*
* Jour/EMC/RI 4700
Mass Media & National Security
Larry L. Burriss,
B.A., M.A., M.A., Ph.D., J.D.
Lt. Col., USAF (ret.)
School of Journalism
Middle Tennessee State University
http://capone.mtsu.edu/lburriss
“A relay race is won or lost in the passing of the baton. Rarely is a baton dropped once it is passed. The baton is more likely to be dropped when it is passed.”
Sam Adams,
1984 U.S. Decathlon Olympic Coach
* America’s First Newspaper Leak:
Tom Paine and the Disclosure
of Secret French Aid
to the United States
Silas Deane
Commissioner to France
Businessman
Arthur Lee
Commissioner to France
Thomas Paine (Common Sense)
Secretary, Foreign Affairs Committee
Newspaper writer
* Thomas Paine
January 29, 1737 – Born in Thetford, Norfolk, England
1776 – 500,000 copies of Common Sense sold
1776 –The Crisis Papers
1787 – Goes to England
1791 – The Rights of Man ; indicted for treason
1792 – Escaped to France; imprisoned for treason
1794 – The Age of Reason
1802 – Returned to the United States
June 8, 1809 – Died penniless in New Rochelle, New York
* Chronology
Silas Deane letter, Pennsylvania Packet,
Dec. 5, 1778
Thomas Paine,
Pennsylvania Packet,
Jan. 2, 1779
* Chronology
* Results
First resignation by a president (Laurens)
First forced resignation of a government official (Paine)
First Congressional investigation of a newspaper (Pennsylvania Packet and John Dunlap)
First investigation of confidential source
Congress split along regional and economic lines: Northern merchants vs. Southern landowners
* Iran-Contra Affair
The Law:
U.S. arms embargo to Iran
U.S. “agencies” not allowed to help Contras (Nicaragua)
The Plan:
Israel supplies weapons to Iran
Iran agrees to help U.S. hostages in Lebanon
U.S. sells weapons to Israel
Money diverted to Contras in Nicaragua by NSC
Questions: Is the NSC an “agency” of the U.S. government
What did President Reagan know and when did he know it?
* Zimmermann Telegram
* World War II
* The Importance of Words
Cold War: Missiles in Europe
Cold War: “Delivery vehicles”
vs.
“Warheads”
* The Importance of Words
Saddam Hussein
Arabic: Sah-DAHM
Powerful
George W. Bush: SAD-um
One who cleans old shoes
* Federal Freedom of Information Act
1. Overview
2. Coverage
3. Making the Request
4. Exemptions
* Federal Freedom of Information Act
* Federal Freedom of Information Act
1. Overview
A. Any person
B. All Federal Agencies
C. FOI Officer
D. Response Time
* Federal Freedom of Information Act
2. Coverage
A. Executive Branch
i. Cabinet
ii. Commission
iii. Government Controlled Corporations
B. Does not apply to Congress
C. Does not apply to Courts
D. Does not apply to private corporations
* Federal Freedom of Information Act
3. Making the Request
A. Unofficial
B. Letter
C. Search and Copy Fees
D. Inspection vs. Reproduction
E. Appeals
F. Lawsuits
* Federal Freedom of Information Act
4. Exemptions
A. 9 exemptions
B. Are generally not mandatory
C. Is disclosure “in the public interest”
D. Files can be edited then released
* Federal Freedom of Information Act
4. Exemptions
1. National Security
2. Internal Agency/Personnel Rules
3. Information Specifically Exempted
4. Trade Secrets
5. Internal Policy Discussions
6. Personal Privacy Matters
7. Law Enforcement Investigations
8. Federally Regulated Banks
9. Oil and Gas Well Information
* Federal Freedom of Information Act
1. National Security
Must show “identifiable damage”
Covers properly classified documents
Can be edited then released
* Federal Freedom of Information Act
2. Internal Agency/Personnel Rules
“Housekeeping” rules
* Federal Freedom of Information Act
3. Information Specifically Exempted
Agricultural Adjustment Act
Census Bureau Records
Federal Trade Commission
Consumer Product Safety Commission
Central Intelligence Agency
Employment Discrimination
National Security Agency
Tax Returns
Patent Applications
(Many others)
* Federal Freedom of Information Act
4. Trade Secrets
