History > 2006 > USA > Justice Department (I)

U.S. asks Internet firms to save data

Posted 5/31/2006
11:09 PM ET
USA Today
By Jon Swartz and Kevin Johnson

Top law enforcement officials have asked leading Internet companies to keep histories of the activities of Web users for up to two years to assist in criminal investigations of child pornography and terrorism, the Justice Department said Wednesday.

Attorney General Alberto Gonzales and FBI Director Robert Mueller outlined their request to executives from Google, Microsoft, AOL, Comcast, Verizon and others Friday in a private meeting at the Justice Department. The department has scheduled more discussions as early as Friday. Last week's meeting was first reported by CNET, an online news service.

The meetings reflect a new approach by law enforcement in anti-terrorism efforts. Previously, the Justice Department had invoked the need for data retention only to battle child pornography. Since the Sept. 11 attacks, Internet traffic has become increasingly critical to terrorism investigations, too.

Justice is not asking the companies to keep the content of e-mails, spokesman Brian Roehrkasse said. It wants records such as lists of e-mail traffic and Web searches, he said.

Roehrkasse said the government is required to seek proper legal authority, such as a subpoena, before obtaining the records. He said any change in the retention period would not alter that requirement. Law enforcement officials have seen investigations derailed "time and time again" because of a lack of data, Roehrkasse said.

The government's request forces the companies to strike a balance between satisfying law enforcement demands and honoring the privacy of millions of customers.

"The issue for us is not whether we retain data, but we want to see it done right," says Dave McClure, president of the U.S. Internet Industry Association, which represents 150 companies, primarily Internet service providers. "Our concerns are who pays for it, what data is retained, and if it is retained legally without violating federal laws and subscriber agreements."

Lee Tien, a lawyer for the privacy advocacy group Electronic Frontier Foundation, said he was concerned.

"I think that the request raises some really, really major privacy problems," he said. The Justice Department is "asking ISPs (Internet service providers) to really become an arm of the government."

The request creates a logistical challenge: Most Internet providers store data such as Web searches for 30 to 90 days. Storing such information significantly longer is more expensive, McClure and others say.

"We strongly support Gonzales' interest in assuring that the Internet is safe for everyone," Phil Reitinger, Microsoft's senior security strategist, said in a statement Wednesday that acknowledged the company's participation in the meeting at Justice. "But data retention is a complicated issue."

"We believe (data retention and preservation) proposals deserve careful review and must consider the legitimate interests of individual users, law enforcement agencies, and Internet companies," Google spokesman Steve Langdon said Wednesday.

Gonzales broached the issue of record retention in April during a speech at the National Center for Missing & Exploited Children in Alexandria, Va.

Gonzales, who has made fighting child exploitation a prominent part of the national law enforcement agenda, said the pursuit of child predators depends on the availability of evidence often in the hands of ISPs.

This isn't the first time Gonzales has gone to Internet companies with a request related to their records. In March, a federal judge ordered Google to hand over Web search records requested by Justice as part of its efforts to shield children from sexually explicit material online. Google balked at an earlier request, saying it would expose trade secrets. AOL, Yahoo and Microsoft cooperated with the government, but they said their assistance was limited and users' privacy was not violated.

Contributing: William M. Welch

    U.S. asks Internet firms to save data, UT, 31.5.2006, http://www.usatoday.com/tech/news/internetprivacy/2006-05-31-internet-records_x.htm

Justice Dept. Seeks to Block Suits on Spying

May 28, 2006
By THE ASSOCIATED PRESS
The New York Times

The Bush administration has asked federal judges in New York and Michigan to dismiss two lawsuits filed over the National Security Agency's domestic eavesdropping program, saying litigating them would jeopardize state secrets.

In papers filed late Friday, Justice Department lawyers said it would be impossible to defend the program's legality without disclosing classified information that could aid terrorists.

John D. Negroponte, the director of national intelligence, invoked the state secrets privilege, writing that disclosure would cause "exceptionally grave damage" to national security. The administration laid out some of its supporting arguments in classified memos, filed under seal.

The motion, widely anticipated, involves two cases challenging an N.S.A. program that allows investigators to eavesdrop on Americans who communicate by phone or e-mail with people outside the country suspected of terrorist ties.

In New York, the Center for Constitutional Rights has asked a judge to stop the program, calling it an abuse of presidential power. The American Civil Liberties Union filed a similar suit in Detroit.

    Justice Dept. Seeks to Block Suits on Spying, NYT, 28.5.2006, http://www.nytimes.com/2006/05/28/washington/28secrets.html

Deal With U.S. Would Let Boeing Avoid Prosecution

May 16, 2006
The New York Times
By LESLIE WAYNE

Boeing, the nation's second-largest military contractor, has agreed to pay $615 million under a tentative deal with federal prosecutors that will allow the company to avoid criminal charges, Boeing and senior Justice Department officials said yesterday.

The agreement, which is expected to become final in a few weeks, would end a three-year investigation into wrongdoing by Boeing employees and would require the company to pay $565 million to cover civil claims and $50 million to end a criminal inquiry. Senior Justice Department officials, who asked on a telephone news conference not to be identified, said they believed this was the largest fine ever imposed on a military contractor.

While avoiding criminal charges, Boeing will agree to "accept responsibility," the Justice officials said, for the actions of its employees. One case involved the theft of proprietary data from a rival, the Lockheed Martin Corporation. The other involved Boeing's hiring of a former Air Force official who oversaw Boeing contracts at the Pentagon.

Boeing will also be monitored by the Justice Department for two years and be required to maintain a federal ethics and compliance program as well as to cooperate with federal investigators in any future investigations. Should Boeing violate these provisions, it could be prosecuted and fined up to $10 million, according to the settlement.

"Boeing does accept responsibility for the actions of its employees," said the senior Justice Department official, who added that the $615 million figure reflected "money that was lost to the government due to Boeing's illicit activities."

Boeing declined to comment, but said in a statement that "Boeing will accept responsibility for the conduct of its employees and make additional commitments regarding ongoing compliance."

News of the settlement was first reported yesterday by The Wall Street Journal.

Analysts estimate that the settlement will depress Boeing's 2006 earnings by 59 cents to 75 cents a share, but say the agreement will lift a taint of corruption from Boeing and better position it to bid on Pentagon business. Boeing's stock, which had been rising for two years, closed at $85.86 yesterday, down $1.15.

"This is a heck of a penalty," said Howard Rubel, an aerospace analyst with Jefferies & Company. "But it has eliminated the 'bad citizenship' knock from being on the company. It pushes into the past things that were done in the past. And it gets rid of the uncertainty that a defense contractor could have been convicted of fraud or a felony."

Settlement of the charges also reflects efforts by the chief executive of Boeing, W. James McNerney Jr., who was hired last year after the two previous Boeing chief executives resigned under fire. Mr. McNerney responded to the ethical controversies by reorganizing the company's military business, putting a new emphasis on training and pressing for a resolution of the investigations.

"McNerney inherited a company in crisis," said Loren B. Thompson, a military industry analyst at the Lexington Institute, a Washington-area research group. "There was a danger that all these controversies would distract the company from getting business. His top goal was to eliminate these distractions. To announce that this controversy is behind them would be a major breakthrough."

The settlement grew out of two investigations into the company. In one, Boeing employees were found to have stolen thousands of pages of proprietary documents from Lockheed in the late 1990's and used them to help bid for government rocket-launch business.

To penalize the company, the Pentagon stripped Boeing of $1 billion in Pentagon rocket-launch business in 2004. In March, it was allowed to bid for rocket-launch business after a 20-month suspension, the longest for any major military contractor.

In the other case, Boeing was found to have improperly recruited an Air Force contracting official, Darleen A. Druyun, while she was still at the Pentagon, where she was overseeing billions of dollars in Boeing business. Ms. Druyun later admitted to steering contracts to Boeing to help her get a job with the company. Ms. Druyun was fired from Boeing, and then pleaded guilty to conflict-of-interest charges and was sentenced to a nine-month prison term. Michael M. Sears, Boeing's former chief financial officer who had met with Ms. Druyun to recruit her, was also fired, and later jailed.

