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Who Wrote Ron Paul's Newsletters?

jsanchez@reason.com (Julian Sanchez) dweigel@reason.com (David Weigel) — Wed, 16 Jan 2008 09:00:00 EST

Ron Paul doesn't seem to know much about his own newsletters. The libertarian-leaning presidential candidate says he was unaware, in the late 1980s and early 1990s, of the bigoted rhetoric about African Americans and gays that was appearing under his name. He told CNN last week that he still has "no idea" who might have written inflammatory comments such as "Order was only restored in L.A. when it came time for the blacks to pick up their welfare checks"—statements he now repudiates. Yet in interviews with reason, a half-dozen longtime libertarian activists—including some still close to Paul—all named the same man as Paul's chief ghostwriter: Ludwig von Mises Institute founder Llewellyn Rockwell, Jr.

Financial records from 1985 and 2001 show that Rockwell, Paul's congressional chief of staff from 1978 to 1982, was a vice president of Ron Paul & Associates, the corporation that published the Ron Paul Political Report and the Ron Paul Survival Report. The company was dissolved in 2001. During the period when the most incendiary items appeared—roughly 1989 to 1994—Rockwell and the prominent libertarian theorist Murray Rothbard championed an open strategy of exploiting racial and class resentment to build a coalition with populist "paleoconservatives," producing a flurry of articles and manifestos whose racially charged talking points and vocabulary mirrored the controversial Paul newsletters recently unearthed by The New Republic. To this day Rockwell remains a friend and advisor to Paul—accompanying him to major media appearances; promoting his candidacy on the LewRockwell.com blog; publishing his books; and peddling an array of the avuncular Texas congressman's recent writings and audio recordings.

Rockwell has denied responsibility for the newsletters' contents to The New Republic's Jamie Kirchick. Rockwell twice declined to discuss the matter with reason, maintaining this week that he had "nothing to say." He has characterized discussion of the newsletters as "hysterical smears aimed at political enemies" of The New Republic. Paul himself called the controversy "old news" and "ancient history" when we reached him last week, and he has not responded to further request for comment.

But a source close to the Paul presidential campaign told reason that Rockwell authored much of the content of the Political Report and Survival Report. "If Rockwell had any honor he'd come out and I say, ‘I wrote this stuff,'" said the source, who asked not to be named because Paul remains friendly with Rockwell and is reluctant to assign responsibility for the letters. "He should have done it 10 years ago."

Rockwell was publicly named as Paul's ghostwriter as far back as a 1988 issue of the now-defunct movement monthly American Libertarian. "This was based on my understanding at the time that Lew would write things that appeared in Ron's various newsletters," former AL editor Mike Holmes told reason. "Neither Ron nor Lew ever told me that, but other people close to them such as Murray Rothbard suggested that Lew was involved, and it was a common belief in libertarian circles."

Individualist-feminist Wendy McElroy, who on her blog characterized the author as an associate of hers for many years, called the ghostwriter's identity "an open secret within the circles in which I run." Though she declined to name names either on her blog or when contacted by reason, she later approvingly cited a post naming Rockwell at the anonymous blog RightWatch.

Timothy Wirkman Virkkala, formerly the managing editor of the libertarian magazine Liberty, told reason that the names behind the Political Report were widely known in his magazine's offices as well, because Liberty's late editor-in-chief, Bill Bradford, had discussed the newsletters with the principals, and then with his staff. "I understood that Burton S. Blumert was the moneybags that got all this started, that he was the publisher," Virkkala said. "Lew Rockwell, editor and chief writer; Jeff Tucker, assistant, probably a writer; Murray Rothbard, cheering from the sidelines, probably ghosting now and then." (Virkkala has offered his own reaction to the controversy at his Web site.) Blumert, Paul's 1988 campaign chairman and a private supporter this year, did not respond to a request for an interview; Rothbard died in 1995. We reached Tucker, now editorial vice president of Rockwell's Mises.org, at his office, and were told: "I just really am not going to make a statement, I'm sorry. I'll take all responsibility for being the editor of Mises.org, OK?"

The early 1990s writings became liabilities for Paul long before last week's New Republic story. Back in 1996, Paul narrowly eked out a congressional victory over Democrat Lefty Morris, who made the newsletters one of his main campaign issues, damning them both for their racial content and for their advocacy of drug legalization. At the time, Paul defended the statements that appeared under his name, claiming that they expressed his "philosophical differences" with Democrats and had been "taken out of context." He finally disavowed them in a 2001 interview with Texas Monthly, explaining that his campaign staff had convinced him at the time that it would be too "confusing" to attribute them to a ghostwriter.

Besides Ron Paul and Lew Rockwell, the officers of Ron Paul & Associates included Paul's wife Carol, Paul's daughter Lori Pyeatt, Paul staffer Penny Langford-Freeman, and longtime campaign manager Mark Elam (who has managed every Paul congressional campaign since 1996 and is currently the Texas coordinator for the presidential run), according to tax records from 1993 and 2001. Langford-Freeman did not respond to interview requests as of press time. Elam, president of M&M Graphics and Advertising, confirmed to reason that his company printed the newsletters, but said that the texts reached him as finished products.

The publishing operation was lucrative. A tax document from June 1993—wrapping up the year in which the Political Report had published the "welfare checks" comment on the L.A. riots—reported an annual income of $940,000 for Ron Paul & Associates, listing four employees in Texas (Paul's family and Rockwell) and seven more employees around the country. If Paul didn't know who was writing his newsletters, he knew they were a crucial source of income and a successful tool for building his fundraising base for a political comeback.

The tenor of Paul's newsletters changed over the years. The ones published between Paul's return to private life after three full terms in congress (1985) and his Libertarian presidential bid (1988) notably lack inflammatory racial or anti-gay comments. The letters published between Paul's first run for president and his return to Congress in 1996 are another story—replete with claims that Martin Luther King "seduced underage girls and boys," that black protesters should gather "at a food stamp bureau or a crack house" rather than the Statue of Liberty, and that AIDS sufferers "enjoy the attention and pity that comes with being sick."

Eric Dondero, Paul's estranged former volunteer and personal aide, worked for Paul on and off between 1987 and 2004 (back when he was named "Eric Rittberg"), and since the Iraq war has become one of the congressman's most vociferous and notorious critics. By Dondero's account, Paul's inner circle learned between his congressional stints that "the wilder they got, the more bombastic they got with it, the more the checks came in. You think the newsletters were bad? The fundraising letters were just insane from that period." Cato Institute President Ed Crane told reason he recalls a conversation from some time in the late 1980s in which Paul claimed that his best source of congressional campaign donations was the mailing list for The Spotlight, the conspiracy-mongering, anti-Semitic tabloid run by the Holocaust denier Willis Carto until it folded in 2001.

The newsletters' obsession with blacks and gays was of a piece with a conscious political strategy adopted at that same time by Lew Rockwell and Murray Rothbard. After breaking with the Libertarian Party following the 1988 presidential election, Rockwell and Rothbard formed a schismatic "paleolibertarian" movement, which rejected what they saw as the social libertinism and leftist tendencies of mainstream libertarians. In 1990, they launched the Rothbard-Rockwell Report, where they crafted a plan they hoped would midwife a broad new "paleo" coalition.

Rockwell explained the thrust of the idea in a 1990 Liberty essay entitled "The Case for Paleo-Libertarianism." To Rockwell, the LP was a "party of the stoned," a halfway house for libertines that had to be "de-loused." To grow, the movement had to embrace older conservative values. "State-enforced segregation," Rockwell wrote, "was wrong, but so is State-enforced integration. State-enforced segregation was not wrong because separateness is wrong, however. Wishing to associate with members of one's own race, nationality, religion, class, sex, or even political party is a natural and normal human impulse."

