Warrantless wiretaps and your EZ Pass.

ON DECEMBER 16, 2005, the New York Times revealed that, in an attempt to combat terrorism, the National Security Agency had been conducting warrantless phone-taps on people in the United States who were calling people outside of the country. The taps were blessed by an executive order from President George W. Bush. Less than two weeks after 9/11 a White House attorney named John Woo, who also worked on the now-infamous torture memos, worked out a defense of the NSA taps and a tidy memo indicating that the president could rely on his constitutional powers (Article 2). The argument was, roughly, that Congress has no power to legislate in a way that interferes with the president's commander-in-chief power. He also argues that the joint resolution passed by Congress after 9/11 that led to the war in Iraq grants the president the power to order this type of surveillance--sometimes called the Authorization to Use Military Force, or AUMF. The relevant part of the resolution grants the president authority to:

      use all necessary and appropriate force against
   those nations, organizations, or persons he determines
   planned, authorized, committed, or aided
   the terrorist attacks that occurred on September
   11. 2001, or harbored such organizations or persons,
   in order to prevent any future acts of international
   terrorism against the United States by such
   nations, organizations, or persons.

This implies that the president, any president, is given wartime powers during the "War on Terror" The fact that this is a war without fronts, an opposing army or maybe even a "victory" leaves the president a lot of wiggle room for defining war and how long that war lasts. In short, we can be at war from 9/11/2001 onward in perpetuity. Every president from George Washington onward can be a "wartime" president and enjoy all of the special presidential wartime powers.

This new mentality of government surveillance should impact how we feel about the proposed changes to our passports and drivers licenses. The inclusion of RFID (radio frequency identification) Tags on both of these ID documents means that the government can use passports and drivers licenses, as the General Accounting Office (GAO) describes it, for "tracking an individual's movements; profiling an individual's habits, tastes, or predilections."

Radio frequency tags are the same as those used by EZ Pass to allow you to pass more efficiently through toll booths on the highway. They will be used on all new passports beginning in October 2006 and are being proposed for drivers licenses under the Real ID Act (H.R.418) submitted on January 26, 2005, and now in committee in the Senate. A major concern with the use of RFID in these applications is that, unlike a barcode, an RFID tag can be read constantly and through clothing. So the tag needs to have a very short reading range, be encrypted (password protected or locked and stored in a coded state, only readable with the right password or key to unlock it), and be stored in aluminum to guarantee that a tag can't be read without the owner's knowledge. Another concern is that when opening your passport to show to proper authorities an eavesdropper can "listen in" to the transaction.

As if this weren't enough to be concerned about, the Electronic Privacy Information Center (EPIC) recently obtained documents that show that "contactless" RFID passports actually obstruct the inspection process. During testing of RFID tags by the Department of Homeland Security (DHS) it was discovered that:

      Most units required knowledge of where chip was
   in order to perform accurate read, required substantial
   manipulation of the passport.... Footprint
   of the units interferes with inspector operations.... Some
   readers required the inspector to hold the
   passport firmly against the unit in order to perform
   the read. This means the inspector is not able to
   perform other parts of the inspection [Emphasis in
   original.)

These are only some of the problems discovered so far, and the tests being performed on RFID don't begin to address the privacy rights of the passport holder. And where the DHS did test for eavesdropping and other privacy invasions, various chips performed at different levels except for one indicator and they all appear susceptible to jamming from outside electronic signals. This latter issue presents a grave problem: imagine an entire airport or series of airports brought to a standstill as customs officials are hindered by the jamming of passport RFIDs.

The inclusion of such tags in drivers' licenses would allow a surveillance-happy government greater opportunity to track its citizens without either the individuals or the general public being aware. Most people who drive the highways don't really think about how their EZ Pass logs their location at a certain day and time but that information has been used to track unfaithful spouses, missing persons, and criminal suspects. Installed on passports and licenses carried by a person, RFID would enable the government to track who attends protests, rallies, and marches by clandestinely scanning participants. Will organizers of such events now have jamming devices to protect participants' right to assemble?

The Bush team is ushering in a new era of surveillance in the name of fighting the War on Terror. What is particularly disturbing about this is lawyers examining the defenses put forth by the president can see that it isn't as farfetched as it first sounds. (I found The Volokh Conspiracy (volokh. com/posts/1135029722.shtml) by Orin Kerr of the George Washington Law School and from the right New Sisyphus (newsisyphus.blogspot.com/2005/12/powers-of-presidentspying-and-civil.html) by an Oregon lawyer and former foreign service officer to be easy-to-read explanations of the legalities. Kerr is liberal and Sisyphus more conservative.) Bush's wiretaps are likely illegal and certainly less than ethical, as even U.S. Attorney General Alberto Gonzales admitted at a December 19, 2005, press briefing:

     We've had discussions with members of Congress,
   certain members of Congress, about whether
   or not we could get an amendment to FISA [the
   Foreign Intelligence Surveillance Act], and we
   were advised that that was not likely to be--that
   was not something we could likely get, certainly
   not without jeopardizing the existence of the program,
   and therefore, killing the program. And-- ... so
   a decision was made that, because we felt that
   the authorities were there, that we should continue
   moving forward with this program.

When the Bush team found that it couldn't go through legal channels and engage Congress in the process, it took the low road, so to speak. FISA set procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power. A request to a FISA court is almost always granted, although you do have to have some evidence. It may not immediately imply an illegal action by the Bush White House that it was trying to circumvent FISA, but I believe it shows a willingness by the administration to commit an unethical act to serve its own interests.

Still, the legality of the president's actions can possibly be justified by the U.S. legal system--even by seemingly rational people. The amount of power that could end up in the executive office if Bush finds a way to pull this off is a terrifying prospect, as it would completely dismantle our government's system of checks and balances and place an awe-inspiring amount of power in the hands of a single individual. Right now that individual is George W. Bush, which is bad enough, but who could be next?

Lisa Smith is the IT/Office Manager for the American Humanist Association.