Those scandals also led to the resignation of Philip M. Condit, then Boeing chief executive. His successor, Harry C. Stonecipher, was fired last year after an extramarital affair with a Boeing employee.

Mr. McNerney has taken several steps to clean up the company. He allowed Boeing's in-house counsel, Douglas G. Bain, to make a blistering presentation to Boeing executives at a meeting in Orlando, Fla., this year about unethical behavior.

He reorganized Boeing's military division to provide for greater accountability. He has brought in J. Michael Luttig, who resigned last week from the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., to replace Mr. Bain, who is retiring. Mr. Luttig's name had surfaced as a possible candidate for the Supreme Court.

In addition, the Boeing board recently altered the company's executive compensation plan to put more emphasis on ethical behavior.

"One by one, McNerney has addressed all the issues getting in the way of running the company smoothly," Mr. Thompson of the Lexington Institute said.

    Deal With U.S. Would Let Boeing Avoid Prosecution, NYT, 16.5.2006, http://www.nytimes.com/2006/05/16/business/16boeing.html

U.S., Citing State Secrets, Challenges Detainee Suit

May 13, 2006
The New York Times
By NEIL A. LEWIS

ALEXANDRIA, Va., May 12 — Invoking the need to protect "state secrets," the Justice Department urged a federal judge on Friday to dismiss a lawsuit brought by a man whose experience came to symbolize what some have called the unaccountability of a government program that secretly ships terrorism suspects to overseas prisons.

Khaled el-Masri, a Kuwaiti-born German, had gone to Macedonia on vacation when he was arrested there on Dec. 31, 2003, and flown to a prison in Afghanistan, where he was held for five months before being released.

During his incarceration in Kabul, he has said, he was shackled, beaten and injected with drugs. United States officials have said that his case was one of mistaken identity; intelligence authorities may have confused him with an operative of Al Qaeda with a similar name.

The officials said he was released in May 2004 on the direct orders of Secretary of State Condoleezza Rice, then the national security adviser, after she learned he had been mistakenly identified as a terrorism suspect.

Mr. Masri, who was not given any explanation or apology, filed a civil lawsuit seeking damages from George R. Tenet, the director of the Central Intelligence Agency at the time of his imprisonment, and the companies that were used to transport him.

But R. Joseph Sher, an assistant United States attorney, told Judge T. S. Ellis III on Friday that the C.I.A. was intervening in the case to invoke the so-called state secrets privilege. As a result, Mr. Sher said, "the case must be dismissed at the outset."

He said that Mr. Masri's claims "cannot be confirmed or denied" officially without disclosing information that could harm national security and relations with other countries.

He noted that Porter J. Goss, the C.I.A. director until last week, had submitted both a public affidavit and a secret one detailing why the case would inevitably disclose classified information if it went forward.

Ben Wizner, a staff lawyer at the American Civil Liberties Union who is representing Mr. Masri, told Judge Ellis that he should not dismiss the lawsuit on the basis of a "legal fiction." Mr. Masri's ordeal was widely known and was acknowledged by federal officials, albeit not in an on-the-record manner, Mr. Wizner argued.

"The central fact that Khaled el-Masri was a victim of the rendition program, and that the C.I.A. was responsible for it, is not a state secret, and, in fact, is known to everyone in this courtroom and around the world," he said.

According to several press accounts, the United States government has engaged in a program of rendition in which the C.I.A. has seized dozens of terrorism suspects abroad and transferred them to friendly third countries where they may be interrogated more freely.

Mr. Wizner argued that if the government were allowed to avoid Mr. Masri's lawsuit by invoking the state secrets privilege, it could make the same claim if it were confronted with a claim involving a clandestine murder of an American citizen.

The state secrets privilege was generally recognized by the Supreme Court in a 1953 ruling and has mostly been used to prevent classified information from being introduced in civil suits. Only recently has the government sought to use it to stop trials altogether. Judge Ellis said he would issue a ruling shortly.

Mr. Sher, the prosecutor, said that despite several published reports in which anonymous federal officials were quoted extensively acknowledging Mr. Masri's ordeal, the United States government has never provided a formal confirmation.

Mr. Wizner said that no one from the government has offered even a private apology to Mr. Masri. Mr. Masri, who was denied entry into the United States this year, is expected to travel here next month.

In a recent interview with The New York Times at his lawyer's office in Ulm, Germany, Mr. Masri said that he was insisting on a public apology from the American government before he would consider withdrawing the lawsuit. Asked about financial compensation, he did not respond directly but said, "The most important thing for me is to know why this happened and to get a public apology."

Souad Mekhennet contributed reporting from Germany for this article.

    U.S., Citing State Secrets, Challenges Detainee Suit, NYT, 13.5.2006, http://www.nytimes.com/2006/05/13/washington/13rendition.html

Use of secret warrants up last year

Mon May 1, 2006 9:33 PM ET
Reuters

WASHINGTON (Reuters) - The number of court-approved warrants allowing the Bush administration to conduct intelligence searches and electronic surveillance inside the United States climbed 18 percent to 2,072 in 2005, the Justice Department said on Monday.

The administration also increased in its pursuit of business records and used secret subpoenas to get information on more than 3,000 people in the United States under separate provisions of the USA Patriot Act, which granted the government expanded police powers after the September 11 attacks.

The Justice Department released statistics on its use of secret warrants, business records and national security letters in a report to Congress dated April 28. A copy of the document was first reported by "Secrecy News," an e-mail newsletter published by the Federation of American Scientists.

The number of intelligence-related warrants approved last year by a secret federal court for surveillance and searches rose 318 from a total of 1,754 in 2004, a Justice Department spokeswoman confirmed.

The secret court, established in 1978 by the Foreign Intelligence Surveillance Act, or FISA, made substantial modifications to 61 government warrant applications last year. But it denied no warrant application filed in 2005.

The increase in secret wiretaps and searches comes amid an expansion of domestic counterterrorism activities among federal agencies including the FBI.

But the warrants are not related to the domestic spying program that President George W. Bush authorized the National Security Agency to conduct soon after the September 11 attacks.

The NSA program allows the authorities to monitor the international e-mails and phone calls of U.S. citizens without obtaining warrants while in pursuit of al Qaeda suspects.

Administration officials have said warrantless surveillance is necessary because FISA warrant requirements are not flexible enough to contend with al Qaeda and other militant networks opposed to the United States.

Meanwhile, the Justice Department said the FISA court in 2005 also approved 155 warrants granting federal authorities access to business records under the Patriot Act.

Comparison figures for 2004 are classified. But Attorney General Alberto Gonzales told the Senate intelligence committee last year that by March 30, 2005, the administration had used the authority only 35 times since the Patriot Act first came into force in 2001.

The Justice Department also said the government issued 9,254 secret national security letters in 2005 to gather information on 3,501 people, including U.S. citizens and residents. National security letters, authorized by the Patriot Act, allow the FBI to demand disclosure of personal information without the approval of a judge or grand jury.

    Use of secret warrants up last year, R, 1.5.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-05-02T013258Z_01_N01193247_RTRUKOC_0_US-SECURITY-SURVEILLANCE.xml

New Scrutiny for Law on Detaining Witnesses

March 22, 2006
The New York Times
By ADAM LIPTAK

A 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress and within the Justice Department after reports that it has been abused in terrorism investigations.

The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for people detained as material witnesses say the law has been used to hold people who the government fears will commit terrorist acts in the future but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws.

A bill introduced by Senator Patrick J. Leahy, Democrat of Vermont, would curtail the use of the material witness law to hold people suspected of plotting terrorist acts. Representative Jeff Flake, Republican of Arizona, said he would introduce similar legislation in the House.

"It's being stretched beyond its original purpose," Mr. Flake said of the material witness law. "Individuals are being indefinitely detained who might be suspects. If that's the case, they need to be charged."

But Mr. Flake added that he might be receptive to arguments that federal prosecutors need tools to hold some people they consider dangerous. "If you need something else," he said, "come to us."