Must really be a secret
Commercially valuable
* Federal Freedom of Information Act
5. Internal Policy Discussions/Executive Privilege
Agency policy drafts
Designed to encourage agency discussion
* Federal Freedom of Information Act
6. Personal Privacy Matters
“Personnel” and “Medical” Files
Legitimacy of children
Medical conditions
Job evaluations
Welfare payments
* Federal Freedom of Information Act
7. Law Enforcement Investigations
Current and pending files only
Interfere with enforcement
Deprive someone of fair trial
Unwarranted invasion of privacy
Disclose confidential source
Disclose investigative techniques
Endanger life
* Federal Freedom of Information Act
8. Federally Regulated Banks
Disclosure of sensitive financial information
Federal Reserve System
Comptroller of the Currency
Federal Home Loan Bank Board
* Federal Freedom of Information Act
9. Oil and Gas Well Information
Prevent speculation
Bureau of Land Management
Federal Power Commission
Federal Energy Regulatory Commission
* Federal Privacy Act (5 USC 552a)
What does the government know about YOU
* Federal Privacy Act
Collection of Information
By the government
No records created of First Amendment activities (yes…but)
* Reporting First Amendment Activities?
* Federal Open Meeting Law (5 USC 552b)
Applies FOIA to Meetings
Any meeting
Minutes must be kept
Notice
Public has right to attend, not participate
* Some Useful Sites
Reporters Committee for Freedom of the Press
Federation of American Scientists
National Security Archive
* Dimensions of National Security
I. Traditional
A. Military
B. Political
1. National Security
2. Civil Liberties
II. Constructivist-Operational
A. Agriculture & Health
B. Economy
C. Energy
D. Transportation
E. Cyber-Security
F. Science & Technology
* National Security Strategy?
Agriculture & Health
Production
Transportation
Bio-terrorism
National Bio-Defense Strategy
* National Security Strategy?
Economy
Who owns what
Cyber-attacks
National debt & the international market
* National Security Strategy?
Natural Resources
Strategic Reserves
Rare-Earth Elements
* Strategic Reserves
Strategic Petroleum Reserve (700-million barrels)
Federal Helium Program (1/3 of world’s supply)
Federal Gold Depository (147.3 million ounces)
Strategic National Stockpile (?)
Highly Enriched Uranium Materials Facility (100 tons)
Northeast Home Heating Oil Reserve (1 million barrels)
* Strategic Reserves
Quebec
Maple syrup
Russia
Top secret food reserve in case of famine
China
Pork (200,000 tons)
Wheat (50 million tons)
Cotton (1/2 of world supply)
Rare-earth metals (80 - 90%)
* National Security Strategy?
* National Security Strategy?
Transportation
Infrastructure
Modes
Air
Rail
Truck
* National Security Strategy?
Cyber-Security
Information Sharing
Degradation, Disruption and Destruction
https://www.dhs.gov/stopthinkconnect-toolkit
* National Security Strategy?
Science and Technology
Military
Homeland Security
Intelligence
Manufacturing
Advanced Computing and Communications
Resilient, Clean, and Affordable Energy
* Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.
A popular Government without popular information or the means or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.
Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.
James Madison
*
Freedom of expression is the matrix, the indispensable condition of nearly every other form of freedom.
Benjamin N. Cardozo
Supreme Court Justice
* The First Amendment in Action
The essence of democracy is the participation by citizens in the process of government, particularly in selection of leaders and in the determination of public policy
Yes, but…..
* Something to think about…
* An “informed extreme participatory” democracy leads to a totalitarian state.
* Therefore, the fewer people who have access to state secrets the better.
McMullen, W.A. June 1972, Censorship and Participatory Democracy, Analysis, Vol. 32, No. 6, p. 207-208.
