert to doing what is does best-monitoring, harassing, and
intimidating political dissidents and thousands of harmless immigrants."(3) In short, it has been
argued that in order to protect ourselves from terrorists, democracy may be endangered, if not
The question, "Under what conditions is democracy undermined?" has been the topic of
considerable previous deliberations, especially by people who studied the fall of the Weimar
Republic and the rise of the Nazis in Germany. However, for the last decades, much more focus
has been on the question of how to help democracy grow in countries that have had little previous
experience with this form of governance (for instance, some former communist nations and a fair
number of developing nations), rather than on how democracy might be lost. Given the recent
events and claims, the latter question deserves to be revisited. This question is particularly
germane because if it were true that in order to survive future waves of terrorist attacks (including
ones using weapons of mass destruction) we must turn our free societies into garrison states,
many members of free societies might well be reluctant to accept such a trade-off.
Fortunately, the empirical basis for such a study of the conditions under which democracy
is actually lost is very limited because democracy-once firmly established-has almost never been
lost due to internal developments (as distinct from occupation by an invading force). Democracy
seems to be an odd plant: it has been very difficult for it to take root, especially in parts of the
world where it has not been "naturally" found, but where various efforts have been made to seed
it. Once it buds, it often faces great difficulties and frequently dies on the vein, or at least suffers
numerous setbacks before it grows properly. But after it firmly takes root, it tends to withstand
numerous challenges well and is rarely lost. Indeed, only one example of democracy lost comes to
mind-and that is the already mentioned Weimar Republic-and it is arguable whether democracy
was even well-established there.
Before the discussion proceeds, a word on definition: if one defines "democracy" very
lightly, such as a nation that holds regular elections, one finds that none of the preceding
statements hold. Elections are held all over the world, including in nations in which there is only
one political party, one candidate, a legislature which rubber stamps whatever the government
proposes, a press controlled by the government, and individuals rights are not respected. Such
"democracies" come and go, at the whim of the military or some other power elite. Democracy,
here, is taken to mean a polity in which there are regular, institutionalized changes in power, in
line with the preferences of the people, freely expressed. It entails a whole fabric of institutions:
two or more political parties, some measure of checks and balances among the various branches
of the government (although, of course, these may differ from the American setup), courts that
effectively protect individual rights, and a free press. While some scholars draw important
conceptual distinctions between liberal (rights-based) polities and democratic ones, and others
focus on the definition of liberty, here we treat all of these as key elements of a democratic polity.
To remind the reader of this fact, I will use the phrase "constitutional democracy;" our democracy
is ensconced in a framework of rights that are not subject to majority rule.
A. The Slippery Slope Hypothesis
The civil libertarian's narrative about how democracies are lost is basically as follows.
First, the government, in the name of national security or some other such cause, trims some
rights, which raises little alarm at the time (e.g., the massive detention of Japanese Americans
during World War II). Then a few other rights are curtailed (e.g., the F.B.I. spies on civil rights
groups and peace activists during the Sixties). Soon more rights are lost and, gradually, the whole
institutional structure on which democracy rests tumbles down the slope with nobody able to stop
If one fully embraces this argument, one cannot in good conscience support any significant
adjustments in the ways we interpret the Constitution, its Bill of Rights, the powers allotted to
public authorities, and other key features of a democratic polity. If one fears setting a foot on the
slope because he may end up on his backside at the lower end of the slope, there is only one
alternative-to remain frozen at the top, opposed to all changes. Indeed, during a debate about the
U.S.A. Patriot Act (which includes numerous post-September 11 changes in U.S. laws to enhance
the war against terrorism, including trimming some rights and redefining others), Nadine Strossen,
president of the A.C.L.U., was repeatedly asked whether there were any changes in public policies
relevant to safety she would find acceptable. She refused to endorse any.(4) (When Katie Corrigan,
legislative counsel with the A.C.L.U.'s Washington office, testified before Congress she noted
that the A.C.L.U. has supported some post-September 11 changes, including the fortification of
cockpit doors, matching baggage with passengers, and limiting the number of carry-on bags
passengers may bring on planes,(5) a rather limited list.)
In contrast, I argued elsewhere that one should be able to make notches in the slope. In
other words, before setting foot on it, one needs to and can clearly mark how far he is willing to
go and what is unacceptable, to avoid slipping to a place one is not willing and ought not to go.(6)
A detailed examination of the changes introduced after September 11 in the U.S. find some of
them very reasonable (e.g., roving wire tapes) and others quite unacceptable (e.g., the military
tribunals as originally conceived).(7) The distinction between these changes suggests that rather
than refusing to adjust, we need to more closely examine the various new measures that are being
advanced. Indeed, very few would seek to leave the Constitution as originally formulated,
according to which non-Europeans do not count as full persons, there is no right to privacy, and
free speech is much less protected than post-1920 interpretations (led by the A.C.L.U. to its
credit) made it. In short, changes in the ways we view individual rights do not signify the ending
of a democratic form of government. Indeed, as I shall try to highlight in the next section, the
relationship runs the other way around: when democratic institutions and policies do not
provide an adequate response to new challenges-they are undermined.
B. The Weimar Hypothesis
There is an immense literature on the question of what led to the collapse of the Weimar
Republic and the rise of Nazi Germany, containing numerous different interpretations of that piece
of history.(8) It is well beyond the scope of this study to try to sort out these differences. For the
purposes at hand, it suffices to cull out one hypothesis, which can be further examined in light of
recent developments and data. The hypothesis is that the Weimar Republic lost its legitimacy and
opened the door to a tyrannical government due to its woefully insufficient responses to major
Following the defeat of Germany in World War I, the people's pride was already shaken.
People felt threatened when defeat in the war was followed by massive unemployment and
runaway hyper-inflation, leading to what historian Peter Fritzsche called "extraordinary
hardship[s]"(9) and "disastrous economic and political conditions."(10) The Weimar Republic's
response was weakened by its difficulties in forming coalitions among its "superabundance of
political parties,"(11) corruption, and scandals.(12) For instance, the "growing number and severity of
the problems confronting the German nation were largely due to the inefficiency of the
government,"(13) finds Theodore Abel, who also lists "discontent within the existing social order"(14)
as the first factor contributing to the rise of the Nazi movement. He notes that discontent was
expressed by people blaming the government for their problems.(15) In their attempts collectively
act, they responded to perceived threats to their "personal and social values."(16) Overall, "the
Weimar system has enormous weaknesses," posits Kurt Sontheimer.(17)
Other scholars, for instance Sheri Berman, point to similar reasons the republic collapsed.
She argues that although the Weimar Republic had an active civil society, its weak political
institutions and structures sharpened divisions in German society and "obstructed meaningful
participation in public life."(18) Likewise, Arthur van Riel and Arthur Schram note that the elected
national assembly was unable to effectively respond to economic challenges and that "any struggle
for political reform was viewed as a threat to the delicate equilibrium of political and economic
interests."(19) Similar observations have been made by other historians as well. The inefficiency of
democracy and the difficulty forming a coalition have been highlighted by Fritz Stern, who also
argued that "as the economy faltered and the government was unable to react to the economic and
political problems, voters turned their back on the Weimar Republic."(20) As a result of the lack of
responsiveness, "too many Germans did not regard it as a legitimate regime," writes E. J.
Feuchtwanger in From Weimar to Hitler(21) (though he notes the other numerous factors that
contributed to the republic's demise). Thus, according to these as well as still other scholars, the
Weimar Republic did not respond effectively-both economically and politically-to its citizens'
major needs in the face of crises, and thus lost its legitimacy.(22)
In short, inaction in the face of threats, not excessive action, killed the Weimar
Republic. When democracies do not work, they open themselves to tyrannies.
C. Post-September 11 Lessons
Did our constitutional democracy lose support after September 11 and, if it did, under
what factors? The data cited next suggest that during the immediate period after the attack, when
the public was most concerned about its safety (fearing additional attacks from sleeper terrorist
cells on short order), people were most willing to support a strong government, including one that
would set aside many basic individual rights.
However, in the subsequent period, as the government did take numerous and varying
measures to enhance public safety and no new attacks occurred, the public gradually resorted its
commitment to the rights-centered, democratic regime. Ergo, what endangered it was not
curtailment of rights-but fear that the public will not be protected. And as the government
vigorously enacted measures to protect the public-the public's support for constitutional
democracy was reaffirmed. That is, the U.S. experience in the months following September 11
helps support the suggested hypothesis by providing a case with a profile opposite of the Weimar
one. When the government reacted firmly to a major challenge, support for constitutional
democracy was sustained rather than undermined.
D. Public fears: Rise and Fall in the U.S.: 2001-2002
To put the hypothesis that is being explored here in semi-formal terms, it might be said
that we seek to assess whether the size of a challenge (in this instance the September 11 attacks)
minus the impact of new measures undertaken to enhance public safety will correlate with the
extent to which the public will support a rights-based, constitutional democracy. (Correlate rather
than equals because other factors will affect the dependent variable.) For the purposes at hand,
no distinction is made as to whether the public's concerns are realistic, overblown, or
underestimating the danger. (We know from crime studies that the public's fear of crime and the
actual level of crimes do not necessarily go hand in hand.) The reason for this approach is that
democracy will be endangered if the public's fears rise above a certain level, regardless of whether
these concerns are realistic or not. The same holds for safety measures. If putting armed guards in
airports add little to public safety, but help reassure the public, then armed guards will serve to
reduce anxiety and help undergird the public support for our form of government.
1. Airline Traffic: Behavioral Data
A reasonable measure of the initial scope of the public's safety concerns and the extent to
which it declined after September 11 is provided by statistics on domestic airline traffic within the
U.S., based on behavioral data which are considered more reliable than attitudinal data, to which I
will have to turn shortly. Airline traffic fell precipitously in the period immediately following the
attack, and gradually recovered, but it did not return to the pre-September 11 level by the end of
the period for which information was available (through February 2002) at the time of this writing
Prior to September 11, airlines were experiencing a slight increase of a little less than one
percent in enplanements over the year 2000; in August 2001, passengers boarding flights
increased by 3.1 percent over the previous year (A year-high 56.1 million passengers boarded
U.S. carriers for domestic flights in August 2001; 54.4 million did so in August 2000). In
September 2001, (which includes the 10 days before the attack) enplanements dropped 34 percent
from September 2000 (when 47.7 million passengers boarded planes, compared to the 31.4
million who did so during the month of the attacks, when airports across the country were shut
Traffic began a slow but steady increase during the remainder of the year, though
enplanements remained considerably less than what they were during the same months in the year
2000. In October, air carriers experienced 21.2 percent fewer enplanements over the previous
year (a decrease from 50.5 million to 39.8 million). As the highly-traveled holiday months
approached, the drop in enplanements continued to recede. In November, there were 18.5 percent
fewer enplanements than the same month last year (a decrease from 50.9 million to 41.5 million)
and December saw a 13.4 percent decrease over the 2000 holiday season (down from 46.7 million
to 40.5 million).(25)
The first two months of the year 2002 follow the same pattern, showing people slowly,
but steadily returning to air travel. January 2002 enplanements were down 13.0 percent compared
to 2001 (a decrease from 43.8 million to 38.1 million), and February saw 10.8 percent fewer
enplanements compared to February 2001 (a decrease from 47.6 million to 42.4 million).(26)
In short, as numerous new airline safety measures were introduced, one new attack (by a
so-called shoe-bomber) was successfully foiled, and no others took place, the public's confidence
in airline travel was gradually being restored.
2. Commitment to Constitutional Democracy: Attitudes
We can see a base line of sort in the following data on perceptions about personal
freedoms (Table 1). A year before the attacks, 54 percent of Americans were concerned that the
government threatens their own personal rights and freedoms, while two months after the attacks
the figure rose to 67 percent, encompassing two-thirds of all Americans.(27) (By that time several
measures to enhance safety had been introduced and public fears began to subside. Regrettably,
no data is available for the same question immediately after the attack).
GOVERNMENTAL THREATS TO PERSONAL RIGHTS AND FREEDOMS
Do you think the government threatens your own personal rights and freedoms, or not?
Source: National Public Radio/Kaiser/Kennedy School Poll on Civil Liberties, October 31-November 12, 2001.
a National Public Radio/Kaiser/Kennedy School of Government
b Less than one percent
When people were asked explicitly, "Would you be willing to give up some of the liberties
we have in this country in order for the government to crack down on terrorism, or not?" their
responses tell the same story. Shortly after the bombing of the Murrah Federal Building in
Oklahoma City in April 1995, a hefty majority (59 percent) favored giving up some liberties.
Given a month, the numbers began to subside to 52 percent, only to zoom to about two-thirds (66
percent) of Americans on September 11.(28)
The same sentiments are revealed in another poll that asked, "What concerns you most
right now? That the government will fail to enact strong, new antiterrorism laws, or that the
government will enact new antiterrorism laws which excessively restrict the average person's civil
liberties?" While 44 percent were concerned that the government would enact laws that restrict
civil liberties in 1995, about one-third (34 percent) expressed such reservations in September
The willingness of people to give up rights in order to fight terrorism, and their perception
of whether or not they will need to give up some of their own rights, is also tied to their level of
fear. As Table 2 shows, a clear majority (59 percent) of Americans were willing to give up some
liberties after what was, in retrospect, a small attack, the bombing of the federal building in
Oklahoma City in April 1995. When the same question was asked a mere month later, people
already had begun to calm down, and their willingness to support reductions of liberty declined to
52 percent. After the 2001 attacks on America, two-thirds of Americans were willing to sacrifice
some liberty to fight terrorism. (When the question was worded differently, the percentage was
even higher-78 percent).
WILLINGNESS TO GIVE UP CIVIL LIBERTIES
||Would you be willing to give up some of the
liberties we have in this country in order for the
government to crack down on terrorism, or not?
|Would you be willing to give up some of the
liberties we have in this country in order for the
government to crack down on terrorism, or not?
||Would you be willing to give up some civil liberties
if that were necessary to curb terrorism in this
country, or not?
||Would you be willing to give up some of the
liberties we have in this country in order for the
government to crack down on terrorism, or not?
||You are now more willing to give up certain
freedoms to improve safety and security than you
were before September 11th.
Source: a ABC News/Washington Post Poll,
11 September 2001.
b Los Angeles Times Poll, 3 August-6 August
1996. This poll was conducted a few weeks after the explosion
of TWA flight 800 and the bombing at Centennial Olympic Park during
the 1996 Summer Olympics in Atlanta. The poll also contained the
response "it depends," chosen by 13 percent of respondents (which
is not included in Table 2).
c Gallup Poll, 28 January-22 March 2002. Responses to the question included "strongly agree"
(29.5 percent), "agree" (48.8 percent), "disagree" (13.6 percent), and "strongly disagree" (8.1
Questions about "necessity" instead of willingness to give up liberties (Table 3) reveal a
similar pattern. More than six in ten Americans agreed that it was a necessary to give up some
rights immediately after September 11. Two months later, the number fell to a bit to more than
five out of ten Americans.
NECESSITY TO GIVE UP LIBERTIES
||In order to curb terrorism in this country, do you
think it will be necessary for the average person to
give up some liberties or not?
||In order to curb terrorism in this country do you
think it will be necessary for the average person to
give up some rights and liberties, or do you think
we can curb terrorism without the average person
giving up rights and liberties?
||Do you think you will have to give up some of your
OWN rights and liberties in order to curb
terrorism, or not?
