G-Man Spam The Annoyance: I recently got an email purportedly from the FBI saying that my IP address "had been logged" and that I'd been caught illegally sharing files. Is this some idiot's idea of a joke? The Fix: Yes, it's a hoax. But it's much worse than a joke, because some copies of this message contained a variant of the Sober worm. If you've gotten one of these, the FBI urges you to forward it to the Internet Fraud Complaint Center (http://www.ifccfbi.gov/index.asp) and to delete the original. Of course, this doesn't mean the FBI isn't watching you the feds are actively investigating file swappers and purveyors and consumers of child pornography, along with terrorists but if they were, they wouldn't send you an email warning you about it. Are the Feds Tapping Your Phone? The Annoyance: Call me paranoid, but I swear the FBI is tapping my phone. How can I find out? Can I kill the tap by switching to a voice over IP phone (VoIP)? The Fix: It's possible your line is bugged, but unless you're a drug kingpin or a terrorist mastermind, it's not very likely. If a private entity is tapping your phone say your spouse or a business competitor hired someone to spy on you you can ask the phone company to examine your line for illegal listening devices. But if the cops or the Feds have you wired, there's no legal way to find out. Unlike in the movies, they don't need to break into your home and install a bug in your phone they can tap the line at the phone company's central office, and your carrier isn't allowed to tell you about it. (See Chapter 2, "Is Your Phone Tapped?") There are different types of taps with varying levels of invasiveness and legal requirements. A pen register records numbers or electronic addresses transmitted by the device being tapped essentially, who the suspect has called or emailed but not the content of the conversation. A trap and trace device captures the same information for incoming communications. (If you have one you usually have the other, so these are usually referred to as a pen trap.) An actual wiretap allows investigators to listen in and record conversations, provided they're relevant to the investigation. Any of these intercepts must be approved by court order, although the requirements for full wiretaps are tougher. Even so, in 2003, not a single wiretap request was refused by a judge. Law enforcement "intercepts" which include phone wiretaps, hidden microphones, and monitoring of electronic communications increased from 1,358 in 2002 to 1,442 in 2003, according to the annual report published by the Administrative Office of the U.S. Courts (http://www.uscourts.gov/wiretap03/contents.html). The Center for Democracy and Technology (http://www.cdt.org/wiretap/tapstraps.php) estimates that about ten times as many pen traps are approved each year. There's a second type of wiretap that's easier to obtain and much more secretive. Under the Foreign Intelligence Surveillance Act (FISA), the government may eavesdrop on agents of foreign powers and suspected terrorists without obtaining a warrant or demonstrating probable cause. These wiretap applications are approved by a secret court made up of 11 Federal judges. In 2003, the FISA Court approved 1,724 wiretaps (out of 1,727 requests), up from 1,228 in 2002. Can you use VoIP to keep the Feds from listening in? Maybe, but not for long. In August 2004, the FCC ruled that VoIP service providers must allow wiretaps on their networks. Some vendors have already configured their voice networks to allow law enforcement access; others were due to follow sometime in 2005. PRIVACY IN PERIL: A NATION OF SPIES? When two Secret Service agents knocked on the apartment door of A. J. Brown, a 19-year-old freshman at Durham Technical Community College in North Carolina, she thought they were door-to-door salesmen. But when they started asking pointed questions about an anti-Bush poster hanging on her wall, she realized that their October 2001 visit was no sales call. Because they had no search warrant, Brown refused to let them inside, though she spent about 40 minutes at the door answering questions. The agents told her they'd received a tip that she had a poster on her wall depicting the President with a noose around his neck. (In fact, the poster depicted then-Governor Bush as a hangman, to protest the execution of 152 inmates during his term as governor of Texas.) Someone, whom the Secret Service refused to identify, had seen the poster and alerted them to it. An isolated incident? Not exactly. In January 2002, the U.S. Department of Justice announced the formation of the Terrorism Information and Prevention System (TIPS), which was intended to create a network of spies using utility workers, cable repairmen, mail carriers, and others whose professions brought them inside people's homes. The plan was met with an immediate storm of protest, and Congress quickly killed it. But TIPS lives on in smaller, regional programs that don't have direct ties to the Federal government (and thus operate largely outside the scope of Congressional oversight). According to the ACLU's August 2004 report The Surveillance-Industrial Complex, several TIPS-like programs are operating in different parts of the nation with names like "Coastal Beacon" (for fishermen in Maine), "Highway Watch" (interstate truckers), and "Community Anti-Terror Training Institute" (CAT-Eyes), a kind of uber neighborhood watch program for East Coast communities. From realtors in Cincinnati to utility workers in Florida, ordinary citizens are being trained to report "suspicious" activity to authorities, though exactly what constitutes suspicious activity, and what happens to these reports, is largely unknown. A related but even larger problem is when corporations voluntarily share data with Federal agencies without telling their customers. Because the Feds don't really need to know when you've used your bank's drive-thru teller or bought a burger at McDonald's, the ACLU has started a letter-writing campaign to ask the biggest corporations in the country to take a "No Spy Pledge." You'll find sample letters, as well as a copy of the ACLU surveillance report, at http://www.aclu.org/privatize. 
