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"Lawful access" vs warrants
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Date: Sun, 19 Apr 1998 13:43:21 -0700
From: John Gilmore
Remember how in the Clipper debate, the government insisted on using the term "lawful access" when talking about what the government had to do to get keys out? They implied it meant a warrant issued by a judge, but actually the proposed rules said any "lawful access" would do. That phrase kept reappearing in government proposals.
I've been looking for years in the laws to find what secret loophole they've been trying to protect. Today I ran across it!
It's Executive Order 12333, signed by our favorite senile president, Ronald Reagan, in 1981. It says:
2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.
In other words, if the Attorney General claims that someone is an agent of a foreign power, no warrants are needed; the target has no Constitutional rights any more:
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You will recall that the Attorney General made exactly this claim about Martin Luther King (that he was an agent of a foreign power), to justify the years of FBI surveillance. For all we know, they have been claiming that anyone who advocates crypto legalization must be an agent of a foreign power. It really wouldn't surprise me.
We shouldn't stop looking for more loopholes -- they may have several -- but I think this is the big one.
John
Date: Sun, 19 Apr 1998 22:00:51 -0400
From: "Stewart Baker"
John Gilmore claims that the government's references to "lawful access" mean that the government will be using EO 12333 to perform warrantless key seizures on anyone the Attorney General decides to classify as a foreign agent. He says Martin Luther King qualified as a foreign agent and that perhaps so will opponents of key recovery.
John is wrong.
The Foreign Intelligence Surveillance Act governs electronic intercepts of foreign agents with a connection to the US (located here, communicating into or out of the US, US nationals, etc.). The Act requires a warrant (from a special court that is set up to handle very secret data) and it has been tested in court many times without being held in violation of the fourth amendment.
Under the law, "foreign agent" is a defined term; MLK would not have qualified, nor would somebody who takes money to lobby for foreign governments even if he is registered as an official foreign agent for registration purposes. Basically, it covers spies and employees of foreign governments, agents of terrorist organizations, etc.
There is an exception to the warrant requirement. In a declared emergency the Attorney General can waive the obtaining of a warrant. For about 48 hours, at which point the case has to go to court. Not exactly a civil liberties scandal, but it probably explains the reluctance of government representatives to use the phrase "warrant" instead of "lawful access."
Stewart Baker
Date: Mon, 20 Apr 1998 09:58:51 -0700
From: John Gilmore
Stewart is distracting you into wiretap law. EO 12333 is much more broad. It claims to allow the Attorney General the use of any activity that would normally require a warrant -- such as a physical search -- if he merely claims probable cause to believe
that the technique is directed against a foreign power or an agent of a foreign power.
Stewart is correct that wiretaps under EO 12333 must also follow the FISA. But non-wiretap activities under EO 12333 aren't covered by FISA.
The FISA was written before key escrow was even contemplated. It doesn't cover or control the obtaining of keys from third parties. It covers electronic intercepts of the communications of people suspected of being foreign agents. (I like how Stewart says it "governs electronic intercepts of foreign agents". If we're investigating them, they must be guilty!)
The proponents of Clipper knew this was a hot button for us -- if their intentions were innocent, why didn't they defuse it by replacing the phrase "lawful access" with "court order"?
Stewart was undoubtedly in on the drafting of the Clipper proposals. If he thinks my theory that EO 12333 is part of "lawful access" is full of holes, have him propose his own. I challenge him to give an exact legal definition of "lawful access", naming the complete set of statutes, regulations, Executive Orders, and other circumstances under which he believes the phrase would authorize the release of escrowed encryption keys to anyone.
John
Date: Mon, 20 Apr 1998 10:54:05 -0400 (EDT)
From: "Michael Froomkin - U.Miami School of Law"
I'm afraid this is really, really old news. Congress passed the law authorizing this some time ago, and it was widely reported and written up.
E.g.:
[from http://www.law.miami.edu/~froomkin/artticles/clipper.htm in footnote 492.]
492. Warrantless wiretaps are authorized by the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. =A7 1802(a) (1988). The President, acting through the Attorney General, may authorize electronic surveillance for up to one year if the surveillance is directed solely at communications between or among foreign powers, there is no substantial likelihood of acquiring communication of U.S. citizens, and minimization procedures have been followed. See id. Title 18 of the U.S. Code also permits warrantless surveillance in emergency situations involving immediate danger, death, or serious physical injury to any persons; conspiratorial activities threatening the national interest; or conspiratorial activities characteristic of organized crime. See 18 U.S.C. =A7 2518(7) (1988).