* Perspectives on the First Amendment
Zechariah Chafee (1885-1957)
Vincent Blasi (1941- )
* Perspectives on the First Amendment
Zechariah Chafee
Balancing
Freedom of speech is one of
many interests to be
protected
* Perspectives on the First Amendment
Vincent Blasi
Watch-dog role
* Early American History
John Nugent and the Treaty of Guadeloupe-Hidalgo (1848)
* Civil War
Newspaper Suppression
Reporters’ Guidelines
Spies v. Reporters
William T. Sherman
* World War I
Committee on Public Information
George Creel
* World war I
Edward Bernays and “The Engineering of Consent”
* Chicago Tribune, Aug. 19, 1918
* World War I
The “Four Minute” Men
75,000 members
5,200 communities
755,190 speeches
* World War II
Office of Censorship
Byron Price
Office of War Information
Elmer Davis
* World War II
Office of War Information
* World War II
Walt Disney
* World War II
* World War II
Frank Capra
* The Cold War
* The Beginning of a Conspiracy?
* One Minute to Midnight
John Scali
and the
Cuban Missile Crisis
* John Scali / Alexsander Fomin/Feklisov
* Vela Incident (Sept. 22, 1979)
* NORAD Computer Error (Nov. 9, 1979)
* The Man Who Saved the World
Sept. 28, 1983
Stanislav Petrov
* Able Archer 83 (Nov. 1983)
* Nuclear Close Calls
5 November 1956
5 October 1960
24 November 1961
27 October 1962
9 November 1965
23 May 1967
9 November 1979
15 March 1980
26 September 1983
25 January 1995
23 October 2010
* Military and the Media
Public interest in the military
Time
Money
Local impact
Audiences
External
Internal
Espionage and the media
* Movies and Music
* The Classification System
* The Classification System
Those who know don’t talk…
…those who talk don’t know
* The Classification System
Need to know
Publication =/= Declassification
* Mass Media & National Security
Major Questions
1. Right of Access to Information
2. Right to publish once you get the information
* Laws - A Quick Primer
Executive Orders
United States Code
Title 5 – Government Organization & Employees
Title 10 – Armed Forces (including UCMJ)
Title 18 – Crimes & Criminal Procedure
Title 42 – Public Health & Welfare
Title 50 – War & National Defense
Court Cases
* Statutory Law
5 USC 552 (Freedom of Information Act)
18 USC 793 (Espionage Act of 1917)
18 USC 798 (Cryptographic Intelligence & Methods)
42 USC 2162 (Nuclear Weapons & Materials)
50 USC ch.15 § 401 (DoD, NSC, CIA)
50 USC 421 (Intelligence Identities Protection)
* Executive Orders
Executive Order 10290 (1951 - Truman)
Executive Order 10501 (1953 - Eisenhower)
Executive Order 11652 (1972 - Nixon)
Executive Order 12065 (1978 - Carter)
Executive Order 12356 (1982 - Reagan)
Executive Order 12958 (1995 - Clinton)
Executive Order 13292 (2003 - Bush)
Executive Order 13526 (2009 - Obama)
* Classification Levels
Unclassified
Sensitive but unclassified (SBU)
For Official Use Only (FOUO)
Confidential
Secret
Top Secret
Top Secret (SCI) Top Secret (SAP)
Top Secret ESI
(So secret even the classification is secret)
NOFORN
* The Big Five
The National Reconnaissance Office (NRO)
Central Intelligence Agency (CIA)
National Security Agency (NSA)
Defense Intelligence Agency (DIA)
National Geospatial?Intelligence Agency (NGA)
Federal Bureau of Investigation (FBI)
* Code Words, Nicknames, etc.
Code Words
Gamma (commint) Polo Step
Nicknames/Exercises
Yankee White Coronet Oak
Red Flag Bullet Shot
Call Signs
Air Force 1
Music 35
Orange 2
* Espionage as a Fun-Filled Civilian Hobby
FOI Requests / Projects / News Stories About
Tail Spotters
Satellite Spotters
Number Stations
Blank Spots on the Map (Top Secret Tourism)
* Blank Spots on the Map
Area 51
Raven Rock
Y-12
Pantex
* Area 51
* Area 51
* Area 51
* Area 51
* Raven Rock, Fairfield, PA
* Y-12, Oak Ridge, TN
* Pantex, Amarillo, TX
* Pantex, Amarillo, TX
* Pantex, Amarillo, TX
* Over-Classification vs. Mis-Classification
Philosophical Concerns
Implications for News Coverage
* Pentagon Papers (June 1971)
"History of U.S. Decision-Making Process on Viet Nam Policy."
