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White Collar Crime Blog – Assistant Federal Public Defender Debra Migdal

It is always a little  scary when we are reminded how much  power  a judge has over a person’s life, livelyhood, and freedom.  I also wonder if this had been a prosecutor if there would have been these sanctions.  I notice that the prosecutor who asked for the sanctions, which his own office said he did not have the authority to do, did not appear to have been  sanctioned by the district  judge.

Sixth Circuit Vindicates Assistant Federal Public Defender Debra Migdal.

By Solomon Wisenberg

How many federal appellate opinions begin like this?

“An attorney’s reputation is her most valuable possession. It forms the basis for her peers’ view of her and plays an important role-often a determinative one-in how she advances in her career. This case began with a government attorney’s unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal.”

And how many of them end like this?

“This opinion closes the book on a regrettable chapter in Debra Migdal‘s career, clears her of all claims that her conduct in this matter was sanctionable, and removes any taint of public censure on her reputation.”

As anyone who practices criminal law in the federal court system knows, different districts, and sometimes different judges within a district, have different rules, formal and/or informal, for the issuance of subpoenas demanding early document production pursuant to Fed. R. Crim. Proc. 17(c). Some districts allow prosecutors and defense attorneys to issue the subpoenas, and examine documents, on their own. Other districts require a motion and court order. (Of course, the playing field is uneven, because the prosecution typically has the evidence it needs well before trial through the use of grand jury subpoenas.)

In 2011 Debra Migdal was an Assistant Federal Public Defender in the Northern District of Ohio handling a case in front of U.S. District Judge John R. Adams. At the time, neither the Northern District of Ohio nor Adams had any formal policy regarding the issuance of Rule 17(c) subpoenas. Migdal issued two Rule 17(c) subpoenas on her own, one of which was sent to the custodian of records at the U.S. Border Control, calling for the early production of materials in Judge Adam’s court, but on a day she designated that was prior to a scheduled court date. Two previous district court opinions in the Northern District, neither of which were written by Judge Adams, had come to opposite conclusions about the propriety of issuing such subpoenas absent the court’s permission. Migdal was unaware of the opinion holding that a court order is necessary.

Migdal used Administrative Office of the U.S. Courts Form AO 89, which commands the both the appearance and testimony of the witness and, if necessary, the production of documents. In other words, unless the issuer crosses out the part of the authorized pre-printed form calling on the witness to testify, he/she is always commanded to appear and testify, even though in many cases the issuing party is only interested in obtaining documents. By way of contrast, on the federal civil side, there are two authorized subpoena forms, one calling for documents only and one calling for witness testimony.

AUSA Gregory Sasse told the Border Patrol Agent to ignore the subpoena. Sasse then moved to quash the subpoena and asked the court to impose whatever sanctions it deemed appropriate. Sasse wasn’t authorized to move for sanctions and his superiors later withdrew this request. But Judge Adams was clearly not happy with Migdal. He held two hearings and publicly sanctioned Migdal under 28 U.S.C. Section 1927 and his inherent authority.

Section 1927 reads as follows:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

The Sixth Circuit, noting that nothing whatsoever in the statute’s language authorizes the imposition of non-monetary sanctions, ruled that Judge Adams abused his discretion in sanctioning Migdal under 1927.

The Sixth Circuit then rejected the three rationales Judge Adams relied on for sanctioning Migdal pursuant to his inherent authority. (Any sanctions against Migdal required a showing of bad faith on her part.)

1. Adams had ruled that a criminal defendant is entitled to materials under Rule 17(c) “only after requesting-and not getting-the necessary items from the government via Rule 16 discovery.” Incredibly, he believed he had the inherent authority to sanction Migdal for failing to follow this protocol. But as the Sixth Circuit pointed out, no such protocol exists under Rules 16 and 17.

2. Adams had ruled that Migdal violated her duty of candor to to the court by commanding production at a  hearing that had not been scheduled or requested. (He referred to it as a “fabricated” hearing.) Migdal acknowledged that the subpoenas were defective in this regard, apologized to the court, and argued that she had not acted in bad faith. The Sixth Circuit agreed, emphasizing that: a) AO Form 89 lacks clarity; b) Migdal called for production in Judge Adams’ courtroom, so she was obviously not trying to hide anything from the court; c) the longstanding practice in Migdal’s office and in many Federal Public Defender Offices, was to issue Rule 17(c) subpoenas without prior court approval; and d) Migdal relied on a prior Northern District of Ohio opinion specifically authorizing issuance of Rule 17(c) subpoenas without prior court approval. Judge Adams noted that he preferred the contrary judicial opinion. “But Judge Adams’ inclination to side with one judge’s view over that of another obscures the point that Migdal did not act in bad faith when she hewed to at least one judge’s reading of the controlling rule.”

