of the American Society for Information Science and Technology          Vol. 28, No. 5         June / July 2002

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Updates in the War Against Terrorism

by Lee S. Strickland

Lee Strickland, a prominent career attorney with the U.S. Government on detail to the University of Maryland College of Information Studies, comments on breaking developments related to Part IV of his series "Information and the War on Terrorism," which appeared in the April/May 2002 issue of the Bulletin. He can be reached by e-mail at Lee.Karen.Strickland@worldnet.att.net

I. Civil Liberties vs. Security in the War Against Terrorism

Part IV of our series (Bulletin, April/May 2002) on Information and the War Against Terrorism considered new security-related practices, including the use of biometrics, in government and business as security competes with civil liberties. Of course, the use of technology to enhance security has many independent drivers, including routine crime prevention. But many of these new processes have triggered extensive political and legal complaints based on a perceived improper invasion of civil liberties including the right of privacy and a more nebulous right of anonymity. Indeed, it appears that the more technology is utilized to verify identity, as with biometrics, the more vociferous the complaints.

On February 28, 2002, the Maryland Court of Special Appeals in Messing v. Bank of America, 2002 Md. App. LEXIS 40, became the first court to decide the issue of mandatory collection of biometric identification in the context of commercial transactions. Here a non-bank customer was required to provide a thumbprint before a check that he proffered would be cashed in accordance with "reasonable identification" requirements set forth in federal banking regulations and state commercial transactions law. The court found a thumbprint reasonable for multiple reasons. First, a thumbprint is specified as one of a number of means of signature and authentication in the Maryland Uniform Commercial Code (UCC). Second, a thumbprint is not unreasonably inconvenient, and the inkless method used here was even less intrusive than traditional fingerprinting, which has been repeatedly upheld as an "unobtrusive" form of identification. Third, it is reasonable and necessary, given the prevalence of bank fraud today; and fourth, the fact that a thumbprint does not permit immediate identification but only assists in remedial prosecution is irrelevant since both functions are valid purposes of a "reasonable identification" requirement.

Although this is the first known case to involve mandatory commercial use of biometric data, other cases have approved use in a number of other non-criminal situations. In Perkey v. Department of Motor Vehicles, 42 Cal. 3d 185 (1986), the California Supreme Court upheld a state law requiring an individual to provide a fingerprint as a condition for obtaining a drivers license. In Thom v. New York Stock Exchange, 306 F. Supp. 1002 (1970), the U.S. District Court for the Southern District of New York upheld a state law requiring employees in the securities industry to provide fingerprints. This decision was upheld on appeal and the Supreme Court denied review. In People v. Stuller, 10 Cal. App. 3d 582 (1970), a California appellate case upheld a municipal ordinance requiring bartenders to submit fingerprints to the local police department. And in Brown v. Brannon, 399 F. Supp. 133 (1975), the U.S. District Court for the Middle District of North Carolina similarly upheld a municipal ordinance requiring fingerprinting of applicants for business license. That decision was also affirmed on appeal.

These cases suggest that far from being a revolutionary concept, the use of new forms of biometric identification will be approved by the courts provided that the collection is reasonable in terms of scope and necessity and that the intended biometric has the necessary indicia of reliability. I suggest that the bottom line on biometrics vis--vis the rights of privacy and anonymity is threefold:

    • First, with respect to government collection and privacy, the 4th Amendment protects reasonable expectations of privacy, and there is no such expectation for public acts whether a stroll in the park, a drive down the street, or a visit to store or government office. And, if there is no reasonable expectation of privacy, there is little question as to use of technology.
    • Second, with respect to government collection and anonymity, an issue that arises today in the context of public act but subjective desire to be anonymous defined as "being unknown or unacknowledged" there is relatively little case law, some in the context of anonymous campaign literature (e.g., McIntyre, 514 U.S. 334 (1995)) and some in the context of the right of police to ask for identification on the street but only in circumstances involving reasonable suspicion (e.g., Hensley, 469 U.S. 221 (1985)). I believe that civil liberties advocates have not clearly cast their concerns as anonymity but have argued for privacy where there is none. Indeed, I believe that the scope of the right of anonymity has yet to be determined. If a police officer cannot demand to inspect my identification absent reasonable suspicion, should the officer be permitted to use technology to accomplish the same end?
    • And third, with respect to use by commercial enterprises, the Constitution has no direct relevance (unless there were discrimination on legally-proscribed grounds), and the matter is one of contract or unreasonable acts of intrusion under state tort law or commercial law.

Biometrics, in my judgment, is the fascinating growth industry to watch.

II. Terrorist Plotting or Privileged Information? The Secret Conspiracy of the Blind Sheik and his Radical Defense Attorney

Information especially the attempted clandestine communication and the U.S. efforts to intercept remains central to the war on terrorism as demonstrated by recent developments. And these events similarly confirm the continued danger posed by terrorists, even those convicted and held in federal prison.