* Pentagon Papers -
Government Arguments
Publication violated espionage statutes
Publication was unauthorized disclosure
Irreparable harm
* Pentagon Papers -
WP/NYT Arguments
Classification system was a sham
Publication caused no harm
Sometimes restraint might be warranted
* Pentagon Papers
6/30/71 - Decision (6-3)
* Selective Prior Restraint
Aviation Week and Space Technology
Progressive
* AW&ST and the SR-71
* U.S. v. Progressive (1979)
* U.S. v. Progressive (1979)
* U.S. v. Progressive (1979)
* Who Does What & How Do They Do It?
* Separation of Powers
Separation of Powers
* Legislative (Article I)
* Executive (Article II)
Executive Orders
Federal Agencies
* Judicial (Article III)
District Court
Court of Appeals
U.S. Supreme Court
* Interpreting the Constitution
Absolutist
Presumption of Constitutionality
Compelling State Interest
Over-Breadth
* Preventing Publication
Injunctions (Issued in equity)
Restraining Order (Issued ex parte)
* Judicial Questions
* Is the law valid (i.e., Constitutional)
* Does the issue fall under the law
* Pentagon Papers
6/13-15/71 NYT publishes
6/15/51 Court issues TRO against NYT
6/17/71 WP publishes
6/18/71 Court denies injunction against WP
6/19/71 DCCA denies injunction
DCNY dissolves TRO
2CA issues injunction
6/25/71 SCOUS halts all publication
6/26/71 Oral arguments
6/30/71 Decision -
* Amnesty Int’l v. James Clapper, DNI
Jul 2008: The FISA Amendments Act of 2008 is signed into law by President Bush. The ACLU immediately files a lawsuit challenging the constitutionality of the new law.
Aug 2009: The district court dismisses the lawsuit on "standing" grounds because plaintiffs could not prove they had been spied on.
Oct 2009: The ACLU appeals the district court's dismissal of the lawsuit.
Mar 2011: A federal appeals court reinstates the ACLU’s lawsuit challenging the FAA, ruling that the plaintiffs in the case could indeed challenge the FAA without first showing with certainty that they had been spied on under the statute.
Feb 2012: The Obama administration appeals the standing issue to the U.S. Supreme Court.
Oct 29, 2012: Oral argument at the U.S. Supreme Court.
Feb. 26, 2013: Case dismissed by 5-4 vote.
* Who’s In Charge Around Here?
United States v. Curtis-Wright
United States v. Reynolds
Haig v. Agee
Navy v. Egan
* United States v. Curtiss-Wright Export Corp.,
299 US 304 (1936)
“[W]e conclude there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect . . . ; whether he shall make proclamation to bring the resolution into operation; whether and when the resolution shall cease to operate and to make proclamation accordingly, and to prescribe limitations and exceptions to which the enforcement of the resolution shall be subject.”
* United States v. Reynolds,
345 U.S. 1 (1953)
State Secrets Privilege
* Haig v. Agee
453 U.S. 280, 293-294 (1981)
“[T]he generally accepted view [was] that foreign policy was the province and responsibility of the Executive. From the outset, Congress endorsed . . . the underlying premise of Executive authority in the areas of foreign policy and national security. . . .”
* Navy v. Egan
484 US 518 (1988)
* Granting of security clearances is discretionary on the part of the agency head
* Congress did not grant a right of review
* Navy v. Egan
484 US 518 (1988)
“The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.” (Atty Gen John Ashcroft, 2002)
* Navy v. Egan
484 US 518, 530 (1988)
“[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”
Central Issue:
Right of Access v. Right to Publish
Dr. Strangelove: Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret!