The most detailed description of the strategy came in an essay Rothbard wrote for the January 1992 Rothbard-Rockwell Report, titled "Right-Wing Populism: A Strategy for the Paleo Movement." Lamenting that mainstream intellectuals and opinion leaders were too invested in the status quo to be brought around to a libertarian view, Rothbard pointed to David Duke and Joseph McCarthy as models for an "Outreach to the Rednecks," which would fashion a broad libertarian/paleoconservative coalition by targeting the disaffected working and middle classes. (Duke, a former Klansman, was discussed in strikingly similar terms in a 1990 Ron Paul Political Report.) These groups could be mobilized to oppose an expansive state, Rothbard posited, by exposing an "unholy alliance of 'corporate liberal' Big Business and media elites, who, through big government, have privileged and caused to rise up a parasitic Underclass, who, among them all, are looting and oppressing the bulk of the middle and working classes in America."

Anyone with doubts about the composition of the "parasitic Underclass" could look to the regular "PC Watch" feature of the Report, in which Rockwell compiled tale after tale of thuggish black men terrifying petite white and Asian women. (Think Birth of a Nation crossed with News of the Weird.) The list of PC outrages in the February 1993 issue, for example, cited a Washington Post column on films that feature "plenty of interracial sex, and nobody noticing," a news article about black members of the Southern Methodist University marching band "engaged in mass shoplifting while in Japan," and a sob story about a Korean shop-owner who shot a black shoplifter and assailant in the head: The travesty is that Mrs. Du got five years probation, and must cancel a trip to Korea.

The populist outreach program centered on tax reduction, abolition of welfare, elimination of "the entire 'civil rights' structure, which tramples on the property rights of every American," and a police crackdown on "street criminals." "Cops must be unleashed," Rothbard wrote, "and allowed to administer instant punishment, subject of course to liability when they are in error." While they're at it, they should "clear the streets of bums and vagrants. Where will they go? Who cares?" To seal the deal with social conservatives, Rothbard urged a federalist compromise in their direction on "pornography, prostitution, or abortion." And because grassroots organizing is "plodding and boring," this new paleo coalition would need to be kick-started by "high-level, preferably presidential, political campaigns."

The presidential campaign Rothbard and Rockwell supported in 1988 was Ron Paul's run on the Libertarian Party ticket. In 1992, they were again ready to back Paul, until Pat Buchanan convinced the obstetrician to withdraw and back his conservative challenge to then-president Bush. "We have a dream," Rockwell wrote in that same January 1992 edition of RRR, "and perhaps someday it will come to pass. (Hell, if 'Dr.' King can have a dream, why can't we?) Our dream is that, one day, we Buchananites can present Mr. and Mrs. America, and all the liberal and conservative and centrist elites, with a dramatic choice....We can say: 'Look, gang: you have a choice, it's either Pat Buchanan or David Duke.'"

Carol Moore, a left-libertarian activist who opposed Rothbard, Rockwell, and Paul at the late 1980s Libertarian conventions that led to the paleo split, theorizes that the defeat made them bitter. "They had a tendency to be anti-PC," Moore told reason, "and it was really stepped up after they lost. They were really angry and not that funny."

They are less angry these days. Visitors to LewRockwell.com or Mises.org since 2001 are less likely to feel the need for a shower. One can almost detect what sounds like mellowing in Rockwell's reflections on the high and heady paleo days, unburdened by ominous warnings of the looming race war. Nowadays the fiery rhetoric is directed at the "pimply-faced" Kirchick, "Benito" Giuliani, and the "so-called 'libertarians'" at reason and Cato.

But perhaps the best refutation of the old approach is not the absence of race-baiting rhetoric from its progenitors, but the success of the 2008 Ron Paul phenomenon. The man who was once the Great Paleolibertarian Hope has built a broad base of enthusiastic supporters without resorting to venomous rhetoric or coded racism. He has stuck stubbornly to the issues of sound money, "humble foreign policy," and shrinking the state. He wraps up his speeches with a three-part paean to individualism: "I don't want to run your life," "I don't want to run the economy," and "I don't want to run the world." He talks about the disproportionate effect of the drug war on African-Americans, and appeared at a September 2007 Republican debate on black issues that was boycotted by the then-frontrunners. All this and more have brought him $30 million-plus from more than 100,000 donors; thousands of campaign volunteers; and the largest rallies he's ever spoken to, including a crowd of almost 5,000 in Philadelphia.

Yet those new supporters, many of whom are first encountering libertarian ideas through the Ron Paul Revolution, deserve a far more frank explanation than the campaign has as yet provided of how their candidate's name ended up atop so many ugly words. Ron Paul may not be a racist, but he became complicit in a strategy of pandering to racists—and taking "moral responsibility" for that now means more than just uttering the phrase. It means openly grappling with his own past—acknowledging who said what, and why. Otherwise he risks damaging not only his own reputation, but that of the philosophy to which he has committed his life.

Julian Sanchez is a contributing editor and David Weigel is an associate editor of reason.

Time for Democrats to Lead on FISA

jsanchez@reason.com (Julian Sanchez) — Thu, 20 Dec 2007 12:08:00 EST

In defiance of both Ecclesiastes and The Byrds, the waning of the Senate season this week gives civil libertarians cause to dance and reason to mourn. Celebration is in order thanks in large part to the efforts of Sen. Chris Dodd (D-Conn.), whose determination to block an odious amendment to the Foreign Intelligence Surveillance Act (FISA) forced the bill to be tabled until the new year. Jig yields to dirge when you consider that as of late 2007, this is what counts as a major victory for privacy.

The most depressing thing about this triumph is not that it had to be yanked from the jaws of a Democratic majority leader bent on advancing the White House's preferred legislation over a relatively sane alternative. It's not that Sens. Hillary Clinton and Barack Obama offered their colleague support in spirit, but kept their bodies in Iowa. It's not even the prospect of starting the fight anew in January, with fresh grim warnings from the likes of Orrin Hatch (R-Utah) that "we can't even begin to talk about the dangers that will come" should any bill but the president's pass. No, the real reason to reach for a stiff drink is that the dealbreaker, the rallying point for opposition to a potentially vast expansion of executive power to spy on Americans, was the important but ultimately ancillary question of telecom immunity.

Recent press coverage sometimes leaves the impression that the only controversial element of surveillance reform is whether to grant telecommunications providers retroactive immunity against class action suits stemming from their complicity in the National Security Agency's extralegal program of warrantless wiretaps. Many observers believe that the White House's insistence on immunity—backed by a presidential veto threat—is responsible for stalling otherwise viable legislation. "A lot of people would probably support giving the government broader authority if they would decouple that issue from the immunity question," says Michelle Richardson, a legislative consultant for the American Civil Liberties Union, "so they're probably shooting themselves in the foot by forcing it to go forward like this."

Make no mistake, retroactive immunity richly deserves to die an inglorious death, for the very reasons immunity advocates advance in its favor. Allowing civil suits to go forward would lead to the disclosure of more information about the scope of unauthorized domestic spying—based not on an executive calculation of the political advantage to be gained from a leak, but an impartial assessment of the security risk. It would deter telecom firms from "cooperating with law enforcement," when law enforcement agencies are conducting illegal surveillance. That sort of deterrence is, presumably, the whole point of laws forbidding revelation of communications data without a court order. But this seems somewhat less urgent if Congress is prepared to simply eliminate the court order requirement for the very types of wiretaps the NSA is known to have conducted, as the version of FISA reform introduced in the Senate would do. To frame it in Republican-grokkable terms, there's little point in quibbling over an amnesty for illegal immigrants if you're about to implement an open-borders policy.