3. Adams had ruled that Migdal “utterly disregarded Rule 17(c)’s implicit requirement that the court must approve and order early-production subpoenas.” (internal quotations omitted). The Sixth Circuit carefully pointed out that reasonable people could disagree on this point, as evidenced by the conflicting district court opinions. That Migdal chose to take a view of Rule 17(c) at odds with Judge Adams’ position, at a time when there was no clear controlling authority, could hardly amount to bad faith.

Throughout Judge Jane Stranch’s opinion, for a unanimous Sixth Circuit panel, there runs a tone of incredulity at Judge Adams’ actions in “branding a blemish on Migdal’s reputation.” It should never have happened. It should never happen again.

Here is the Sixth Circuit Migdal Vindication Opinion.

Congratulations to AFPD Migdal, by all accounts a fearless and hardworking AFPD. Congratulations to her attorney Greg Poe, of Poe & Burton, who wrote the brief and argued the case.

(wisenberg)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2013/11/sixth-circuit-vindicates-assistant-federal-public-defender-debra-migdal.html

Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence

The New York Times

October 26, 2013

By 

WASHINGTON — The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.

Prosecutors filed such a notice late Friday in the case of Jamshid Muhtorov, who was charged in Colorado in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan.

Mr. Muhtorov is accused of planning to travel abroad to join the militants and has pleaded not guilty. A criminal complaint against him showed that much of the government’s case was based on intercepted e-mails and phone calls.

The government’s notice allows Mr. Muhtorov’s lawyer to ask a court to suppress the evidence by arguing that it derived from unconstitutional surveillance, setting in motion judicial review of the eavesdropping.

The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.

The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.

A group of plaintiffs led by Amnesty International had challenged the law as unconstitutional. But Mr. Verrilli last year urged the Supreme Court to dismiss the case because those plaintiffs could not prove that they had been wiretapped. In making that argument, he said a defendant who faced evidence derived from the law would have proper legal standing and would be notified, so dismissing the lawsuit by Amnesty International would not close the door to judicial review of the 2008 law. The court accepted that logic, voting 5-to-4 to dismiss the case.

In a statement, Patrick Toomey, staff attorney with the American Civil Liberties Union, which had represented Amnesty International and the other plaintiffs, hailed the move but criticized the Justice Department’s prior practice.

“We welcome the government’s belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress,” Mr. Toomey said. “By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”

The Justice Department change traces back to June, when The Times reported that prosecutors in Fort Lauderdale and Chicago had told plaintiffs they did not need to say whether evidence in their cases derived from warrantless wiretapping, in conflict with what the Justice Department had told the Supreme Court.

After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” warrantless wiretapping.

There ensued a wider debate throughout June and July, the officials said. National security prosecutors raised operational concerns: disclosing more to defendants could tip off a foreign target that his communications were being monitored, so intelligence officials might become reluctant to share crucial information that might create problems in a later trial.

Mr. Verrilli was said to have argued that there was no legal basis to conceal from defendants that the evidence derived from legally untested surveillance, preventing them from knowing they had an opportunity to challenge it. Ultimately, his view prevailed and the National Security Division changed its practice going forward, leading to the new filing on Friday in Mr. Muhtorov’s case.

Still, it remains unclear how many other cases — including closed matters in which convicts are already service prison sentences — involved evidence derived from warrantless wiretapping in which the National Security Division did not provide full notice to defendants, nor whether the department will belatedly notify them. Such a notice could lead to efforts to reopen those cases.