Recent prosecutions, lawsuits and internal investigations by the government have all focused attention on the potential misuse of the material witness law in terrorism investigations. The Justice Department, for instance, recently opened an inquiry into 21 instances of possible misuses of the law, its Office of the Inspector General said. A Justice Department spokesman would not elaborate on the inquiry, by the department's Office of Professional Responsibility, or name the detainees involved.

But in recent court filings in a case brought by a former detainee, the government argued that courts were powerless to second-guess whether the prosecutors had acted on improper motives as long as they complied with the formal requirements of the material witness law.

David Cole, a law professor at Georgetown University and a prominent critic of the Bush administration's approach to civil liberties, said that the government had routinely misused the law. But Professor Cole added that there might be a place for a law that would allow the government to hold dangerous people when it lacked evidence to charge them.

"One of the problems we saw everywhere after 9/11," he said, "was, in the absence of any rational, narrowly tailored preventive detention authority, the administration reached out to exploit a number of other legal and illegal methods to detain people — immigration, material witness, enemy combatant. They were creating preventive detention authority out of statutes that were not meant to serve as that or out of whole cloth."

The use of material witness warrants in terrorism investigations continues to be shrouded in secrecy. In May 2003, the Justice Department told Congress that fewer than 50 people had been detained as material witnesses "in the course of the Sept. 11 investigation." About half were held for more than 30 days, the department said.

A department spokesman did not respond to requests for more current numbers. The department has for three years refused to give Congress fresher data on material witness detentions in terrorism investigations.

"They claim that they can't even tell us how many people they have detained" because of court sealing orders and grand jury secrecy rules, said Julie Katzman, a lawyer on Senator Leahy's staff.

Even the lawyers who represent material witnesses are often barred from talking about their clients.

"The Justice Department routinely gets sealing orders," said Ricardo J. Bascuas, a law professor at the University of Miami who has represented material witnesses. "These court orders never expire. For instance, I'm perpetually under court order from the Eastern District of Virginia, a place I've never been to, not to talk about" one material witness case.

People who have been arrested as material witnesses say the experience forever changed their lives, even when they were never called to testify or charged with a crime.

One of them, Abdullah al Kidd, who was born in Kansas and was a star running back at the University of Idaho, filed suit last year for what he says was "a gross abuse of the government's power" in arresting him.

Mr. al Kidd, who was known as Lavoni T. Kidd before he converted to Islam, spent 16 days in detention in three states in 2003, some of it shackled hand and foot. That was followed by 14 months under court supervision. Mr. al Kidd was not charged with a crime, and he was not called to testify, though a government affidavit said he had information "crucial to the prosecution" of another man. Mr. al Kidd said in a recent interview that his arrest and detention shattered his marriage and destroyed his career. He now drives a cab in Las Vegas.

"I call it social assassination, really," Mr. al Kidd said. "It's just basically taken me out of a lot of opportunities and placed me into a small box. I'm not doing anything my heart actually desires."

Mr. al Kidd, who had apparently attracted the government's attention after pursuing religious studies in Yemen, was interviewed repeatedly by the F.B.I. in 2002. He never missed an appointment, his lawsuit says. Yet, after a six-month lull and with no warning, he was arrested at Dulles International Airport in Northern Virginia on March 16, 2003, as he tried to board a flight to Saudi Arabia to pursue a doctorate in Islamic studies.

Magistrate Judge Mikel H. Williams of the Federal District Court in Boise, Idaho, authorized the arrest, based on an affidavit from Special Agent Scott Mace of the F.B.I. "Kidd is scheduled to take a one-way, first-class flight (costing about $5,000)," the affidavit said.

That statement was false in every particular: the ticket was for a round trip, in coach, costing $1,700.

"If I had submitted an affidavit under penalty of perjury that contained false information," said Scott McKay, who represented the man Mr. al Kidd was said to have evidence about, "I would have been prosecuted." Mr. Mace, his lawyer and F.B.I. officials referred questions to a Justice Department spokesman, who declined to comment beyond referring a reporter to the court papers in the case.

In those papers, the government said the false statements in the affidavit were immaterial. "Either way," government lawyers wrote in a brief asking that Mr. al Kidd's case be dismissed, "there is no dispute that plaintiff purchased an expensive airline ticket to a foreign country with which the United States did not have an extradition treaty."

The government has apologized to 13 of the 70 material witnesses located by the American Civil Liberties Union and Human Rights Watch, according to a report the groups issued last year. Mr. al Kidd was not one of them.

"Absolutely no apologies," he said.

The proposed legislation would place strict time limits on detentions — 10 days for grand jury investigations and 30 days for trials — and allow them only where there is clear and convincing evidence that the witness is a flight risk.

Curtailing the authorities' ability to hold potentially dangerous people could be a devastating mistake, said Andrew C. McCarthy, a former federal prosecutor who took part in terrorism investigations in New York after the Sept. 11 attacks.

"Terrorism cases present, obviously, the least margin for error that you could conceivably have," Mr. McCarthy, now a senior fellow at the Foundation for the Defense of Democracies, said. "If you lose control of people who come up on the radar screen, you could have massive death."

Lee Gelernt, a lawyer with the A.C.L.U.'s Immigrants' Rights Project, which represents Mr. al Kidd, said his client's case "crystallizes the question of whether we as a nation are going to allow preventive detention."

The idea has support, and some view it as inevitable.

"The most confident prediction you can make," Professor Cole said, "is that after the next attack, a preventive detention statute will be proposed."

    New Scrutiny for Law on Detaining Witnesses, NYT, 21.3.2006, http://www.nytimes.com/2006/03/22/politics/22witness.html

Year After Shootings, Calls to Increase Judges' Security

March 19, 2006
The New York Times
By JOHN FILES

WASHINGTON, March 18 — About a year after the killings of the husband and mother of a Chicago federal judge and a shooting rampage in an Atlanta courthouse that left three people dead, the safety of judges and court employees remains a serious concern for the judiciary.

Attorney General Alberto R. Gonzales said this week that three-quarters of the more than 2,000 federal judges had sought home security systems paid by the government.

The Judicial Conference of the United States, which sets policy for the federal courts, met this week for the first time under Chief Justice John G. Roberts Jr. and approved security measures.

The conference authorized security equipment and workers for federal probation and pretrial services offices, urged added training for judges' security guards and called for the Bureau of Prisons to screen all outgoing mail to judges and courts from federal prison inmates.

A spokesman for the Administrative Office of the United States Courts, David A. Sellers, said that after the killings of the family members of the Chicago judge, Joan H. Lefkow, the security focus shifted from courthouses to judges and other court employees outside court buildings.

Last May, Congress appropriated $12 million for the Marshals Service to coordinate such security, including paying for home detection systems for any federal judge who wants one. This month, the House passed an authorization for $20 million to hire additional marshals for court security and investigating threats.

"Threats and attacks against judges strike at the core of our system of justice," Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit said in a statement.

Judge Sentelle is also chairman of the Judicial Conference Committee on Court Security.

"Judges must be free to make judicial decisions without the fear of physical harm to themselves or to members of their families," he said.

Judge Lefkow testified before the Senate Judiciary Committee last May on increasing security for court employees.

The chairman of the committee, Senator Arlen Specter, Republican of Pennsylvania, and Senator Patrick J. Leahy of Vermont, the ranking Democrat, introduced a measure in November mandating better coordination among marshals to protect judges.

Mr. Specter said the Marshals Service had been slow in adopting changes after the Lefkow shootings and had in some cases failed to cooperate fully with the federal judiciary on security.

The bill urges new criminal sanctions on people who seek to harass or intimidate judges by filing false or malicious liens against them or by knowingly posting personal information about them on the Internet with an intent to harm the judges. The bill calls for 10 years in prison for such liens and five years for posting personal information on Web sites.

The bill would also extend the authority of the Judicial Conference to redact sensitive personal information from judges' financial disclosure forms to prevent that information from being used for harassment or intimidation.

"This is a very serious problem," Mr. Specter said in an interview Friday. "There is no doubt that judges are targets, particularly for people who have been in their courtrooms who are unhappy with how they had their cases handled."