The focus on immunity is understandable from a public relations perspective. The conflict is relatively easy to explain, and fits comfortably with hardwired partisan attitudes about big corporations. It's another matter entirely to begin untangling the byzantine laws governing America's secretive Foreign Intelligence Surveillance Courts. This was vividly demonstrated recently when, in a Belushian act of protracted slapstick seppuku, Time columnist Joe Klein's last lonely shred of credibility impaled itself on the issue. But the upshot in this case has been, in the words of Electronic Frontier Foundation Legal Director Cindy Cohn, a "huge disconnect between the political debate and what insiders know is going on."

So what is going on? The Bush administration has been striving mightily to persuade Americans that FISA reform—specifically the bill reported out by the Senate Select Committee on Intelligence—has no such drastic consequences. "Help Me Spy on Al Qaeda," sounds Director of National Intelligence Mike McConnell's plaintive cry. "There is such a thing as irrational fear of government" harrumphs Orrin Hatch, denouncing "fear-mongering" on "partisan blogs." On this account, the changes to FISA sought by the White House do little more than reverse a recent, disastrous secret court ruling that required intelligence agencies to file onerous FISA warrant applications before intercepting any communications from American telecom switches, even when both parties to the communication are located overseas. Since such communications have not traditionally been bound by the restrictions imposed on domestic surveillance, FISA "modernization" would simply restore a balance upset by changing technology. And since the Protect America Act, hastily passed in August as a stopgap response to this ruling, is set to expire in February, reform must come quickly or cripple intelligence efforts to keep America safe.

An imperfect but serviceable heuristic when evaluating statements of this sort is to suppose that all White House appointees have been recruited from that village, occasionally encountered in logic puzzles, whose inhabitants are all condemned to speak the precise opposite of the truth. While we can't know for sure so long as the courts refuse to release the opinion in question, the idea that the Foreign Intelligence Surveillance Court has abruptly discovered FISA's applicability to purely foreign traffic on U.S. wires is approximately as plausible as the College of Cardinals announcing the elevation of Richard Dawkins to the throne of Saint Peter. An attorney for the Congressional Research Service tasked with assessing the need for FISA "modernization" strained perceptibly to imagine a statutory basis for such a view, finally speculating that "might be argued that the language... might encompass the possibility of reaching some foreign to foreign communications in limited circumstances." Recently, some on the Hill have begun to raise belated doubts about the completeness and veracity of the initial account, noting that the administration does not appear to have appealed this devastating decision before publicly punching the panic button. In any event, this putative problem would be addressed by either a far more moderate bill reported out by the Judiciary Committee or the RESTORE Act passed in the House, both rejected by the White House.

What the administration is actually demanding is a broad new executive power to collect communications between Americans and persons abroad, subject to almost no meaningful supervision by the courts. This is not merely the power to "listen to the bad guys." In fact, there are no references to "bad guys" (a legal term meaning "evildoers") in any of the FISA reform bills—nor, indeed, to terrorism, Islamofascists, or ticking nuclear bombs that will, with apodictic certainty, obliterate Manhattan unless you immediately strangle a puppy. Instead, the Intel Committee's bill would permit the Attorney General and the Director of National Intelligence to "target" persons reasonably believed to be outside the U.S. for surveillance without court approval, and to demand the compliance of telecommunications providers in acquiring the "targeted" communications, including communications with Americans. Nothing in the law requires that either party be a terrorist, suspected terrorist, or remotely connected to terror. It is enough that a "significant purpose" of the eavesdropping be to gather "foreign intelligence," which includes any information relevant to U.S. international relations.

Judicial oversight of this surveillance would be minimal, and essentially meaningless. The Attorney General must develop protocols for "targeting" and "minimization" to be reviewed by the FISA Court. But review of the targeting procedures is to be concerned with their effectiveness at establishing that targets are located abroad. Even here, there may be a loophole: David Kris, until 2003 one of the Justice Department's top national security attorneys, argues that because FISA's definition of "person" includes groups and corporate entities, even acquisition of purely domestic communications might be construed as "targeting" a "foreign" person. Minimization rules, meant to limit the use of information about Americans picked up "incidentally" while "targeting" foreigners, are equally hollow. The FISA Court is empowered to review the rules intelligence agencies follow, but not how well they are followed in practice. And minimization rules are required to allow for the "retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes." Nothing prevents the use in criminal prosecution of an American's conversations about his marijuana garden or his Swiss bank account.

Indeed, nothing prevents intelligence officials from continuing to listen to that American's conversations for that very reason, so long as foreign intelligence was a "significant purpose" of the initial investigation and the American is not "targeted" directly. A provision of the Judiciary Committee's alternative bill would require that a traditional FISA warrant, supported by probable cause, be obtained once monitoring of a U.S. person became a "significant purpose" of collection, but the White House has declared that provision unacceptable.

Courts can intervene if a telecommunication provider chooses to appeal an order to provide access to communications. But this, too, is phantom oversight. The government has shown a willingness to strong-arm recalcitrant telecom firms, creating a powerful incentive not to make waves. And since telecom providers would be both compensated and immunized from legal liability for their compliance, only truly heroic public spiritedness or massive stupidity could motivate invocation of this right.

The threat of such nominally "incidental" collection of Americans' information may not appear significant to advocates of "modernization," who seem to imagine surveillance being carried out on the quaint model of The Lives of Others, on which some sensitive soul occasionally glances up from his Brecht poems to check the alligator clips connected to his target's copper phone line. The Senate legislation would license eavesdropping on a potentially far more massive scale. Here, again, to determine what kind of program the administration contemplates, it's useful to see what legislative alternatives they would reject. A provision in the Judiciary Committee bill specifies that acquisitions of part-foreign, part-domestic conversations would be "limited to communications to which at least one party is a specific individual target who is reasonably believed to be located outside the United States." It might seem, at first blush, that this is precisely what is at issue. But the White House, rather opaquely, declares this restriction "unacceptable because it could hamper U.S. intelligence operations that are currently authorized to be conducted overseas and that could be conducted more effectively from the United States without harming U.S. privacy rights."

This objection is unintelligible unless at least some surveillance is, by some Zen slight of hand, meant to be "targeted" without a "specific target." Legal scholar Orin Kerr speculates that the earlier program invalidated by the FISA Court, said to rely on "innovative" legal theories, involved "anticipatory" warrants specifying broad conditions that would trigger data collection, rather than particular targets. Combining general trigger conditions for communications acquisition with sophisticated realtime filtering technology—and we have at least vague hints of such technology being used from the testimony of AT&T technician Mark Klein and NSA whistleblower Russell Tice—could, at least in principle, yield unchecked, warrantless "vacuum cleaner" collection of truly vast amounts of international communications data.

This is what might be possible within the limits of the Senate bill's language. Yet, paradoxically, amending FISA to include this new category of surveillance could simultaneously remove them from FISA's exclusive purview. For while it may appear that the amendment specifies rules for a specific type of electronic surveillance, it actually stipulates that spying on targets approved by the Attorney General subject to the appropriate procedures ceases to count as electronic surveillance at all, at least for most of FISA's purposes. This is crucial because FISA provides the "exclusive means" by which electronic surveillance may be conducted; by altering that definition, the Senate FISA amendments would simultaneously place these searches within FISA's scope and, potentially, beyond it. While this Escher-like structure is probably fascinating to contemplate while high, it opens the door to a new round of extrajudicial, extrastatutory surveillance programs.

When the Senate reconvenes in January, we can rest assured that President Bush will again threaten doom unless legislation meeting his exacting demands is approved. It is time for Congress to stop allowing itself to be manipulated by such manufactured crises. The Senate should pass legislation that clearly permits unrestricted monitoring of purely foreign traffic, and provides for meaningful oversight of surveillance that "targets" foreigners but snares Americans. If George Bush wants to brandish his veto pen amid dark portents, he should at least be forced to explain why he fears American judges more than Islamist terrorists.

Julian Sanchez is a contributing editor for reason.