Source: a Los Angeles Times Poll,
September 13-14, 2002.
b National Public Radio/Kaiser/Kennedy School Poll on Civil Liberties, 31 October 2001-12
Notes: * Responses include "necessary for the average person to give up some rights and
liberties" and "we can curb terrorism without the average person giving up rights and liberties."
** Responses include "yes" and "no."
Asked about specific measures, the picture is completely consistent: as fear subsides,
support for safety, even at the cost of liberty, remained very high (as warnings about more
attacks, including ones with dirty bombs and bioterror agents were standard diet), but declined
over time with regard to all of the ten specific measures the public was asked about. Indeed, on
seven out of the ten measures, more than two-thirds of Americans were initially willing to
sacrifice the specific rights listed.
LAW ENFORCEMENT AND CIVIL LIBERTIES
Here are some increased powers of investigation
that law enforcement agencies might use when dealing with people suspected
of terrorist activity, which would also affect our civil liberties. For
each, please say if you would favor or oppose it.
|Expanded under-cover activities to penetrate groups under
|Stronger documents and physical security checks
|Stronger document and physical security checks for access to
government and private buildings
|Use of facial-recognition technology to scan for suspected
terrorists at various locations and public events
|Issuance of a secure I.D. technique for persons to access
government and business computer systems, to avoid
|Closer monitoring of banking and credit card transactions, to
trace funding sources
|Adoption of a national I.D. system for all U.S. citizens
|Expanded camera surveillance on streets and in public places
|Law enforcement monitoring of Internet discussions in chat
rooms and other forums
|Expanded government monitoring of cell phones and email, to
Source: Harris Poll, 13 -19 March 2002 and Harris Poll, 19-24 September 2001.
When the same issue was raised in a different manner the results were similar. Table 5
shows that the percentage of Americans who held that the government went too far in restricting
civil liberties to fight terrorism remained consistently small, but increased from eight percent to 12
percent as America experienced no new attacks and numerous new safety measures were
introduced. The percentage of those who believed that the government did not go far enough
GOVERNMENT EXCESS IN RESTRICTING CIVIL LIBERTIES
Based on what the Bush Administration has done so far and is proposing to do in response to terrorism,
do you think they are going too far in restricting civil liberties in this country,
not far enough, or are handling this situation just about right?
|| Too Far
||Not far enough
||Just about right
Source: Newsweek Poll, 31 January-1 February 2002.
In responses to overarching questions (such as, "Overall, how confident do you feel that
U.S. law enforcement will use its expanded surveillance powers in what you would see as a
proper way, under the circumstances of terrorist threats?"), we see the beginning of a shift, the
decline in those who are very confident law enforcement will use such powers properly, which is
less problematic than a significant increase in those who are not confident at all. While in March,
the percent of people who felt "very confident" fell to almost one-third of what it was in
September (from 34 percent to 12 percent), those who were "not confident at all" increased by a
mere two percent (from four percent to six percent), well within the margin of error for such
All in all, as far as one can rely on attitudinal data that vary according to how the question
is phrased, the data support the thesis that the higher the fear, the greater the willingness to curtail
liberty to protect safety. And that as new safety measures are introduced, and no new attacks
occur-when the government's response seems effective-fear subsides and support for democracy
beings to re-increase. The fact that the support for strong anti-terrorist measures remains high
reflects the fact that all of the data were collected within nine months of the attack and under
frequent warnings about immanent attacks, new threats, and so on. The thesis would lead one to
expect that if the panic subsides some more, the proportion of those supporting a curtailment of
rights will further decline. This may seem obvious, but it surely is not so obvious to those who
hold that democracy is lost by introducing new safety measures that entail some curtailment of
rights. These are a core elements of what protects the public and reassures it.(31)
E. Lower Crime Rates-More Support for Liberty
Beyond the scope of this presentation is another relevant source of data-the correlation
between the public support for "tough" elected officials and law enforcement personnel who favor
restrictive and punitive policies that entail curbing individual liberties. Some informal evidence to
this effect is available for the mid-1990s.
Following a series of high profile violent crimes, including a rampage killing five
passengers on a Long Island railroad and several murders of European tourists in Florida, the
public became highly fearful of violent crime and sought get-tough measures. In the mid-1990s
the public cited crime as the biggest problem facing the country (19 percent) with an additional
two percent identifying guns as the biggest problem, followed by the economy (14 percent) and
unemployment and jobs (12 percent).(32) In 1996, crime and drugs were identified as the biggest
problem by nearly a quarter of respondents.(33) In contrast, four years earlier, in January 1992, 54
percent of Americans cited economic issues as the most important issue facing the country, while
only two percent cited guns or violence.(34)
In the mid-1990s, Americans overwhelmingly favored treating juveniles who commit
violent crimes the same way as adults, as opposed to more leniently (by nearly a three to one
margin).(35) They also supported more extreme measures such as caning, following American
Michael Fay's such punishment in Singapore for vandalism. A 1994 poll shows that less than half
of Americans felt that caning is too harsh a punishment for assault (44 percent), robbery (48
percent) and drug dealing (36 percent).(36) Nearly 60 percent of Americans favored the "surgical or
chemical castration of men repeatedly convicted of rape or child molesting."(37)
During this same time period, demagogues advocated "street justice" and "shoot first, ask
questions later." Former Los Angeles Police Chief Daryl Gates publicly made comments to this
effect. For instance, at a news conference about the rioting that occurred after the beating of
Rodney King by Los Angeles police officers, Gates was quoted as saying, "Clearly that night we
should have gone down there and shot a few people. In retrospect that's what we should have
done. We should have blown a few heads off. And maybe your television cameras would have
seen that and maybe that would have been broadcast and maybe, just maybe, that would have
stopped everything. I don't know. But certainly we had the legal right to do that."(38) That wasn't
the only time Gates made such comments. A few years later, Gates stated, "No matter how use
you that club, people are going to criticize."(39) Law enforcement personnel were not alone in
expressing their support of "street justice." Other public officials, including legislators, expressed
similar views. For example, in 1995, a former member of the Georgia State Assembly introduced
a bill (which garnered support, but failed to become law) dubbed "shoot first, ask questions
later,"which would have allowed homeowners to shoot intruders in their homes.(40)
As the decade came to a close, these sentiments faded away to some degree. A poll
conducted in 2000 shows the change in the public's perception of crime. The percent of those
who believed crime in the country was "very bad" or "bad" fell from 90 percent in 1996 to 80
percent in 2000.(41) Even more to the point, among those who felt crime was a problem in the
country, less than one-quarter (23 percent) characterized crime as "very bad or "bad" in their own
community in 2000, as compared to the almost one-third (31 percent) who characterized crime as
"bad" or "very bad" in 1996.(42) Polls conducted in the late 1990s also showed that people believed
there was less crime in their neighborhoods. (In 1998, 48 percent of Americans thought there was
less crime in their area than a year ago).(43) Also, in the latter half of the decade, fewer people
believed that crime in the country had increased over the previous year. (In 1998, 52 percent of
Americans thought crime increased in the country over the previous year, as compared to 64
percent who thought crime increased in 1997, and 87 percent who thought crime increased in
By the end of the 1990s, as public authorities succeeded in curbing violent crime, fear of
crime subsided and there was less talk of get-tough, extra-legal measures and less support for
harsh but legal measures. By the end of the 1990s and in the year 2000, when polls showed that
the public perceived crime as less of a problem, the statistics on violent crime corroborated their
feelings. For instance, in 1998 there were 1.5 million violent crime offenses,(45) and by the year
2000 offenses decreased even further to 1.4 million,(46) a stark contrast with the much larger
number of offenses in the mid-1990s (1.9 million violent crime offenses in 1994 and 1.8 million in
F. In Conclusion
To the extent that one can draw conclusions from the evidence at hand, some of it being
historical, some behavioral, and some attitudinal, it seems to support the thesis that democracy is
endangered not when strong measures are taken to enhance safety, to protect, and reassure the
public, but when these measures are not taken. In short, the "correlation" between strong safety
measures and democracy is just the opposite of what civil libertarians argue: It is positive rather
than negative. This, of course, does not mean that any and all new safety measures are needed,
but that, in general, effective enhancement of safety (and more generally, those measures which
respond to public needs) is crucial for democracy to be sustained. Once safety is restored, the
measures can be gradually rolled back, without endangering public support for constitutional
III: Implications of Select New Technologies on Public Safety and Individual Rights
Are the new measures that have been introduced to protect America from terrorism too
extensive, undermining our rights, or are they not extensive enough, leaving the nation vulnerable
to future attacks? These questions are addressed here only with regard to those public safety
measures, of the more than 150 introduced after 9/11/01,(48) that concern communications
surveillance, and among these only the measures relevant to the use of six technologies: cellular
phones, the Internet (as a means of communication), high power encryption, Carnivore, the Key
Logger System, and Magic Lantern. The article examines the effects of these measures on the use
of these technologies and on individual rights and the public interest. The main rights at issue are
privacy, anonymity, and due process. The main areas of public interest at issue are public safety
and public health, especially prevention of terrorism and response to terrorist attacks once they
occur, including bio-terrorism.
The article takes for granted that both individual rights and public safety must be
protected, and given that on many occasions advancing one requires some curtailment of the
other, the key question is what is the proper balance between these two cardinal values. The
concept of balance is found in the Constitution in the Fourth Amendment. The Fourth
Amendment refers to people's right not to be subjected to unreasonable search and seizure,(49)
hence recognizing a category of searches that are fully compatible with the Constitution: those
that are reasonable. Historically, to be considered reasonable, searches have had to serve a
compelling public interest, especially public safety or public health.
Much of the debate about the issues at hand in the public arena (by legislatures, opinion
makers, and some legal scholars) is conducted in a format familiar in American court rooms:
strong advocacy by opposing sides. Thus, one side argues that public safety requires new laws,
regulations, and court rulings that would give the government greater surveillance powers, and
warns that major calamities will strike if the government is not accorded these powers.(50)
Moreover, the advocates of public safety and health claim that the best way to defend liberty is to
provide the government with more authority. Dead people are not free.
The other side does not oppose making concessions to public safety, but puts the onus on
the government to prove that such concessions are needed and sets the bar very high for such
proof, calling for an approach resembling "strict scrutiny."(51) Although, in the debate since
9/11/01, the civil libertarians' opening position has been to demand a tighter definition of the
conditions under which the new technologies can be applied and closer supervision of the
expanded governmental powers, ultimately the classical civil libertarian position is that the
government needs no additional powers, and moreover cannot be trusted to use any of them
From the viewpoint of the paradigm used here, each side is speaking for one side of the
needed balance rather than seeking to find the point (or better, zone)(52) at which a carefully crafted
balance can be found between protecting the public interest and individual rights.
The quest for balance reflects a new (or responsive) communitarian position developed in
the 1990s.(53) Its starting point is that there are two valid claims each society faces: the
requirements of the public interest (which most obviously encompasses public safety and health,
but also encompasses other elements of the common good, such as the protection of the
environment) and the requirements of liberty (individual rights included).(54) The "turf" does not
belong a priori to either claim. It is a gross misconception to argue that public safety measures
entail a sacrifice of rights-or vice versa, that respecting individual rights entails sacrifices of the
common good. First, in some situations, both can be advanced, such as when restoring law and
order to a crime-ridden neighborhood or an anarchic country. Second, when the public interest
and rights pose conflicting demands, criteria must be developed as to which should take priority,
without assuming a priori that one automatically trumps the other.(55) Judge Richard Posner put the
same basic idea in the following way: "I'll call them the public-safety interest and the liberty
interest. Neither, in my view, has priority. They are both important."(56)
Such general positions are best examined within an historical context. There is a tendency
by societies and polities to tilt in one direction or the other, to lean excessively toward the public
interest or liberty. Moreover, corrections to such imbalances tend to lead to over-corrections. For
example, the limitations the Church Commission imposed on the FBI in the 1970s, following the
abuses of civil rights that occurred during the years J. Edgar Hoover was the director, seem to
have excessively curbed the work of the agency in the following decades.(57) The public safety
measures enacted since 9/11 have removed many of these restrictions and granted the FBI and
other public authorities-such as the Central Intelligence Agency, the National Security Agency,
and the military-new powers, arguably titling excessively in the opposite direction. This over-correction has been almost immediately followed by an attempt to correct it (e.g., limiting the
conditions under which military tribunals can be used and spelling out procedures not included in
their preliminary authorization).(58) At the same time, historical conditions change the point at
which we find a proper balance; the 2001 assault on America and the threat of additional attacks
constitute such a change.
The discussion proceeds by first introducing the relevant aspects of three of the six
technologies-cellular telephones, the Internet, and encryption-which have expanded people's free
choices, and in this sense their liberties, but have limited the ability of public authorities to engage
in the kind of activities they are legally entitled to engage in, especially intercepting
communications following court approval. I shall refer to these technologies as liberalizing
technologies. First we here examine the arguments in favor of and against changing laws and
regulations to enable public authorities to cope with, if not overcome, the hurdles posed by the
liberalizing technologies in the post-9/11 context.
Them we turn to the three new technologies that help public authorities- Carnivore, the
Key Logger System, and Magic Lantern-which have the opposite profile of the first three: they
enhance public safety but are feared to curb people's rights. I refer to these as public protective
technologies. These technologies are then also examined with regard to new laws and regulations
and to their effect on the balance between the public interest and individual rights in the post-9/11
Next the analysis calls attention to measures that might help increase public safety while
minimizing the threat to individual rights, focusing on the concept of accountability. It should be
noted from the outset, the position outlined entails a measure of trust in the government, or at
least in some elements of it.
A. New Liberalizing Technologies
1. New and multiple means of communication
Before the discussion can proceed, it is essential to note that no attempt is being made
here to describe fully or to analyze the technologies at issue, but merely to point to features of
them relevant to the issues at hand. The year 1980 is used as a baseline. At the time, the most
convenient, and by far the most commonly used, way to communicate instantaneously with a
person at a different location was through a wired telephone. Cellular phones existed, but they
were not yet commercially viable nor were they available in models lightweight enough to put in a
pocket.(59) Fax machines had not yet come into wide use.(60) Telegraphs required, as a rule, going to
a post office or Western Union location. Most people had one phone line, even if they had more
than one extension. The Internet was still the ARPANET, a government-sponsored network
linking mainly universities and research centers.(61) In 1980, all necessary communications
surveillance could be carried out easily by attaching simple devices to a suspect's one landline
In the following two decades, many millions of people acquired several alternative modes
of convenient, instantaneous communication, most significantly cellular telephones and e-mail. By
July 2000, there were over 100 million cell phone subscribers in the United States.(63) E-mail and
Internet usage are similarly pervasive. Nielsen/Net Rating estimated that in July of 2001, 165.2
million people in the United States had home Internet access.(64)
These technological developments greatly limited the ability of public authorities to
conduct communications surveillance using traditional methods under old laws (those in effect
before the passage of the USA Patriot Act). Attempts were made to apply old laws to new
technologies, but they did not fit well. To proceed, it must be noted that there are two types of
communications surveillance: public authorities get "pen register" and "trap and trace" orders to
obtain only the numbers dialed to or from a specific telephone,(65) or they get full intercept orders
to listen to the content of a telephone call.(66) Because the information involved in the first type is
less sensitive, these orders are much easier to get than the latter.(67) The terms "pen register" and
"trap and trace" refer to the devices originally used to carry out the trace orders.(68) Though the
technologies they refer to have been replaced, these terms are still commonly used. For the rest of
this essay, the term "pen/trap" will be used to designate the type of communications surveillance
that involves gathering only the numbers dialed to and from a telephone, or their e-mail
equivalent. The term "full" intercept will refer to wiretaps and other means of intercepting the full
content of a communication. The term "communications surveillance" will include both pen/trap
and full intercept orders.