The Marshals Service did not return telephone calls on Friday.

The National Center for State Courts, which works with state and federal officials, had said some state and local courthouses had not followed standard safety measures. The group has urged courthouse personnel to do a better job of assessing threats, updating equipment and planning for emergencies.

"The federal courts are the gold standard," the president of the center, Mary McQueen, said. "Security is a very complex problem for the states because of jurisdictional differences. They don't have an integrated marshals service dedicated for security."

Ms. McQueen said the states had made "major strides forward in the last year," in developing security plans and sharing information on procedures and training.

    Year After Shootings, Calls to Increase Judges' Security, NYT, 19.3.2006, http://www.nytimes.com/2006/03/19/national/19judges.html

Justice Dept. Report Cites F.B.I. Violations

March 9, 2006
The New York Times
By ERIC LICHTBLAU

WASHINGTON, March 8 — The Federal Bureau of Investigation found apparent violations of its own wiretapping and other intelligence-gathering procedures more than 100 times in the last two years, and problems appear to have grown more frequent in some crucial respects, a Justice Department report released Wednesday said.

While some of these instances were considered technical glitches, the report, from the department's inspector general, characterized others as "significant," including wiretaps that were much broader in scope than approved by a court and others that were allowed to continue for weeks or sometimes months longer than was authorized.

In one instance, the F.B.I. received the full content of 181 telephone calls as part of an intelligence investigation, instead of merely the billing and toll records as authorized, the report found. In a handful of cases, it said, the bureau conducted physical searches that had not been properly authorized.

The inspector general's findings come at a time of fierce Congressional debate over the program of wiretapping without warrants that the National Security Agency has conducted. That program, approved by President Bush, is separate from the F.B.I. wiretaps reviewed in the report, and the inspector general's office concluded that it did not have the jurisdiction to review the legality or operations of the N.S.A. effort.

But, the report disclosed, the Justice Department has opened reviews into two other controversial counterterrorism tactics that the department has widely employed since the Sept. 11 attacks.

In one, the inspector general has begun looking into the F.B.I.'s use of administrative subpoenas, known as national security letters, to demand records and documents without warrants in terror investigations. Some critics maintain that the bureau has abused its subpoena powers to demand records in thousands of cases.

In the other, the Office of Professional Responsibility, a Justice Department unit that reviews ethics charges against department lawyers, has opened inquiries related to the detention of 21 people held as material witnesses in terror investigations.

As with the F.B.I.'s use of administrative subpoenas, civil rights advocates assert that the Justice Department has abused the material witness statute by holding suspects whom it may not have enough evidence to charge. The new ethics inquiries are reviewing accusations that department officials did not take some material witnesses to court within the required time, failed to tell them the basis for the arrest or held them without any attempt to obtain their testimony as supposed witnesses in terror investigations, the inspector general said Wednesday.

Representative John Conyers Jr. of Michigan, ranking Democrat on the House Judiciary Committee, characterized the report as "yet another vindication for those of us who have raised concerns about the administration's policies in the war on terror."

Mr. Conyers said that "despite the Bush administration's attempt to demonize critics of its antiterrorism policies as advancing phantom or trivial concerns, the report demonstrates that the independent Office of Inspector General has found that many of these policies indeed warrant full investigations."

For its part, the F.B.I. said in a statement that it had been quick to correct errors in intelligence-gathering procedures when they were discovered and that "there have been no examples by the F.B.I. of willful disregard for the law or of court orders."

The inspector general's review grew out of documents, dealing with intelligence violations, that were released last year under a Freedom of Information Act request by the Electronic Privacy Information Center, a private group in Washington. The inspector general then obtained more documents on violations and included an 11-page analysis of the problem as part of a broader report Wednesday on counterterrorism measures.

The inspector general reviewed 108 instances in which the F.B.I. reported violations to an oversight board in the 2004 and 2005 fiscal years.

"We're always looking to bring the number of violations down," John Miller, chief spokesman for the bureau, said in an interview, "but given the scope and complexity of national security investigations, that's a relatively small number."

The inspector general's review found that reported violations under the Foreign Intelligence Surveillance Act, which governs some federal wiretaps, accounted for a growing share of the total, having risen to 69 percent last year from 48 percent in 2004.

The duration of the violations also grew in some crucial areas, the review found. Two of those areas were the "overcollection" of intelligence — going beyond the scope approved by the court in authorizing a wiretap — and "overruns," in which a wiretap or other intelligence-gathering method was allowed to continue beyond the approved time period without an extension.

The review found that the average amount of time that overcollections and overruns were allowed before they were discovered and corrected rose to 32 days last year from 22 in 2004. In most cases, the F.B.I. was found to be at fault, while about a quarter of the time a "third party," usually a telecommunications company, was to blame, the data showed.

In taking issue with some of the findings, F.B.I. officials said the data were skewed by a number of exceptionally long violations; one wiretap lasted 373 days.

    Justice Dept. Report Cites F.B.I. Violations, NYT, 9.3.2006, http://www.nytimes.com/2006/03/09/politics/09terror.html?hp&ex=1141880400&en=6331c62403fe22fe&ei=5094&partner=homepage

New York Is Sued by U.S. on Delay of Vote System

March 2, 2006
The New York Times
By MICHAEL COOPER

ALBANY, March 1 — The Justice Department sued New York State on Wednesday for failing to overhaul its election system and replace its aging voting machines. It is the first lawsuit the federal government has filed to force a state to comply with the voting guidelines enacted by Congress after the 2000 election debacle.

The new federal guidelines were designed to prevent the kind of electoral chaos that marred the 2000 presidential election in Florida, and to make casting ballots easier for disabled voters. But New York State's efforts to modernize its election system have fallen far behind the rest of the nation, delayed by Albany's chronic gridlock and partisan bickering.

New York was supposed to create a statewide database of registered voters by Jan. 1 to make it easier to register and to detect fraud. It has not even come close to doing so, the lawsuit contends.

And while New York has accepted more than $49 million in federal aid to replace its creaky mechanical voting machines by this fall's elections, it has yet to tell localities what kinds of new voting machines will be acceptable. So most counties say it will be impossible to buy new machines and train poll workers in time.

The lawsuit calls on the court to give the state 30 days to develop a plan for fully complying with the law in time for the fall elections. At this late date, though, it is doubtful that the state will be able to do so. State officials, who do not dispute that they have failed to comply, say that they hope to reach a settlement that sets out several stopgap compliance measures.

New York — which has received more than $221 million in federal funds so far to overhaul its voting system — could stand to lose some or all of the $49 million it has received for new voting machines, according to the lawsuit, which was filed here Wednesday in United States District Court for the Northern District of New York.

Other states — including Connecticut, Pennsylvania, California and Ohio — have struggled to carry out some provisions of the federal law, the Help America Vote Act. But election-reform advocates and the Justice Department say New York ranks dead last when it comes to complying with it.

In January, Wan J. Kim, the assistant attorney general for the Justice Department's civil rights division, wrote in a letter to the state that "it is clear that New York is not close to approaching full H.A.V.A. compliance and, in our view, is further behind in that regard than any other state in the country."

Civic groups have long warned that New York's aging election machines are an accident waiting to happen. During the last three mayoral elections in New York City, there has been confusion over the vote tallies in either primaries or runoff elections.

The suit was a stinging rebuke to the state and once again highlighted Albany's failure to address pressing state issues, like its two-decade-long failure to pass a state budget on time or its unwillingness to comply with a court decision ordering more state aid to New York City schools.

The Justice Department noted in a news release on Wednesday that "states had nearly three years to comply with the provisions enforced under today's lawsuit" and said that New York "was not close to compliance" with the federal law. No other state has been sued for failing to comply with the law, but Justice Department officials say that they are having discussions with some other states about their voting plans.

The state and the Justice Department have been negotiating for weeks to try to avoid a lawsuit, and state officials said that they expect those talks to continue. "We've engaged in extensive negotiations and, despite the lawsuit, we are hopeful an agreement can be reached to resolve this matter," said Christine Pritchard, a spokeswoman for the attorney general's office, which is defending the state.