Restoring Habeas

jsanchez@reason.com (Julian Sanchez) — Wed, 12 Dec 2007 14:40:00 EST

Internee 10005 was first arrested less than a month after September 11, 2001. Lakhdar Boumediene and five other Algerians living in Bosnia were rounded up by local authorities after being told by the United States that the men were suspected of plotting to bomb the American embassy in Sarajevo. But after a three month investigation, Bosnia's Supreme Court found no evidence to support the charge and ordered the men released. At which point American peacekeeping troops promptly spirited the men off to Guantanamo Bay, Cuba, where they have been detained for six years.

Now, the men are seeking relief from the Supreme Court, which heard oral arguments last Wednesday in the case of Boumediene v. Bush. The justices are being asked to decide two core questions: Whether the detainees enjoy a constitutional right of habeas corpus, and if so, whether the Combatant Status Review Tribunals established by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 provide an adequate substitute for more traditional habeas proceedings.

The Court has already considered the first question in Rasul v. Bush, where it found that, because the United States exercised "complete jurisdiction and control" over the detention center at Guantanamo Bay, detainees were entitled to habeas relief in American courts as a matter of statute. But in a display of crisis jujitsu that has by now become familiar, the Bush administration was able to make a virtue of self-imposed necessity. Having forced an unfavorable legal decision against it, the White House pressured Congress to strip detainees of their statutory habeas rights lest the courts be flooded by petitions by purportedly dangerous terrorists. Now the justices must determine whether the "Algerian Six" have a constitutional right to habeas relief that trumps statute.

Supporters of the administration, invoking such cases as Johnson v. Eisentrager (1950), stress that courts have always denied that habeas corpus applied to "enemy aliens" captured abroad in wartime. According to attorney Brad Berenson, in a Federalist Society debate on the case, precedent therefore makes clear that detainees have no standing under "our own Constitution, which they of course aim to destroy."

But, "of course," that is precisely the question. The past rulings invoked by the government involved captives who were unambiguously agents of foreign powers at war with the United States, not citizens of allied nations snatched off the streets far from any battlefield. Traditionally, courts have used territory as a bright line to determine the status of prisoners: If you were picked up on American soil, you had habeas rights; if not, not. This made a certain amount of sense in traditional war; it makes much less in an ill-defined "War on Terror" that, to hear the administration tell it, makes the whole of the planet a battlefield. Here, hewing to a strict territorial rule has the perverse consequence that the Algerian Six would enjoy more rights, on the government's theory, if they had illegally infiltrated the United States like the Nazi saboteurs whose fate was considered in Ex parte Quirin (1941). The government's circular logic here seems better suited to a Monty Python sketch than a court of law: Throw the old lady in the pond, and if she floats, she's a witch! She might drown, you say? Why are you so worried about what happens to witches?

If, as many observers believe likely, the Court will side with the detainees on the first question, it will have to determine whether the Combatant Status Review Tribunals established by Congress provide an adequate substitute for more traditional habeas hearings (or remand the case to a lower court to consider that question). The tribunals clearly fall short in a number of ways. Detainees cannot invoke any rights under the Geneva Conventions before the tribunals. Instead of attorneys, they have "representatives" appointed by the military itself. Secret evidence and evidence obtained by coercion—the Algeria Six all say they have been subject to "enhanced interrogation techniques"—are admissible. CSRT determinations can be appealed to the Court of Appeals for the District of Columbia Circuit, but review is largely limited to whether the tribunals followed their own procedures, and the court must presume the evidence presented before the tribunal was accurate and complete.

Typically, the evidence provided to detainees for use in their own defense is anything but accurate and complete, according to Lt. Col. Stephen A. Abraham, who has himself served on the tribunals. This summer, Abrahams testified before the House Armed Service Comittee that the tribunals were little more than "an effort to lend a veneer of legitimacy to the detentions, to 'launder' decisions already made." After one tribunal found that a detainee had been incorrectly designated as an enemy combatant, Abrahams alleged, another was convened "for the purpose of overturning prior findings that were favorable to the detainees."

No American would accept the proposition that one of our citizens, having been cleared of wrongdoing by American courts, could be abducted by a foreign power and imprisoned for years, only to have his fate determined by a kangaroo court that flouted the most elementary procedural rights. The Supreme Court should not accept it from our government either. If a legitimate hearing finds that Boumediene and his fellow detainees are guilty of aiding America's enemies, so be it. But we should not be satisfied to leave them to languish until the military decides whether the witches will float.

Julian Sanchez is a reason contributing editor.

Fear, Frenzy, and FISA

jsanchez@reason.com (Julian Sanchez) — Tue, 07 Aug 2007 12:05:00 EDT

Like Bill Murray's hapless weatherman in Groundhog Day, America is locked in a perpetual September 12, 2001. How else to explain this weekend's frenzied passage of a sweeping amendment to the Foreign Intelligence Surveillance Act (FISA), effectively authorizing the program of extrajudicial wiretaps first approved in secret by President George W. Bush shortly after the terrorist attacks of 2001? How else to make sense of a Democratic Congress capitulating to the demands of a wildly unpopular executive for yet another expansion of government surveillance powers, mere months after the disclosure of the rampant abuses that followed the last such expansion?

The hasty passage of the massive USA PATRIOT Act, a scant 45 days after those attacks, was ill-considered but understandable. Six years later, however, the administration has grown comfortable with the prerogatives panic affords. And, perversely, it has learned that it can continue to wield those prerogatives even under a Democratic majority, provided it insists on regarding Congress always and only as a last resort.

Consider the provenance of this "emergency" legislation. President Bush first authorized the National Security Agency to carry out a range of surveillance activities without court order, the full scope of which is still unknown, but which at the least included monitoring communications between persons in the United States and targets abroad. (Wholly international communications had always been exempt from the privacy restrictions imposed by U.S. law.) When this was revealed by The New York Times late in 2005, the administration insisted that national security required that intelligence agents be allowed to bypass even the super-secret—and highly compliant—FISA courts. Then, following the 2006 midterm elections, which gave Democrats a congressional majority, the Department of Justice abruptly announced that it had found a way to work within FISA after all. Finally, according to The LA Times, a spring ruling by a FISA court judge found that even this restricted version of the six-year-old program ran afoul of the law.

Suddenly it became urgent that Congress "modernize" what was invariably described as "the 1978 FISA statute," conjuring images of forlorn agents in white polyester leisure suits vainly hunting for al-Qaeda terrorists hidden under Pet Rocks. Yet FISA had already been updated dozens of times since its initial passage, including six major amendments since the September 11 attacks, giving the administration myriad opportunities to request all the "modernization" it required, subject to thorough public debate. But even this manufactured urgency, it seems, was not enough. On the eve of the legislature's August recess, House Democrats had worked out a compromise bill with Director of National Intelligence Michael McConnell, which preserved a modicum of judicial oversight over the expanded surveillance powers it granted. But the White House pronounced this unsatisfactory, threatening a veto and demanding still broader powers. If Democrats did not yield completely before Congress adjourned, Bush said, they would "put our national security at risk."

The bill the president signed Sunday, however, goes far beyond the limited reform that all sides had agreed were urgently needed. Because so much of the world's telecommunication infrastructure is located in the United States, even e-mails and phone calls between parties who are both overseas routinely pass through giant "switches" here. The rejected compromise bill would have clarified that interception of such traffic would count as unrestricted foreign surveillance, even if it were conducted domestically with a narrowly-tailored provision:

[A] court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

The parallel language of the final bill is notably broader:

Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

The crucial difference is in the treatment of surveillance "directed at" an overseas party when one end of the conversation is, or may be, located in the United States. The original compromise bill would have licensed broad warrants for such surveillance, requiring only that intelligence specify a "foreign power" as the target of an investigation, without naming the particular people, places, or devices to be monitored. But it would at least have required a warrant, approved in advance by a FISA judge, and established oversight in the form of regular audits by the Department of Justice's Inspector General.