This article has been revised to reflect the following correction:

Correction: October 27, 2013

An earlier version of this article incorrectly stated that a criminal complaint showed that much of the government’s case against Jamshid Muhtorov was based on e-mails and phone calls intercepted under a 2008 surveillance law. The complaint does not say that the particular communications it cites were obtained directly from such surveillance.

http://www.nytimes.com/2013/10/27/us/federal-prosecutors-in-a-policy-shift-cite-warrantless-wiretaps-as-evidence.html?ref=todayspaper&pagewanted=print

Above the Law – FBI’s Case Against Silk Road Boss Is A Fascinating Read

It’s been known for quite some time that the feds were desperately trying to hunt down the folks behind Silk Road, the somewhat infamous “dark web” e-commerce site, accessible only via Tor, which was famous mainly for selling drugs in a slightly anonymous fashion. Of course, when the news came out recently that the FBI had used malware to reveal Tor Browser users, many believed that this was part of an attempt to track down Silk Road, and that seems increasingly likely after the FBI announced this morning that it has arrested Silk Road’s owner, Ross William Ulbricht, who went by the moniker “Dread Pirate Roberts” online. Turns out that Ulbricht was based in San Francisco and was arrested at the public library, of all places….The case against him (pdf) is interesting, because beyond just going after him for helping to distribute illegal drugs, they claim that he solicited a Silk Road user in a murder-for-hire request (though he’s not charged with that), to potentially go after a different Silk Road user who was threatening to reveal the identities of people on the site (the user claimed to have hacked a large vendor’s account, and demanded $500,000 to not reveal names). They also go after him (of course) with a CFAA violation claim and a money laundering claim. Of course, we’ve seen the DOJ inflate and pile on charges against people in the past, so it will be worth watching to see what details come out of this — but soliciting a murder, if true, seems like a fairly big deal.

In addition, the complaint against him claims that Silk Road generated 9.5 million Bitcoins in revenue, leading to 600,000 Bitcoins in commissions (or roughly $1.2 billion in sales and $79.8 million in commissions). Of course, that seems noticeably higher than previous research had suggested. It also notes that the FBI itself made over 100 purchases on Silk Road — including ecstasy, cocaine, heroin, LSD and others. Apparently, they wanted a lot of evidence. And, in case you were wondering, the FBI informs us that their orders “have typically shown high purity levels of the drug the item was advertised to be on Silk Road.”

While the details in the complaint seem pretty thorough, there are some tidbits that stand out as questionable. The complaint clearly states that Bitcoin and Tor are both legal and have legitimate purposes, but it also says that Silk Road’s use of proxies to “hide the identities of those that run Silk Road… reflect his awareness of the illegal nature of the Silk Road enterprise.” I don’t quite see how wanting to be anonymous automatically suggests that you’re engaged in illegal behavior. Later in the complaint, the FBI agent spends an awful lot of time talking about how Ulbricht was interested in the Mises Institute, the well-known libertarian think tank. I’m not sure what that has to do with anything. The FBI notes that Dread Pirate Roberts’ defense of Silk Road included quoting Ludwig von Mises and Murray Rothbard (two economists closely associated with the Mises Institute), but lots of people follow the Mises Institute, so that seems like a stretch.

Another questionable tidbit: the FBI notes that Ulbricht posted a question to Stack Overflow using his real name, but “less than one minute later, Ulbricht changed his username at Stack Overflow from ‘Ross Ulbricht’ to ‘frosty.’” and then the FBI agent noted “I know that criminals seeking to hide their identity online will often use pseudononymous usernames to conceal their identity.” Later, after Ulbricht changes the email on the account to frosty@frosty.com — an invalid email address — the FBI agent similarly notes that “criminals seeking to hide their identity online will often use fictitious e-mail addresses.” Well, yes, but the same is true of people with perfectly legitimate reasons to be anonymous, or those who don’t want spam. While there does appear to be plenty of actual evidence, the use of these tidbits seems highly questionable.

The whole extortion/murder for hire story is a bit crazy. As noted above, one user contacted Dread Pirate Roberts, claiming to have hacked another vendor and obtained the details of users, which he’d release if not given $500,000 to pay off another drug supplier. Ulbricht asked the guy who was threatening him, a user who went by the name FriendlyChemist, to put him in touch with that supplier. After FriendlyChemist did so, Ulbricht used the opportunity to try to get that supplier to sell drugs via Silk Road. There was a further discussion, and when FriendlyChemist started getting anxious, the complaint says Ulbricht asked FriendlyChemist’s supplier how much “would be an adequate amount” in order to “put a bounty on his head.” After being quoted a price of $150,000 to $300,000 (rate dependent on “clean” or “not clean”) Ulbricht allegedly complained that the price was high, and noted that he’d previously hired someone to kill someone for $80,000. They eventually agreed to a price of $150,000 (16710 Bitcoins), and Ulbricht was told that the job was done: “Your problem has been taken care of. . . . Rest easy though, because he won’t be blackmailing anyone again. Ever.” Apparently a photo was supplied. The FBI notes that while this supposedly happened in Canada, Canadian law enforcement says that it didn’t happen.