Recent negotiations have centered on settling the suit with a consent decree that would create a stopgap measure for this fall's elections, when New Yorkers will choose a United States senator, a governor, an attorney general, a comptroller and all 212 state lawmakers.

The measure, which elections officials call "Plan B," would allow the old mechanical voting machines to be used again this fall, while making options available for disabled voters at each polling site. The alternatives could involve machines that would print ballots, which could then be marked, and a system for disabled people to cast votes by phone.

The efforts to modernize the system have proceeded at a glacial pace, even with the infusion of federal money. The State Legislature dragged its feet on passing a state law to overhaul the election system because the issue became tied up with a partisan squabble over appointments at the state's Board of Elections.

The law that it passed and that Gov. George E. Pataki finally signed last summer left many of the biggest issues unresolved. It was left to the counties to decide what brand of voting machines to buy, and to the State Board of Elections to set the standards telling them which types of voting machines will be acceptable.

The board has yet to set the standards, and localities, including New York City, have complained that the most recent proposals are unacceptable.

Election officials say that they plan to model their statewide voter database — which was supposed to be set up by Jan. 1 — on a system used by the State of Washington.

The lawsuit notes that the state has yet to publish the rules governing how the database should be compiled. Nor has it begun seeking contractors to create the list, or established the technical requirements for the list.

Robert Brehm, a spokesman for the Board of Elections, said that the board believes it can have an interim voter database up and running by July or August, and have the final database ready in the beginning of 2007.

Civic groups, which have complained for years that New York was moving too slowly, are now concerned that the federal lawsuit will rush the state into adopting a flawed voting system. "The rotten H.A.V.A. implementation process on the state level shouldn't be mirrored by a rotten judicial enforcement process at the federal level trying to impose a solution on New York," said Neal Rosenstein, the government coordinator for the New York Public Interest Research Group.

    New York Is Sued by U.S. on Delay of Vote System, NYT, 2.3.2006, http://www.nytimes.com/2006/03/02/nyregion/02vote.html?hp&ex=1141362000&en=c2710cd98dc341d0&ei=5094&partner=homepage

Google rips Justice Department in court papers

Posted 2/17/2006 9:06 PM Updated 2/17/2006 9:14 PM
USA Today
By Michael Liedtke, The Associated Press

SAN FRANCISCO — Google criticized the Bush administration's demand to examine millions of its users' Internet search requests as a misguided fishing expedition that threatens to ruin the company's credibility and reveal its closely guarded secrets.

The Mountain View, Calif.-based company delivered its indignant critique Friday in a 25-page brief that marked its initial legal response to the U.S. Justice Department's attempt to force the online search engine leader to comply with a 6-month-old subpoena.

The Justice Department has until Feb. 24 to respond to the papers that Google filed Friday. A hearing for oral arguments is scheduled March 13 before U.S. District Judge James Ware in San Jose, Calif.

The case has attracted widespread attention because the Justice Department's demand to peek under the hood of the Internet's most popular search engine has underscored the potential for online databases becoming tools for government surveillance.

Hoping to revive an online child protection law that has been blocked by the U.S. Supreme Court, the Justice Department wants a random list of the search requests made by the millions of people who visit Google during any week.

The government believes the search requests will help prove that Internet filters aren't strong enough to prevent children from accessing online pornography and other potentially offensive websites.

Yahoo, Microsoft's MSN and Time Warner's America Online already have provided some of the search engine information sought by the Justice Department. All three companies say they complied without relinquishing their users' private information.

But Google has steadfastly refused to hand over the requested information, a defiant stance that the company reaffirmed in a brief that depicts the Bush administration as heavy-handed snoops and technological rubes.

In one particularly scathing section, Google's lawyers ridiculed the government's belief that a list of search requests would help it understand the behavior of Web surfers.

"This statement is so uninformed as to be nonsensical," the lawyers wrote.

Although the Justice Department says it doesn't want any of the personal information, Google contends its cooperation would set off privacy alarms and scare away some of the traffic that has driven its success.

"If users believe that the text of their search queries into Google's search engine may become public knowledge, it only logically follows that they will be less likely to use the service," Google's lawyers wrote.

The American Civil Liberties Union, which is opposing the Bush administration's effort to revive the online child protection law, also filed a brief Friday in support of Google.

"This subpoena is the latest example of government overreaching, in which the government apparently believes it can demand that private entities turn over all sorts of information about their customers just because the government asserts that it needs the information," the ACLU's lawyers wrote.

Google also said it doubts the government would be available to shield the requested information from public scrutiny. The company maintains the data sought by the government could provide its rivals and website operators with valuable insights about how its search engine works.

As it battles the Justice Department, Google is cooperating with China's Communist government by censoring some of the search results that the company produces in a country that restricts free speech.

That odd juxtaposition has caused civil rights activists to applaud Google for defying the U.S. government while the champions of human rights and free speech jeer the company for bending to China's will.

    Google rips Justice Department in court papers, UT, 17.2.2006, http://www.usatoday.com/tech/news/techpolicy/2006-02-17-google-court-papers_x.htm

News Analysis

In Case About Google's Secrets, Yours Are Safe

January 26, 2006
The New York Times
By ADAM LIPTAK

The Justice Department went to court last week to try to force Google, by far the world's largest Internet search engine, to turn over an entire week's worth of searches. The move, which Google is fighting, has alarmed its users, enraged privacy advocates, changed some people's Internet search habits and set off a debate about how much privacy one can expect on the Web.

But the case itself, according to people involved in it and scholars who are following it, has almost nothing to do with privacy. It will turn, instead, on serious but relatively routine questions about trade secrets and civil procedure.

The privacy debate prompted by the case may thus be an instance of the right answer to the wrong question. As recently demonstrated by disclosures of surveillance by the National Security Agency and secret inquiries under the USA Patriot Act, the government is aggressively collecting information to combat terror. And even in ordinary criminal prosecutions and in civil lawsuits, Internet companies including Google routinely turn over authentically private information in response to focused warrants and subpoenas from prosecutors and litigants.

But "this particular subpoena does not raise serious privacy issues," said Timothy Wu, a law professor at Columbia. "These records are completely disconnected. They're just strings of words."

In its only extended discussion of its reasons for fighting the subpoena, a Google lawyer told the Justice Department in October that complying would be bad for business. "Google objects," the lawyer, Ashok Ramani, wrote, "because to comply with the request could endanger its crown-jewel trade secrets."

Mr. Ramani's five-page letter mentioned privacy only once, at the bottom of the fourth page, and then primarily in the context of perception rather than reality.

"Google's acceding to the request would suggest that it is willing to reveal information about those who use its services," he wrote. "This is not a perception that Google can accept."

Even Google's allies are shying away from legal arguments based on privacy. The American Civil Liberties Union, for instance, said it planned to file papers supporting Google. But not on privacy grounds. "We will probably not be making that argument," said Aden J. Fine, a lawyer with the civil liberties union.

The issues raised by the new subpoena, while substantial, are fairly technical, according to Professor Wu. "The legal point here is what is the relevancy standard for subpoenas?" he said. "That is interesting to procedure scholars but to no one else."

Other Internet search engine companies, including Yahoo, America Online and MSN, have complied with the same Justice Department subpoena, which also sought a random sample of a million Web addresses. The companies all said there were no privacy issues involved.

A Justice Department spokesman, Brian Roehrkasse, agreed. "We specifically stated in our requests," he said, "that we did not want the names, or any other information, regarding the users of Google."

None of this is to say that subpoenas for search records linked to individuals are inconceivable. Google maintains information that could be used that way, and a subpoena could ask for it. But the recent subpoena does not.

The problem with the subpoena, Mr. Fine said, is more general. "This is another instance of government overreaching," he said.

The government says it needs Google's information to defend a challenge from the civil liberties union to a 1998 law, the Child Online Protection Act, which makes it a crime to make "material that is harmful to minors" commercially available on the Web. The law was enjoined by a federal court in Philadelphia before it became effective, and it has never been enforced.