[and from note 493:]
Congress recently authorized the FISA court to issue warrants for national security break-ins and inspections of the interior of buildings by "technical means." Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, tit. VIII, =A7 807(a), =A7 301(5), 108 Stat. 3423, 3444 (1994) (to be codified at 50 U.S.C. =A7 1821). This authority can be used against American citizens if the Justice Department persuades the FISA court that the suspects are agents of a foreign power. See id. =A7 301(b), 108 Stat. 3423, 3445; see also United States v. Humphrey, 629 F.2d 908, 912-14 (2d Cir. 1980) (holding that a warrantless search did not violate the Fourth Amendment because it was related to national security); In re Application of the United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property (F.I.S.C. 1981) (holding that a FISA order was not required, and was at any rate unavailable due to lack of jurisdiction, for A warrantless national security break-in), reprinted in S. Rep. No. 280, 97th Cong., 1st Sess. 16 (1981).
[and from the text around there:]
The law says the government may paw through a citizen's garbage without a warrant,{484} and that she lacks a reasonable expectation of privacy in relation to telephone numbers dialed.{485} The police may fly over her house in A helicopter at four hundred feet{486} and use special cameras to photograph everything below.{487} The government may [Page 824]use satellites to spy in her windows;{488} it may use heat- detection gear to monitor heat emanations from her home;{489} it may use dogs to sniff her luggage and her person.{490} Once the government has arranged for an informant to plant a beeper on A citizen, the government may use the signal to track the citizen's movements.{491} When national security is at risk, many procedural [Page 825]protections that are required in the ordinary course of an investigation are suspended. For example, the government may, for reasons of national security, break into some premises without a warrant to plant a bug, whereas the same action in an ordinary criminal investigation would require a warrant.{492} National security wiretap requests go to a secret court that meets in camera and never issues opinions.{493}
A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) Associate Professor of Law |=20 U. Miami School of Law | froomkin@law.tm http://www.law.tm=20 P.O. Box 248087 | =20 Coral Gables, FL 33124 USA | It's warm here.
Date: Mon, 20 Apr 1998 10:21:55 -0700
From: John Gilmore
Michael, thanks for your response. I think you, like Stewart, focused on FISA and wiretap law, while EO 12333 appears much more broad.
I did notice when they expanded the FISA court to let it approve break-ins too -- though apparently under the EO they can just do break-ins, physical searches, and black bag jobs (burglary) WITHOUT the approval of any court as well.
Thanks for the pointers to court cases which are claimed to say that no warrants are needed under the Fourth Amendment if some government geek claims a classified reason that national security is at stake. I'll get them and read them.
I heard a rumor that the Attorney General's authority to authorize searches without a warrant, under EO 12333, has since 1981 been delegated several levels down in the Justice Department. Know anything about that?
John
Date: Mon, 20 Apr 1998 13:29:27 -0400 (EDT)
From: "Michael Froomkin - U.Miami School of Law"
I vaguely recall that it got delegated down a few levels. Ken Bass would know -- he would have worked for the person who signed them, or done it himself! But that's still a small number of people - one level down is the #2, the next is small, and then you have assistant AGs who are not that numerous either. But I could be wrong about this.
The thing to understand in parsing the EO vs. statute stuff is this: the executive branch has never agreed that it needs congressional approval for national security work, claiming it's an inherent executive function. But they are quite happy to avoid testing this in court if possible.
National security regulations are exempt for the APA, so an EO is an appropriate way to do implementing regulations; you don't mention the statute so you don't create a precedent of admitting you rely on the statute.
I've cc'd Ken since he's far more expert than I on this. ...
A. Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-6506 (fax) Associate Professor of Law | U. Miami School of Law | froomkin@law.tm http://www.law.tm P.O. Box 248087 | Coral Gables, FL 33124 USA | It's warm here.
Date: Mon, 20 Apr 1998 10:44:24 -0700
From: John Gilmore
> The thing to understand in parsing the EO vs. statute stuff is this: > the executive branch has never agreed that it needs congressional > approval for national security work, claiming it's an inherent > executive function.
That's a great theory, but where do Constitutional rights fit into it? Is the theory that the Fourth Amendment doesn't require warrants for unreasonable searches, that it only says, "If you get a warrant, it must only issue based on ..."? Or is the idea that anything the Executive Branch is scared of (i.e. the national security is in danger!) must provoke a reasonable search instead of an unreasonable one?
This starts to sound a lot like the USSR Constitution -- high sounding phrases, completely vitiated in actual administration.