Background: In our previous examination of civil liberties in the age of terrorism, we noted that under established Constitutional law, communications between a person and his or her attorney are generally considered privileged. Indeed, this privilege extends even to communications between an inmate convicted of a felony and counsel, which are exempt from the usual monitoring of social phone calls to and visits at federal prisons.

This privilege, however, is not absolute, and in appropriate circumstances (e.g., where there is evidence that a lawyer and an inmate are engaged in a conspiracy to commit a crime) the government may seek a search warrant or an electronic intercept order from a judge based on a probable cause (or higher) standard. As the U.S. Supreme Court has noted, the attorney-client privilege necessarily protects the confidences of wrongdoers but ceases to apply when the communication concerns not prior, but rather future, wrongdoing. This rule, known as the crime-fraud exception, does not require a completed new crime or even that the attorney be aware of the new crime; the critical issue is the client's knowledge and intentions to effect a future crime. See, generally, United States vs. Zolin, 491 U.S. 554 (1989); see also Special Prosecutor Starr's efforts to gain access to the conversations between Monica Lewinsky and her first attorney if Lewinsky went to him for the purpose of filing a false affidavit or structuring her testimony to hide the truth, then the crime-fraud exception would apply based solely on her intentions.

The practical problem, as may be evident, is that it is difficult to get such evidence without a priori monitoring inmate-attorney conversations or having a talkative defendant/inmate. Thus, in light of the terrorism threat, this authority was substantially broadened on October 31, 2001, when Attorney General (AG) Ashcroft issued his controversial order to allow such monitoring without a court order whenever he certifies "that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism."

Breaking developments: We now have the first such certification as well as criminal indictments of a defense attorney and others charging new terrorism-related offenses and based on evidence acquired through court-ordered surveillance of Sheik Omar Abdel Rahman, his attorney Lynne Stewart and several additional co-conspirators; see, Indictment 02 CRIM 395 (S.D.N.Y., 9 April 2002).

    • Rahman, often referred to as the "blind Sheik," is serving a life prison sentence for seditious conspiracy involving plans to assassinate Egyptian President Mubarak and blow up five New York City landmarks in the 1990s, including the 1993 bombing of the WTC garage (See, United States v. Rahman, et al., 189 F.3d 88 (1999)).
    • Stewart is known as a radical lawyer whose other clients have been Weather Underground radicals, attempted murderers and murderers of police officers, including a New Jersey state trooper, and organized crime killer/turncoat Sammy "Bull" Gravano. Her charges under the indictment include not only providing material support to terrorist organizations but also making false statements to and defrauding the United States; penalties for these offenses range up to 40 years.

Here is the story. After Rahman's conviction, special administrative measures (SAMs) were imposed to restrict his access to the mail, media, telephone, visitors and other inmates based on his continued communications with his terrorist followers. Rahman's attorneys were required to sign a statement confirming their understanding of and adherence to the terms of the SAMs including their representation to communicate with Rahman only about legal matters and not to pass messages to any third party.

Nevertheless, it is alleged that the Sheik, in meetings believed privileged with his attorneys, passed on messages (specifically a fatwa) to his followers, the Egyptian terrorist organization Islamic Group, to continue the holy war against the American and Jewish people. In addition to the 1990s plotting in New York, that group has claimed responsibility for killing scores of tourists at an Egyptian historical site in an effort to force the release of the Sheik.

It appears from media reports that the government acquired external evidence that confirmed Rahman was in contact with his followers and, as a confirmed member of a foreign terrorist organization, there was a sufficient basis to seek a Foreign Intelligence Surveillance Act (FISA) warrant to monitor his prison conversations. As a result it became evident that attorney Stewart concealed terrorism-related conversations in Arabic between the Sheik and her translator by appearing to be engaged in English language, legally-oriented conversations. This evidence, in turn, was sufficient to open a criminal investigation and secure traditional criminal search warrants with judicial approval.

Legal analysis: Although other attorneys as well as the civil liberties community have immediately criticized the indictments for a chilling effect on the 6th Amendment rights of defendants, a more balanced consideration demonstrates that the surveillance and resulting indictment breaks no new ground. Stewart had signed an agreement not to pass any messages, and the messages in question clearly establish a new conspiracy to conduct future terrorist acts against America. In any number of other cases in the American justice system, ranging from organized crime to the medical industry, the crime-fraud exception has been applied in very similar circumstances to pierce the veil of attorney-client secrecy and permit the prosecution of new crimes.

 Stewart has pleaded "emphatically not guilty" to all charges and has been released on bond. Rahman, of course, remains in federal prison and will now be subject to Attorney General-mandated monitoring of all communications.

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