The complaint also notes that Ulbricht has a LinkedIn page which includes a bit of a rant about “using economic theory as a means to abolish the use of coercion and aggression amongst mankind.” It also notes “I am creating an economic simulation to give people a first-hand experience of what it would be like to live in a world without the systemic use of force.” Not sure how one squares that with trying to hire someone to commit murder, but we’ll let others debate that.

It appears that while Ulbricht was mostly careful to cover his tracks, he wasn’t always that careful. The complaint notes that Silk Road was first advertised on different forums by a user named “altoid,” in a manner that indicated altoid was connected with the site. Months later, altoid also posted elsewhere that he was looking to hire an “IT pro in the Bitcoin community” for “a venture backed Bitcoin startup company” — but then told interested people to contact him at his actual gmail address: rossulbricht@gmail.com. And, voila, the FBI had a name. Also, later, when Homeland Security officials intercepted a package that contained a bunch of fake IDs for Ulbricht, they showed up at his home in July. While he generally refused to answer questions, he did tell them that “‘hypothetically’ anyone could go onto a website named ‘Silk Road’ on ‘Tor’ and purchase any drugs or fake identity documents….” There was also the above mentioned Stack Overflow account, which (briefly) used his real name and email address, which indicated that he was working on a Tor hidden service, and posted some code that (in a modified form) was also found on Silk Road.

All in all, there does seem to be a fairly compelling case built against Ulbricht based on this (though, again, we’ve seen in previous DOJ cases where things aren’t always as they seem). At a first glance, they have a lot of evidence on him. However, some questions do remain. At the beginning of the post, we mentioned the whole thing where the FBI was using malware to identify Tor users… but, of course, that doesn’t show up anywhere in the complaint. Instead, the big “breakthrough” was when a “random border search” by DHS turned up those fake identities intended for Ulbricht. However, as Parker Higgins notes, it seems like this could be a case of “parallel construction” whereby the hacking revealed those details, and DHS was then tipped off to check packages sent to Ulbricht, seeking to create “parallel construction” of evidence, in order to launder the fact that the FBI had hacked its way into identifying Tor users. After all, we’d just reported on how the FBI was actively trying to avoid revealing its hacking/malware powers to technologically sophisticated individuals.

Either way, we’re sure that there will be plenty more news on this case.

The whole sealed complaint is available on the next page…

How a Purse Snatching Led to the Legal Justification for NSA Domestic Spying

It began as an ordinary purse snatching. On an early Baltimore morning in 1976, a local street thug crouched alongside his green Monte Carlo, pretending to change a flat, biding his time. Finally, a young woman passed by walking alone to her suburban home. Smith wrenched her handbag from her grasp, jumped into his car and tore off down the street before the young victim could glimpse his license plate.

The perp, Michael Lee Smith, was apprehended weeks later, thanks in part to the police department’s use of a machine known as a “pen register” to track the threatening phone calls the assailant had started making to his victim. The court wrangling that followed, however, would continue for three years, and eventually land on the docket of the U.S. Supreme Court. In 1979 the court upheld Smith’s conviction, and his 10-year prison term.

Almost 35 years later, the court’s decision — in a case involving the recording of a single individual’s phone records — turns out to be the basis for a legal rationale justifying governmental spying on virtually all Americans. Smith v. Maryland, as the case is titled, set the binding precedent for what we now call metadata surveillance. That, in turn, has recently been revealed to be the keystone of the National Security Agency’s bulk collection of U.S. telephone data, in which the government chronicles every phone call originating or terminating in the United States, all in the name of the war on terror.

“When they started quoting Smith in the NSA investigation and inquiry, I was flabbergasted,” says James Gitomer, who was one of Smith’s two lawyers at the Supreme Court. ”I don’t think this case should be used as the foundation to justify the NSA. It doesn’t apply.”