In 2004, the United States Supreme Court affirmed the injunction, ruling that filtering devices may work as well or better than criminal prosecutions in achieving the law's aims of keeping some offensive materials away from children, and it sent the case back for a trial to explore that question.

At a trial scheduled to start in October, the government will try to prove that filters are ineffective. Philip B. Stark, an expert retained by the government and a statistics professor at the University of California, Berkeley, said in a court filing that the Web addresses and search terms sought from Google and other Internet companies would help him "to measure the effectiveness of content filters."

The government apparently wants to show that real-world searches will pull up offensive materials that filters will not catch. Why it needs Google to do that is unclear, and Professor Stark declined a request for an interview, citing the pending litigation.

Google has not yet filed a response in court, and it has not discussed the case publicly beyond a brief statement citing government overreaching. Its fullest explanation of its position was in Mr. Ramani's letter in October.

Google objected, Mr. Ramani said, because the fit between what the government seeks and what it seeks to prove is poor. He also said that collecting and providing the information was burdensome and that the government could find it elsewhere.

Mr. Ramani did say that "one could envision scenarios" where Internet searches alone could reveal private information, but he provided no examples. But Google's main argument was that its "highly proprietary" trade secrets could be jeopardized.

Marc Rotenberg, the executive director of the Electronic Privacy Information Center, a civil liberties group that has frequently been critical of Google, said the trade-secrets argument was a serious one.

In other contexts, Google and other Internet companies say they are serious about protecting privacy. But their privacy policies acknowledge that they will comply with valid requests from the government and private litigants. Google's policy, for instance, says it may share users' personal information if it has "a good faith belief" that disclosure "is reasonably necessary to satisfy any applicable law, regulation, legal process or enforceable government request." Nicole Wong, Google's associate general counsel, said in an interview that the company "complies with valid legal process."

According to a 2004 decision of a federal court in Virginia, America Online alone responds to about 1,000 criminal warrants each month. AOL, Google and other Internet companies also receive subpoenas in divorce, libel, fraud and other types of civil cases. With limited exceptions, they are required by law to comply.

Ms. Wong said Google tried to notify users so they could object in court before the company turned over information about them. But the law forbids such notification in some criminal cases.

Even notification can be small comfort. It means a user must quickly and often at considerable expense find a lawyer and try to persuade a court to quash the subpoena. But the law often offers very limited protection for personal information held by third parties.

That approach no longer makes sense, said Daniel J. Solove, a law professor at George Washington University. "In the information age," he said, "so much of our information is in the hands of third parties."

Mr. Rotenberg said Internet search records, if collected and linked to individuals, could give rise to a particularly profound invasion of privacy. "It's kind of the shadow of the thoughts within your head — your interests, your desires, your hobbies, your fears," he said.

The situation is more complicated outside the United States. Internet companies have complied with local laws, as they must to do business abroad. Yahoo, for instance, provided information that helped China send a journalist there to prison for 10 years on charges of leaking state secrets to a foreign Web site.

Still, the current subpoena to Google, legal experts said, has given rise to an important debate, whether the facts of the case are apt or not.

"It allows us to have a national dialogue about whether current privacy protections are adequate," said Susan P. Crawford, a specialist in Internet law at the Cardozo Law School. Even if the Justice Department is not seeking private information now, she said, "the next subpoena could ask for that kind of data."

    In Case About Google's Secrets, Yours Are Safe, NYT, 26.1.2006, http://www.nytimes.com/2006/01/26/technology/26privacy.html?hp&ex=1138251600&en=b4a2e39a6aacb8c1&ei=5094&partner=homepage

U.S. Officials Cite Legal Rationale on Spying Effort

January 20, 2006
By ERIC LICHTBLAU and JAMES RISEN
The New York Times

WASHINGTON, Jan. 19 - The Bush administration offered its fullest defense to date Thursday of the National Security Agency's domestic eavesdropping program, saying that authorization from Congress to deter terrorist attacks "places the president at the zenith of his powers in authorizing the N.S.A. activities."

In a 42-page legal analysis, the Justice Department cited the Constitution, the Federalist Papers, the writings of presidents both Republican and Democratic, and dozens of scholarly papers and court cases in justifying President Bush's power to order the N.S.A. surveillance program.

With the legality of the program under public attack since its disclosure last month, officials said Attorney General Alberto R. Gonzales ordered up the analysis partly in response to what administration lawyers felt were unfair conclusions in a Jan. 6 report by the nonpartisan Congressional Research Service. The Congressional report challenged virtually all the main legal justifications the administration had cited for the program.

Vice President Dick Cheney, meanwhile, once again defended the N.S.A. eavesdropping operation in a speech Thursday as "critical to the national security of the United States," even as House Democrats prepared to hold an unofficial hearing on Friday into a program that they charge is illegal and unconstitutional. Mr. Cheney is also scheduled to meet with Congressional leaders on Friday at a separate, closed-door briefing on the program.

When the Senate Judiciary Committee conducts an open hearing on the eavesdropping on Feb. 6, Attorney General Gonzales is expected to testify. The session organized for Friday by Democrats is intended to spotlight critics of the program; administration officials will not use that forum to offer a defense. The White House has invited some members of the House and Senate Intelligence Committees to attend a briefing on Friday, according to Rep. Jane Harman of California, the ranking Democrat on the House Intelligence Committee.

The analysis released Thursday by the Justice Department, with comments from lawyers throughout the department, expanded on the legal arguments made in two still-classified legal opinions as well as in a slimmer letter that the department sent to Congress last month.

The basic thrust of the legal justification was the same - that the president has inherent authority as commander in chief to order wiretaps without warrants and that the N.S.A. operation does not violate either a 1978 law governing intelligence wiretaps or the Fourth Amendment ban on unreasonable searches.

This month's Congressional Research Service report was particularly critical of the administration's claim that the N.S.A. program was justified by a resolution passed by Congress three days after the Sept. 11, 2001, attacks, authorizing the use of "all necessary and appropriate force" against those responsible for the terrorist acts.

The research service report found there was no indication that Congress intended to authorize warrantless wiretaps when it gave President Bush the authority to fight Al Qaeda and invade Afghanistan. But the Justice Department did not back away from its position in Thursday's report, saying the type of "signals intelligence" used in the N.S.A. operation clearly falls under the Congressional use-of-force authorization.

"The president has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States," the report said.

The Congressional authorization on the use of force, it added, "places the president at the zenith of his powers in authorizing the N.S.A. activities."

But many critics of the program, which allows the agency to eavesdrop on international phone calls and e-mail messages to and from American citizens and others within the United States, said that they remained unconvinced.

"The administration's latest justification for circumventing the law to spy on Americans falls far short of answering the many questions Congress and the American people have about this activity," said Senator Harry Reid of Nevada, the Democratic leader. "That is why there have been bipartisan calls for administration officials to come to Congress to answer these questions and ensure that the Judiciary and Intelligence Committees can thoroughly investigate the administration's actions."

Attorney General Gonzales sent Thursday's document to Mr. Reid and to Senator Bill Frist of Tennessee, the majority leader. While the report did not go into many operational details of the program, it sought to bolster the case for the president to retain inherent power to order warrantless searches in the United States as part of the seeking of information on foreign agents.

That authority, the Justice Department analysis said, is consistent with a three-part test established by the Supreme Court in a 1952 case, Youngstown Sheet and Tube Company v. Sawyer, which struck down President Harry S. Truman's authority to seize the nation's steel mills in the name of national security.

Nor does the N.S.A. program conflict, the Justice Department said, with what many legal analysts had regarded as the exclusive authority for intelligence wiretaps under the Foreign Intelligence Surveillance Act, passed by Congress in 1978 in response to Watergate-era political abuses. Some presidential powers, particularly in the area of national security, are simply "beyond Congress' ability to regulate," it said.

Vice President Cheney, who was actively involved in the creation of the N.S.A. program and has been a vigorous advocate for expanded presidential power, echoed that in a speech on Thursday before the Manhattan Institute for Policy Research in New York.

While some current and former officials have challenged the value of the N.S.A. program in deterring an attack on American soil, the vice president said: "The activities conducted under this authorization have helped us to detect and prevent possible terrorist attacks against the American people. As such, this program is critical to the national security of the United States."