The bill that ultimately passed requires only the approval of the director of national intelligence and the attorney general. Now, the attorney general has 120 days to submit for review "procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance"—procedures the court is instructed to sign off on unless that determination is "clearly erroneous." And these guidelines need only ensure that the communication being monitored "concerns persons reasonably believed to be located outside the United States." Telecom companies will have to comply with information requests under any program so authorized, though they'll be granted immunity from any civil suits arising from their cooperation. And while this stopgap bill sunsets in six months, authorizations and directives pursuant to the act (which may be granted for up to a year) remain in effect until expiration, "and shall not be deemed to constitute electronic surveillance*

Yet the effect of this amendment may be even broader than is immediately apparent. Amidst controversy over apparent contradictions in Attorney General Alberto Gonzales' testimony before Congress regarding NSA surveillance, officials confirmed that, as many had long suspected, the so-called "Terrorist Surveillance Program" is only part of a far broader series of surveillance initiatives, about which little is known for certain. There is reason to suspect, however, that they may include a vast system of "vacuum cleaner" filtering of international traffic. NSA whistleblower Russell Tice spoke to Reason last year about his agency's surveillance, and while he could not confirm any details about classified programs, he described how one might hypothetically work:

If you wanted to, you could suck in an awful lot of information. The biggest constraint you're going to have is the computing power you need to do it. You need to have some huge computers to crunch that kind of stuff. More than likely you're talking about picking it up in a digital format and analyzing it depending on how the program is written depending on whether it's audio or digital recognition you're talking about, the computing power is phenomenal for that sort of thing. Especially if you're talking about mass volumes, if you're talking about hundreds of thousands of, say, telephone communications or something like that, calls of people just like you and me, like we're talking now. Then you have things like, and this is where language specialists come in, linguists who specialize in things like accents and inflections and speech patterns and all those things that come into play. Or looking for key phrases or combinations of key words within a block of speech. It becomes, when you add in all the variables, astronomical.

That would be consistent with reports by an AT&T technician of a secret room in the company's San Francisco office, where NSA computers sifted through each byte of traffic flowing over the wires. An analysis by the Center for National Security Studies argues that the language of the FISA reform has been carefully tailored to exempt not just conventional eavesdropping but also mass-scale computerized traffic analysis from judicial scrutiny.

When the NSA program of warrantless wiretaps initially came to light, Bush's lawyers argued that the Authorization for Use of Military Force, which empowered the president to hunt down the perpetrators of the 9/11 attacks, had implicitly licensed this eavesdropping as well. So we know that this administration is not above claiming that a law authorizes sweeping new surveillance programs, even when the legislators who voted on the law had no knowledge such programs existed. The speed with which this FISA amendment passed guarantees that legislators cannot have had time to consider carefully precisely how much latitude their wording can be construed to grant an executive who has consistently exhibited a disturbing zeal for squeezing the maximum amount of power from every carelessly placed comma.

But then, that was almost certainly the point. Ingenious as the White House has proven at recreating the expedient panic of 2001, however, it is not September 12 anymore. Along with a chance to more cooly appraise the terrorist threat, the intervening years have provided ample evidence of how little this administration can be trusted with its existing powers, let alone new ones. When lawmakers return to Washington this coming September, they might try a bit harder to recall the year as well as the month.

Julian Sanchez is a contributing editor to reason.

The Pinpoint Search

jsanchez@reason.com (Julian Sanchez) — Wed, 10 Jan 2007 13:02:00 EST

Anyone would consider it a stroke of bad luck to be pulled over for driving six miles per hour over the speed limit, but Roy Caballes had an additional reason to curse his ill fortune. On the November afternoon in 1998 when an Illinois state trooper stopped him, Caballes was carrying 282 pounds of marijuana in his trunk. At first it looked like he’d get off with just a warning. Then another officer pulled up and swept his car with one of the most advanced pieces of technology then available to law enforcement: a drug-sniffing dog named Krott. The pooch uncovered the dope.

Caballes thought the cops didn’t have a legitimate reason to bring in Krott, and he fought the search. In 2003 the Illinois Supreme Court ruled that the officers had indeed violated the Fourth Amendment by transforming the traffic stop into a drug investigation without probable cause, or even the weaker “reasonable suspicion.” But in the 2005 decision Illinois v. Caballes, the U.S. Supreme Court ruled that the dog sniff could not have rendered an otherwise lawful traffic stop unconstitutional unless the dog sniff itself violated Caballes’ “constitutionally protected interest in privacy.” The Court concluded it did not, citing a 1983 decision in which it ruled that, because a dog sniff reveals only the presence of contraband in which there is no “reasonable expectation of privacy,” it isn’t a “search” at all. The Supremes sent the case back to Illinois, and Caballes ended up with a 12-year prison sentence.

The dog sniff that caught Caballes is just one crude, old-fashioned example of the search technologies available to law enforcement. A new wave of advanced surveillance tools is capable of detecting not just drugs but weapons, explosives, and illicit computer files, potentially flying under the Fourth Amendment’s radar all the while. A handheld scanner picks up stray particles of cocaine on a car during a routine traffic stop. Is that a search? A high-tech camera detects the gun one pedestrian is carrying under his jacket. Is that a search? A forensic analyst finds a single image of child pornography on a computer server containing thousands of files owned by hundreds of users, without ever seeing any other private information. Is that a search?

In a nation whose reams of regulations make almost everyone guilty of some violation at some point, Americans have grown accustomed to getting away with minor transgressions: the occasional joint or downloaded movie or high-speed dash to the airport. For at least some crimes, though, the expectation that our peccadilloes will slip through the cracks may soon be outdated. The new style of noninvasive but deeply revealing detection—call them “pinpoint searches”—will require rapid adjustments in both legal rules and social mores.

Anatomically Correct Searches

The original pinpoint search, the drug dog’s sniff, has built-in limits. A German shepherd is a cumbersome piece of biotechnology, making suspicionless sweeps during routine traffic stops the exception rather than the rule. But chemists and engineers are developing a variety of electronic sniffers that are competing to make Fido’s schnoz obsolete.

DrugWipes, for example, are small, swab-tipped devices. Wipe the tip along a surface, or a sample of sweat or saliva, and in two to five minutes a simple indicator window reveals whether drug residue is present. Manufactured by the German firm Securetec, DrugWipes have been used by more than 2,000 law enforcement agencies in the U.S. since the late 1990s, and they’re increasingly popular among schools and private employers as well.

DrugWipes have limitations: They’re single-use devices, and while the basic model is inexpensive (less than $10 per unit), each picks up only one specific type of drug residue. Even with a relatively low per-unit price, the cost of sweeping a school or a parking lot can mount quickly. For more versatility, cops can turn to General Electric’s VaporTracer, a seven-pound handheld particle sniffer that can test for a wide range of drugs and explosives in only a few seconds.

The VaporTracer and its nonportable cousin, the Itemiser, are already used in airports to scan luggage for explosives. With a price tag of $25,000 to $30,000, the VaporTracer is unlikely to become standard issue for beat cops in the near future. (G.E. estimates that about 4,000 are in use worldwide, most for explosive detection.) But researchers are developing ever faster, cheaper, and more sensitive electronic noses.

Among the technologies in the offing is the desorption electrospray ionization scanner. It uses charged droplets to lift particles from a surface and into a mass spectrometer, which can break down and analyze the components of any substance down to the molecular level. It’s currently a desktop-sized machine, but its creators, a team of researchers at Purdue University, hope to develop a portable version that can fit in a backpack within a few years. The Purdue team’s head, Graham Cooks, guesses such a device might cost about $4,000. That’s not exactly cheap, but it’s thousands of dollars less than a well-trained drug dog costs.