* Access
Project Jennifer & The Glomar Explorer
Phillippi v. CIA
Nation Magazine v. U.S. Department of Defense
Flynt v. Rumsfeld
* Project Jennifer and the FOIA
* Project Jennifer and the FOIA
1973 – Glomar Explorer completed
* Project Jennifer and the FOIA
The Glomar Explorer
* Project Jennifer and the FOIA
June 5, 1974 – Howard Hughes office burglarized
Aug 1974 – CIA attempts to raise K129
Feb 1975 – Story leaked to news media
CIA/media suppress story
Jack Anderson breaks the story
* Project Jennifer and the FOIA
March 1975 – Phillippi submits FOI request
Dec 1975 – CIA will “neither confirm nor deny”
May 1977 – CIA acknowledges project
* Phillippi v. CIA,
655 F.2d. 1325 (C.A.D.C., 1981)
1. Documents were properly exempt
2. The “Glomar” Principle
* Nation Magazine v. DoD
762 F.Supp 1558 (S.D.N.Y., 1991)
Plaintiff argued press pools violated the 1st and 5th Amendments
A. Plaintiffs raise political, not judicial questions
B. Issue is moot
C. Court should wait until there is a full record to make a decision
* Flynt v. Rumsfeld,
355 F.3d (C.A.D.C., 2004)
* First Amendment does not guarantee right to be “embedded”
* Limits on access to battlefield were reasonable “time, place, manner” restrictions
* Right to Publish
United States v. Marchetti
Knopf v. Colby
Agee v. CIA
Haig v. Agee
Snepp v. U.S.
* United States v. Marchetti,
466 F.2d 1309 (4 CA, 1972)
Alfred A. Knopf v. Colby,
509 F. 2d 1362 (4 CA, 1975)
* Agee v. CIA,
500 F.Supp. 506 (D.C.D.C., 1980)
Agee v. CIA,
517 F.Supp. 1335 (D.C.D.C., 1981)
Haig v. Agee,
453 U.S. 280 (1982)
(1975)
* Snepp v. U.S.,
444 US 507 (1980)
* Criminal Prosecutions
Daniel Ellsberg
Samuel Morison
Stephen Jin-Woo Kim
Jeffrey Sterling
* Whistle-Blowing vs. Espionage vs. First Amendment
* Daniel Ellsberg & the Pentagon Papers
Case Dismissed: “upon the totality of government misconduct, including the suppression of evidence, the invasion of the physician-patient relationship, the illegal wiretapping, the destruction of relevant documents and disobedience to judicial orders.” (1973)
* Navy Analyst Samuel Morison
Convicted in 1985 under Section 793 of the Espionage Act for giving classified satellite imagery to the magazine Jane’s Defence Weekly.
* KH-11 Reconnaissance Satellite
* KH-11 Reconnaissance Satellite
Crystal
Keenan
Hexagon
Gambit
Ikon
Resolution: 3” from 200 miles
* Spying on Spy Satellites
* KH-11 Satellite Images
“When the identities of our intelligence agents are known, they may be killed. When our electronic surveillance capabilities are revealed, countermeasures can be taken to circumvent them. When other nations fear that confidences exchanged at the bargaining table will only become embarrassments in the press, our diplomats are left helpless. When terrorists are advised of our intelligence, they can avoid apprehension and escape retribution.”
* Streisand Effect
* Stephen Jin-Woo Kim
August 2010, State Department contract analyst Stephen Jin-Woo Kim indicted for disclosing the contents of a TOP SECRET intelligence report to Fox News reporter James Rosen.
Report dealt with North Korean nuclear tests
Sentenced to 13 months in prison
* James Risen & Wen Ho Lee
March 1999: “a Los Alamos computer scientist who is Chinese-American” stole nuclear secrets for China
Lee Arrested and held in solitary confinement
September 2000:
“significant errors”
* James Risen & Jeffrey Sterling
Former CIA operations officer Jeffrey Sterling arrested on Jan. 6, 2011, for disclosing classified information to reporter James Risen.
Risen arrested, sentenced , released 1/2018
The President and Congress:
Who Does What and When Do They Do It?
* The Congress
The Congress shall have Power To …provide for the common Defence and general Welfare of the United States;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; .
No State shall, without the Consent of Congress …keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
* The President
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,
* The Judiciary
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
* Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
* U.S. Constitution
4th Amendment:
“ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
* U.S. Constitution – 4th Amendment
When is a search or seizure “unreasonable”?