President Bush and Mr. Cheney have been critical of the public disclosure of the program in The New York Times, and the Justice Department has opened an investigation into the disclosure. Mr. Cheney acknowledged in his speech that "a spirited debate is now under way, and our message to the American people is clear and straightforward: These actions are within the president's authority and responsibility under the Constitution and laws, and these actions are vital to our security."

But Robert Reinstein, dean of the law school at Temple University, said in an interview that he considered the eavesdropping program "a pretty straightforward case where the president is acting illegally," and he said there appeared to be a broad consensus among legal scholars and national security experts that the administration's legal arguments were weak.

The foreign intelligence law passed by Congress in 1978 represents the Bush administration's biggest legal hurdle, he said. "When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that," he said.

Two leading civil rights groups brought lawsuits this week aimed at ending the N.S.A. program, and several lawyers representing defendants in terrorism cases are also seeking to challenge the program on the grounds that it may have been improperly used in criminal prosecutions.

Mr. Reinstein predicted that the court would ultimately declare the program unconstitutional. "This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this," he said.

    U.S. Officials Cite Legal Rationale on Spying Effort, NYT, 20.1.2006, http://www.nytimes.com/2006/01/20/politics/20nsa.html?hp&ex=1137733200&en=d86245b586033379&ei=5094&partner=homepage

    Related > http://news.findlaw.com/legalnews/documents/archive_n.html#nsa

U.S. Is Pressing Google for Data on Searches

Published: January 20, 2006
The New York Times
By KATIE HAFNER and MATT RICHTEL

SAN FRANCISCO, Jan. 19 - The Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users' search queries as part of the government's effort to uphold an online pornography law.

Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the request is unnecessary, overly broad, would be onerous to comply with, would jeopardize its trade secrets and could expose identifying information about its users.

The dispute with Google comes as the government is moving aggressively on several fronts to obtain data on Internet activity to achieve its law enforcement goals, from domestic security to the prosecution of online crime. Under the antiterrorism law known as the USA Patriot Act, for example, the Justice Department has demanded records on library patrons' Internet use.

Those efforts have encountered resistance on privacy grounds.

The government's move in the Google case, however, is different in its aims. Rather than seeking data on individuals, it says it is trying to establish a profile of Internet use that will help it defend the Child Online Protection Act, a 1998 law that would impose tough criminal penalties on individuals whose Web sites carried material deemed harmful to minors.

The law has faced repeated legal challenges. Two years ago, the Supreme Court upheld an injunction blocking its enforcement, returning the case to a district court for further examination of Internet-filtering technology that might be an alternative in achieving the law's aims.

The government's motion to compel Google's compliance was filed on Wednesday in Federal District Court in San Jose, Calif., near Google's headquarters in Mountain View. The subpoena and the government's motion were reported on Thursday by The San Jose Mercury News.

In addition to records of a week of search queries, which could amount to billions of search terms, the Google subpoena seeks a random list of a million Web addresses in its index.

Charles Miller, a spokesman for the Justice Department, said on Thursday that three Google competitors in Internet search technology - America Online, Yahoo and MSN, Microsoft's online service - had complied with subpoenas in the case.

Mr. Miller declined to say exactly how the data would be used, but according to the government's filings, it would help estimate the prevalence of material that could be deemed harmful to minors and the effectiveness of filtering software. Opponents of the pornography law contend that filtering software could protect minors effectively enough to make the law unnecessary.

The government's motion calls for Google to surrender the information within 21 days of court approval.

Although the government has modified its demands since last year, Google said Thursday that it would continue to fight. "Google is not a party to this lawsuit, and their demand for information overreaches," said Nicole Wong, Google's associate general counsel, referring to government lawyers. "We intend to resist their motion vigorously."

Philip B. Stark, a statistics professor at the University of California, Berkeley, who was hired by the Justice Department to analyze search engine data in the case, said in legal documents that search engine data provided crucial insight into information on the Internet.

"Google is one of the most popular search engines," he wrote in a court document related to the case. Thus, he said, Google's databases of Web addresses and user searches "are directly relevant."

But Danny Sullivan, editor of SearchEngineWatch, an online industry newsletter, questioned the need for a subpoena. "Is this really something the government needs Google to help them with?" he said.

As for Google's rivals, MSN declined to speak directly to the case but released a statement saying it generally "works closely with law enforcement officials."

Mary Osako, a Yahoo spokeswoman, said the company complied with the subpoena "on a limited basis." And Andrew Weinstein, a spokesman for AOL, said that company gave the Justice Department a generic list of anonymous search terms from a one-day period.

Susan P. Crawford, a professor at the Cardozo School of Law in New York, said she could understand why the companies complied. "There's this real perception that if you're not with us you're against us," she said. "So the major companies will cooperate with enormously burdensome requests just to avoid future vengeance being wreaked on them" by the Justice Department.

In its brief history, Google has made "Don't be evil" an operating principle, even as it has come to endure scrutiny and criticism over its increasing inroads into a variety of businesses beyond Web searches, from advertising to mapping.

And Google and its rivals have been criticized for their business practices in China, where Google and MSN have filtered keywords like "human rights" and "democracy" out of their search-engine results. Last fall, it was revealed that Yahoo had cooperated with authorities seeking the identity of a Chinese e-mail subscriber who had distributed a government warning about protests; he is now serving a 10-year prison term.

While its court filings against the Justice Department subpoena have emphasized the burden of compliance and threat to its trade secrets, Google also pointed to a chilling effect on its customers.

"Google's acceding to the request would suggest that it is willing to reveal information about those who use its services," it said in an October letter to the Justice Department. "This is not a perception Google can accept. And one can envision scenarios where queries alone could reveal identifying information about a specific Google user, which is another outcome that Google cannot accept."

For its part, the Justice Department said the data received from Google's rivals showed that the search query information did not contain "any additional personal identifying information" and that trade secrets would be protected under procedures at the trial court.

"Google thus should have no difficulty in complying in the same way as its competitors have," the government's motion said.

Critics of the effort to subpoena Google say the immediate issue is not pornography or privacy, but whether the government has established its need for the information.

"The government's attitude, apparently, is that it's entitled to information without justification," said Aden Fine, an attorney for the American Civil Liberties Union, which has led the fight against the 1998 pornography law. "Like everyone else in litigation, they need to justify their request for information."

Even as the government has yet to put the 1998 law into effect, the pornography industry has faced a legal offensive on other fronts. Congress in recent years has increased the resources and sharpened the laws available to the Justice Department to go after makers of hard-core videos and other content.

At the same time, though, the industry is booming, recording $12.6 billion in revenue in 2005 from distribution of sexually explicit content, and from other forms of entertainment, like strip clubs. A big reason for the growth is technology, with sales from Internet distribution hitting $2.5 billion in 2005, according to testimony given to the Senate on Thursday.

American Web sites that show explicit content get as many as 60 million visitors a day, according to testimony given to the Senate Committee on Commerce, Science and Transportation by Paul Cambria, general counsel for the Adult Freedom Foundation, an organization that represents the interests of the pornography industry.

In fighting the 1998 law, the civil liberties union has argued that whether or not pornography is available on the Internet, the law is unconstitutional because it will limit the distribution of acceptable forms of free speech. Under the law, Web site operators face criminal charges for publishing sexually explicit material unless they have a way of verifying that viewers are over 17.

Whatever the courts ultimately decide on the pornography law at issue, however, Tim Wu, a professor at Columbia Law School, said the Google case pointed to a larger struggle for the identity of the Internet.

"Search engines are at the center of that battle, both here and in other countries," said Professor Wu. "By asserting its power over search engines, using threats of force, the government can directly affect what the Internet experience is. For while Google is fighting the subpoena, it's clear that if they lose, they will comply."