To understand how a purse snatching led to the NSA’s controversial program, you have to look at Smith’s behavior after he made off with his victim’s bag. Smith became obsessed with the woman he mugged, and began terrorizing her with threatening phone calls after the robbery.

The victim called the police, and told them she’d spotted the purse-snatcher’s car driving past her residence. A beat cop started patrolling the area. According to court records, that cop happened to be in the vicinity of the victim’s residence when Smith himself accidentally locked his keys in his car. He sought the assistance of the officer to help him unlock the door of the Monte Carlo.

The officer “took the license number of the vehicle, learned that it was registered to … Smith, and so notified other investigating police officers,” according to records. (.pdf)

That’s where things got interesting from a legal point of view. Using a subpoena issued by the prosecutor, and not a probable-cause warrant signed by a judge, the authorities demanded that the local phone company begin making a record of every phone call originating from Smith’s home phone.

Chesapeake and Potomac Telephone Company did so using the state of the art in telephonic surveillance at the time: a device known as a pen register.

The pen register was first described in Samuel Morse’s 1840 telegraph patent. It’s a fully automatic Morse Code receiver that used a pen to mark dots and dashes on a spool of paper tape, in theory replacing human operators at the receiving end of a telegram. In practice, the mechanical technology proved too slow to keep up with an adept telegraph operator.

But the pen register enjoyed a second life as a phone-spying device. Attached to a phone line, it would mark a single dash for each pulse from a rotary spin dial, producing an accurate record of every phone number dialed. Later models moved past paper tape to print out the actual digits with time and date stamps. By the 1970s, they could even handle Touch Tones.

The pen register was attached to Smith’s line at the phone company central office for two days, and it showed him dialing the victim’s number, providing all the evidence police needed for an arrest.

The woman identified Smith in a lineup. He was convicted of robbery and related charges.

Here is an audio transcript of the Supreme Court’s oral arguments in Smith v. Maryland held March 28, 1979. Courtesy of The Oyez Project at IIT Chicago-Kent College of Law.

In his appeals, Smith argued that the Fourth Amendment — which grants people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” — applied to the telephone numbers he dialed. The government, he argued, can’t start recording that information without a warrant issued by a judge on the same “probable cause” standard used to get a search warrant.

Stephen Sachs, Maryland’s attorney general at the time, argued the other side before the Supreme Court. Citing an earlier case involving a Georgia bootlegger undone by his bank records, Sachs insisted that Americans have no legitimate expectation of privacy in information they transmit to a business — in this case the phone company.

On June 20, 1979, the high court issued its 5-3 opinion in Smith v. Maryland, ruling against Smith.

Writing for the majority, Justice Harry Blackmun:

FIRST, WE DOUBT THAT PEOPLE IN GENERAL ENTERTAIN ANY ACTUAL EXPECTATION OF PRIVACY IN THE NUMBERS THEY DIAL. ALL TELEPHONE USERS REALIZE THAT THEY MUST ‘CONVEY’ PHONE NUMBERS TO THE TELEPHONE COMPANY, SINCE IT IS THROUGH TELEPHONE COMPANY SWITCHING EQUIPMENT THAT THEIR CALLS ARE COMPLETED. ALL SUBSCRIBERS REALIZE, MOREOVER, THAT THE PHONE COMPANY HAS FACILITIES FOR MAKING PERMANENT RECORDS OF THE NUMBERS THEY DIAL, FOR THEY SEE A LIST OF THEIR LONG-DISTANCE (TOLL) CALLS ON THEIR MONTHLY BILLS. IN FACT, PEN REGISTERS AND SIMILAR DEVICES ARE ROUTINELY USED BY TELEPHONE COMPANIES ‘FOR THE PURPOSES OF CHECKING BILLING OPERATIONS, DETECTING FRAUD, AND PREVENTING VIOLATIONS OF LAW.’

And thus, a digit-collection device attached to a lone purse snatcher’s telephone set the legal precedent used, three decades later, to justify the bulk collection of the same information on every single American. Nobody is more surprised by the long-term ramifications of the case than the prosecutor who won it.

“It was a routine robbery case. The circumstances are radically different today. There wasn’t anything remotely [like] a massive surveillance of citizens’ phone calls or communications,” Sachs says. “To extend it to what we now know as massive surveillance, in my personal view, is a bridge too far. It certainly wasn’t contemplated by those involved in Smith.”