John
Date: Tue, 21 Apr 1998 10:26:55 -0400
From: Ken Bass
John, Michael, et al.
I have always understood the "lawful authority" reference to be a codeword for "court order where required, AG approval where not required."
There are several categories of AG-only approvals. Under FISA the AG alone approves surveillances of "purely foreign establishment" targets, e.g., dedicated channels within a foreign power's facilities, in certain circumstances. As to physical searches, when we were "in power" AG Civiletti decided as a matter of policy to seek orders from the FISA court for physical searches as well as ELSURs, retaining the option to use the "inherent executive power" argument that the courts have come close to holding unconstitutional --but never actually done so. Each administration has claimed that power, similar to a line of assertions of Executive power in a variety of national security/foreign power areas.
Suffice it to say that during the Cart Administration we were sufficiently unsure of the legitimacy of the claim that we decided, as a matter of policy, to always try to get a court order.
The FISA court accepted and granted our physical search applications. When the new administration assumed office, they held a different view and managed to persuade the FISA court that it did not have jurisdiction to issue physical search orders. Finally Congress got around to amending FISA to add such authority and DOJ is, I assume, obeying the law.
As to the level of authority, when I was there it was at the Deputy AG level (#2) or higher. That may have changed, but I have not kept current on any internal delegations. If you wish, I can easily check and get back to any of you.
Not knowing exactly what Stewart has said, I hesitate to comment on his views, but I would be surprised if he did not also view the "lawful order" phrase as encompassing those non-warrant instances that have been encountered over the years where the Pres. has relied on "inherent executive power."
Ken
Date: Wed, 22 Apr 1998 15:46:37 -0500
From: Jim Dempsey
John,
Your above captioned comment on IP was forwarded to me.
>Remember how in the Clipper debate, the government insisted on using >the term "lawful access" when talking about what the government had >to do to get keys out? They implied it meant a warrant issued by a >judge, but actually the proposed rules said any "lawful access" would >do. That phrase kept reappearing in government proposals. > >I've been looking for years in the laws to find what secret loophole >they've been trying to protect. Today I ran across it! > >It's Executive Order 12333, signed by our favorite senile president, >Ronald Reagan, in 1981. It says:
>We shouldn't stop looking for more loopholes -- they may have several -- >but I think this is the big one.
There are many other forms of "lawful access" not requiring a judicial warrant. For example, the Fourth Amendment does not apply at the border: the government can seize your laptop and inspect and probabaly copy its contents without a court order, without probable cause, without even the showing of some degree of suspicion that is required for even simple encounters with police on the street within the borders. See United States v. Ramsey, 431 U.S. 606 (1977), where the Supreme Court stated, "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration."
Also, of course, no court order is required for the government to corrupt your employee or your lover, who may then copy those things to which you have given him or her access and provide them to the government. These people are called informants or "cooperating witnesses" and they are not subject to the Fourth Amendment because you have consented to their presence in your life. Ditto for your employee or lover who gets pissed off at you and walks out with a copy of everything on your hard drive and turns it over to the government (assuming, again, that the employee or lover was somewhere you had allowed them to be). Dumpster-diving is also a form of "lawful access."
And of course, "lawful access" often means by subpoena. Grand jury subpoenas are issued in the name of a grand jury, which is technically subject to the supervision of a judge, but in fact they are forms signed by the assistant prosecutor and never seen or approved by members of the grand jury, let alone by a judge.
On top of that, many administrative agencies are authorized to issue "administrative subpoenas." At the federal level alone, we identified 200 grants of subpoena authority to federal agencies, including to the FBI and DEA in drug cases. Typically, these statutes authorize an executive branch official or agency to issue subpoenas "for any papers, correspondence, memoranda or other records that the Secretary [or Board or Commisssion] deems relevant and material." The Supreme Court has held that an administrative agency can investigate "merely on suspicison that the law is being violated, or even just because it wants assurance that it is not." US v. Morton Salt Co., 338 US 632 (1950).
It is precisely because there are some many means of "lawful access" to plaintext, ciphertext and decryption keys not requiring judicial approval that we have called for legislation creating specific statutory court order requirements. Some have criticized our support for court order requirments as paving the way for key recovery, but to do nothing is to accept the many forms of "lawful access" that do not require court approval.
>PS: It isn't clear that the President has the authority to do this. >The claimed authority is "the National Security Act of 1947, as >amended". I doubt it delegates to the President the right to approve >warrantless searches of US citizens. Even if it did, I doubt whether >such a provision would be Constitutional. I'd be very interested in >knowing if any court has ever looked at whether this Executive Order >has any effect at all on the civil rights of US persons.
