Being Watched Being Watched Legal Challenges to Government Surveillance Jeffrey L. Vagle NEW YORK UNIVERSITY PRESS New York For Kathy NEW YORK UNIVERSITY PRESS New York www.nyupress.org © 2017 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Vagle, Jeffrey L., author. Title: Being watched : legal challenges to government surveillance / Jeffrey L. Vagle. Description: New York : New York University Press, [2017] | “Also available as an ebook.” | Includes bibliographical references and index. Identifiers: LCCN 2017010852| ISBN 9781479809271 (cl ; alk. paper) | ISBN 1479809276 (cl ; alk. paper) Subjects: LCSH: Electronic surveillance—Law and legislation—United States. | Searches and seizures—United States. | Privacy, Right of—United States. | Locus standi—United States. Classification: LCC KF5399 .V44 2017 | DDC 345.73/052—dc23 LC record available at https://lccn.loc.gov/2017010852 New York University Press books are printed on acid- free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppli- ers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook Contents 1. You Are Being Watched 1 2. A History of Government Surveillance 17 3. Getting through the Courthouse Door 35 4. The Doctrine of Article III Standing 51 5. Before the Supreme Court 70 6. Government Surveillance and the Law 89 7. The Legacy of Laird v. Tatum 108 8. Technology, National Security, and Surveillance 125 9. The Future of Citizen Challenges to Government Surveillance 144 Notes 153 Index 161 About the Author 165 v 1 You Are Being Watched It was not long after the events of September 11, 2001, and the subse- quent actions of the United States and its allies, that Joanne Mariner began to suspect that her government was spying on her.1 Her concern was not without foundation. As an attorney and deputy director of the Americas Division at Human Rights Watch (HRW), she had been doing research on the legal issues surrounding the U.S. government’s covert policies adopted as part of its “global war on terrorism,” including the CIA practice of “extraordinary renditions” and the decision to house some prisoners at a detention camp at the Guantanamo Bay Naval Base, located on the southeastern coast of Cuba. In 2004 Mariner was asked to chair a working group within HRW to come up with a strategic plan to address the growing list of human rights issues emerging from the global war on terrorism. As a result of the working group’s research, HRW formed a new Terrorism and Counterterrorism Center in 2005. In 2006 Mariner was appointed the center’s director. Among the first findings of HRW’s new Terrorism Center was the revelation that the CIA was operating secret prisons at “black sites” in countries such as Afghanistan, Poland, and Romania, where access and oversight of prison conditions could more easily be limited and con- trolled. As its research into these secret prisons expanded, HRW began to discover instances of CIA prisoner abuses, and this became a focal point for Mariner’s work. From 2006 through 2009, she spent much of her time traveling around the world tracking down former CIA prison- ers and trying to convince them to speak with her about the abuses they witnessed and suffered while they were held at these black sites. During this time, she spoke with many former detainees, who related some of the shocking stories of torture and abuse that were later confirmed in the 2014 U.S. Senate Select Committee on Intelligence (SSCI) report, Committee Study of the Central Intelligence Agency’s Detention and Inter- rogation Program, commonly known as the Torture Report.2 1 2 | You Are Being Watched Mariner and her team traveled extensively during this period, speak- ing not only with former detainees, but also with witnesses, experts, scholars, political activists, foreign government officials, and other HRW staff, discussing highly sensitive information, sometimes related to ter- rorism and counterterrorism, and often relating to U.S. foreign affairs. As this work progressed, it became increasingly obvious to Mariner and others at HRW that the CIA— and others within the U.S. government— would be highly interested in knowing the details of these communica- tions, and she harbored few doubts that their communications would be monitored at every opportunity. This was not a surprising conclusion for Mariner to reach. By the mid- 2000s, stories began to surface telling of the mass interception of telecommunications by the U.S. intelligence community and, by exten- sion, its partners in the “Five Eyes” signals intelligence–s haring alliance, comprising the United Kingdom, Canada, Australia, New Zealand, and the United States. Rumors about the breadth and depth of the ultra- secretive NSA’s data collection activities had long existed, but without evidence of these programs, these rumors were largely dismissed as the paranoid fantasies of the tinfoil hat community. The 1998 film Enemy of the State, a high- tech thriller starring Will Smith, depicted the NSA as an omniscient, power-h ungry government body that is willing to kill in order to enhance and protect its power, and has at its instantaneous command nearly limitless technological resources with which to track and control its enemies (one of which happens to be Will Smith’s char- acter). The premise of the film, while entertaining, was discounted by intelligence and technology experts as far- fetched, as it was generally agreed that the feats described in Enemy of the State would require tech- nological capabilities far beyond anything the real-w orld NSA could muster. And besides, there were laws preventing foreign intelligence agencies like the NSA and CIA from spying on U.S. citizens, right? The rumors of a technologically powerful NSA with the ability to surveil the communications of every U.S. citizen seemed utterly implausible. To understand how these once fanciful or paranoid stories began to take hold among rational thinkers like Joanne Mariner, however, we turn to the story of Room 641A. Just about the time Mariner and her colleagues were beginning their research on terrorism and counterterrorism for HRW, a technician You Are Being Watched | 3 named Mark Klein, then working for the global telecommunications giant AT&T, noted the construction of a new room in AT&T’s Folsom Street networking facility in San Francisco.3 This room, numbered 641A, was being built immediately adjacent to the room containing a 4ESS switch, a powerful computer switching system that was used to direct long- distance telephone calls through the Folsom Street facility. The fa- cility also held the infrastructure that provided AT&T’s WorldNet Inter- net service, international and domestic Voice Over IP (VoIP) telephony services, and data transport service to Asia and the Pacific Rim. The information flow moving through the Folsom Street facility was not a mere trickling headwaters— it was an Amazon of data. Room 641A, known in AT&T documents as the SG3 Secure Room, was secretly built and equipped in 2002 for the NSA. NSA agents made repeated visits to the Folsom Street facility in 2002 and 2003 to supervise the work. Unlike access to other rooms in the facility, access to Room 641A was limited to a handful of AT&T employees who had been per- sonally cleared by the NSA. The AT&T technicians who were expected to service and maintain the equipment in the facility had master keys to every room but Room 641A. The extremely limited access to 641A began to cause problems at the facility. In 2003 a large industrial air con- ditioner in the secure room began to leak water, which eventually began leaking onto the equipment housed on the floor beneath it. Sensitive electronic equipment does not react well to water, and there was a risk of interrupting customer services and causing untold damage to AT&T’s expensive communications facility. But because access to 641A was lim- ited to only a few AT&T employees— who did not necessarily work at or near the Folsom Street facility— it took days before a cleared technician arrived to enter the secure room and repair the faulty air conditioner. With the attendant inconvenience, risk, and expense of such a secretive endeavor, why was the NSA so interested in the AT&T Folsom Street fa- cility? The answer can easily be seen in the facility’s function as a choke point through which vast amounts of communications information was forced to flow at scales unimaginable until it was discovered that light could be harnessed to transmit information over ultrathin strands of glass. Copper wire had long been the favorite medium of telecommunica- tions companies for transmitting electric signals. Due to its high electri-