* Warrant requirement
* “Reasonable expectation of privacy”
* Public places – “plain view”
* Biological searches
Breath, blood, thumb prints, nail scrapings
* Electronic surveillance – audio, visual
* Magnification & technological enhancement beyond human senses
* Federal Agencies and MTSU
* Department of Homeland Security
* FBI
* Treasury, IRS, Labor
* Department of Education
* Department of Defense
* Federal Communications Commission
* USA Patriot Act
* USA PATRIOT Act
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001
(Public Law 107-56)
* USA PATRIOT Act
Environment for passage
Almost no public debate
Extreme fast track
National emotional turmoil
One of the longest pieces of emergency legislation passed in one of the shortest periods of time in American history
* USA PATRIOT Act
Ten Sections covering a variety of areas, including
banking
money laundering
surveillance
order protection
victims’ support
information sharing within the infrastructure
criminal laws against terrorism
* USA PATRIOT Act
Amends more than 15 different statutes
Foreign Intelligence Surveillance Act (FISA)
Federal wiretap laws
Electronic Communications Privacy Act of 1986 (ECPA)
Computer Fraud and Abuse Act (CFAA)
Family Education Rights and Privacy Act (FERPA)
* USA PATRIOT Act
Not all changes driven by Sept. 11
* Law enforcement wanted to update wiretap and surveillance laws for the Internet age
* Law enforcement also wanted greater authority to conduct searches of property
* USA PATRIOT Act
Major Impacts on Privacy:
* Federal surveillance & investigatory powers
* Visa monitoring of international students, faculty & scholars
* Privacy of Student Records
* Surveillance
https://www.youtube.com/watch?v=ucRWyGKBVzo
If above link does not work, copy and past the URL into your browser.
* USA PATRIOT Act
The Patriot Act increases the government’s surveillance powers in four areas:
* Records searches.
* Secret searches.
* Intelligence searches.
* "Trap and trace" searches.
* USA PATRIOT Act - Section 212
A provider of electronic communication service to the public
… may voluntarily disclose to law enforcement officials
… electronic communication content or information about a customer / subscriber
… if provider reasonably believes emergency involving immediate death / serious injury
* USA PATRIOT Act - Section 213
AUTHORITY FOR DELAYING NOTICE OF EXECUTION OF WARRANT
Authorizes delayed notice of “sneak & peak” search warrants
Court can issue warrant authorizing law enforcement officers to enter & inspect (physically or electronically) private property
Delayed notice permitted if adverse effects (life / safety threat, evidence destruction, jeopardize investigation, etc.)
* USA PATRIOT Act – Section 214
Pen Register – Record numbers dial out
Trap and Trace – Record numbers coming in
* USA PATRIOT Act – Section 214
Pen Register/Trap & Trace Orders
Authorize collection of telephone & computer identifying information dialed to and from a particular communications device
Standard low – “relevant to an ongoing criminal investigation”
* USA PATRIOT Act – Section 214
Previously, pen/trap orders (to/from information) authorized to get “telephone numbers”
Specific phone/number, jurisdiction
Now, any “dialing, routing, addressing, or signaling” information “not including content” (Does subject line or URL constitute “content”?)
FBI may install hardware or software if provider’s won’t work
New law permits one order effective nationwide – may not be from your area, may not name your organization
* USA PATRIOT Act - Section 215
ACCESS TO RECORDS & OTHER ITEMS
(FISA Amendment)
FBI may apply for court order (FISA court) seeking any tangible things (books, records, documents, etc.) from anyone …
… for an investigation to protect against international terrorism or clandestine intelligence activities
* USA PATRIOT Act - Section 215
Expansion of prior law and potential problems:
Prior law: only records of common carriers, public accommodation providers, storage facilities, vehicle rental agencies
Sec. 215: any tangible things (including records) in possession of anyone
* USA PATRIOT Act - Section 215
Prior law: FBI had to state specific, articulable facts giving reason that records pertain to person who is foreign power or agent
Sec. 215: Less specific cause required
(needed for international terrorism/clandestine intelligence investigation…
…and target can be U.S. citizens or permanent residents)
* USA PATRIOT Act - Section 215
Expansion of prior law and potential problems:
Person ordered to produce records or things shall not disclose to any other person that FBI has sought or obtained items
Less senior FBI officials have power to seek orders (Assistant Special Agents in charge of field offices)
* USA PATRIOT Act – Section 215
Old law - the “secret” FISA court could issue order only
In foreign intelligence investigation
For seizure by FBI of specific types of business records, such as lodging, storage and car rental records
Sect. 215 - FBI can request a FISA court to order any person or entity to turn over “any tangible things . . . For an investigation to protect against international terrorism or clandestine intelligence activities. . ..”