Meanwhile, scientists at Georgia Tech have developed prototype scanning technologies based on a penny-sized surface acoustic wave chip, which works by measuring disturbances in sound waves as they pass across small quartz crystals. This “dog on a chip” sensor is coated with a thin layer of cloned antibody proteins that bond to a specific molecule, such as cocaine or TNT. The sound waves passing through that sensor can then be compared with an uncoated control crystal: Differences in the waves mean the chip has picked up trace amounts—as little as a few trillionths of a gram—of the target substance.

Handheld scanners aren’t the only possible application for such sniffer chips. Metro stations in Washington, D.C., have been fitted with fixed chemical weapon detectors, meant to give advance warning in case of a terrorist attack. Sensors with a range of a few feet could be combined with surveillance cameras to pinpoint passengers who might be worth extra scrutiny.

Police can use new devices to hunt not just for tiny traces of contraband but for larger objects. Millimeter wave (MMW) radiation is all around us. You’re emitting it even as you read this article. More important, you’re emitting it through your clothes, making it an ideal way to scan for hidden objects that distort or block those waves, whether they’re made of metal, ceramic, plastic, or some other composite material—and without any of the health concerns associated with X-rays.

The Federal Aviation Administration began funding MMW research back in 1989. The technology has since been licensed to several commercial firms. Intellifit, for example, has set up MMW kiosks in several malls and clothing stores; they help people find clothing that’s a good fit for their frame.

But the primary licensees have been in the security business. In the summer of 2005, a company called SafeView debuted a three-dimensional body scanner, SafeScout, for use in airports and at other security checkpoints. Think of the scene in the 1990 science fiction flick Total Recall where California’s future governor races behind a panel that exposes, in real time, all the weaponry hidden away among bulging muscles.

In its most intrusive form, an MMW scanner can reveal a rough nude image of its subjects. The models being deployed for most security purposes get around that problem by projecting any objects the scanner detects on a generic virtual mannequin.

Less intrusive is the BIS-WDS Prime, a security camera created by the Florida-based firm Brijot Imaging Systems. Unveiled last spring, the camera pinpoints weapons and suspicious objects at a range of up to 45 feet by comparing hidden objects picked up by its millimeter wave sensor to a database of weapon shapes. The detection process, Brijot claims, takes less than half a second, and the higher-end models will display up to 20 threats simultaneously. (The camera was field tested this summer at New York’s Port Authority Bus Terminal and at New Jersey PATH train stations.)

If a search technology based on shape matching still seems a bit low-tech, consider Pulsed Fast Neutron Analysis, which can reveal the molecular composition of a load of cargo without opening its vehicle. In the summer of 2004, U.S. Customs and Border Protection began testing a $10 million, car wash–sized prototype facility at the Ysleta border crossing near El Paso, Texas. It bombards vehicles with high-energy neutrons, which excite the nuclei of atoms, causing the contents to emit gamma rays. Since different elements emit gamma rays at different energy levels, the scanner can infer the chemical structure of the cargo’s contents, distinguishing plastic explosives from Play-Doh and table sugar from Colombian White.

Googling for Contraband

In 1996 Michael Adler offered a hypothetical question in The Yale Law Journal. Adler imagined a computer worm or virus that could quickly and unobtrusively scan thousands of computer hard drives simultaneously, looking for evidence of illicit files—classified documents, say, or pirated software or child pornography. Would this count as a “search” for Fourth Amendment purposes?

This remained a hypothetical question until 2001, when someone released that worm. Called Noped, the crude Visual Basic Script program would infect PCs by way of an email attachment and (after mailing itself out to everyone in the infected user’s address book) scan for images with file names that its author considered suggestive of kiddie porn. If it found a match, it would email law enforcement a list of its findings.

A file name match is too thin a reed on which to hang an investigation, but better technologies can pinpoint specific files on a hard drive. By running a large file through a cryptographic algorithm, it’s possible to generate a much shorter unique string of letters and numbers (or close enough to unique for any practical purpose) called a hash value, which can quickly determine whether two files are identical. The National Drug Intelligence Center’s Hashkeeper database already contains the hash values of both common commercial software programs and known images of illicit child pornography, making it easy for a trained technician to discern whether a hard drive contains a copy of a particular file.

Orin Kerr, a law professor at George Washington University, literally wrote the book on government searches of computer data: the 2001 Justice Department manual Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations. Kerr says sweeping viral searches would run afoul of existing wiretap laws, which raise more stringent barriers to “unauthorized access” than is imposed by the current judicial interpretation of the Fourth Amendment. Yet he says it’s far less clear how the courts would treat digital searches that take place in the course of authorized searches for other material.

Imagine, for example, that a police technician has lawful physical access to a server containing thousands of users’ files. He’s supposed to be looking for evidence of tax fraud in a specific suspect’s documents. Even though the warrant specifies only that user, will it count as an additional “search” if the officer runs a search program on the entire server, designed to alert him only when it locates known child porn? If there’s “no reasonable expectation of privacy” when it comes to possessing narcotics, wouldn’t the same rule apply to child pornography?

Government investigators may have already caught up with the legal theorists’ hypotheticals—searching not for kiddie porn but for terrorist plots. Consider the controversial surveillance carried out by the hyper-clandestine National Security Agency (NSA) following the attacks of September 11, 2001. The first program to be revealed, in December 2005, involved conventional wiretapping, but further leaks hinted that far more sweeping surveillance might be taking place. Voice and text recognition software might be sifting through millions of communications in search of target words or phrases that raised red flags for investigators.

The NSA fired Russell Tice, an intelligence analyst at the agency, in May 2005; he now says he wants to tell Congress about NSA surveillance programs he believes are illegal. While Tice won’t discuss specific programs, he notes that the technology exists to filter data and voice traffic on a mass scale, flagging communications where target words or phrases—jihad, say, or the names of known terrorists—are used. With the help of linguistic consultants, he says, intelligence agencies can even zero in on particular accents or speech patterns.

Privacy mavens have long whispered of a program called ECHELON, a massive signals intelligence network rumored to have been developed as a Cold War espionage tool. It supposedly used batteries of high-powered computers, called “dictionaries,” to scan voice and data communications for suspicious phrases. While the NSA has never confirmed that ECHELON is real, a 2001 report by the European Parliament concluded that “the existence of a global system for intercepting communications…is no longer in doubt.”

In a January 2006 speech at the National Press Club, in which he called ECHELON an “urban legend,” former NSA head and current CIA chief Gen. Michael V. Hayden asserted that the NSA’s warrantless wiretap program, exposed by The New York Times in late 2005, “is not a driftnet…grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices.…This is targeted and focused.” But reports from insiders continue to hint at something far more expansive.

A February Washington Post piece described a tiered computer filtering system that initially swept up hundreds of thousands of communications, using increasingly intrusive techniques to winnow the pool down to a far smaller number subject to human examination. In April the Electronic Frontier Foundation disclosed that a former AT&T technician, Mark Klein, had come forward with tales of a “secret room” his erstwhile employer had built at the NSA’s behest, in which vast amounts of data were scrutinized by a “semantic traffic analyzer.”

And in May USA Today revealed that the NSA had created a database compiling information about the calling patterns of millions of Americans. If such analysis was really limited to information about the calls—who phoned whom, when, and for how long—current Supreme Court precedent would not classify the interception as a “search.” Less certain, however, is the status of intercepts using ECHELON-style “dictionaries” to probe the contents of some voice and data communications for target words or phrases. “If this approach was used, and hundreds of thousands if not millions of communications were processed in that manner,” says Tice, “the argument could be made, well, if a machine was doing the looking and the sucking in, it doesn’t matter because that’s not monitoring until a human looks at it.” Writing in The New Republic last February, Richard A. Posner, a judge on the U.S. Court of Appeals for the 7th Circuit, made exactly that argument, suggesting that automated searches do not violate the law “because a computer program is not a sentient being.”

