Roving surveillance & misc.

[Aimee Farr]

"Citizen Q" posted a news clip, which included:

> 	Part of Ashcroft's terrorism package includes a request to allow
> the FBI to seek wiretapping orders for a suspect instead of a
> telephone.
> 	That would mean law enforcement agents would be able to tap any
> phone a suspect uses, instead of having to ask for a new
> wiretapping order whenever the suspect changes telephones. With the
> introduction of cellular phones, it has become harder for law
> officers to track conversations of suspects because of the ease of
> getting new telephone numbers or new telephones, officials said.
> 	``That's a key piece of legislation that would be helpful to
> us,'' FBI Director Robert Mueller said Monday.

A requirement under Title I of the ECPA is that the site of the targeted
phone be identified. This is the statutory embodiment of the forth amendment
particularization requirement. In the case of an "oral conversation,"
[within the meaning of the ECPA] Section 2518(11) eliminates the requirement
when there is a finding by a judge reviewing the application that the site
identification requirement is "impracticable." In contrast, for a "wire or
electronic communication," there must be a finding that the purpose of the
person who is the subject of surveillance is "to thwart interception by
changing facilities."

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[1] Although somewhat dated, see Michael Goldsmith, Eavesdropping Reform:
The Legality of Roving Surveillance, 1987 U.Ill. L. Rev. 401 (1987).

[2] The MINIMIZATION REQUIREMENT is found in 2518(5) of the ECPA ("Title
III") requires interception be "conducted in such a way as to minimize the
interception of communications not otherwise subject to interception," in
order to prevent a fourth amendment prohibited "general search." For the
search of a conversation to be reasonable, minimization must take place so
that the government does not seize conversations unrelated to criminal
activity.

But see, SCOTT V. UNITED STATES, 436 U.S. 128 (1978) (court rejected the
view that 2518(5) required officers to engage in good faith efforts to
minimize the surveillance of non-pertinent conversations). "Scott factors"
as delineated in later decisions, have been the subject of considerable
criticism. Some states have rejected it entirely, requiring good faith at
the outset under state statutes. (Biometric and technological minimization
might provide a partial answer to Scott's latitude. If plausible, the Scott
doctrine should be tightened in the statute to require sincere "good faith"
minimization in light of any new technological aids to minimization.)

[3] TESTIMONY OF JAMES P. FLEISSNER ON THE COMPREHENSIVE ANTITERRORISM ACT
OF 1995... @ http://www.fas.org/irp/congress/1995_hr/h950612-3f.htm
(discussing roving surveillance and supporting the harmonization of the two
roving surveillance provisions, and discussing the crimes already in the
statute with ties to terrorism).

[4] NOTICE. The notice and inventory provisions of the ECPA need to be
amended to provide notice to non-targets. 2518(8)(d) entitles only those
persons who were named in the court order (suspected of criminal activity)
to receive notice and inventory. The statutory provisions, which were
supposed to provide oversight, have been rendered meaningless by the courts.
There is a discretionary provision allowing a judge to notify a non-target
individual if, in his/her opinion, circumstances call for it.

[5] THE NATURE OF JUDICIAL OVERSIGHT. In regard to the Pen Register and Trap
and Trace Device provisions, the complaint is the lack of judicial
oversight. ["Upon an application made under section 3122(a)(1) of this
title, the court *shall* enter an ex parte order authorizing the
installation and use of a pen register or trap and trace device if the court
finds that the attorney for the Government has certified to the court that
the information likely to be obtained by such installation and use is
relevant to an ongoing criminal investigation."] Communication data, or
communication attributes, have already been the subject of considerable
controversy. Some argue that in contrast to judicial and legislative
interpretation, communication attributes are deserving of GREATER
constitutional protection -- not less, pointing to the fact that
communication data is more precise and revealing.

[6] See also, _Terrorism & The Constitution-Sacrificing Civil Liberties in
the Name of National Security_ by James X. Dempsey & David Cole -- available
on Amazon.

~Aimee

"But when, under conditions of modern warfare, our shores are threatened by
hostile forces, the power to protect must be commensurate with the
threatened danger." Korematsu v. United States, 323 U.S. 214, 220 (1944)
(this rationale was used to uphold internment camps for American citizens).
A reminder, I think.