The law governing full intercepts, contained in Title III of the Omnibus Crime Control and
Safe Streets Act of 1969,(69) required that court orders for intercepts specify the location of the
communications device to be tapped and establish probable cause that evidence of criminal
conduct could be collected by tapping that particular device. Hence, under this law, if a suspect
shifted from one phone to another or used multiple phones, the government could not legally tap
phones other than the one originally specified without obtaining a separate court order for each.(70)
Once criminals were able to obtain multiple cell phones and to "dispose of them as used tissues,"(71)
investigations were greatly hindered by the lengthy process of obtaining numerous full intercept
authorizations from the courts.(72)
The rise of Internet-based communications further limited the ability of public authorities
to conduct communications surveillance under the old laws. Because Title III did not originally
apply to electronic communications, e-mail was often treated as analogous to an older form of
communication in the courts.(73) Because e-mails used to largely travel over phone lines, laws
governing interception or traces for telephones were extended to govern interception and traces
of e-mails as well.(74) However, the language of the old legislation governing pen/trap orders was
not clearly applicable to e-mail communications.(75) Though police used pen/trap orders to trace e-mail messages, there was a possibility that a court would rule that e-mail did not fall under
pen/trap orders if this was ever challenged in court.(76)
Furthermore, deregulation of the telecommunications industry created additional
complications in carrying out pen/trap orders. When the old legislation was enacted, a unified
phone network made it easy to identify the source of a call.(77) But e-mail may pass through
multiple service providers in different locations throughout the nation on its way from sender to
recipient. This means that a service provider might only be able to inform public authorities that a
message came from another service provider. In this case, public authorities would have to obtain
a new court order from the jurisdiction of that provider to find out where the message came
from.(78) Thus, until recently, if a message went through four providers, four court orders in four
different jurisdictions would be needed to find out the origin of that message.
As with pen/trap orders, the original laws governing full intercept orders did not initially
apply to e-mail. However, the Electronic Communications Privacy Act of 1986(79) extended the full
intercept laws to apply to electronic communications.(80) E-mail messages differ from phone
conversations in important ways that have made the old laws, at best, an imperfect fit.(81) E-mails
do not travel over phone lines in discreet units that can just be plucked out. They are broken up
into digital packets and travel through the Internet through different routes and mixed together
with the packets of the messages of other users.(82) This creates a challenge for law enforcement
agents attempting to intercept or trace the e-mail of just one user without violating the privacy of
Problems also occurred when agents received the same search warrants to obtain saved e-mail that they would use in any other physical search.(84) Under old laws, a warrant must be
obtained from a judge in the jurisdiction where the search will take place.(85) E-mail, however, is
not always stored on a personal computer, but often is stored remotely on the servers of Internet
service providers (ISPs). This means that if a suspect, say, in New Jersey had e-mail stored on a
server located in, say, Silicon Valley, an agent would have to travel across the country to get a
warrant to seize the e-mail.(86)
In short, the introduction of both cellular phones and e-mail created new challenges to the
ability of public authorities to conduct communications intercepts, even if they were fully
authorized by a court-intercepts that had been an important tool of law enforcement. Another
technological development has made communications intercepts much more difficult still. Before
it is introduced, a brief digression. There is a tendency in parts of the literature on privacy to
argue that new technological developments have gravely undermined privacy, if not killed it
altogether.(87) In effect, though, the situation in this area is akin to an arms race: as new means of
attack are developed, so are new means of defense, although in any given period one side or the
other may be the leading beneficiary of new technological developments.
To return to our subject, a major technological development that greatly enhances
privacy-and potentially sets back the ability of public authorities to intercept communications-is
high power encryption.(88) Although codes have existed for thousands of years,(89) only over the last
few have programmers developed encryption systems that use codes 128 bits or longer, which are
said to be impossible to crack, even by the National Security Agency (NSA).(90) Moreover, these
programs are readily available to private parties at low costs. Stewart Baker, former general
counsel for the NSA, said that "encryption is virtually unbreakable by police today, with programs
that can be bought for $15."(91) Indeed, these programs are increasingly being routinely built into
computers.(92) This means that the privacy of encrypted messages is much higher than that of any
messages historically sent by mail, phone, messenger, carrier pigeon, or other means. (The
same encryption also allows the storing of information in one's computer-personal or
corporate-that is much better protected than it ever was under lock and key, or even in safes.)(93)
High power encryption has caused a very major setback for law enforcement.(94) Even when
granted a court order, public authorities simply seem unable to implement it.(95)
The consequence of this development has been different from others created by new
technologies. In contrast with the situation concerning the multiplication of means of expeditious
communication, in which the main factor that constrained public authorities was the obsolescence
of laws, in the case of high power encryption, the new technology imposes a barrier all its own. In
the other instance, a change of law was sufficient to enable law enforcement to deal with the new
challenges posed by the new technologies. Here, the horse was out of the barn by 9/11. It seems
impossible to break high power encryption, whatever the courts may authorize.
2. Legal responses
All in all, these technological developments have provided law-abiding citizens and
criminals, Americans and people of other nations, including terrorists, greater freedom to do as
they choose, and in this sense they are "liberalizing." At the same time, they have significantly
hampered the ability of public authorities to conduct investigations. Some cyberspace enthusiasts
welcomed these developments, hoping that cyberspace would be a self-regulating, government-free space.(96) In contrast, public authorities clamored for changing the laws to enable them to act in
the new "territory" as they do in the world of old-fashioned, landline telephones.(97) Their pressures
led to some modifications in the law before the 2001 attack on America, although the most
relevant changes in the law have occurred since. Both the pre- and post-9/11 changes to expand
the relevant intercept powers of the authorities are next examined jointly.
a. Roving Intercepts
The Electronic Communications Privacy Act of 1986 (ECPA) attempted to update the
laws governing communications intercepts to be able to deal with the limitations put on them by
the technological developments already discussed by allowing for what are known as "roving
wiretaps" in criminal investigations.(98) Roving wiretaps are full intercept orders that apply to a
particular person, rather than to a specific communications device. They allow law enforcement
to obtain a court order to intercept that person's communications, without specifying in advance
which facilities will be tapped, allowing officers to intercept communications from any phone or
computer that the person uses.(99)
The process for obtaining a roving intercept order is more rigorous than that for obtaining
the old kind of phone-specific order. The Attorney General's office must approve the application
before it is even brought before a judge.(100) Originally, the applicant had to show that the suspect
named in the application was changing phones or modems frequently with the purpose of
thwarting interception,(101) but the Intelligence Authorization Act for Fiscal Year 1999 made it
easier to obtain a roving intercept order by replacing the requirement to show "purpose to thwart"
with the requirement to show that the suspect is changing phones or modems frequently, and that
this practice "could have the effect of thwarting" the investigation.(102) Although roving intercepts
have not yet been tested in the Supreme Court, several federal courts have found them
Prior to 9/11, the FBI could not gain authorization for using roving intercepts in gathering
foreign intelligence or in investigations of terrorism. The USA Patriot Act allows for such roving
intercept orders to be granted under the Federal Intelligence Surveillance Act (FISA).(104) FISA
was passed in 1978 and provides the guidelines under which the executive branch-not only the
president but also the Department of Justice-can obtain authorization to conduct surveillance for
foreign intelligence purposes.(105) Agents who wish to conduct surveillance under FISA submit an
application first to the Attorney General's office, which must approve all requests (as with roving
intercepts under ECPA). If the Attorney General finds the application valid, it will be taken to one
of seven federally appointed judges, who together make up the Federal Intelligence and Security
Court (FISC), for approval. The FISC allows no spectators, keeps most proceedings secret, and
hears only the government side of a case.(106)
Initially, FISA was limited to investigations for which foreign intelligence was the sole
purpose. USA Patriot modifies FISA so that foreign intelligence need be only a "significant
purpose" of an investigation.(107) This change effectively allows FISA to be used as part of "multi-faceted responses to terrorism, which involves foreign intelligence and criminal investigations."(108)
Because FISA was originally designed for use in gathering foreign intelligence, communications
surveillance conducted under FISA differs from that conducted under Title III criminal
investigations in several other ways. Under normal Title III intercepts, anyone whose
communications have been intercepted has to be notified after the fact that this happened. Under
FISA, people do not have to be notified unless evidence obtained through the interception is to be
used against them in court.(109) When FISA evidence is used in court, it is difficult for the defendant
to challenge it because he or she cannot see the information agents relied on in making the
application for surveillance-this is secret for national security reasons.(110)
b. E-mail Surveillance
USA Patriot includes provisions to make it easier for public authorities to trace or seize e-mail messages. It explicitly allows pen/trap orders for computer communications (as already
discussed, previous orders had to rely on stretched interpretations of the statutes governing
pen/trap for telephones).(111) Traces on telephone lines can usually be fulfilled by the local phone
company that issued the line. Tracing e-mail messages, which travel through a variety of routes
and may go through multiple carriers, often requires access at different points across the
country.(112) As previously explained, following the phone model requires gaining warrants in
several locations in order to trace one e-mail message. USA Patriot establishes what are de facto
nationwide pen/trap orders,(113) allowing one court order to be used on all the carriers through
which messages from an individual pass. When a law enforcement agent discovers that an e-mail
message was forwarded to (or from) any carrier, he can serve the original court order to this
carrier without getting an additional order from the court in whose jurisdiction the carrier is
located. Moreover, because agents cannot know in advance which carriers will be involved, the
court order needs to specify only the initial facility at which the pen/trap order will be carried out.
USA Patriot also allows a judge in the district with jurisdiction over the crime under
investigation to grant search warrants to seize electronic communications stored outside that
judge's jurisdiction.(114) This means that an agent can obtain a warrant from a judge in the
jurisdiction where the investigation is taking place to seize e-mail stored by an ISP physically
located in another jurisdiction.(115)
3. Dealing with encryption
Previous administrations tried to have "back doors" built into encryption software that
would enable public authorities, when needed, to decrypt reportedly unbreakable codes.(116)
also attempted to get legislation passed that would require users to deposit a copy of their key
with third parties (referred to as "escrow") or public authorities, who would not be able to look at
or use the key unless authorized to do so as part of an investigation.(117) A combination of civil
liberties groups and high-tech corporations successfully fought off both of these attempts.(118) No
attempts to deal with this matter were included in the USA Patriot Act. Further discussion of law
enforcement tools to cope with encryption must be deferred until the public protective
technologies are discussed.
4. Evaluating the changes in the law
The adaptations of the laws governing communications surveillance (which includes both
pen/trap and full intercept orders) and seizures of stored communications have been subject to
both general and detailed debates by the adversarial advocates already mentioned. On the general
level, these adaptations were lumped together with numerous other matters including indefinite
detention of aliens,(119) allowing the government to listen in on attorney-client conversations,(120) and
military tribunals.(121) The nature of the debate on this level is illustrated by statements such as
Senator Patrick Leahy's that some of the measures are "shredding the Constitution"(122) and
Morton Halperin's reference to the legislation as "Striking Terror at Civil Liberty."(123) On the
other side, Senator Hatch dismissed such misgivings as "hysterical concerns" and said the
American people do not want to see Congress "quibble about whether we should provide more
rights than the Constitution requires to the criminals and terrorists who are devoted to killing our
people."(124) Attorney General John Ashcroft suggested that criticisms of the new powers being
requested by the executive branch serve only to "aid terrorists" and "erode our national unity and
diminish our resolve."(125)
b. Fourth Amendment Issues
There has been some debate in the courts and among legal scholars as to how to apply the
Fourth Amendment to the new technologies, as well as to the constitutionality of the new
legislation governing these technologies.
Before 1967, the Supreme Court interpreted the Fourth Amendment in a literal way, as
applying only to physical searches. In the 1928 case of Olmstead v. United States, the Court took
a strict interpretation of the Fourth Amendment and ruled that telephone wiretaps did not
constitute a search unless public authorities entered a home to install the device and that therefore
the Fourth Amendment did not apply to them.(126) The justices wrote in their decision that a person
is not protected under the Fourth Amendment unless "there has been an official search and seizure
of his person, or such a seizure of his papers or his tangible effects, or an actual physical invasion
of his house."(127)
In 1967, the Court replaced this interpretation of the Fourth Amendment with the view
that it "protects people, not places."(128) In Katz v. United States, the Court established a new
guideline for determining what falls under the protection of the Fourth Amendment and one that is
still in use today-that of a reasonable expectation of privacy.(129) Justice Harlan, in his concurring
opinion, set out a two-part test for determining if Fourth Amendment protection applies: the
individual must have shown an expectation of privacy, and society must recognize that
expectation as reasonable.(130)
Legal scholars have criticized reasonable expectation as the cornerstone of the legal
privacy doctrine on a number of grounds that need no reviewing here,(131) but the doctrine is
generally still used as a guiding principle. As new technologies emerge, however, the question of
what constitutes a reasonable expectation of privacy has to be reexamined in this new context. In
the 1996 case of United States v. Maxwell, the courts determined that there was a reasonable
expectation of privacy for e-mail stored on a server,(132) giving this e-mail, in essence, the same
protections given to paper documents stored in an office. In the case of United States v.
Charbonneau, however, the courts determined that the extent to which one can expect privacy in
e-mail communications depends on the context of the situation.(133)
Lt. Col. Joginder Dhillon and Lt. Col. Robert Smith argue that because e-mail messages
reside on numerous servers between the sending and receiving server, and because on many
networks duplicate copies of all e-mails are sent to the system administrator, there may not be a
reasonable expectation of privacy for e-mail.(134) This interpretation is backed up by the Supreme
Court case Smith v. Maryland, in which the Court found that there is no reasonable expectation
of privacy for the telephone numbers one dials because those numbers must be conveyed to the
phone company.(135) Dhillon and Smith conclude that, at the very least, Smith v. Maryland should
mean that recording the addressing information of e-mail does not require a full intercept order.(136)
There is some question as to whether or not roving intercepts are in compliance with the
Fourth Amendment's particularity requirement. The requirement that intercept orders specify the
place of the intercept comes from the Fourth Amendment, which states that "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."(137) Because roving intercepts do not
name the location to be tapped, there is some question as to whether or not they are constitutional
under the Fourth Amendment.
The argument in favor of their constitutionality is that the particularity of the person to be
tapped is substituted for the particularity of the place to be tapped. In the case of United States v.