    U.S. Is Pressing Google for Data on Searches, NYT, 20.1.2006, http://www.nytimes.com/2006/01/20/technology/20google.html?ei=5094&en=2452e6e9f4075968&hp=&ex=1137733200&adxnnl=1&partner=homepage&adxnnlx=1137733449-tENqmjTtL0SwopkR0xZjzg

    Related > http://news.findlaw.com/nytimes/docs/google/gonzgoog11806m.html

U.S. Threatens to Sue Albany Over Voting

January 12, 2006
The New York Times
By MICHAEL COOPER

ALBANY, Jan. 11 - The federal Justice Department has threatened to sue New York State over its failure to modernize its voting system, saying New York "is further behind" every other state in complying with new guidelines stemming from the 2000 presidential election dispute.

The state has yet to decide what kind of new voting machines it will certify, leaving many local elections boards in uncertainty as they try to modernize their voting systems in time for next fall's primary elections. And the state missed the Jan. 1 deadline for creating a statewide database of registered voters, as required by the federal Help America Vote Act.

New York is behind all other states and territories in deciding how to spend its share of $2.3 billion in federal aid to modernize voting machines and other elections technology. So far the state has received $220 million to replace its 20,000 aging voting machines, train local election officials to use the new machines, and create the voter database. The money is unspent and collecting interest, officials say.

A Justice Department letter told state officials this week that it had authorized a lawsuit against New York for failing to comply with the law. The letter said that the department hoped to settle the matter by negotiating a court order with the state instead going to court but that "we are prepared to file a complaint if the matter is not resolved expeditiously."

Wan J. Kim, the assistant attorney general for the Justice Department's civil rights division, wrote in the letter that "it is clear that New York is not close to approaching full H.A.V.A. compliance and, in our view, is further behind in that regard than any other state in the country." A copy of the letter was given to The New York Times by someone who believes the state has been too slow to overhaul its system.

New York's failure to address the issue is in part the result of gridlock in Albany, which took years to pass legislation to put the state into compliance. Some of the delay was caused because legislation to comply with the federal law was held up by a partisan squabble over appointments at the state's Board of Elections.

Last summer, Gov. George E. Pataki finally signed legislation that many voting rights advocates said did not go far enough. That law allows localities to choose what kind of voting machine to buy as long as they meet statewide standards. Civic groups complained that allowing the counties to choose different machines could make it difficult to establish uniform procedures to govern a statewide recount, which proved to be a major stumbling block in Florida during the disputed presidential election of 2000.

Lee K. Daghlian, a spokesman for the state's Board of Elections, confirmed that the board received the Justice Department letter on Tuesday. "We don't dispute that we're not in compliance," he said, adding that the state had been in contact with the Justice Department. "What we've given them is what we're doing, and what kind of process we're making. And we're quite behind."

The Board of Elections is still hearing public comments about what kind of standards to require for voting machines. Once it publishes its guidelines, voting machine manufacturers (and their legions of well-paid lobbyists) will scramble to try to get their machines approved and then to sell them to local elections boards. Some local officials say it is unlikely that they will be able to get the new machines up and running for the 2006 elections, when New Yorkers will choose a governor, a United States senator and 212 state lawmakers.

"Somewhere down the line we will have to advise the boards whether we think they're going to have time to get this done properly before the election," Mr. Daghlian said.

Mr. Daghlian said the state was going ahead with its plan to create a voter database and expected to model it on one being created by the state of Washington. He said the main cause of delay was the Legislature's failure to pass legislation in 2004.

Dan Seligson, the editor of a nonpartisan Web site, electionline.org, that tracks the compliance with the Help America Vote Act, said New York was "dead last nationally."

"I think that other states can demonstrate that they have made a good-faith effort to comply, but that they had difficulties with vendors, problems with machines," he said. "In New York, they can't claim that."

Some civic groups say they hope the state will be able to right itself.

"The governor and the Legislature dragged their feet for so many months, it put New York behind the eight-ball," said Miriam Kramer, the government policy analyst for the New York Public Interest Research Group. "Now is the time to urge the federal government for a waiver, so we can do it right, within an appropriate time frame, but not rushing, while maintaining an open and transparent process and enfranchising as many New Yorkers as possible."

    U.S. Threatens to Sue Albany Over Voting, NYT, 12.1.2006, http://www.nytimes.com/2006/01/12/nyregion/12vote.html

Justice Deputy Resisted Parts of Spy Program

January 1, 2006
By ERIC LICHTBLAU and JAMES RISEN

WASHINGTON, Dec. 31 - A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.

The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.

With Mr. Comey unwilling to sign off on the program, the White House went to Mr. Ashcroft - who had been in the intensive care unit at George Washington University Hospital with pancreatitis and was housed under unusually tight security - because "they needed him for certification," according to an official briefed on the episode. The official, like others who discussed the issue, spoke on the condition of anonymity because of the classified nature of the program.

Mr. Comey declined to comment, and Mr. Gonzales could not be reached.

Accounts differed as to exactly what was said at the hospital meeting between Mr. Ashcroft and the White House advisers. But some officials said that Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales his authorization to continue with aspects of the program in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation.

It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.

The White House and Mr. Ashcroft, through a spokeswoman, declined to comment Saturday on the hospital meeting. A White House spokeswoman, Jeannie Mamo, said she could not discuss any aspect of the meeting or the internal debate surrounding it, but said: "As the president has stated, the intelligence activities that have been under way to prevent future terrorist attacks have been approved at the highest levels of the Justice Department."

The domestic eavesdropping program was publicly disclosed in mid-December by The New York Times. President Bush, in acknowledging the existence of the program in a televised appearance two weeks ago, said that tight controls had been imposed over the surveillance operation and that the program was reviewed every 45 days by top government officials, including at the Justice Department.

"The review includes approval by our nation's top legal officials, including the attorney general and the counsel to the president," Mr. Bush said, adding that he had personally reauthorized the program's use more than 30 times since it began. He gave no indication of any internal dissent over the reauthorization.

Questions about the surveillance operation are likely to be central to a Congressional hearing planned by Senator Arlen Specter, the Pennsylvania Republican who heads the Judiciary Committee. Mr. Specter, like some other Republicans and many Democrats in Congress, has voiced deep concerns about the program and Mr. Bush's legal authority to bypass the courts to order domestic wiretaps without warrants.

What is known is that in early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.

The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.

The audit examined a selection of cases to see how the security agency was running the program. Among other things, it looked at how agency officials went about determining that they had probable cause to believe that people in the United States, including American citizens, had sufficient ties to Al Qaeda to justify eavesdropping on their phone calls and e-mail messages without a court warrant. That review is not known to have found any instances of abuses.

The warrantless domestic eavesdropping program was first authorized by President Bush in the months after the Sept. 11, 2001, attacks, officials said. Initially, it was focused on communications into and out of Afghanistan, including calls between Afghanistan and the United States, people familiar with the operation said. But the program quickly expanded.

Several senior government officials have said that when the special operation first began, there were few controls on it. Some agency officials wanted nothing to do with it, apparently fearful of participating in an illegal operation, officials have said.

At its outset in 2002, the surveillance operation was so highly classified that even Larry Thompson, the deputy attorney general to Mr. Ashcroft, who was active in most of the government's most classified counterterrorism operations, was not given access to the program.

That led to uncertainties about the chain of command in overseeing law enforcement activities connected to the program, officials said, and it appears to have spurred concerns within the Justice Department over its use. Mr. Thompson's successor, Mr. Comey, was eventually authorized to take part in the program and to review intelligence material that grew out of it, and officials said he played a part in overseeing the reforms that were put in place in 2004.

But even after the imposition of the new restrictions last year, the agency maintained the authority to choose its eavesdropping targets and did not have to get specific approval from the Justice Department or other Bush officials before it began surveillance on phone calls or e-mail messages. The decision on whether someone is believed to be linked to Al Qaeda and should be monitored is left to a shift supervisor at the agency, the White House has said.

The White House has vigorously defended the legality and value of the domestic surveillance program, saying it has saved many American lives by allowing the government to respond more quickly and flexibly to threats. The Justice Department, meanwhile, said Friday that it had opened a criminal investigation into the unauthorized disclosure of the existence of the program.

    Justice Deputy Resisted Parts of Spy Program, NYT, 1.1.2006, http://www.nytimes.com/2006/01/01/politics/01spy.html