Storage Devices and Virtual Files

Courts already have started to tackle some of the questions raised by these new technologies, but not consistently enough for us to predict with confidence where they’ll go in the future. In United States v. Runyan (2001), the U.S. Court of Appeals for the 5th Circuit ruled that when a woman who had found a few of her husband’s child porn files turned his digital storage devices over to police, they had already been “searched.” The cops, therefore, didn’t perform any additional search when they did a more comprehensive analysis and found more extensive caches of similar material. But in a 10th Circuit case, United States v. Carey (1999), the appeals court held that a forensic analyst who was lawfully searching a hard drive in the course of a drug investigation did exceed the scope of the warrant when, after accidentally opening a child porn file, he abandoned the search for drug-related material and started digging for more porn.

Kerr characterizes these as “storage device” and “virtual file” approaches, respectively. The former treats a digital storage medium as though it’s a single physical container, like a briefcase or a trunk: Once the lock is lawfully popped, all the contents are subject to observation. With the virtual file approach, a digital storage device is more like a warehouse containing many thousands of individual closed boxes: Police may have the authority to go looking through the warehouse for a few particular containers, but that doesn’t mean they may pry anything open willy-nilly. Even under a “virtual file” approach, the logic of Illinois v. Caballes suggests that a scan for illicit files using something like the Hashkeeper database, which doesn’t technically “open” the file, will not count as a search once police have lawful access to the storage medium.

Kerr has offered his solution, at least in the case of digital searches, in the Harvard Law Review. In a June 2006 article he proposes an “exposure theory” of the Fourth Amendment: Any time computer data or information about that data (such as whether it matches certain search criteria) is exposed to human observation via an output device such as a monitor or printer, those data have been “searched” for Fourth Amendment purposes.

This approach would attenuate, perhaps even eliminate, the “plain view” doctrine in the digital realm. That doctrine holds that any evidence uncovered in the course of a lawful investigation is fair game for police, even when the investigation was initiated for a different purpose—as when, for instance, police smell marijuana or spot a gun during a traffic stop. Such a principle would also, in effect, declare Caballes a dead letter online, since it would shift the legal focus to where investigators looked, rather than the amount of additional physical intrusion or the type of information uncovered.

Some want to see Caballes consigned to the dustbin of jurisprudence offline as well. Marc Rotenberg, executive director of the Electronic Privacy Information Center, proposes rolling back the Caballes exception and hewing to a strict version of the standard the Supreme Court articulated in Kyllo v. United States (see sidebar), under which any information about certain protected spheres, beyond what an unaided human observer could glean, would be regarded as presumptively private. “Your expectation of privacy really has to be measured against what an unassisted police officer might be able to obtain from you,” Rotenberg argues, “not what technology might make possible.” Otherwise, he suggests, that expectation will only grow ever weaker as technology improves.

There’s another advantage to applying the Fourth Amendment’s protections to pinpoint searches: It would create an obstacle to the use of the search power to harass, something that loomed large in the fears of the Founders. For generations, supporters of broad law enforcement powers have claimed that “if you’re not guilty, you have nothing to hide.” But as the Harvard law professor William J. Stuntz has noted, the Fourth Amendment—and the Fifth Amendment, which protects against self-incrimination—were intended not just as abstract procedural checks but as substantive safeguards against criminalizing certain kinds of activity, such as religious and political dissent. It’s harder to prohibit a faith, for example, when police don’t have the power to look through citizens’ papers or burst into their homes without specific evidence of criminality to cite as grounds for a warrant.

If pinpoint searches are not subject to any judicial oversight, law enforcement agencies will have broad discretion over whom to search and how often to search them. There’s ample reason to suspect that such discretion won’t always be exercised equitably. Whites and blacks use illicit drugs at similar rates, for example, but blacks make up nearly half of state prison inmates convicted of drug offenses. It is easy to imagine some politically unpopular person or group subject to frequent pinpoint searches for minor drug infractions, zoning code violations, or whatever other commonplace low-grade statute violations new technologies make it possible to detect.

Should We Learn to Stop Worrying and Love Pinpoint Searches?

Despite such concerns, some civil libertarians greet these new technologies with surprising enthusiasm. Jeffrey Rosen, a law professor at George Washington University and the author of The Unwanted Gaze: The Destruction of Privacy in America (2001), stresses that such searches avoid some of the central problems the Fourth Amendment’s framers worried about. “Privacy people should be unequivocally and unambiguously enthusiastic about technologies that can manage to find illegal activity without intruding on innocent privacy interests,” he argues. “The paradigmatic example of an unreasonable search at the time of the framing of the Constitution was the search of private diaries, because you had to look at a lot of innocent and intimate information in order to find potentially illegal information.” Pinpoint searches may allow the cop who pulls you over for speeding to scan you routinely for drugs or guns. But they may also mean he’ll be less likely to invent a pretext to rifle your glove box, exposing that legal but embarrassing bottle of Viagra. And the subway cop who wants to be sure your backpack doesn’t contain a bomb won’t need to open it up and see what else you’re carrying.

The veteran civil liberties litigator Harvey Silverglate has staked out a position between Rotenberg’s and Rosen’s. He notes that the Fourth Amendment’s clause requiring searches to be “reasonable” is technically separate from the clause outlining the preconditions for a warrant to be issued, and that there are conditions under which courts have ruled warrantless searches to be reasonable. (In addition to the “plain view” exception mentioned earlier, there are exceptions for “exigent circumstance,” as when a cop believes a dealer is about to flush his stash or a kidnapper is on the verge of killing his victim.) So you can concede that pinpoint searches really are searches subject to judicial oversight without ruling out the possibility that some searches, under some circumstances, are “reasonable” even without a warrant. Silverglate believes the law will move away from strict warrant requirements for minimally intrusive technologies, such as hand-held explosive sniffers, that are geared to prevent especially severe crimes, such as terrorist attacks. “The courts,” he predicts, “are going to say that if some germ or atomic weapon could kill thousands of people, then some methods are going to be ‘reasonable’ that wouldn’t be when you’re trying to find a guy smoking pot.

For the most optimistic take on pinpoint searches, turn to the futurist David Brin, author of the 1998 book The Transparent Society. Brin believes a world of more perfect enforcement will create democratic pressure to either eliminate or drastically reduce penalties for “victimless” offenses. What matters, Brin avers, is not what the government knows about you but what it can do to you. To those who fear a world in which, for instance, routine speeding infractions are invariably met with stiff fines, Brin ripostes: “Can’t you trust your fellow citizens to not want that either?”

Andrew Napolitano, the author of The Constitution in Exile, is unconvinced. A legal analyst for Fox News and a former New Jersey judge, Napolitano joins Rotenberg in insisting that a “neutral magistrate” stand between police and the subjects of all government searches. He argues that it’s precisely when law enforcement agencies are most tempted to bypass checks on government snooping that the public is least apt to demand adherence to the letter of the law. For proof, he points to many Americans’ indifference to—or support of—the NSA’s warrantless wiretaps. “When the president can go on TV and get a 57 percent approval rating saying he doesn’t care about privacy, he only cares about security,” Napolitano concludes, “we may have to count on my black-robed colleagues to protect privacy.”

We may hope our elected representatives will either exempt a pothead from pinpoint searches, lighten his punishment to compensate for the new ease of capturing him, or even abandon their long-running war on him altogether. But what about more serious crimes, such as terrorism? Should we allow electronic sniffers to troll through vast haystacks of telecommunications data searching for jihadist needles, in the hope that terrorists will not simply use encryption technology to render such surveillance useless?

Tradeoffs to Come

David Post, a cyberlaw expert at Temple University, hopes we can deploy pinpoint searches in ways that preserve the balance between security and privacy. “The kind of oversight you want in a system like this is very different from what you’d want in the ordinary warrant case,” he says. “There you want someone looking at the evidence as it relates to a particular target. Here I want someone who’s looking at the system as a whole, an ongoing systemic analysis of a kind that really is new.” In Post’s model, a panel of legal and technical experts with appropriate security clearances might be granted ongoing oversight responsibilities over an ECHELON-style vacuum-cleaner surveillance program to determine whether it was sufficiently fine-tuned.