Petti, the Ninth Circuit Court of Appeals upheld the use of roving intercepts, arguing that the
purpose of the particularity requirement was to prevent general searches.(138) So long as a warrant
or court order provides "sufficient particularity to enable the executing officer to locate and
identify the premises with reasonable effort" and there is no "reasonable probability that another
premise might be mistakenly searched," it is in compliance with the Fourth Amendment.(139) A
court order to tap all phones used by a specific person does describe particular places, but in an
unconventional way. Public authorities cannot use the order to tap any location they wish, but
only a set of specific locations, which they can show are used by a specific person.(140)
Not everyone agrees that this substitution of particularity of person for particularity of
place is sufficient to satisfy the Fourth Amendment. Tracey Maclin cites the Supreme Court case
of Steagald v. United States in which the Court concluded that an arrest warrant that specifies a
person cannot be used to search private places not named in the warrant in pursuit of that
person.(141) She interprets this decision to mean that the Court found warrants to be flawed that
specify only the target of the search, but leave police to determine which particular locations to
search. Maclin argues that although roving intercepts are issued for one person, once public
authorities decide to "tap" a telephone or computer, everyone using that telephone or computer
will be subject to surveillance, so there is no true particularity of person maintained.(142)
In his analysis of the issue, Clifford Fishman finds that although relevant Fourth
Amendment case law does not give conclusive support either for or against roving intercepts,
there are strong arguments in favor of their constitutionality. He holds that roving intercept orders
"describe the 'place' to be searched in a somewhat untraditional, but still sufficiently particular
way" and argues that "if the Fourth Amendment is flexible enough to protect privacy against
technological developments far beyond the contemplation of the founding fathers, then it must
also be flexible enough to permit investigators to preserve the basic mandate of the amendment's
particularity requirement in a novel way."(143)
Numerous additional questions arise regarding the difference in applying the new laws, as
well as the old ones, to non-citizens vs. citizens, to terrorists vs. criminals, and to international vs.
domestic terrorists. These are huge issues that concern the extent to which the Constitution
applies to non-citizens, in the United States and elsewhere, and what rights non-citizens have.
These issues raise potential problems, such as how to define terrorism and whether that definition
should extend to citizens, as well as the danger that a loose definition might allow ordinary
criminals to be encompassed by terrorism laws. These issues go well beyond communications
technology and the laws related to it-the focus of this analysis-and are not covered here, although
they have implications for the issues at hand.
c. Other Critiques
Proponents of roving intercepts argue that without them authorities will see a "whole
operation frustrated because a terrorist throws away a telephone and picks up another phone and
then moves on."(144) Critics argue that the new law will ensnarl many innocent people unrelated to
investigations. Civil libertarians like Nadine Strossen argue that the new law, as it relates to
roving intercepts, "goes far beyond" facilitating investigations based on individual suspicion. She
uses the example of a suspected terrorist who sends e-mail from a public library computer
terminal. If the computer is tapped, any of the other users, who have no connection to the
suspect, will also have their communications intercepted.(145) The same critics contend that issuing
nationwide warrants just allows law enforcement agents to "shop for friendly judges."(146) Senator
Hatch counters that these provisions and others merely fix parts of the criminal code that formerly
treated terrorists "with kid gloves."(147)
It is worth noting that although the ACLU does not exempt the laws at issue from its
blanket criticism of all the new measures, when explicitly asked whether it would at least
recognize that allowing public authorities to tap all phones used by the same person was eminently
reasonable, it hinted that it is somewhat less troubled by the changes in the laws under discussion
here than by many of the other measures.(148) Alan Dershowitz, a longtime defender of civil
liberties, even went so far as to concede that roving intercepts are "a very good idea"(149)
The ACLU criticizes changes in FISA, which it charges allow authorities to "by-pass
normal criminal procedures that protect privacy and take checks and balances out of the law."(150)
Civil libertarians worry about USA Patriot's extension of the reach of FISA, which provides fewer
protections than are provided for criminal cases, as the discussion above regarding full intercepts
under FISA illustrates. (Civil libertarians' concerns about pen/trap orders for e-mail are discussed
in the section on protective technologies.)
I shall defer my own assessment of the legitimacy of the new legal adaptations to the
liberalizing technologies and of their effects on the balance between individual rights and public
safety and health, until the next three technologies and the laws concerning them are reviewed.
For now it might serve to remind that the essay does not deal with the general legitimacy of FISA
or the USA Patriot Act, but with some elements of these laws, specifically those that concern
communications surveillance. This is significant to keep in mind because conclusions about other
elements-military tribunals and indefinite detention of suspects, for instance-may be different than
those about the surveillance laws at issue.
B. Public Protective Technologies
The discussion now turns to three technologies that have the opposite profile of those
explored so far: they enhance the capabilities of public authorities and raise fears that they will
curtail individual rights.
Carnivore, a computer program that was unveiled by the FBI in July of 2000, is used to
trace and seize Internet communications. To capture a suspect's messages or trace messages sent
to and from his account, public authorities must sort through a stream of many millions of
messages, including those of many other users as well as those of the suspect. Some ISPs have the
capability of doing this sorting themselves and will simply pass the appropriate information on to
agents after a warrant or court order is presented. If an ISP is not capable of doing this kind of
sorting, the FBI uses Carnivore to do it.(151)
Carnivore runs as an application program on an operating system and works by screening
e-mails and sorting them based on a "filter," which tells the program which information to capture
and which to merely let pass by. The filter can be set to sort out messages from a specific
computer or e-mail address, or it can scan various packets to find a specific text string.(152)
Carnivore can be set to operate in two different modes: "pen" and "full." In pen mode it will
capture only the addressing information (which includes the e-mail addresses of the sender and
recipient, as well as the subject line) while in full mode it will capture the entire content of a
message.(153) Carnivore is designed to copy and store only information caught by the filter, thus
keeping agents from looking at any addressing information or e-mail content not covered in the
Carnivore's pen mode is of value to public authorities even if the messages themselves
cannot be read, such as in the growing number of cases in which high power encryption is used,
because the government benefits from an analysis of the addresses. For instance, it can use
pen/trap orders to trace to whom a group of suspects address their e-mail. When used in this
capacity, it would make more sense to call Carnivore (which hardly devours the messages, despite
its name) a communications traffic analyzer.
As of the fall of 2000, the FBI said that it had used Carnivore "approximately 25 times in
the last two years."(155) The Carnivore program is stored in an FBI laboratory and only brought out
when needed to fulfill a specific court order. After the court order has expired, the program is
returned to the laboratory.(156)
2. The Key Logger System and Magic Lantern
Despite the introduction of Carnivore, the government seems to be greatly hobbled by its
inability to decrypt a rapidly growing proportion of all messages. To overcome this limitation, the
FBI is introducing two new technologies to obtain a suspect's password. A password can enter or
exit the encryption/decryption process in four ways: going over a modem, retrieval from storage,
entry into a keyboard, or a process working within the computer itself.(157) The Key Logger System
(KLS), developed by the FBI, has several components that work together to obtain someone's
Once agents discover that information they have seized through a warranted search or
intercepted with a proper court order is encrypted, they can obtain another warrant to install and
retrieve the KLS.(159) In the case of Nicodemo Scarfo, who was suspected of racketeering, agents
had to show both probable cause that Scarfo was involved in crime and probable cause that
important information was installed on his computer in encrypted form. As in any warrant, the
FBI had to specify the exact location of the computer on which the KLS would be installed.(160)
Once installed, the KLS uses a "keystroke capture" device to record keystrokes as they
are entered into a computer. It is not capable of searching or recording fixed data stored on the
computer, or of intercepting electronic communications sent to and from the computer (which
would require an intercept order, which is more difficult to get than a warrant). In order not to
intercept inadvertently the content of communications, the KLS is designed so that it is unable to
record keystrokes while a computer's modem is in operation.(161)
Because the KLS must be installed manually and covertly on a suspect's computer, which
involves breaking and entering, it is arguably more invasive than "back doors" and key escrow
(which, as previously discussed, are not available, due mainly to opposition by civil libertarians
and high-tech business interests).(162) Those who are shocked by this technology should consider
the effects of high power encryption. As the Boston Globe's technology reporter commented,
"techno-libertarians rightly howled when the feds tried to bar access to encryption software; now
we must live with the consequences. The bad guys have encryption. The good guys must have
Recently, the FBI has revealed that it has been developing a less invasive technology. In
November 2001, the FBI admitted that it had developed, but not yet implemented, a remote-control approach called Magic Lantern that allows the FBI to put software on a computer that
will record keystrokes typed without installing any physical device.(164) Like the KLS, Magic
Lantern does not by itself decrypt e-mail, but can obtain the suspect's password. The details of
how it does this have not been released.(165) It is said to install itself on the suspect's computer in a
way similar to a Trojan horse computer virus. It disguises itself as ordinary, harmless code, then
inserts itself onto a computer. For example, the FBI will have a box pop up when someone
connects to the Internet reading something like "Click here to win." When the user clicks on the
box, the virus will enter the computer.(166)
3. Evaluating the new technologies
Just as laws were put in place both before and after 9/11 to limit the concerns that new
liberalizing technologies posed for public safety, measures have also been introduced that limit the
use of new protective technologies and address the concerns they pose for individual rights. Most
of the limitations on the use of Carnivore and the KLS were put in place as these technologies
developed and before they were used, though there have also been "additions" to the checks
placed on them. The shift from the KLS to Magic Lantern can be considered an improvement
from a rights viewpoint because it will not require covert breaking and entering by a law
enforcement agent to install it on a suspect's office or home computer.
Nevertheless, both Carnivore and the KLS have raised concerns on the part of privacy
advocates and civil liberties groups. Critics are skeptical that the programs operate the way the
FBI claims they do and are troubled by the degree of secrecy the FBI maintains regarding how the
Groups like the Electronic Privacy Information Center (EPIC) and the Center for
Democracy and Technology (CDT) have multiple arguments for why Carnivore should not be
used at all. They argue that because, for e-mail, it is much harder to separate addressing
information from content than for a phone call, Carnivore will not allow the FBI to do a pen/trap
without seizing more information than authorized.(167) Privacy advocates also worry that Carnivore
will scan through "tens of millions of e-mails and other communications from innocent Internet
users as well as the targeted suspect,"(168) thus violating the Fourth Amendment.(169) The ACLU
compares a Carnivore search to the FBI sending agents into a post office to "rip open each and
every mail bag and search for one person's letters" and to "tapping the entire phone exchange
system, listening to all the conversations, and then keeping only the ones that are incriminating,
instead of tapping a single phone line."(170) A USA Today editorial stated that "once it's in place,
Carnivore acts as an unrestrained Internet wiretap, snooping through every Internet
communication that comes within its reach."(171)
Officials at the FBI respond that Carnivore, when it is used properly, will pull out only the
appropriate e-mails, and that its use is subject to strict internal review and requires the
cooperation of technical specialists and ISP personnel, thus limiting the opportunities an
unscrupulous agent might have to abuse it. In Donald Kerr's words, the FBI does not have "the
right or the ability to just go fishing."(172)
A review of Carnivore conducted by the Illinois Institute of Technology concluded that
although it does not completely eliminate the risk of capturing unauthorized information,
Carnivore is better than any existing alternatives and should continue to be used.(173) However, the
panel also determined that the FBI's internal audit process is insufficient to protect against
improper use.(174) Specifically, the operator implementing a Carnivore search selects either pen or
full mode by clicking one box on a computer screen,(175) and because the program does not keep
track of what kind of search has been run,(176) it is difficult to determine if an operator has used the
program only as specified in the court order. The head of the panel commented: "Even if you
conclude that the software is flawless and it will do exactly what you set it to do and nothing
more, you still have to make sure that the legal, human and organizational controls are
adequate."(177) I turn to this matter below, when accountability is discussed.
There is a tendency to attribute to computers human attributes and talk or write about
them as if they "sniff" and "snoop," violate privacy, and so on. One day computers may achieve
such human capabilities, but for now a computer does not ogle, snicker at, or get aroused by a
picture of a nude person because it does not "see"; its "mind" merely processes ones and zeros.
Thus, if millions of messages flow through a computer running Carnivore, none of them is "read"
unless it is caught by the filter and passed on to a human observer.(178) Computers do not "read" or
"scan" messages any more than phones "listen" to messages left in their voice mail box. The issue
is what humans do-not machines. True, if new technological capabilities did not exist or their use
were fully banned-an old Luddite argument(179)-the problem would not arise in the first place.
However, as long as new technologies are available to criminal elements, it is hard to argue in
favor of privileging them and blocking the government from using counter-measures under the
The legality of the KLS was tested in the case of Nicodemo Scarfo, in which the FBI used
the KLS to decrypt records implicating Scarfo in racketeering. Scarfo's defense argued that the
key logger records keystrokes typed in electronic communications and sent over a modem, and
should therefore have required a full intercept order, rather than an easier to obtain search
warrant. Though the FBI says that the KLS cannot record while a modem is in operation, thus
protecting against the capture of electronic communications, Scarfo and the privacy advocates
interested in the case were skeptical. During the trial, Scarfo was shown a hard copy of all of the
keystrokes intercepted, but was unable to pick out anything that he recognized as being part of an
Scarfo also argued that the warrant used to install the KLS violated the particularity
requirement of the Fourth Amendment and therefore constituted a general search because it did
not describe specifically what could be searched and seized.(181) The warrant in the case authorized
FBI agents to "install and leave behind software, firmware, and/or hardware equipment which will
monitor the inputted data entered on Nicodemo S. Scarfo's computer in the TARGET
LOCATION," which was specified in great detail. The same warrant authorized the surreptitious
breaking and entry into the target location to install and retrieve the KLS, and also authorized the
FBI to seize business records "in whatever form they are kept."(182) David Sobel of EPIC said that
since the warrant was issued to get one password, but the KLS recorded every keystroke typed, it
was comparable to if a police officer got "a warrant to seize one book in your house, but was also
allowed to haul out everything that's in there."(183) Although it is true that in the Scarfo case agents
had to look through all keystrokes entered after the installation of the KLS in order to pick out
the string that was his password, the FBI argues that this is similar to any search. If public
authorities have a warrant to get someone's account book from their office, they may have to
look through many drawers and shelves before finding it.(184) In December of 2001, the judge in the
Scarfo case ruled that the use of the KLS to obtain his password was legal and constituted neither
a general search nor a form of surveillance.(185)
1. Accountability, the Second Balance
The present examination opened by calling attention to the need for balance between
individual rights and public safety and health, rather than one or the other predominating. When
the polity tilts too far toward safety or rights, such tilts are best corrected. The question hence
arises what effects the new technologies have on the balance. There can be little doubt that (a) the
liberalizing technologies have greatly hindered the work of public authorities in the area of
communications surveillance; (b) new protective technologies to some extent overcome these
difficulties. The same might be said (c) about new legislation that did adapt the old applicable laws
to the new technologies. Finally (d) the 2001 attack on America changed the point (or zone) of
balance by posing a new, credible threat to public safety and health. This still leaves open the
question of whether the new measures, whether technological or legal, provide for much needed
enhanced public safety or excessively intrude into individual rights.
This, in turn, raises the question of how generally to determine whether or not the polity is
in the zone of balance. This is an issue with which the courts have struggled for generations; it
would take volumes to begin to do it justice. Also, I have dedicated some text to this issue
elsewhere.(186) Briefly, I concluded that the course of a nation's laws should not be corrected unless
there is a compelling reason (a concept akin to "clear and present danger," although not
necessarily one that meets this criterion technically); unless the matter cannot be addressed by
non-legal, voluntary means; and unless one can make the intrusion small and the gain (either in
safety or in rights) considerable. Further specification draws on what a reasonable person would
find sensible, taking into account that the Constitution is a living document whose interpretation
has been adjusted through the ages.
These criteria can be applied to the issues discussed here. For example, in the post-9/11
context, it is clear that the government should have greater powers to decrypt e-mail because:
terrorism does pose a major threat; voluntary means to fight encrypted terrorist messages have
not sufficed on the face of it; and enabling and allowing the government to decrypt e-mail
messages is not more intrusive than tapping a phone and can be allowed under similar conditions.
