Rights and Responsibilities

After 9/11

Prepared By

AMITAI ETZIONI

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 religious organizations.

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 look-see.

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 lost.

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 it.

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 public needs.

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 (June 2002).⁽²³⁾

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 down).⁽²⁴⁾

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).

TABLE 1

GOVERNMENTAL THREATS TO PERSONAL RIGHTS AND FREEDOMS

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 2001.⁽²⁹⁾

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).

TABLE 2

WILLINGNESS TO GIVE UP CIVIL LIBERTIES

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 percent).

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.

TABLE 3

NECESSITY TO GIVE UP LIBERTIES

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 November 2001.

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.

TABLE 4

LAW ENFORCEMENT AND CIVIL LIBERTIES

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 declined somewhat.

TABLE 5

GOVERNMENT EXCESS IN RESTRICTING CIVIL LIBERTIES

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 polls.⁽³⁰⁾

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 1993.)⁽⁴⁴⁾

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 1995.⁽⁴⁷⁾)

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 democracy.

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 legitimately.

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 context.

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 telephone.⁽⁶²⁾

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 other users.⁽⁸³⁾

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 constitutional.⁽¹⁰³⁾

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⁾

They 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

a: General

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.

1. Carnivore

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 court order.⁽¹⁵⁴⁾

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 password.⁽¹⁵⁸⁾

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 counter-encryption tools."⁽¹⁶³⁾

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 programs work.

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 proper conditions.

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 electronic communication.⁽¹⁸⁰⁾

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⁾

C. Accountability

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 criteria listed.)⁽¹⁸⁷⁾

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 supervised.

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 information.

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 rule.⁽¹⁹⁷⁾

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 nationwide warrants.

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 go free.

d. Congress

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 a