Justice Potter Stewart, writing a dissent in Smith v. Maryland, eerily anticipated today’s discussions about the revelatory nature of phone metadata:

THE NUMBERS DIALED FROM A PRIVATE TELEPHONE — ALTHOUGH CERTAINLY MORE PROSAIC THAN THE CONVERSATION ITSELF – ARE NOT WITHOUT ‘CONTENT.’ MOST PRIVATE TELEPHONE SUBSCRIBERS MAY HAVE THEIR OWN NUMBERS LISTED IN A PUBLICLY DISTRIBUTED DIRECTORY, BUT I DOUBT THERE ARE ANY WHO WOULD BE HAPPY TO HAVE BROADCAST TO THE WORLD A LIST OF THE LOCAL OR LONG DISTANCE NUMBERS THEY HAVE CALLED. THIS IS NOT BECAUSE SUCH A LIST MIGHT IN SOME SENSE BE INCRIMINATING, BUT BECAUSE IT EASILY COULD REVEAL THE IDENTITIES OF THE PERSONS AND THE PLACES CALLED, AND THUS REVEAL THE MOST INTIMATE DETAILS OF A PERSON’S LIFE.

Today, Smith provides constitutional cover for a legion of federal and state laws that enable authorities from the FBI down to the local sheriff to compel banks, hospitals, bookstores, telecommunications companies, and even utilities and internet service providers — virtually all businesses — to hand over sensitive data on individuals or corporations, without having to show probable cause that the target is a criminal, or even that a crime was committed.But the most dramatic citation of the Smith precedent was, until the Edward Snowden leaks, a secret one.

In a 2006 update to the Patriot Act’s Section 215, Congress allowed the secret Foreign Intelligence Surveillance Court to authorize warrants for most any type of “tangible” records, including those held by banks, doctors and phone companies. And the federal authorities only need to show that the information is “relevant” to an authorized investigation.

Unbeknownst to the public, the NSA, FBI and the Foreign Intelligence Surveillance Court all interpreted the authority as allowing indiscriminate bulk collection. The secret interpretation surfaced only last June, when the Guardian newspaper published the first of the Snowden leaks: a classified opinion from the secret court requiring Verizon to provide the NSA with a complete set of U.S. telephone metadata — all phone numbers of both parties involved in all calls, the international mobile subscriber identity number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.

The government confirmed the authenticity of the document, and has since said the same secret orders are issued every three months for all U.S. carriers.

To fend off criticism of the program and to show that it was legal, the Obama administration released a “White Paper” (.pdf) in August outlining the legal basis for the spying, specifically citing Smith v. Maryland. “[T]he Supreme Court held that the Government’s collection of dialed telephone numbers from a telephone company did not constitute a search of [Smith] under the Fourth Amendment,” the administration noted, “because persons making phone calls lack a reasonable expectation of privacy in the numbers they call.”

In a rare declassified opinion (.pdf) from the FISA court released August 29, Judge Claire V. Eagan addressed the key point: If it’s legal to spy on a single purse snatcher without a warrant, then it’s legal to spy on literally everyone.

“Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence,” Eagan wrote.

Testifying last week before the Senate Intelligence Committee, Deputy Attorney General James Cole defended the administration’s reliance on an old precedent involving ancient technology. But he cited Eagan’s opinion to shore up support that the spy program was lawful:

“Some have questioned the applicability of Smith because it was issued over 30 years ago, and it did not concern a situation where the government collected and retained bulk metadata and aggregated it all in one place,” he told senators. “However, the recent opinion of the FISA court addressed that specific issue.”

Congress isn’t likely to withdraw the Patriot Act authority behind the metadata program, either, despite pending legislation in the Senate. The House already flatly rejected a proposal to do so even though the author of the Patriot Act — Rep. Jim Sensenbrenner (R-Wisconsin) — said the government is abusing the law by collecting records of all telephone calls in the United States.

Sensenbrenner said he never thought every telephone call would become relevant to a terrorism investigation. The government, he said, has advanced a “dangerous version of relevance.”