* USA PATRIOT Act – Section 215
Business records now include medical records, financial records, video rental records, fingerprints, DNA samples, employment records, etc.
Excludes investigation of US person based solely on basis of First Amendment activities
* Reporting First Amendment Activities?
* USA PATRIOT Act –Section 215
Specifics of court order and institution’s implementation must be kept secret
DoJ required to report to Congress, but hasn’t provided much information
* USA PATRIOT ACT – Section 220
Creates a “national subpoena” obtainable from magistrates in federal district courts which can be extended to any other jurisdiction
Example: If FBI office in Los Angeles wants something in Nashville, they can apply for warrant in California federal court and have it apply to Tennessee
* USA PATRIOT Act - Section 507
DISCLOSURE OF EDUCATIONAL RECORDS
(FERPA Amendment)
Any Federal officer/employee (above Asst. Atty. General level) …
… may apply to any court with jurisdiction for ex parte order (no notice to student)
… to require educational institution to produce educational records of a student
* USA PATRIOT Act - Section 507
EMERGENCY DISCLOSURE OF ELECTRONIC COMMUNICATIONS
Application: specific & articulable facts giving reason to believe that education records likely to contain information relevant to offense/act of domestic or international terrorism
Educational institution not required to maintain a record of disclosures of educational records
* Note
Sections 210, 212, 217 (1) and (2) of the Patriot Act that amend sections 2510, 2511, 2702 and 2703 of the Electronic Communications Privacy Act have nothing to do with terrorism per se – no particular motive or citizenship or immigration status is required to make it actionable.
* Records and the Patriot Act
Confidentiality of Records
Procedures Before “They” Visit
When “They” Show Up At Your Door
Foreign Intelligence Surveillance Act (FISA)
* Confidentiality of Records
* You have no affirmative duty to collect or retain information on behalf of law enforcement.
* Avoid creating unnecessary records.
* Avoid retaining records that are not needed for efficient operation.
* Ensure that records are destroyed or archived on schedule. You cannot destroy records after you receive notice the records may be subject to judicial process.
* Before “They” Visit
* Designate the person or persons who will be responsible for handling law enforcement requests.
* Train all staff, including volunteers, on procedure for handling law enforcement requests.
* Have a media plan already prepared.
* When “They” Show Up
At Your Door
* “They” cannot compel cooperation without a court order.
* If “they” present a search warrant or other judicial process, contact your attorney immediately.
* A subpoena does not require an immediate response.
* Unlike a subpoena, a search warrant may/will be executed immediately.
* If the officer will not delay the search, step aside and do not to interfere.
* FISA Court
FISA Court (pre-Patriot Act)
Seven federal judges
Post Patriot Act: eleven
Meet in closed session
Content of applications permanently closed
Only statistics, and annual vice-president’s report to Congress of applications and approved
Post Patriot Act: reduced standard for approval
* FISA Court
* A search warrant issued by a FISA court will contain a “gag order.”
* You cannot disclose that a warrant has been served or that records have been produced pursuant to the warrant.
* No information can be disclosed to any other party, including the person whose records are the subject of the search warrant.
* The gag order does not change your right to legal representation during the search.
* Doe v. Gonzalez
500 F.Supp. 379 (S.D.N.Y., 2007)
National Security Letters
1. Non-disclosure requirement subject to strict scrutiny
2. Letters are subject to due process
How do we balance the need to protect the country with the Constitutional & practical concerns for a free and open society?