Silverglate suggests another way to take advantage of the new surveillance tools while still protecting privacy: establish a “multi-level, tiered approach to electronic searches.” At the first level, a filter system overseen by the kind of panel Post imagines sifts through communications, flagging suspicious conversations. Intelligence agents might then listen to brief snippets of conversation selected by the computers but, crucially, without learning the identities of any of the parties to the conversation.

Then, says Silverglate, “based on what the vacuum cleaner picks up, the NSA is going to have to go to a Foreign Intelligence Surveillance Act court and see if they have probable cause to find out the identity of the person on the line.” Such an approach might even, paradoxically, make such secret courts, notorious for almost never rejecting wiretap applications, less inclined to defer to intelligence agencies, since instead of being asked whether they are prepared to give terror hunters the benefit of the doubt, judges will already know some of the contents of the communications for which they’re being asked to authorize the release of identifying data.

That doesn’t solve every problem with such systems, of course. It does not deal with the chilling effect that may occur when speakers begin to watch their words on the phone based on the fear that they will trigger a computer in Fort Meade if they say the wrong thing. And once the necessary infrastructure is set up to use such a system to catch terrorists, it would be both relatively simple technically and powerfully tempting politically to expand it to hunt for the least sophisticated perpetrators of whatever crime is particularly unpopular at the moment.

Whether we adopt the sanguine approach of Rosen and Brin, embrace the strong privacy protections of Napolitano and Rotenberg, or look for a middle path with Silverglate and Post, we will be forced to make difficult tradeoffs. But the debate over how to strike that balance must begin now, before today’s prototype rolls off tomorrow’s assembly line. These new technologies are too powerful to use thoughtlessly. We’re already entering a pinpoint-search world. Now we must decide how to live in it.

Contributing Editor Julian Sanchez is writing a book on disobedience.

How We Got to Caballes

jsanchez@reason.com (Julian Sanchez) — Mon, 01 Jan 2007 18:04:00 EST

The Fourth Amendment asserts that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” For more than a century after the founding, interpreting this was relatively straightforward: A “search” was defined along the lines of common law trespass. If police came on to your property to rifle your things, that was a search. If they merely saw you foolishly committing a crime in front of your open window, in “plain view,” it was not.

That logic led the Supreme Court to conclude, in the 1928 case Olmstead v. United States, that a wiretap on a suspect’s phone wasn’t a search, since it required no physical intrusion on the target’s property. It was not until Katz v. United States (1957) that the Court changed its mind and ruled that “the Fourth Amendment protects people, not places.” New technology that allowed for observation without physical intrusion meant that a “search” would have to be redefined in terms of an “expectation of privacy…that society is prepared to recognize as ‘reasonable.’”

In 1983 United States v. Place carved out an important exception to what would count as a “reasonable” expectation of privacy. While the seizure of a cocaine courier’s luggage had been unlawful, the court concluded, the use of a drug-sniffing dog to inspect the bags did not count as a search. Without physical intrusion, Justice Sandra Day O’Connor reasoned, a well-trained dog would reveal only whether or not illegal drugs were present—and society was not willing to recognize a privacy interest in illegal drugs.

“In these respects,” O’Connor wrote, “the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.”

It remained unclear just how far the implications of this ruling would extend. The Court seemed to back away from a broad reading of Place when, in Kyllo v. United States (2001), it considered whether a marijuana grower’s home had been “searched” under the Fourth Amendment when police, without a warrant, used an infrared imaging device to detect high-intensity plant-growing lamps. Writing for the majority, Justice Antonin Scalia concluded that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained” except by physical intrusion “constitutes a search—at least where (as here) the technology in question is not in general public use.”

In reply to the argument that the imager had revealed no “intimate details,” just blobs of heat, Scalia insisted that in the home “all details are intimate details, because the entire area is held safe from prying government eyes.” This standard seemed highly respectful of privacy: If you would have needed a warrant to learn something without some new technology, at least when it came to certain highly protected areas, then you needed a warrant to learn it with technology.

But in early 2005, in Illinois v. Caballes, the court reaffirmed Place, backing off the standard it had seemed to articulate in Kyllo. “Critical to that [Kyllo] decision,” Justice John Paul Stevens wrote for the majority (Scalia included), “was the fact that the device was capable of detecting lawful activity,” such as when occupants might be using the bath or sauna. So Caballes established an exception to Kyllo’s relatively protective rule for technologically enhanced searches: A technique that could, with reasonable accuracy, discover contraband without exposing intimate information would not count as a search, though it could establish probable cause for a subsequent full-blown search.

Regulating Bloggers

jsanchez@reason.com (Julian Sanchez) — Thu, 20 Jul 2006 13:46:00 EDT

The liberal blog Daily Kos and its conservative counterpart RedState don't agree on much, but last March they joined virtual hands to protect the Internet from the Federal Election Commission (FEC).

The agency had originally concluded that the Bipartisan Campaign Reform Act's rules pertaining to "public communications" had been intended to apply to media such as television, where the volume of your voice is closely linked to the size of your wallet, and not to the Internet. But a 2004 district court ruling required the agency to develop specific rules for the Net, raising the possibility that bloggers could be subject to onerous spending restrictions, disclosure requirements, and FEC investigations. Liberal, conservative, and libertarian bloggers joined in protest.

Most of the protesters seemed satisfied at the end of March, when the FEC unanimously approved new rules for cyberspace, clarifying that paid ads on third-party Web sites would be subject to campaign-finance restrictions but exempting most other Internet speech from such rules. But former FEC Commissioner Bradley Smith argues that it would be better to codify the Net exemption in statute rather than let the commission rely on its own rulemaking. "The 'reform community' was willing to give up almost anything to preserve the principle that the FEC could regulate the Internet, that no form of political speech would remain unregulated," says Smith. The current rules may give online speech wide latitude, he warns, but now the regulators have "got their nose in the tent."

Fashion Police

jsanchez@reason.com (Julian Sanchez) — Thu, 20 Jul 2006 13:57:00 EDT

If you watch the fashion pages, you already know that last year's must-have item was designer Roland Mouret's "Galaxy" dress, the curve-accentuating retro number in which Scarlett Johansson strode down the red carpet at the 2005 Oscars. Thanks to a thriving knock-off industry, today you can stroll into the U.K.'s TopShop or browse eBay for bargain copies so close that even Edith Head would have trouble telling the difference.

The Council of Fashion Designers of America is hoping a new proposal to extend copyright protection to clothing designs will compel the most blatant borrowers to, well, knock it off.

Traditionally, fashion has been exempt from American copyright laws, on the grounds that clothing is primarily a functional rather than creative good. The Design Piracy Prohibition Act, introduced by Rep. Bob Goodlatte (R-Va.) would change that, creating a limited three-year term of protection for original clothing designs. Instead of working under the traditional copyright framework, where terms are far longer, the bill would amend a statute granting similar short-term protection to boat hull designs.

Southern Methodist University law professor Susan Scafidi regards the proposal as a "creative and self restrained effort to correct a cultural imbalance": the exclusion of fashion from America's intellectual property rubric—an exclusion, Scafidi argues, that's partly rooted in the fact that fashion has historically been "gendered female, considered a craft and not an art." Meanwhile, the fact that the fashion industry has remained so vibrant for so long has led many to wonder whether the law governing books and movies should look more like the law governing fashion, rather than the other way around.

There's also the possibility that fashion simply follows different rules. In this area, law professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia argue in a recent paper, copying may actually spur innovation, as imitations of each season's hot design creates "induced obsolescence," pushing consumers to demand new and different looks with which to distinguish themselves.