The authority to use roving wiretaps may pass the same test. (To reiterate, other public safety
measures recently introduced that do not concern communications surveillance, such as requiring
protestors to remove their disguises, are not discussed here and may very well not meet the
To complete the judgment whether or not a given new measure that enhances the powers
of public authorities is called for, I suggest that a second form of balancing needs to be
considered that, arguably, in the matters at hand, may turn out to be decisive compared to the first
form already discussed. It concerns not whether the government should be accorded new
powers--but how closely it is held accountable regarding the ways it uses these powers. From
this viewpoint, the key issue is not if certain powers-for example, the ability to decrypt e-mail-should or should not be available to public authorities, but whether or not these powers are
used legitimately and whether mechanisms are in place to ensure such usage. This is similar to
passing over the question of whether there is too much money in a vault in favor of asking how
strong the locks are. (One may argue that, in effect, this is really one question because whether
the sum is "too much" depends on the locks. Some would argue that whatever the quality of the
locks, too much of one's money should not be located in one bank, mutual fund, etc. This is
surely the argument about government data banks. However safeguarded, libertarians oppose
concentrated national databases.)
Although these two forms of balance have some similarities and points of overlap, they are
quite distinct. Thus, to argue, as cyber-libertarians did, that the government should not be able to
decrypt encoded messages, should not be allowed to demand from an ISP the addressing
information for e-mail sent to and from a suspect's account, and so on, is different from agreeing
that such powers are justified so long as they are properly circumscribed and their use is duly
The balance sought here is not between the public interest and rights, but between the
supervised and the supervisors. Deficient accountability opens the door to government abuses of
power; excessively tight controls make for agents reluctant to act.
Thus, a case can be made that in the decades preceding the Church Commission, under
most of Hoover's reign, the FBI was insufficiently accountable, and that after the Commission's
rules were institutionalized, until 9/11, the FBI was excessively limited in what it was allowed to
do, in the area of communications surveillance. Agents, fearing reprimands and damage to their
careers, were often too reluctant to act.
To elaborate a bit: It seems difficult to sustain the argument that the government should
be unable to decrypt any messages or be unable to gain the authority to do so. After the first
bombing of the World Trade Center in 1993, one of its principal masterminds used encryption to
protect files on his laptop computer, even as he plotted to blow up commercial airlines.(188)
(Encrypted files were found on a computer used by Osama bin Laden's lieutenants in the Afghan
capital.(189)) Few would argue that public authorities should be unable to decrypt such files, even,
say, after obtaining a warrant based on probable cause that the files included important
The issue hence becomes which limits will be set on what messages can be decrypted, who
will verify that these limits are observed, and by what means. Similarly, regarding roving
intercepts, the issue is not whether the government should have to get a warrant for each
instrument of communication that the same suspect uses, but by what means it will be ensured
that the government does not collect information about other people who use the same
instruments of communication or the same computer terminal. The key issue is not whether
communications in cyberspace should be exempted from the same type of public scrutiny to which
mail and phone calls have historically been subject, as cyber-idealists had hoped,(190) but whether
there are proper controls in place to protect against abuse.
The next step in assessing whether or not the American polity, in matters concerning
communications surveillance, is currently excessively attentive to public safety or not willing to
take needed measures out of excessive concern for rights, is hence to determine to what extent
accountability has been built into the new powers granted to the government in response to the
new technologies at hand and in reaction to 9/11.
2. Layers of accountability
a. Limitations built into the law
Limitations on the use of new powers are written into the laws governing them and
limitations on protective technologies are often built into the technologies themselves. Roving
intercepts, and indeed any intercepts, are not granted without limits. Title III lays out a
requirement for "minimization," stated at follows: "Every order and extension thereof shall
contain a provision that the authorization to intercept shall be executed as soon as practicable,
shall be conducted in such a way as to minimize the interception under this chapter, and must
terminate upon attainment of the authorized objective, or in any event in thirty days."(191)
Such built-in guidelines are intended to limit the ability of public authorities to gather and
use information not directly related to their investigations.(192) Practically, this means that agents
are not allowed to record conversations that are unrelated to the subject of the investigation and
should stop listening when irrelevant matters are being discussed. If agents are unsure if a
seemingly innocent conversation might touch on a relevant subject at some point, agents are to
conduct "spot-monitoring," in which they tune in every few minutes to check, but only begin to
record when appropriate.(193)
In Scott v. United States,(194) the Supreme Court found that an agent's implementation of
such guidelines must be evaluated under a "standard of objective reasonableness," so that if
circumstances make minimization difficult, failure by an agent to attempt it does not constitute a
violation of the law(195). In addition, if investigators have reason to suspect a conspiracy involving a
large number of people, they are justified in recording and listening to all conversations until they
are certain who is innocent and who not.(196) Many critics point out that under any circumstances,
minimization is voluntary and we must rely on our trust in law enforcement officers to do it
properly, highlighting the importance of further layers of accountability, such as the exclusionary
Although telephone wiretaps rely on human judgment in implementing minimization, new
public protective technologies, if properly used, carry out much of the minimization function
automatically. Carnivore's filters, if set properly, act as a built-in minimization process,
intercepting only what is appropriate. Although it might be capable of collecting all content that
passes through it, in compliance with court orders it should be set to capture only data sent to and
from a specific user.(198) As mentioned before, data that does not fit the filter settings just passes
through without being saved by Carnivore, and is therefore not seen by public authorities.(199)
b. Supervision within executive agencies
Numerous accountability mechanisms are built into the executive agencies of the
government. Of course, FBI field agents are subject to numerous guidelines and supervisors
whose job includes ensuring that these guidelines are abided by. They, in turn, report to still
higher ranking supervisors. Moreover, when agents cross the line, internal reviews take place. In
addition, the Attorney General's office to some extent supervises what the FBI does.
For instance, as already mentioned, requests by the FBI to conduct communications
surveillance under FISA must be approved by the Attorney General's office before they are
submitted to the FISC. In some cases, court order or warrant requests never get past internal FBI
approval procedures. For example, in the investigation prior to 9/11 of Zacarias Moussaoui, the
possible "20th hijacker" who did not make it onto an airplane because he was arrested before 9/11
on immigration charges, the request by field agents to search his computer never made it past FBI
attorneys, who found insufficient evidence to justify it.(200)
c. The courts
Once surveillance technology is available that makes possible such actions as scanning e-mail or gaining to keys to decrypt messages, and once it is established in principle that the
government will have access to such technology, the question for both sides becomes-under what
conditions should the government be allowed to use it? Often the contest on this second level
issue centers on the issuance of warrants and court orders.
Civil libertarians hold that court orders are issued too liberally, without due scrutiny. They
argue that agents cannot be trusted to abide by minimization guidelines, so it is best not to grant
them court orders in the first place. Jerry Berman stated that some 1,000 intercept orders a year
are approved under FISA, suggesting that this is a very large number.(201) In fact, only around
10,000 intercept orders have been granted under FISA since its creation in 1979,(202) amounting to
fewer than 1,000 a year.
Civil libertarians point to the fact that the FISC has only denied one request for
surveillance in its entire history as evidence that the standards for receiving a FISA intercept order
are lower than for receiving a Title III order.(203) Though applications for intercept orders are rarely
turned down by the FISC, public safety advocates point out that it is embarrassing and damaging
to one's record and career to be turned down by the FISC, and as a result agents are reluctant to
request warrants even when they seemed justified.(204) Moreover, if the FISC finds that there is not
sufficient justification, it tends to return the request for further documentation rather than denying
the request outright, which accounts for there being next to no outright refusals.(205) As mentioned
above, some requests never get past the Attorney General's office. Also, FISA applications need
to meet preset guidelines and must include a statement of the means by which the surveillance will
be conducted, as well as a statement of proposed minimization procedures.(206)
Although civil libertarians typically are much more favorably disposed toward courts than
toward the administrative parts of the government, they fear that judges might be unable or
disinclined to curb law enforcement agents.(207) First, judges are either elected or politically
appointed, making them subject to the influence of public opinion, especially since 9/11. In
addition, it has been suggested that judges are less accountable outside their home jurisdictions
and might thus be less cautious in granting, and less diligent in enforcing proper implementation
of, warrants and court orders they issue that apply to other jurisdictions, as allowed by the USA
Patriot Act. Judge Meskill, in his concurrence with the ruling in United States v. Rodriguez,
warned that "judges may be more hesitant to authorize excessive interceptions within their
territorial jurisdiction, in their own back yard so to speak, than in some distant, perhaps
unfamiliar, part of the country. Congress determined that the best method of administering
intercept authorizations included territorial limitation on the power of judges to make such
authorizations."(208) If this is true, it would weaken the courts as an accountability mechanism for
In addition to the requirements that need to be met to get a warrant or court order in the
first place, courts ensure that law enforcement agents act within the limits of the power granted to
them by suppressing evidence that is collected illegally. The exclusionary rule-that evidence
collected in violation of the Fourth Amendment must be excluded from a trial against the
suspect-was not originally written into the Constitution, but was established in the Supreme
Court case Boyd v. United States(209) and later re-affirmed in Weeks v. United States.(210) It has since
been diluted in more ways than one.(211) Still, evidence collected illegally will be suppressed. This
serves not only to protect the suspect after a violation occurs, but also to deter inappropriate
searches because agents know that if they do not follow the correct procedures, the culprits might
Under our system of checks and balances, Congress, of course, is supposed to oversee the
work of the executive branch and its agencies. It has many instruments for doing so, including
requiring heads of agencies and other high ranking officials to respond to written questions, testify
before congressional committees, and turn over documents; conducting hearings in which civil
libertarians and others can make their case; ordering the General Accounting Office to conduct a
study; and more.
A survey of the extent to which Congress provides another layer of accountability
regarding issues such as those covered here, above and beyond what is provided by the agencies
themselves and by the courts, is well beyond the scope of this examination. It should be noted,
though, that civil libertarians argue that many of the measures included in USA Patriot (including
those explored here) were enacted in a great rush, without the usual hearings and deliberations.(212)
Supporters of the public authorities point out that after 9/11 it was assumed that there were other
"sleeper" terrorist agents in the United States and that other attacks were imminent, and argue
that therefore the rush was justified. Indeed, they held that expanded powers should have been
given well before 9/11.(213) Moreover, hearings and other reviews of the issues at hand, such as
Carnivore, were conducted before 9/11.(214)
e. The public
The ultimate source of oversight is the citizenry, informed and alerted by a free press and
civil liberties advocates and briefed by public authorities about their needs. To be fully effective in
overseeing the issues at hand, civil libertarians argue that the public must be informed about the
inner workings of the protective technologies, while public authorities claim that such disclosures
would inform terrorists and other criminals about how to circumvent the technologies, thus
rendering them useless. Specifically, since the existence of Carnivore was made public, numerous
parties have demanded access to information about how it works. The ACLU filed a Freedom of
Information Act (FOIA) request to get its source code, which reveals what a program is intended
to do and how it operates.(215) The Electronic Privacy Information Center, a privacy advocacy
group, filed an FOIA request to gain a copy of all documents relating to Carnivore.(216) In addition,
numerous ISPs who might be asked to cooperate in installing Carnivore wanted guarantees that
the program worked as claimed and that there would be sufficient controls to keep law
enforcement agents from capturing more than what was covered in the court order.(217)
In the Scarfo case, the judge joined civil liberties groups in demanding that the FBI release
information on how the KLS works, arguing that he could not rule on whether or not its use was
legal without knowing how the technology worked. The judge said he would review the
technology secretly.(218) This solution satisfied neither the civil libertarians nor the FBI. David Sobel
of EPIC said the matter raised "very basic questions of accountability. The suggestion that the use
of high-tech law enforcement investigative techniques should result in a departure from our
tradition of open judicial proceedings is very troubling."(219) Donald Kerr, assistant director of the
FBI's laboratory division, stated that the disclosure of certain information about the KLS would
"compromise the use of this technology...and jeopardize the safety of law enforcement
Secrecy also remains one of the key objections to the use of roving intercepts under FISA.
FISA was established in the mid-1970s, after the public was alarmed to learn of the activities of
President Nixon and to discover that the NSA had been illegally intercepting telegraph and
telephone calls.(221) A congressional committee was created to investigate, and found that nearly
every president had authorized warrantless communications surveillance, often for political
purposes.(222) Essentially, agencies such as the FBI, CIA, and NSA were able to conduct
surveillance without going through normal criminal procedures. The Department of Justice
launched its own in-house investigation, resulting in new guidelines for both domestic and foreign
intelligence investigations. To prevent future abuses, Congress passed FISA in 1978 to spell out
what the NSA (and other intelligence agencies) could and could not do.(223) The NSA had insisted
that its activities-especially regarding its methods and technologies-would be severely
compromised if discussed in open court. In response, FISA authorized the formation of a special
federal court whose proceedings could be completely secret.(224)
In short, while the public cannot be informed about all the workings of all the protective
technologies, such as Carnivore, because this would impair the usefulness of the technologies, the
public can act as the ultimate enforcer of accountability.
4. In Conclusion
To determine whether or not a specific public policy measure is legitimate entails more
than establishing whether or not it significantly enhances public safety and is minimally intrusive,
whether it further undermines already endangered civil rights, or makes it more difficult to deal
with public needs. It entails rendering a judgment as to whether or not those who employ any new
powers are sufficiently accountable to the various overseers-ultimately the citizenry. Some
powers are inappropriate no matter what oversight is provided. However, for those at issue here,
the main question is whether there is sufficient accountability. The remedy, if accountability is
found deficient (or excessive), is to adjust accountability and not to deny the measure altogether.
This holds, though, I grant, only if one makes one key assumption examined in the next section.
Whether the specific powers given to the government in regard to the matters at hand are
sustaining or undermining the balance between rights and safety depends on how strong each
layer of accountability is, whether higher layers enforce lowers ones, and whether there are full
complements of layers or not. It is true that there can be too much accountability, such that law
enforcement agents would be reluctant to act due to fear that they would be penalized by
superiors, by the courts, or by Congress, or be skewered by the press. However, there have been
no signs of this since 9/11.
5. The Ultimate Question
Accountability is ultimately a matter of trust. Plato is said to have raised the issue in
asking, who will guard the guardians,(225) or, as it is put in Latin, quis custodiet ipsos custodes?
Others attribute the question to the Roman satirist Juvenal, who wrote around 2000 years ago.(226)
The issue, though, is very much with us. If we do not trust the cops on the beat, we may ask their
captains to keep them under closer supervision. If we do not trust the police, we may call on the
civil authorities, such as mayors, to scrutinize the police. We may call on the other branches of
government-the courts, especially-to serve as checks and balances. However, if we believe that
the mayors are corrupt and the judges cannot be trusted either, we have little to fall back on other
than the fourth estate. Yet the media, too, is often distrusted.(227)
The question, then, is whom we should distrust and how much. If basically no authority or
media figure is trustworthy and "The System" is corrupt, we face a much larger challenge than if,
in a few instances, public authorities intercept more e-mail than they are supposed to, or tap some
phones they ought not. If someone believes this, she should either move to another country or
fight for an entirely new political system.
In contrast, if only some cops, captains, mayors, and other public authorities are corrupt,
we have good reason to watch out for such individuals, but not to doubt the political system. We
ought, then, to work to improve the various layers of accountability, but also realize that the fact
that critics can always come up with some horror stories does not necessarily mean that they are
typical of the system.
Although I cannot justify it within the confines of this study, I hold the latter position.
Hence, I suggest that one best ignores both claims by public authorities that no strengthening of
accountability is needed and the shrillest civil libertarian outcries that sound as if no one is to be
trusted. Instead, one is likely to favor reforms that will enhance accountability, rather than
denying public authorities the tools they need to do their work (although not necessarily granting
them all those they request) in a world in which new technologies have made their service more
difficult and in which the threat to public safety has vastly increased.