But in the wake of the Snowden disclosures, privacy advocates are uncharacteristically optimistic that Smith might be ripe for review by the Supreme Court. The American Civil Liberties Union, the Electronic Frontier Foundation and the Electronic Privacy Information Center have all filed federal lawsuits challenging the constitutionality of the bulk surveillance — though they’ll have to surmount the issue of “legal standing” first.

The Smith case is on the mind of today’s Supreme Court. When the justices ruled last year that authorities usually need a court warrant to affix GPS devices to vehicles, Justice Sonia Sotomayor offered a glimmer of hope to privacy activists. Mentioning Smith in a concurring opinion, she wrote “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor added. “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries, and medications they purchase to online retailers.”

Alexander Abdo, the ACLU attorney challenging the program, said there is a huge difference between short-term, targeted surveillance and indefinite, mass surveillance.

“One way of understanding why the two-day, targeted surveillance in Smith cannot possibly justify the perpetual, dragnet surveillance of every American, is to ask whether the result in that case would have been the same if the phone-records program were at issue,” he says. “In other words, how would the Supreme Court have decided Smith in 1979 if the government had relied upon a database of every single American’s call records to capture a single criminal? The court would have given a very different answer to that very different question.”

Howard Cardin, the Baltimore attorney who defended Smith in oral arguments before the Supreme Court, recalls it being a “simple” case.

“I don’t think anybody anticipated the far-reaching effect that it has had,” he said.

The FISA Courts Are Even Worse Than You Knew

By Jeffrey Rosen

Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke

WSJ – Cellphone-Wiretap Ruling Is a Headache for Prosecutors

Opinion Says Authority to Listen In on Calls Doesn’t Cross Federal-Court-District Boundaries

JOE PALAZZOLO

A recent ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans said that while cellphones may move easily between the country’s 94 federal districts, the authority to tap them doesn’t. The ruling affects the wiretaps typically used in criminal investigations, especially by the Drug Enforcement Administration, which is part of the Justice Department.

Former law-enforcement officials said the Aug. 26 opinion is among the most significant in recent memory governing the use of such wiretaps and could pose administrative headaches for law-enforcement agencies, unless Congress stepped in, which most regard as unlikely.

The appeals court said that for the federal government to intercept calls on a cellphone, either the phone itself or the hub where agents listen in on the calls must be in the district of the judge who authorized the wiretap. The Justice Department had previously interpreted the law to allow it to continue intercepting calls on a phone that wandered outside of the district in which the wiretap was authorized, former officials said. Now, federal investigators in Louisiana, Mississippi and Texas—the states covered by the Fifth Circuit—run the risk of having evidence suppressed if a cellphone they have tapped crosses federal boundaries.

“God help you if the [suspect] is driving down the highway, having a conversation on his cellphone and crosses into another district,” said Mark Eckenwiler, a former Justice Department official who worked on the Fifth Circuit case. While the ruling is only legally binding on those states, defense lawyers across the nation are also likely to invoke it as they seek to get wiretap evidence against their clients thrown out, he added.

The Justice Department has asked the court for a month to consider its next step. A DEA spokeswoman referred questions to the Justice Department, which declined to comment.

In the Fifth Circuit case, DEA agents and federal prosecutors in southern Mississippi who were investigating a drug-trafficking organization received authorization from a local judge to tap the cellphone of Richard North, a Houston native whom they suspected of supplying local dealers with cocaine. Mr. North was stopped in May 2009 by Texas state troopers acting on information from federal investigators who believed he was on his way to make a delivery in Mississippi.

He was released after a search turned up no drugs, and he headed home to Houston. Unaware that his phone was tapped, he called a friend and was overheard telling her that the troopers had failed to uncover the cocaine hidden in his car, according to court documents. A DEA agent listening in from Louisiana forwarded the information to officers in Texas, who stopped him a second time and found the stash.

Mr. North pleaded guilty to conspiracy to distribute five kilograms of more of cocaine, but he reserved the right to challenge the wiretap on appeal to the Fifth Circuit.

The appeals court decided that the Mississippi judge erred in issuing the warrant, because the phone was in Texas, investigators were in Mississippi and the listening post was in Louisiana, putting them all in separate districts. “In short, the district court…lacked the authority to permit interception of cellphone calls from Texas at a listening post in Louisiana,” the Fifth Circuit said, in an unsigned opinion.