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IS PRIVACY "PATRIOTIC"? No single act of legislation has stirred more privacy concerns than the Patriot Act of 2001. Passed six weeks after the attacks of 9/11 with virtually no Congressional review, the Act has proven extremely contentious lauded by some as an essential tool in the fight against terrorism, reviled by others as an assault on the Bill of Rights. The Patriot Act of 2001 took the looser restrictions of FISA and applied them to people who are only tangentially related to a terrorist investigation (see Table 6-5). It expanded the ability of the government to conduct secret searches and wiretaps on ordinary citizens, and allowed prosecutors to use this evidence in criminal cases. In some circumstances, the Act bypasses judicial oversight entirely, leaving it to the Feds to decide who's an appropriate target. (That's particularly troubling in light of the Department of Justice's admission in September 2000 that it had provided 75 pieces of false information in various FISA requests since the law was enacted in 1978.) It has been nearly impossible for American citizens to learn the scope and extent of how the Act has been applied. Requests for information filed under the Freedom of Information Act have largely been rebuffed by the Department of Justice. At press time, 375 communities in 43 states had passed resolutions opposing the Patriot Act. Thinking of moving? The ACLU has a handy map at http://www.aclu.org/resolutions. Many of the Act's most controversial provisions are scheduled to expire (or "sunset") at the end of 2005. As this book was being prepared, a battle was brewing in Congress over whether to renew those provisions or even expand them. Table 6-5 summarizes the key sections of the Patriot Act and how they could erode your personal privacy. It's not a pretty picture. 
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Table 6-5. The Patriot Act and your privacy.Section of the Act | What's affected | What the Act does | Caveats |
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215 | "Business records" maintained by your bank, doctor, ISP, library, school just about any entity that has data on you. | Allows FBI to demand personal records for "terror-related" investigations. The FISA Court cannot deny such requests. Anyone receiving a demand can't tell you about it, so you can't challenge its legality. | U.S. citizens can't be investigated solely because of First Amendment activities (in other words, to suppress political dissent). Sunsets at the end of 2005. | 505 | "Business records" maintained by your bank, doctor, ISP, library, school just about any entity that has data on you. | Allows FBI to deliver "National Security Letters" demanding your records without any judicial oversight. As with Section 215, it can apply to anyone the Feds deem relevant to a terror investigation, and the subject cannot be notified of (or challenge) the demand. | A Federal judge struck down this provision in September 2004; the government is expected to file an appeal in 2005. | 206 | Phone and electronic communications. | Authorizes use of "roving wiretaps" so that Feds can bug any communications device used by a suspect (and anyone else) in any location. | Sunsets in 2005. | 218 | Searches of home and personal property. | Expands secret searches without probable cause under FISA. Information can be shared between intelligence and criminal investigators allowing evidence obtained without a warrant to be used in criminal cases. | Some requests have been denied by the FISA Court. Sunsets in 2005. | 213 | Searches of home and personal property. | Expands the FBI's ability to conduct secret "sneak and peek" searches without a warrant. The Feds can delay notifying the subject of a search indefinitely, if a court agrees. | In July 2003, the House voted to de-fund this provision of the Act, but this was later undone by the Senate. There is no sunset clause. | 220 | Your email, electronic records, and web surfing habits. | Allows FBI to obtain a single search warrant from a friendly judge and apply it to all jurisdictions in the U.S., and applies to criminal as well as terrorism investigations. | Sunsets in 2005. | Sources: ACLU, Center for Democracy and Technology, Electronic Frontier Foundation, Slate.com |
What's in Your Files? The Annoyance: Back in the day, I used to give Uncle Sam hell. I'm sure I've got an FBI file a mile long. How can I find out what the Feds know about me? The Fix: There's virtually nothing you can do to keep the Feds from spying on you, but you can usually get a general idea of what information they've collected. In 1966 Congress passed the Freedom of Information Act, which allows any citizen to obtain any information gathered about them by the executive branch and the agencies that serve it. (The Act has been updated several times since.) The FOIA, however, doesn't apply to the courts, Congress, or any agency that acts as a consultant to the President (such as the Office of the Vice President). An agency may deny your request or limit the type of information it shares, if the information is classified or otherwise covered under one of the Act's nine exemptions. The rules for filing a FOIA request can be complicated. George Washington University's National Security Archive offers an easy-to-follow guide and sample letters at http://www2.gwu.edu/~nsarchiv/nsa/foia.html. Here are some quick tips on filing a FOIA request: Pick the right agency. Unfortunately, you can't just send one blanket request to an address in Washington, DC and expect to get anything useful in return. You must query each agency individually, so pick the ones that are relevant to your situation. For example, if you believe you're been the victim of domestic surveillance, you'll have better luck with the FBI (see Figure 6-7) than the CIA, since the latter doesn't maintain clandestine operations in this country (as far as we know, anyway). Each bureaucracy has its own FOIA rules and forms, which you can usually find on the agency web site. The FBI's FOIA site can be found at http://foia.fbi.gov/; for links to other Federal agency sites, visit FirstGov at http://www.firstgov.gov. annoyances 6-7. Think the FBI has been spying on you? You're in good company. The agency maintains a web site "reading room" detailing the records it has maintained on many famous folk, from Einstein to Elvis all made available through someone's Freedom of Information Act request. 