IV: National ID Cards
A sociologist cannot but realize that many Americans have long had a strong visceral
reaction against requirements to carry ID cards, which they associate with "domestic passports"
used by the Soviet Union. The right to be let alone is widely associated with the notion that a
person has a right to remain anonymous unless authorities can show a reason they suspect the
person committed a crime. But Americans increasingly recognize that one cannot fly, drive, go
overseas, enter many public buildings, or, often, even cash a check, without some form of
identification. To say that these are voluntary ID cards is a joke to anyone who must drive to
work or fly to conduct their business. In effect, IDs are so widely required states are issuing
driver's licences for non-drivers!
Terrorists and criminals are also covered by the defacto requirement to have an ID; the
problem is not that they have none, but that they have many. While most Americans have no
reason to purchase false IDs (unless they are college kids, sneaking into a bar)--they are very
easily obtainable by terrorists and other criminals. Social Security and green cards are sold in
border towns for about $50. Local authorities readily issue birth certificates with someone else's
name--the favorite avenue to a false passport. Before 9/11 several states--including Virginia and
Florida--were notorious for providing driver's licences for people out of state for a pittance.
Issuing ID cards that are resistant to fraud will hence detract nothing from law abiding Americans
but will crimp the working of those who seek to break the law.
First among those to be greatly inconvenienced, thanks be given, are terrorists. Most of
the 19 hijackers had multiple IDs, which they used to open bank accounts, get pilot licences, and
buy airline tickets, all without revealing their true identity. Public authorities now call for
introducing tracking systems that will allow us to find out if a person who came to study in the
US is really taking classes on some campus, or if people who came on a tourist visa left after its
term expired. But all this is useless unless we can establish the identity of the person we are
tracing. If a person can enter the US as Mohammed Laden and live here as Murphy Liden, we
shall have a very hard time finding terrorists even if we are told that there are sleeper agents
somewhere in our midst.
Beyond making it much harder for terrorists to abuse our free society, tamper-proof,
national ID cards should be embraced for all the other good service they will do. Currently there
are some 300,000 criminals on the lam. These are not mere suspects, but persons already
convicted--confirmed criminals--who escape the jurisdiction of the court in one way or another,
by jumping bail or fleeing from prison, and so on. Many of them commit additional crimes
because they know that if caught they will be subject to a stiff jail sentence anyhow. One of the
best ways to get them off the streets is to introduce new, foolproof ID cards.
Also, such ID cards will help ensure that people who are hired to work in child-care
centers and schools do not include child abusers and sex offenders. This is not an idle threat.
When six states did screen such employees, more than 6,200 individuals convicted of serious
criminal offenses, such as sex offenses, child abuse, violent crimes and felony drug charges were
found among those seeking jobs as child-care providers. Nursing homes and other elder care
facilities face a similar challenge when they try to screen out people with a record of violence. No
ID--no valid screening. And, validated IDs would greatly curtail the high costs of identity theft,
which cost the public at least $750 million in 1997. They would also shave income tax fraud
committed by those who file multiple tax returns at an estimated cost of over $1 billion per year,
and welfare fraud amounting to $10 billion annually in entitlement programs alone.
Indeed the public is wising up. While in 1993 only a minority (39 percent) favored ID
cards and a majority (53 percent) objected to them, a post-9/11 poll finds a sea change. Now 70
percent favor a national identity card to show to police upon request and only one out of four (26
percent) oppose it.
You may say all this makes sense if one could really have a foolproof ID card. The good
news is the new ways of identifying people do not involve the old fashioned pieces of paper with
ugly mug shots, but are rather based on biometrics. Luckily, no two people have identical faces or
irises, even twins. Computers can recognize these now. One can hardly claim that one has a right
to leave one's face at home or for authorities not to see it, when one leaves the privacy of one's
home or car.
We live in a new world. To live in it, we have to make some carefully measured
adjustments to our way of life. To require all Americans to identify themselves in a reliable
manner, as law abiding Americans already daily do, is a reasonable step in the right direction.
1. ABC News, This Week, 18 November 2001.
2. American Civil Liberties Union, "Insatiable Appetite: The Government's Demand for New and
Unnecessary Powers After September 11," (Washington, DC: American Civil Liberties Union,
Washington National Office, April 2002), 1. Available at:
http://www.aclu.org/congress/InsatiableAppetite.pdf, accessed 10 June 2002.
3. Wendy Kaminer, "Ashcroft's Lies," American Prospect, 15 July 2002, 9.
4. DebatesDebates, 22 October 2001.
5. Katie Corrigan, Statement Before the Aviation Subcommittee of the House of Representatives
Committee on Transportation and Infrastructure on Passenger Profiling," 107th Cong., 2nd Sess.,
27 February 2002.
6. Amitai Etzioni, The Spirit of Community (New York, NY: Touchstone, 1993). See also
Frederick Schauer, "Slippery Slopes," Harvard Law Review 99 (1985): 361-383.
7. Amitai Etzioni, "Implications of Select New Technologies for Individual Rights and Public
Safety," Harvard Journal of Law and Technology 15, no. 2 (Spring 2002), 257-290.
8. See, e.g., Theodore Abel, The Nazi Movement (New York, NY: Aherton Press, 1966); Sheri
Berman, "Civil Society and the Collapse of the Weimar Republic," World Politics 49, no. 3
(1997): 401-429; Arnold Brecht, Prelude to Silence (New York, NY: Howard Fertig, 1968);
Peter C. Caldwell and William E. Scheuerman, From Liberal Democracy to Fascism: Legal and
Political Thought in the Weimar Republic (Boston, MA: Humanities Press, 2000); David
Dyzenhaus, "Legal Theory in the Collapse of Weimar: Contemporary Lessons?" American
Political Science Review 91 (March 1997): 121-134; E. J. Feuchtwanger, From Weimar to
Hitler: Germany 1918-33 (New York, NY: St. Martin's Press,1993); Ernest Fraenkel, "Historical
Obstacles to Parliamentary Government in Germany," in The Path to Dictatorship: 1918-1913,
trans. John Conway (New York: Praeger, 1967); Peter Fritzsche, "Did Weimar Fail?" Journal of
Modern History 68 (September 1996): 629-656; Peter Fritzsche, Germans Into Nazis
(Cambridge, MA: Harvard University Press, 1998); John Hiden, Republican and Fascist
Germany: Themes and Variations in the History of Weimar and the Third Reich 1918-1945
(New York, NY: Longman, 1996); Hans Mommsen, The Rise and Fall of Weimar Democracy,
trans. Elborg Forster and Larry Eugene Jones (Chapel Hill, NC: University of North Carolina
Press, 1996); A .J. Nicholls, Weimar and the Rise of Hitler (New York: St. Martin's Press,
1979); Detlev J. K. Peukert, The Weimar Republic: The Crisis of Classical Modernity, trans.
Richard Deveson (New York, NY: Hill and Wang, 1992); Kurt Sontheimer, "Anti-Democratic
Thought in the Weimar Republic," in The Path to Dictatorship: 1918-1933, trans. John Conway
(New York: Praeger, 1967), 32-49; and Fritz Stern, "Introduction," in The Path to Dictatorship:
1918-1933, trans. John Conway (New York: Praeger, 1967), vii-xxii; Arthur van Riel and Arthur
Schram, "Weimar Economic Decline, Nazi Economic Recovery, and the Stabilization of Political
Dictatorship," Journal of Economic History 53 (March 1993): 71-105; Jurgen Baron von
Kruedner, ed., Economic Crisis and Political Collapse: The Weimar Republic 1924-1933 (New
York, NY: St. Martin's Press, 1990).
9. Peter Fritzsche, Germans Into Nazis (Cambridge, MA: Harvard University Press, 1998), 7.
10. Peter Fritzsche, Germans Into Nazis (Cambridge, MA: Harvard University Press, 1998), 8.
11. Theodore Abel, The Nazi Movement (New York, NY: Aherton Press, 1966), 127.
12. Theodore Abel, The Nazi Movement (New York, NY: Aherton Press, 1966); Arnold Brecht,
Prelude to Silence (New York, NY: Howard Fertig, 1968); Ernest Fraenkel, "Historical Obstacles
to Parliamentary Government in Germany," in The Path to Dictatorship: 1918-1913, trans. John
Conway (New York: Praeger, 1967); Peter Fritzsche, Germans Into Nazis (Cambridge, MA:
Harvard University Press, 1998); A. J. Nicholls, Weimar and the Rise of Hitler (New York: St.
Martin's Press, 1979); Kurt Sontheimer, "Anti-Democratic Thought in the Weimar Republic," in
The Path to Dictatorship: 1918-1933, trans. John Conway (New York: Praeger, 1967), 32-49;
and Fritz Stern, "Introduction," in The Path to Dictatorship: 1918-1933, trans. John Conway
(New York: Praeger, 1967), vii-xxii.
13. Theodore Abel, The Nazi Movement (New York: Aherton Press, 1966), 121.
14. Theodore Abel, The Nazi Movement (New York: Aherton Press, 1966), 166.
15. Theodore Abel, The Nazi Movement (New York: Aherton Press, 1966), 168-169
16. Theodore Abel, The Nazi Movement (New York: Aherton Press, 1966), 183.
17. Kurt Sontheimer, "Anti-Democratic Thought in the Weimar Republic," in The Path to
Dictatorship: 1918-1933, trans. John Conway (New York: Praeger, 1967), 44.
18. Sheri Berman, "Civil Society and the Collapse of the Weimar Republic," World Politics 49,
no. 3 (1997): 424.
19. Arthur van Riel and Arthur Schram, "Weimar Economic Decline, Nazi Economic Recovery,
and the Stabilization of Political Dictatorship," Journal of Economic History 53 (March 1993):
20. Fritz Stern, "Introduction," in The Path to Dictatorship: 1918-1933, trans. John Conway
(New York: Praeger, 1967), xx.
21. E. J. Feuchtwanger, From Weimar to Hitler: Germany 1918-33 (New York, NY: St.
Martin's Press, 1993), 316.
22. Theodore Abel, The Nazi Movement (New York, NY: Aherton Press, 1966); Sheri Berman,
"Civil Society and the Collapse of the Weimar Republic," World Politics 49, no. 3 (1997): 401-429; Arnold Brecht, Prelude to Silence (New York, NY: Howard Fertig, 1968); E. J.
Feuchtwanger, From Weimar to Hitler: Germany 1918-33 (New York, NY: St. Martin's Press,
1993); Ernest Fraenkel, "Historical Obstacles to Parliamentary Government in Germany," in The
Path to Dictatorship: 1918-1913, trans. John Conway (New York: Praeger, 1967); Peter
Fritzsche, Germans Into Nazis (Cambridge, MA: Harvard University Press, 1998); John Hiden,
Republican and Fascist Germany: Themes and Variations in the History of Weimar and the
Third Reich 1918-1945 (New York, NY: Longman, 1996); Hans Mommsen, The Rise and Fall
of Weimar Democracy, trans. Elborg Forster and Larry Eugene Jones (Chapel Hill, NC:
University of North Carolina Press, 1996); A. J. Nicholls, Weimar and the Rise of Hitler (New
York: St. Martin's Press, 1979); Detlev J. K. Peukert, The Weimar Republic: The Crisis of
Classical Modernity, trans. Richard Deveson (New York, NY: Hill and Wang, 1992); Arthur van
Riel and Arthur Schram, "Weimar Economic Decline, Nazi Economic Recovery, and the
Stabilization of Political Dictatorship," Journal of Economic History 53 (March 1993): 71-105;
Kurt Sontheimer, "Anti-Democratic Thought in the Weimar Republic," in The Path to
Dictatorship: 1918-1933, trans. John Conway (New York: Praeger, 1967), 32-49; and Fritz
Stern, "Introduction," in The Path to Dictatorship: 1918-1933, trans. John Conway (New York:
Praeger, 1967), vii-xxii.
23. U.S. Department of Transportation, Bureau of Transportation Statistics, Transportation
Indicators, May 2002.
24. U.S. Department of Transportation, Bureau of Transportation Statistics, Transportation
Indicators, May 2002.
25. U.S. Department of Transportation, Bureau of Transportation Statistics, Transportation
Indicators, May 2002.
26. U.S. Department of Transportation, Bureau of Transportation Statistics, Transportation
Indicators, May 2002.
27. National Public Radio/Kaiser/Kennedy School Poll on Civil Liberties, 31 October-12
November 12, 2001.
28. ABC News/Washington Post Poll, 11 September 2001. April 1995 and May 1995 figures were
also reported in this poll.
29. Pew Center for the People and the Press Poll, 14-17 September 2001. Figures for April 1995
are from a Los Angeles Times poll, as reported by the Pew Center.
30. Harris Poll, 13-19 March 2002
31. For an additional discussion see Amitai Etzioni, "Implications of Select New Technologies for
Individual Rights and Public Safety," Harvard Journal of Law and Technology 15, no. 2 (Spring
32. New York Times/CBS Poll, 15-17 January 1994. Figures reported in Richard L. Berke, "Crime
is Becoming Nation's Top Fear," New York Times, 23 January 1994, A1.
33. New York Times/CBS Poll, 31 May-3 June 1996. Figures reported in Richard L. Berke, "Poll
Indicated Stable Ratings for the President," New York Times, 5 June 1996, A1.
34. Richard L. Berke, "Crime is Becoming Nation's Top Fear," New York Times, 23 January
35. USA Today/CNN/Gallup Poll, 13-18 October 1993.
36. Newsweek Poll, 7-8 April 1994.
37. Newsweek Poll, 7-8 April 1994. See Michael Elliott and Peter Annin, "The Crime Debate:
Should America Be More Like Singapore?" Newsweek, 18 April 2002, 18-22.
38. Rich Connell and Richard A. Serrano, "L.A. Is Warned of New Unrest," Los Angeles Times,
22 October 1992, A1.
39. "Beating Case: Tempers Flare at Rally," USA Today, 16 April 1996, 3A.
40. Lucy Soto, "Delegation Makes Its Presence Known, Atlanta Journal and Constitution, 2
March 1995, 3A.
41. ABC News.com Poll, 31 May-4 June 2000.
42. ABC News.com Poll, 31 May-4 June 2000.
43. Gallup/CNN/USA Today Poll, 23-25 October 1998.
44. Gallup/CNN/USA Today Poll, 23-25 October 1998.
45. Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States
1998: Uniform Crime Reports, (Washington, DC: GPO, 1999), 10.
46. Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States
2000: Uniform Crime Reports, (Washington, DC: GPO, 2001), 11.
47. Federal Bureau of Investigation, U.S. Department of Justice, Crime in the United States
1995: Uniform Crime Reports, (Washington, DC: GPO, 1996), 10.
48. There were 161 separate provisions in the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56
[hereinafter USA Patriot Act].
49. US Const. amend. IV.
50. Senator Hatch, during the discussion of USA Patriot on the Senate floor warned:
"I think of the civil liberties of those approximately 6,000 people who lost their lives, and
potentially many others if we don't give law enforcement the tools they need to do the job."
Cong. Rec. S11023-11024 (daily ed. Oct. 23, 2001) (statement of Sen. Hatch).
51. Nadine Strossen, Remarks at the Communitarian Dialogue on Privacy v. Public Safety (Nov.
26, 2001) (transcript available from the Communitarian Network) [hereinafter Strossen remarks].
52. I refer to a zone because I don't claim that there is a precise point of balance one can identify
at which the government tilts clearly in one direction of the other.