In United Presbyterian Church v. Reagan, the validity of E.O. 12333, particualrly sec. 2.5, was challenged by political and religious organizations, journalists, academics and a member of Congress. The suit was dismissed on the ground that no plaintiff could demonstrate injury in fact. Plaintiffs, of course, had been prevented from conducting discovery that might have revealed injuries. In 1984, the federal court of appeals for the District of Columbia affirmed the dismissal.
The courts have never conclusively ruled on the constitutionality of warrantless physical searches. In the John Ehrlichman case, Judge Gesell held that warrantless search of the office of Daniel Ellsberg's psychiatrist, undertaken in the name of national security, was clearly illegal under the Fourth Amendment. But in a 1978 case involving two alleged spies for North Vietnam, one of them a US citizen, the courts upheld warrantless searches approved by Pres. Carter and Attorney General Bell under the predecessor to E.0. 12333.
In any case, section 2.5 of E.O. 12333 was superseded by legislation, adopted, I think, in 1994. 50 USC 1821 - 1829. Now the Attorney General can authorize physical searches on her own only of premises, property or material "used exclusively by, or under the open and exclusive control of, a foreign power." Searches directed at agents of foreign powers must be approved by the Foreign Intelligence Surveillance Court. My boss at the time, Cong. Don Edwards was one of the few who objected, arguing, that these "black bag jobs" should be abolished altogether, not given to the FISA court.
Glad you asked?
Best regards,
Jim Dempsey
Center for Democracy and Technology 1634 Eye Street, NW Suite 1100 Washington DC, 20006 voice: 202.637.9800 x112 fax: 202.637.0968
WORKING FOR DEMOCRATIC VALUES IN A DIGITAL AGE Protecting Free Speech and Privacy on the Internet http://www.cdt.org/
Date: Wed, 22 Apr 1998 16:05:37 -0700
From: John Gilmore
Thanks for your note. It helps to talk with people who have seen this from the other side.
> warrant. For example, the Fourth Amendment does not apply at > the border: the government can seize your laptop and inspect and > probabaly copy its contents without a court order, without probable > cause, without even the showing of some degree of suspicion that is > required for even simple encounters with police on the street within > the borders.
So the gov't proposal under Clipper was that in a border search, they be able to access the key repository to unlock any encrypted stuff you have on your hard drive?
> Also, of course, no court order is required for the government to > corrupt your employee or your lover, who may then copy those things > to which you have given him or her access and provide them to the > government.
This would not qualify for a key access though -- just because they were given a hard-drive full of encrypted stuff, they'd still need some form of due process to get the keys out. Or were they really claiming, "If we have possession of some encrypted data, that IN ITSELF is enough reason that the key escrow center has to give us the key"?
> And of course, "lawful access" often means by subpoena. Grand > jury subpoenas are issued in the name of a grand jury, which is > technically subject to the supervision of a judge, but in fact > they are forms signed by the assistant prosecutor and never seen > or approved by members of the grand jury, let alone by a judge.
I have never had the pleasure of serving on a grand jury. What an amazing fishing expedition. If I ever do get to serve, is there anything I can do as a grand juror to object to this sort of conduct? To at least see what subpoenas are going out under my name?
> DEA in drug cases. Typically, these statutes authorize an executive > branch official or agency to issue subpoenas "for any papers, > correspondence, memoranda or other records that the Secretary [or > Board or Commisssion] deems relevant and material."
Normally the target of the subpoena would be required to decrypt any encrypted materials that fall within the subpoena, just as they are required to get them from dead storage if they're offsite, or to unlock the safe if they're in one. That's what I have been assuming. Are you assuming that today a company could encrypt all its records and then respond to a subpoena with, "Here you go, all the relevant encrypted records..."?
> It is precisely because there are some many means of "lawful access" > to plaintext, ciphertext and decryption keys not requiring judicial > approval that we have called for legislation creating specific > statutory court order requirements. Some have criticized our support > for court order requirments as paving the way for key recovery, but > to do nothing is to accept the many forms of "lawful access" that do > not require court approval.
This isn't clear from the above. The only examples you gave that seems to be an issue is the border search. What's the state of the law today with respect to grand juries? Do they or don't they have the power to demand translation, decryption, interpretation, etc? Or can they merely demand that any physical records be turned over to them?
> Glad you asked?
Very much so; thanks!
John ```
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