Don't forget the Privacy Act. This 1974 law gives you the right to request records, correct or expunge inaccurate ones, and to sue if the agency refuses you access. But it's more limited than the FOIA in the types of records you can access for example, under the Privacy Act you can only ask for records that relate to you personally. So you may want to cite both Acts when you make your request. Be as specific as possible. Give names, places, dates, and any aliases you may have used. Depending on the request you may also need to submit a notarized signature, your Social Security Number, date of birth, histories of where you've lived and where you've traveled, and other personal information. Just remember: if they didn't have this information before, they'll have it now. Bring your wallet. Under the FOIA, the first two hours an agency spends researching your request, as well as the first 100 pages of copies, are free. Beyond that, it's allowed to charge for research and copies. If you suspect your records are voluminous but your budget isn't, you can specify the maximum amount of money you'd like to pay, and the agency will search until it hits that limit. You can also ask the agency to waive fees if making the information public would serve a scholarly, historic, or current public interest. Apply online. Many agencies provide a web-based form that you can submit electronically, saving you time and hassles. But be sure to print out a copy or save the form to your hard disk you may need it later if your request is delayed or denied. Prepare to wait. Federal agencies have up to 20 business days to respond to your request and tell you if it's been accepted or denied under the law's many exceptions. But with such a huge backlog of requests and more than 3.2 million new ones in 2003 finding out what's actually in your file will usually take much longer. According to the Department of Justice's 2003 annual report, response times ranged from a median of 22 days (for the Department of Commerce) to 312 days (Department of State).
IF THE FEDS COME A-KNOCKIN'... In July 2004, members of the FBI Joint Terrorism Task Force paid a visit to three young political activists in Missouri, to inquire about upcoming protests at that summer's political conventions. When the young men refused to cooperate, they were put under surveillance and ordered to appear before a grand jury. According to a New York Times report, more than 40 political activists across the country received similar visits. Such visits are part of a pattern of deliberate political intimidation, says Denise Lieberman, Legal Director of the ACLU of Eastern Missouri, who represented the young men. Fortunately, when law enforcement shows up your doorstep, you have more rights than when they stop you on the street or in your car. Here's what to do if the coppers or G-men ring your bell. Step outside and shut the door. Don't invite them in. If there's anything in plain view that might constitute evidence of a crime, they can search your premises, no warrant required. Ask for ID. How do you know they're really cops or FBI agents? Write down all their badge information. Most agents carry business cards, so ask for them. Ask to see a warrant. A search warrant will specify what they're looking for, which will limit where they can look. (For example, if they're looking for a stolen TV, they can't rifle your medicine cabinet for illegal drugs or, at least, use the evidence against you). An arrest warrant must specify who is being arrested. Make sure it's really you they want before they slap the cuffs on. Don't give silent consent. If there's no warrant and you don't want them to search your home, say so. You must affirmatively state that you do not consent to a search. Simply allowing agents into your home may constitute consent, unless you tell them no first (which is why you want to step outside). Don't volunteer information. Once you find out what the agents want, you can decide if you want to talk. You're not legally obliged to say anything. But if you want to talk, don't do it there. Smile politely and say you'd be happy to schedule an appointment for you and your attorney to speak with them at their offices. Record the event. If you've got a handheld recorder, use it to record your interaction. If not, take notes about what happened after the agents have left. This information will come in handy later if it turns out you're being unfairly targeted. Stay cool, calm, and collected. Getting huffy about your rights won't help. The more adversarial you are, the more likely you'll end up with an unhappy result, says Lieberman. Don't try to stop them from performing a search, even if you believe it's illegal. Better to let a judge throw out the evidence later than to have the cops throw you in jail for obstruction. Find an attorney. Your local bar association (http://www.abanet.org/legalservices/lris/directory.html) can put you in touch with a good criminal attorney. If you think you're being targeted for political beliefs or activities, contact your local chapter of the ACLU (http://www.aclu.org/). Of course, you can ignore all of this advice and simply cooperate. If you're not the target of the investigation, that's probably the simplest route you can take. But don't give up your rights without a good reason or we may all soon find we don't have them any more. |
PRIVACY BY THE NUMBERS $175,000 | Fee USPS charges marketers to access the automated change-of-address system | 57 | Number of questions on the U.S. Census long form in 2000 | 3,169 | Criminal and secret FISA wiretaps requested in 2003 | 3 | Wiretap requests denied by the courts in 2003 | 4.1 million | Conversations intercepted under U.S. wiretaps in 2003 | 375 | Number of U.S. communities passing resolutions condemning the Patriot Act as of March 2005 | 2, 074,934 | Profiles on file in FBI's DNA database as of November 2004 | 1 | States defining DNA samples as your personal property | Sources: USPS, U.S. Bureau of the Census, Center for Democracy and Technology, ACLU, FBI, National Conference of State Legislatures |
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