53. For further detail on the responsive communitarian position, see the Responsive
Communitarian Platform, available at
http://www.communitariannetwork.org/platformtext.htm (last modified October 1991); Amitai
Etzioni, The New Golden Rule (1996) [hereinafter The New Golden Rule]; Amitai Etzioni,
The Limits of Privacy (1999) [hereinafter The Limits of Privacy. For a critical treatment, see
Elizabeth Frazer, The Problems of Communitarian Politics (1999).
54. See The New Golden Rule, supra note 6, chap. 1 and 2.
55. For additional discussion of such criteria, see Amitai Etzioni, The Spirit of Community (1993),
177-90; The New Golden Rule, supra note 6, at 51-5; and The Limits of Privacy, supra note 6, at
56. Richard A. Posner, Security versus Civil Liberties, The Atlantic Monthly, Dec. 2001, at
57. For a short overview of FBI abuses during the 1970s and the responses to them, see Cong.
Rec. S10992-10994 (daily ed. Oct. 25, 2001) (statement by Sen. Leahy).
58. Katharine Q. Seelye, Draft Rules for Tribunals Ease Worries, But Not All, NYTIMES, Dec.
29, 2001, at B7.
59. James Murry, Wireless Nation (2001) [hereinafter Murry] at 20, 313.
60. According to Philip C. W. Sih, though early fax technology was developed in the 19th century,
and the US military began using well-developed fax machines during WWII, it was not until the
1970s that the integration of new modem, computer and telephone technologies created the
circumstances for a "fax explosion." Philip C.W. Sih, Fax Power (1993), 1-5.
61. Peter Salus, Casting the Net (1995), 82-3.
62. The decision in the Supreme Court case of United States v. New York Tel. Co. Notes that "a
pen register is a mechanical device that records the numbers dialed on a telephone by monitoring
the electrical impulses caused when the dial on the telephone is released." United States v. New
York Tel. Co., 434 U.S. 159, 161 n.1 (1977). The decision in United States v. Giordano notes
that a pen register is "usually installed at a central telephone facility [and] records on a paper tape
all numbers dialed from [the] line" to which it is attached. United States v. Giordano, 416 U.S.
505, 549 n. 1 (1974).
63. Murry, supra note 12, at 20, 313.
64. Nielsen/Net Rating for July 2001, available at www.nielsen-netrating.com, (last visited Dec. 6,
65. 18 USC 3122, 3123.
66. 18 USC 2518.
67. Smith v. Maryland, 442 U.S. 735 (1979) [hereinafter Smith] established that the use of a pen
register to obtain the numbers dialed from a telephone did not constitute a search under the
Fourth Amendment, and therefore did not require a warrant. The court held that "it is doubtful
that telephone users in general have any expectation of privacy regarding the numbers they dial,
since they typically know that they must convey phone numbers to the telephone company and
that the company has facilities for recording this information and does in fact record it for various
legitimate business purposes."
68. Peter Swire writes: "The term 'pen register' comes from the old style for tracking all of the
calls originating from a single telephone. At one point, the surveillance technology for wiretapped
phones was based on the fact that rotary clicks would trigger movements of a pen on a piece of
paper." Peter Swire, Administration Wiretap Proposal Hits the Right Issues But Goes Too Far,
Brookings Institution Analysis Paper #3, America's Response to Terrorism (The
Brookings Institution, Washington, DC) Oct. 3, 2001 [hereinafter Swire].
69. Omnibus Crime Control and Safe Streets Act of 1969, Pub. L. No. 90-351, 82 Stat. 197, 211
(1968) (codified as amended at 18 U.S.C. §§ 2510-2521 (1982 & Supp. IV 1986) [hereinafter
70. 18 U.S.C. 2518 (1)(b)(ii)(1982 & Supp. IV 1986).
71. Rep. Nancy Pelosi, on CNN Novak, Hunt and Shields. Oct. 27, 2001.
72. Victoria Toensing Remarks at the Communitarian Dialogue on Privacy v. Public Safety (Nov.
26, 2001) (transcript available from the Communitarian Network) [hereinafter Toensing remarks].
73. For a discussion of the various analogies applied, see Lt. Col. Joginder Dhillon & Lt. Col.
Robert Smith, Defensive Information Operations and Domestic Law: Limitations on Government
Investigative Techniques. 56 A.F.L. Rev. 135 (2001) [hereinafter Dhillon] at 149.
75. The United States Code defines a pen register as a "device which records or decodes
electronic or other impulses which identify the numbers dialed or otherwise transmitted on the
telephone line to which such device is attached." 18 U.S.C. 3127(3) (1994).
76. Swire, supra note 21.
78. Field Guide on the New Authorities (Redacted) Enacted in the 2001 Anti-Terrorism
Legislation, available at: http://www.epic.org/privacy/terrorism/DOJ_guidance.pdf section (last
visited January 29, 2002) [hereinafter DOJ Field Guide], 216A.
79. Electronic Communications Privacy Act, Pub. L. 99-508, 100 Stat. 1848 (1986) [hereinafter,
80. The ECPA extended the section of the US Code requiring a court order to intercept oral or
wire communications to include electronic communications. 18 USC 2511, as amended by ECPA
title I, secs. 101(b), (c)(1), (5), (6), (d), (f)[(1)], 102.
81. For further discussion, see Terrence Berg, www.wildwest.gov: The Impact of the Internet on
State Power to Enforce the Law, 2000 B.Y.U.L. Rev. 1305; James X. Dempsey,
Communications Privacy in the Digital Age: Revitalizing the Federal Wiretap Laws to Enhance
Privacy, 8 Alb. L.J. Sci. & Tech. 65 (1997); Dhillon, supra note 25 ; Susan Freiwald, Uncertain
Privacy: Communications Attributes Under the Digital Telephony Act, 69 S. Cal. L. Rev. 949
(March 1996); and Paul Taylor, Issues Raised by the Application of the Pen Register Statutes to
Authorize Government Collection of Information on Packet-Switched Networks, 6 Va. J.L. &
Tech. 4 (2001).
82. Christian David Hammel Schultz, Unrestricted Federal Agent: "Carnivore" and the Need to
Revise the Pen Register Statute, 76 Notre Dame L. Rev. 1215 (June 2001), 1221-3.
83. Swire supra note 21.
84. See 18 U.S.C.A. 2703 (West 2000), which reads: (a) Contents of electronic communications
in electronic storage. A governmental entity may require the disclosure by a provider of electronic
communication service of the contents of an electronic communication, that is in electronic
storage in an electronic communications system for more than 180 days or less, only pursuant to a
warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant.
85. 18 USC 2703(a).
86. DOJ Field Guide, supra note 30, section 220.
87. An oft-repeated anecdote that illustrates the point: At the launch of Jini, a wireless device that
has the potential to track a user's movements, Sun Microsystems CEO Scott McNealy responded
to privacy concerns with the declaration that "You have zero privacy now. Get over it!" For a
further discussion, see Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in
88. See The Limits of Privacy, supra note 6, chap. 3.
89. Deborah Russell and G. T. Gangemi Sr., Encryption, in Building in Big Brother, 11
(Lance Hoffman ed.1995).
90. Dorothy E. Denning and William E. Baugh Jr., Encryption and Evolving Technologies as
Tools of Organized Crime and Terrorism (US Working Group on Organized Crime, National
Strategy Information Center, 1997). .
91. Jonathan Krim, High-tech RBI Tactics Raise Privacy Questions, The Washington Post, Aug.
14, 2001, at A01 [hereinafter Krim].
92. Steven Levy, Crypto: How the Code Rebels Beat the Government-Saving Privacy
in the Digital Age (2001) [hereinafter Levy], 310-11.
93. In practice, if it difficult to make the information completely secure, just as it is difficult to
completely delete files. For example, if the operating system needs to perform another task while
an encryption application is in progress, if will halt the application temporarily and return to it
later. Before it halts the program, it writes the encryption application, and its key, to disk as a
safety measure. When the application is completed later, many users do not realize that a version
of the unencrypted key will remain on the disk until the computer writes it over. Bruce
Schneier, Applied Cryptography, (1994), 148.
94. FBI Director Louis J. Freeh stated that:
"From 1995-1996, there was a two-fold increase (from 5 to 12) in the number of instances where
the FBI's court-authorized electronic efforts were frustrated by the use of encryption that did not
allow for law enforcement access."
Hearing on Encryption Before the Senate Committee on the Judiciary, 107th Cong. (2001)
(statement of Louis J. Freeh, Director, Federal Bureau of Investigation) [hereinafter Freeh
statement]. See also, The Limits of Privacy, supra note 6, chap. 3.
95. I wrote "seems" because it is not possible to know whether the National Security Agency has
found a way to decrypt high-power encryption. However, the great efforts made to gain keys
reinforce the view that the NSA has failed in its endeavors to this effect.
96. See John Perry Barlow, Cyberspace Independence Declaration, issued Feb. 9 1996, available
at http://www.eff.org/~barlow/Declaration-Final.html (last visited on January 22, 2002); and
Steven Levy, The Battle of the Clipper Chip, NY Times, 12 June 1994.
97. FBI Director Louis J. Freeh testified that:
"The looming specter of the widespread use of robust, virtually untraceable encryption is one of
the most difficult problems confronting law enforcement as the next century approaches. At stake
are some of our most valuable and reliable investigative techniques, and the public safety of our
citizens. We believe that unless a balanced approach to encryption is adopted that includes a
viable key management infrastructure, the ability of law enforcement to investigate and sometimes
prevent the most serious crimes and terrorism will be severely impaired."
Freeh statement, supra note 48.
98. Roving wiretaps were initially introduced in the ECPA, supra note 31.
99. 18 U.S.C. 2518 (11)(b) (1994 Supp. IV). The addition of this section was part of the ECPA.
100. 18 USC 2518 (11)(b)(i) (1994 Supp. IV).
101. 18 USC 2518 (11)(b) (1994).
102. Intelligence Authorization Act for Fiscal 1999, Pub. L. No. 105-272, 604, 112 Stat. 2396,
2413 (1998), amending 18 USC 2518 (11)(b)(1994).
103. The most significant case is that of United States v. Petti, 973 F.2d 1441, 1444-45 (9th Cir.
1992) [hereinafter Petti]. For further discussion see also Bryan R. Faller, The 1998 Amendment to
the Roving Wiretap Statute: Congress "Could Have" Done Better, 60 Ohio St. L.J. 2093 (1999).
104. USA Patriot Act, supra note 1, section 206 (amending 50 U.S.C. 1805(c)(2)(B)).
105. Hearing on the Foreign Intelligence Surveillance Act of 1978 Before the Subcommittee on
Criminal Laws and Procedures of the Senate Committee on the Judiciary, 95th Congress, 1t Sess.
13 (1977), reprinted in 1978 ISKCON 3904, 3916.
106. Tom Ricks A secret US court where one side always seems to win, Christian Science
Monitor, May 21, 1982.
107. USA Patriot Act, supra note 1, section 218 (amending 50 U.S.C. 1804(a)(7)(B),
1823(a)(7)(B)). See also 147 Cong. Rec. S11004.
108. Department of Justice overview of the USA Patriot Act, as entered into the Cong. Rec. S
11055 (daily ed. Oct. 25, 2001) [hereinafter DOJ Overview].
109. 50 USC 1806.
110. William Carlsen, Secretive US court may add to power, San Francisco Chronicle, Oct. 6,
111. USA Patriot Act, supra note 1, section 214, 216 (amending 50 U.S.C. 1842, 1843 and 18
U.S.C. 3121, 3123, 3127).
112. Id. section 216 A. See also DOJ Field Guide, supra note 30, section 216A.
113. The law is worded in a peculiar way, saying that a single order can be used at any carrier's
facility, but not explicitly establishing that the order has nationwide scope. Id. section 216A
114. Id. section 220 (amending 18 USC 2703).
115. Id. section 220. See also DOJ Field Guide, supra note 30, section 220.
116. See The Limits of Privacy, supra note 6, chap. 3; Levy, supra note 45, at 226-268.
117. See, e.g. Bruce W. McConnell & Edward J. Appal, Draft paper, Enabling Privacy,
Commerce, Security and Public Safety in the Global Information Infrastructure, available at
http://www.epic.org/crypto/key_escrow/white_paper.html (last visited January 29, 2002); and
Hearing on Privacy in a Digital Age: Encryption and Mandatory Access Before the Senate
Committee on the Judiciary, Subcommittee on the Constitution, Federalism, and Property
Rights, 105th Cong. (1998) (statement of Robert S. Litt, Principal Associate Deputy Attorney
General). For a fuller history of key escrow, see A. Michael Froomkin, It Came From Planet
Clipper: The Battle Over Cryptographic Key "Escrow," 1996 U. Chi. L. Forum 15.
118. JEDI Callusing, White House Yields a Bit on Encryption, NY TIMES, July 8, 1998, D1;
Lance J. Hoffman, Encryption Policy for the Global Information Infrastructure, statement at the
Eleventh International Conference on Information Security, Cape Town South Africa, 9-12 May
119. USA Patriot Act, supra note 1, section 412.
120. AG Order No. 2529-2001, 66 Fed. Reg. (Oct. 31, 2001) (to be codified at 28 CAR pt. 500-501).
121. Military Order of November 13, 2001--Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. 66 Fed. Reg. 57831-57836 (Nov. 16, 2001).
122. Senator Patrick Leahy, speaking ABC News, This Week, (Burwell's Information Services,
18 November 2001): "We don't protect ourselves by bending or even shredding our Constitution.
We protect ourselves by upholding our Constitution and demonstrating to the rest of the world
we will defend ourselves, but we will do it by also defending our own core values."
123. Morton Halperin, Less Secure Less Free, The American Prospect, Nov. 19, 2001, at 10.
124. Hearing on the Department of Justice and Terrorism Before the Senate Committee on the
Judiciary, 107th Cong. (2001) (statement of Sen. Hatch).
125. Attorney General Ashcroft told Congress that tactics of attempting to scare citizens with
"phantoms of lost liberty" "only aid terrorists" and "give ammunition to America's enemies."
Hearing on DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism
Before the Senate Committee on the Judiciary, 107th Cong. (2001) (statement of John Ashcroft,
Attorney General of the United States).
126. Olmstead v. United States, 277 US 438 (1928).
127. Id. at 466.
128. Katz v. United States, 389 US 347 (1967) [hereinafter Katz] at 351.
129. Id. at 351.
130. Id. at 361.
131. See, e.g. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev.
349, 384-85 (1974); Richard S. Julie, High-tech Surveillance Tools and the Fourth Amendment:
Reasonable Expectation of Privacy in the Technological Age, 37 Crim. L. Rev. 127, 131-33
(2000); Jonathan Todd Laba, If You Can't Stand the Heat, Get Out of the Drug Business:
Thermal Imagers, Emerging Technologies, and the Fourth Amendment, 84 Calif. L. Rev. 1437,
1470-75 (1996); Scott E. Sundby, "Everyman's" Fourth Amendment: Privacy or Mutual Trust
Between Government and Citizen?, 94 Colum. L. Rev. 1751 (1994); State v. Reeves, 427 So. 2nd
at 425 (Dennis, J., dissenting).
133. United States v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997).
134. Dhillon, supra note 26 at 150.
135. Smith supra note 20. For further discussion of the implications of Smith for seizure of
electronic communications, see the Department of Justice search and seizure manual, Searching
and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Computer
Crime and Intellectual Property Section, Criminal Division, United States Department of Justice
(January 2001), available at http://www.usdoj.gov:80/criminal/cybercrime/searchmanual.wpd (last
visited January 24, 2002).