* National Security and the Media
* National Security Strategy
Strategy (What You Want To Do)
Means (Resources)
Ways (Activities that use those resources)
* Strategy
A critical component of U.S. government thinking and practice in the arena of national security
Decision-making
Budgeting
Planning and execution
Congressional oversight
* Creating a Strategy for National Security
* Sharpen priorities and refine approaches
* Provide a single shared vision for all concerned agencies
* Clarify the roles and responsibilities of all concerned agencies so that they may more effectively plan and resource
* Offer a coherent baseline for congressional oversight
* Communicate U.S. government intent to key audiences at home and abroad
* National Security Strategy
Homeland security
Economic issues
Energy policy
Environmental concerns
Traditional military affairs.
* National Security Strategy 2013
The United States will lead the international order as a nation first among equals to
* encourage stability,
* foster economic growth,
* promote democratic values,
* protect global strategic interests.
* Leading the International Order
* Supporting an international system beneficial to U.S. interests, but neither dependent on nor hostile to, U.S. global predominance.
* A shift from West to East and from states to non-state actors
* A dispersion of influence and greater uncertainty
* Global institutions
* Cybersecurity, Terrorism & Nuclear Weapons
Cyber security
Terrorism
Nuclear weapons
* Strategic Resource Access & The Middle East
* Global access to critical resources for worldwide economic prosperity
* The Arab Spring & Iran
* Israel & the Palestenians
* Interests and values
* Leading a Globalizing Economy
* Improve American competitiveness with an innovative economy decreasing our vulnerabilities in a globalized age
* Competitive advantages & domestic investments
* Global trade, multi-lateral institutions, & bilateral agreements
* Leading the global monetary order – stabilizing our national debt
* Strengthening Our Military &
Defending the Homeland
* Defend the American way of life, encourage stability in the international system, and protect global access to strategic resources
* Building a military for tomorrow
* Use of force doctrine
* Use of Force Doctrine
* Is a vital national security interest threatened?
* Do we have a clear attainable objective?
* Have the military, economic, and social risks and costs at home and abroad been fully and frankly analyzed?
* Does the cost of not acting exceed the cost of acting, even in the event that action does not follow a best or good-case scenario outcome?
* Have all other non-violent policy means been fully exhausted?
* Is there a plausible exit strategy at each stage of action to avoid endless entanglement?
* Have the consequences of our action been fully considered?
* Does the American public support the action?
* Do we have genuine broad international support that can reasonably be expected to last throughout the entire course of engagement?
* Military and the Media
Public interest in the military
Time
Money
Local impact
Audiences
External
Internal
Espionage and the media
* Covering the National Security Community
(An Introduction to the Alphabet Soup Agencies)
* Public Affairs Organization
* The Big Five
The National Reconnaissance Office (NRO)
Central Intelligence Agency (CIA)
National Security Agency (NSA)
Defense Intelligence Agency (DIA)
National Geospatial?Intelligence Agency (NGA)
* National Security Agency
* g
* Department of Defense
* Department of Defense
1.3 million active duty personnel
600,000 civilians
1.3 million Guard and Reserve
18-million acres of land
15,000 aircraft
325 warships
250,000 vehicles
* Department of Defense
Constitution
National Command Authority
Office of the Secretary of Defense
Service Secretaries
Chairman, Joint Chiefs of Staff
Army Chief of Staff
Chief of Naval Operations
Commandant of the Marine Corps
Air Force Chief of Staff
* Army
Fire team (3-7)
Squad (8-15)
Platoon (100)
Company (400-500)
Battalion (600-1,500) – Smallest independent combat unit
Brigade (2,000-3,000)
Regiment
Division (15,000-18,000) – Primary combat organization
Corps (Multi-division, identified by Roman numeral)
Numbered Army units
* Navy
Shore establishment / Operating Force
Fleet (Atlantic and Pacific)
Fleet (numbered)
* Marine Corps
Squad (8-15)
Platoon (100)
Company (400-500)
Battalion (600-1,500) – Smallest independent combat unit
Marine Expeditionary Unit
Brigade (2,000-3,000)
Regiment
Marine Expeditionary Force
Division (15,000-18,000) – Primary combat organization
* Air Force
Squadron (12-30 aircraft)
Group
Wing (primary combat unit)
Division
Numbered Air Force
Major Command