Federal law exempts “mobile interception devices” from jurisdictional requirements, and at least one appeals court, the Seventh U.S. Circuit Court of Appeals in Chicago, has interpreted such devices to include cellphones.

Hanni Fakoury, a staff attorney at the Electronic Frontier Foundation, a civil-liberties group, said in an email that the Seventh Circuit ruling allowed the Justice Department to seek out “a more advantageous jurisdiction (and a more sympathetic judge) before applying for a wiretap.” The Fifth Circuit, however, said “mobile interception device” refers to a device used to capture communications and not a mobile phone, restoring what Mr. Fakoury described as an important safeguard against prosecutors seeking judges believed to provide preferential treatment to the government.

Norman J. Silverman, a lawyer for Mr. North, said the decision was the first major “reining in” of the Wiretap Act since 1974, when the Supreme Court ruled that the power to authorize wiretap applications inside the Justice Department was restricted to a few top officials.

In the near term, law-enforcement officials may need to set up temporary listening posts in districts where wiretap warrants are issued, said Mr. Eckenwiler, now senior counsel at Perkins Coie LLP. That solution is unlikely to sit well with the DEA, which uses these kinds of wiretaps more than any other agency and relies heavily on regional listening posts outfitted with sophisticated eavesdropping technology and staffed full-time with federal employees and contractors, who transcribe and translate what they hear. Of the 1,354 federal wiretaps authorized in 2012, 94% were used in narcotics investigations, according to the administrative office of the U.S. Courts.

“If you want to run 15 intercepts, the best place to run them is in one place—not 15 places,” said David Wilson, a retired 32-year veteran of the DEA.

The Justice Department could funnel wiretap applications to the districts with regional listening posts, but that could create delays for cases in which taps need to “get up” quickly to determine deliveries and shipment of drugs, said Stephen J. T’Kach, a former Justice Department official who worked in the surveillance unit.

Write to Joe Palazzolo at joe.palazzolo@wsj.com

http://online.wsj.com/article/SB10001424127887323864604579067033554325594.html

The DOJ and the Marijuana Muddle

By 
Published: September 12, 2013
On marijuana policy, there’s a rift between the federal government and the states. It started with California’s allowing marijuana for medical use in 1996, widened as several other states followed suit, and became too big to ignore 10 months ago, when voters in Colorado and Washington decided to legalize the drug for recreational use. Under federal law possession is still a crime.
After conspicuous silence, the Justice Department announced in August that it wouldn’t try to put the toothpaste back in the tube — it wouldn’t sue to block the Colorado and Washington laws as long as those states put in place “strong and effective regulatory and enforcement systems.” But this policy hasn’t cleared up all the confusion arising from this tricky situation. Many practical questions remain, as became obvious at a Senate Judiciary Committee hearing on Tuesday about conflicts between state and federal marijuana laws.
At the hearing, James Cole, a deputy attorney general, saidthe Justice Department expects Colorado, Washington and the 18 medical marijuana states to prevent the distribution of the drug to minors, its diversion to states where it is illegal, and its possession or use on federal property, among other restrictions. Senator Charles Grassley, the ranking Republican on the Judiciary Committee, rightly asked how, exactly, the Justice Department would evaluate whether the states were holding up their end of the bargain.If a 17-year-old was caught smoking a joint in Mesa Verde National Park in Colorado, would federal prosecutors argue that the state wasn’t sufficiently tough on enforcement? Common sense says no, but guidelines are necessary. Mr. Grassley suggested, and Senators Sheldon Whitehouse and Richard Blumenthal, both Democrats, agreed, that the Justice Department should establish clear rules and explain what violations would trigger a crackdown.Senator Patrick Leahy, the committee’s Democratic chairman, pointed out that the Justice Department has yet to deal with financial issues related to state-legalized marijuana. Because federal laws make it illegal for banks to handle proceeds from drug sales, most marijuana businesses don’t have access to financial services and have to operate on a cash-only basis. That’s a problem for local law enforcement — where there are piles of cash, there’s armed robbery — and for the Internal Revenue Service, too. As Sheriff John Urquhart of Washington’s King County said, “cash-only businesses are very difficult to audit, leading to possible tax evasion, wage theft and the diversion of resources we need to protect public safety.”The Justice Department has taken a step toward figuring out this peculiar dance between the federal government and the states. If it wants its “trust but verify” approach to work, it will have to start filling in the details.