136. Dhillon supra note 26, at 150.
137. US Const. amend. IV.
138. Petti supra note 56, citing Maryland v. Garrison, 480 U.S. 79, 84, 94 L. Ed. 2d 72, 107 S.
Ct. 1013 (1987).
139. Id. citing United States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985).
140. The United States code specifies that in the case of a roving intercept "the order authorizing
or approving the interception is limited to interception only for such time as it is reasonable to
presume that the person identified in the application is or was reasonably proximate to the
instrument through which such communication will be or was transmitted." 18 USC 1518
(11)(b)(iv); and that the interception "shall not begin until the place where the communication is
to be intercepted is ascertained by the person implementing the interception order." 18 USC 1518
141. Steagald v. United States, 451 U.S. 204 (1981).
142. Tracey Maclin, Another grave threat to liberty, Nat'l L. J., Nov. 12, 2001, A20.
143. Clifford S. Fishman, Interception of Communication in Exigent Circumstances: The Fourth
Amendment, Federal Legislation, and the United States Department of Justice, 22 Ga. L. Rev. 1
(Fall 1987) [hereinafter Fishman], at 65-69.
144. Solicitor General Ted Olsen, on CNN, Larry King Live, Oct. 24, 2001.
145. Nadine Strossen, on CNN News, International. Oct. 30, 2001.
146. Bart Kosko, Your Privacy is a Disappearing Act, Los Angeles Times, Dec. 2, 2001, at M5
147. Adam Clymer, Anti-terrorism bill passes, U.S. gets expanded powers, NYTimes, Oct. 26,
2001, at A1
148. Strossen remarks, supra note 4.
149. Alan Dershowitz, on CNN News, International. Oct. 30, 2001.
150. The USA-PATRIOT ACT Boosts Government Powers While Cutting Back on Traditional
Checks and Balances. (ACLU, Leg. Analysis) available at
http://www.aclu.org/congress/l110101a.html (last visited Jan. 17, 2002).
151. Letter from Assistant Director John Collingwood to Members of Congress (Aug. 16, 2000),
available at http://www.fbi.gov/congress/congress00/collingwood081600.htm (last visited Jan. 29,
152. Illinois Institute of Technology Research Institute, Independent Review of Carnivore
System- Final Report (2000), available at http://www.epic.org/privacy/carnivore/carniv_final.pdf
(Last visited Jan. 29, 2002) [hereinafter IITRI Report], at 126.96.36.199.1, 188.8.131.52.4, 184.108.40.206.6
153. Id. at 220.127.116.11.3.
154. Fourth Amendment Issues Raised by FBI's "Carnivore" Program: Hearing Before the
House Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. 1 (2001)
(statement of Donald M. Kerr, Assistant Dir. Lab. Div. FBI) [hereinafter July 2000 Kerr
155. The "Carnivore" Controversy: Electronic Surveillance and Privacy in the Digital Age:
Hearing before the Senate Comm. on the Judiciary, 106th Cong. 3 (2000) (statement of Donald
M. Kerr, Assistant Dir. Lab. Div. FBI) [hereinafter Sept. 2000 Kerr statement].
156. July 200 Kerr statement, supra note 107.
157. Aff. of Randall S. Murch, United States District Court District of New Jersey, United States
v. Scarfo (Oct. 4, 2001), available at http://www.epic.org/crypto/scarfo/murch_aff.pdf (last
visited Jan. 29, 2001) [hereinafter Murch Aff.].
158. In his affidavit during the Scarfo trial, FBI's Randall Murch explains that the public
encryption key is usually a long string of computer data that the user cannot simply memorize.
Instead, the user has a passphrase that enables him to decrypt his files. When the passphrase is
entered into a dialog box, the program then decrypts the key and then uses it to decrypt the file.
159. Judge Orders Government to Explain How "Key Logger" System Works, Computer and
Online Industry Litigation Reporter, Aug. 14, 2001, 3.
160. Order to search Merchant Services of Essex County, filed May 8, 1999. United States Court
District, District of New Jersey, available at http://www2.epic.org/crypto/scarfo/order_5_99.pdf
(last visited Jan. 29, 2001) [hereinafter Scarfo warrant].
161. The component that records the keystrokes can be set to evaluate each keystroke
individually before recording it. When a keystroke is entered, KLS checks the status of the
computer's communication ports. The component will only record a keystroke if all the
communications ports are inactive. Murch Aff., supra note 110.
162. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the
Constitution, 143 U. Pa. L. Rev. 709 (Jan. 1995).
163. Hiawatha Bray, Military-Tech Complex, Boston Globe, Nov. 29, 2001, at C1.
164. Ted Bridis, FBI develops new tools to ensure government can eavesdrop on high-tech
messages, Associated Press, Oct. 21, 2001.
165. Bob Port, Spy Software Helps FBI Crack Encrypted Mail, Daily News, Dec. 9, 2001, at 8.
166. Lou Doliner, With new tools, authorities can target suspects' computers with accuracy,
Newsday, Dec. 12, 2001, at C08.
167. Hearing on Protecting Constitutional Freedoms from Infringement by Counterterrorism
Efforts Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Sen.
Comm. on the Judiciary Committee, 107th Cong. (2001) (statement of Jerry Berman, Exec. Dir.
Center for Democracy and Technology) [hereinafter Berman statement].
168. See ACLU, Urge Congress to Stop the FBI's Use of Privacy-Invading Software (2000),
available at http://www.aclu.org/action/carnivore107.html (last visited January 10, 2002)
169. See Aaron Kendal, Carnivore: Does the Sweeping Sniff Violate the Fourth Amendment?, 18
T.M. Cooley L. Rev. 183 (Trinity Term 2001).
170. See ACLU, supra note 121.
171. FBI eavesdrops on e-mail, crashed privacy barriers, USA TODAY, July 24, 2000, at 16A.
172. Tom Bridis, Congressional Panel Debates Carnivore as FBI Moves to Mollify Privacy
Worries, The Wall Street Journal, July 25, 2000, at A28.
173. IITRI Report, supra note 105, at ES.5 - E.S.6.
174. Id. at ES.5.
175. Id. at xi and xiv.
176. Id. at ix, xiii.
177. John Schwartz, Wiretapping System Works On Internet, Review Finds, NY Times, Nov. 22,
2000, at A19.
178. IITRI Report, supra note 105, at 18.104.22.168.
179. For an example of the Neo-Luddite position, see Chellis Glendinning, Notes Toward a Neo-Luddite Manifesto, Utne Reader, Mar./Apr., 1990. For an historical discussion of Luddism, see
Kirkpatrick Sale, Rebels Against the Future (1995).
180. Brief of the United States in Opposition to Defendant's Pre-trail Motions, United States v.
Scarfo, (July 2001) Available at http://www2.epic.org/crypto/scarfo/gov_brief.pdf (last visited
January 29, 2002) [hereinafter Scarfo brief].
181. Motion to Suppress Evidence Seized by the Government Through the Use of a Keystroke
Logger, United States v. Scarfo, (June 2001), available at
http://www2.epic.org/crypto/scarfo/def_supp_mot.pdf (last visited Jan. 29, 2002).
182. Scarfo warrant, supra note 113.
183. Richard Willing, FBI technology raises privacy issues, USA TODAY, July 31, 2001, at 3A.
184. Scarfo brief, supra note 133, at 38.
185. Opinion and Order in the case of United States v. Scarfo et al., issued Dec. 26, 2001,
available at http://lawlibrary.rutgers.edu/fed/html/scarfo2.html-1.html (last visited Jan. 29, 2002).
186. Amitai Etzioni, The Spirit of Community: The Reinvention of American Society
(1993), chap. 6, The New Golden Rule, supra note 6, chaps. 1 and 2.
187. The Economist reports that the anti-terrorism bill released by the United Kingdom's home
secretary David Blunkett on November 13 includes a provision that would give public authorities
the power to force protestors to remove disguises. The Economist, Nov. 17, 2001, at 54.
188. Statement of Louis J. Freeh, Director, Federal Bureau of Investigation, before the House
Appropriations Committee, Subcommittee on Commerce, Justice, State, Judiciary and Related
Agencies, 105th Cong. (1998) available at http://www.fbi.gov/congress/congress98/hac35.htm
(last visited Jan. 29, 2002).
189. Alan Cullison and Andrew Higgins, How al Qaeda Agent Scouted Attack Sites In Israel and
Egypt, The Wall Street Journal, Jan. 16, 2002, at 1.
190. Levy, supra note 45, chap 7.
191. 18 USC 1518 (5).
192. 18 U.S.C. 2518 (5) (Supp. IV 1986).
193. See, e.g., United States v. Clerkley, 556 F.2nd 709, 717 (4th Cir. 1977); United States v.
Costello, 610 F. Supp. 1450, 1477 (N.D. Ill. 1985); United States v. Clemente, 482 F. Supp. 102.
108-10 (S.D.N.Y. 1979).
194. Scott v. United States, 436 US 128 (1978).
195. Id. at 137-39.
196. Id. at 142.
197. The Honorable Bob Barr, A Tyrant's Toolbox: Technology and Privacy in America, 26 J.
Legis. 71 (2000).
198. IITRI Report, supra note 105, at 22.214.171.124.6, ES.5.
199. Id. at 126.96.36.199.3.
200. Dan Eggen and Brook Masters, U.S. Indicts Suspect in September 11 Attack, Washington
Post, Dec. 12, 2001, A01.
201. Berman statement, supra note 120.
202. William Carlson, Secretive US Court may add to power, San Francisco Chronicle, Oct.
6, 2001, at A3.
203. Berman statement, supra note 120.
204. Private communication with Orin Kerr, Washington, DC, Dec. 14, 2001.
205. Toensing remarks, supra note 25.
206. 50 USC 1804(a).
207. "Law enforcement, rather than a Court, will decide what is "content" and systems like
Carnivore will be used without any real judicial supervision." ACLU, More on ACLU Objections
to Select Provisions of Proposed Anti-Terrorism Legislation, (2001) available at
http://www.aclu.org/congress/Patriot_Links.html (last visited Jan. 17 2002).
208. United States v. Rodriguez. 968 F. 2d 130, 135 (2d Cir. 1992).
209. Boyd v. United States, 116 U.S. 616 (1886).
210. Weeks v. United States, 232 U.S. 383 (1914).
211. See e.g. United States v. Leon, 468 U.S. 897 (1984), which established a "good faith"
exception to the exclusionary rule; Nix v. Williams, 467 U.S. 431, 444 (1984), which created the
"inevitable discovery" exception to the exclusionary rule; Massachusetts v. Sheppard, 468 U.S.
981 (1984), upholding the "good faith" exception; United States v. Calandra, 414 U.S. 338, 348
(1974), which establishes that the exclusionary rule does not proscribe use of all illegally obtained
evidence. For further discussion, see Leslie-Ann Marshall and Shelby Webb, Jr. Constitutional
Law -- The Burger Court's Warm Embrace Of An Impermissibly Designed Interference With The
Sixth Amendment Right To The Assistance of Counsel -- The Adoption Of The Inevitable
Discovery Exception To The Exclusionary Rule: Nix v. Williams. n1, 28 How. L.J. 945 (1985);
Christopher A. Harkins, The Pinocchio Defense Witness Impeachment Exception to the
Exclusionary Rule: Combating a Defendant's Right to Use With Impunity the Perjurious
Testimony of Defense Witnesses, 1990 U. Ill. L. Rev. 375 (1990), at 389-411.
212. "The process that brought you this bill is terribly flawed. After bypassing a Judiciary
Committee mark-up, a few Senators and their staffs met behind closed doors, on October 12,
2001 to craft a bill. The full Senate was presented with anti-terrorism legislation in a
take-it-or-leave-it fashion with little opportunity for input or review. No conference committee
met to reconcile the differences between the House and Senate versions of the bill. We find it
deeply disturbing that once again the full Senate will be forced to vote on legislation that it has
not had the opportunity to read. Senate offices are closed and staff cannot even access their
papers to fully prepare you for this important vote. Regular order is being rejected and it is an
offense to the thoughtful legislative procedures necessary to protect the Constitution and Bill of
Rights at a time when the rights of so many Americans are being jeopardized."
Letter from Laura Murphy, Dir. ACLU Wash. Office to Senate, Urging Rejection on Final
Version of USA Patriot Act, Oct. 23, 2001, available at
http://www.aclu.org/congress/1102301k.html (last visited Jan. 17, 2002).
213. Sen. Orin Hatch said before Congress that:
"We can never know whether these tools would have prevented the attack on America, but, as the
Attorney General has said, it is certain that without these tools we did not stop the vicious acts of
last month. I personally believe that if these tools had been in law--and we have been trying to get
them there for years--we would have caught those terrorists. If these tools could help us now to
track down the perpetrators--if they will help us in our continued pursuit of terrorists--then we
should not hesitate to enact these measures into law. God willing, the legislation we pass today
will enhance our abilities to protect and prevent the American people from ever again being
violated as we were on September 11."
Cong. Rec. S11015 (2001) (statement of Sen. Hatch).
214. The House Judiciary Committee held a hearing on the Fourth Amendment Issues Raised by
the FBI's Carnivore Program on July 24, 2000. Testimonies are available at
http://www.house.gov/judiciary/con07241.htm, (last visited on January 22, 2002). The Senate
Judiciary Committee held a hearing on Carnivore on Sept. 6, 2000. Testimonies are available at
http://www.senate.gov/~judiciary/wl96200f.htm, (last visited Jan. 22, 2002).
215. Press Release, ACLU, In Unique Tactic, ACLU Seeks FBI Computer Code
On "Carnivore" and Other Cybersnoop Program (July 14, 2000), available at
http://www.aclu.org/news/2000/n071400a.html (last visited Jan. 29, 2002).
216. Press Release, EPIC, Lawsuit Seeks Immediate Release of FBI Carnivore Documents (Aug.
2, 2000), available at http://www.epic.org/privacy/carnivore/8_02_release.html (last visited Jan.
217. Nick Wingfield & Don Clark, Internet Companies Decry FBI's E-mail Wiretap Plan, The
Wall Street Journal, July 12, 2000, at B11A.
218. Opinion and Order requiring submission of report "detailing how the key logger device
function," United States District Court, District of New Jersey, United States v. Scarfo (August
2001), available at http://www2.epic.org/crypto/scarfo/order_8_7_01.pdf (last visited Jan. 29,
219. John Schwartz, US Refuses to Disclose PC Tracking, NY Times, Aug. 25, 2001, at C1.
220. Krim, supra note 44.
221. See 114 Cong. Rec. 14, 750 (1968)
222. Official report of the Senate Select Committee on Intelligence, headed by Senator Frank
Church, as published in US News and World Report, Dec. 15, 1975, at 61.
223. Jim McGee, The Rise of the FBI, Washington Post Magazine, July 20, 1997, at W10.
225. Robert O. Keohane, Governance in a Partially Globalized World, American Political
Science Review 95, no. 1 (2001), at 1-13.
226. Martin Edmonds, International Affairs 62, no. 2 (1986), 290-91 (reviewing Military
Intervention in Democratic Societies, Peter J. Rowe and Christopher J. Whelan, eds.);
Jeffrey Simpson, What Happens when Society's Guardians Need Guardians Themselves? Globe
and Mail, Sept. 11 1996.
227. Seymour Martin Lipset & William Schneider. The
Confidence Gap: Business, Labor, and Government in the Public Mind