From Prof. John Laprise:

Mark,

My research deals with computer adoption and policy in the White House during the 1970’s and its relationship to national security.  Last week I received a declassified memo from the Ford Presidential Library. The memo (see attachment) from Pres. Ford to the Attorney General authorizes electronic surveillance without needing to seek a judicial warrant. Having previously written about this period, I can provide some context for the memo. As you know, the story was picked up by Andrew Becker at Politics Daily. We later discovered that the bulk of the document had been previously declassified and obtained by the National Security Archive, which published it four years ago–although that version had one sentence redacted:

“C. That the minimum physical intrusion necessary to obtain the information sought will be used.”

Why was this sentence redacted?

In itself, the memo’s authorization of warrantless wiretaps was not illegal, since, in 1974, the law did not recognize the existence of electronic surveillance. That would occur four years later, when Congress began to regulate such surveillance by passing the Foreign Intelligence Surveillance Act. Thus the unredacted portions of Ford’s memo, while certainly embarrassing, did not violate the law.

However, the Constitution and the law did regulate lawful and unlawful physical entry. What that redacted sentence clearly shows that Pres. Ford authorized the Attorney General to unlawfully enter private property for the purpose of placing electronic surveillance. Secrecy and classification was here used to conceal clearly illegal orders on an ongoing basis. The National Security Archive’s earlier request had pulled the veil away from the merely embarrassing fact that the government was permitting covert domestic electronic surveillance. My subsequent FOIA request and ensuing declassification revealed that the President was permitting the illegal act of breaking and entering to place electronic surveillance devices.

The recent Wikileaks story on Apache gun camera footage follows a similar pattern. Efforts to obtain access to the footage which showed military criminal acts were cloaked in secrecy to protect the culprits from potential review and prosecution. Similarly, the Al-Haramain case may represent another instance of the government using secrecy to conceal illegal activity. On the basis of my research, however, I suspect that the illegal activity being concealed in this case is not the government’s but that of the telephone companies, recent immunity notwithstanding.

Thinking through Al-Haramain

Based on my research, it is pretty clear that the government does actually bend over backwards to avoid illegal activity. That being said, the government frequently employs strategies and tactics for which law has not yet been written. During the Nixon Administration, Haldeman was very interested in using the new White House computer to analyze voter data at a time when computing time was an unregulated resource. In the early 1970’s, Congress had not yet passed laws that regulated and restricted the use of government computing resources for political purposes as the very idea that computers could be used in such a way was not in the minds of legislators. For all intents and purposes, computers were thought of as big calculators for complex math problems. How could such a device be used for a political campaign?

The Ford Administration engaged in electronic surveillance because existing wiretapping laws did not cover the new technology. >From current available information, the government since 9/11 is probably taking a similar approach. One likely scenario goes as follows:

1.      The NSA collects information about internet traffic patterns (metadata) and content from the central offices of telecommunications companies but does not read the content.

2.      Using social networking theory, the NSA develops models of usage based upon the Internet use of known Al-Qaida members.

3.      Using social networking theory again, they compare the captured metadata to the developed models looking for statistically significant matches.

4.      Having found matching users, they approach the FISA court using the statistical findings as evidence to obtain a warrant for the content, which they have previously captured but not read.

5.      The FISA court having been presented with sufficient evidence grants the NSA a warrant.

6.      The NSA uses the warrant to legally read the previously captured content.

At present, the law does not recognize the capture or use of metadata that is used in the billing practices of telecommunications companies. Courts have ruled that information on the outside of physical mail–i.e., addresses–are not protected. I think that in all likelihood what the government is doing with the telephone companies is legal for the government to do because the law doesn’t address their activities just as it didn’t address electronic surveillance in 1974. The telephone companies’ desperate plea for immunity speaks to the fact that commercial telecommunications law does address this and that they are or were with immunity grants probably guilty of illegally providing customer information.

The government’s use of intelligence methods regularly outpaces the law’s ability to catch up and recognize the existence and power of new technologies. The Ford memo is an example of this techno-legal arbitrage.

If anyone has any questions or would like to discuss this further, they should not hesitate to contact me.

John Laprise, Ph.D.

Visiting Assistant Professor in the Communication Program

Northwestern University in Qatar



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