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The New FISA Law -- and the Misleading Media Coverage Of It:
I've been studying the new FISA legislation, as well as the press coverage of it, and so far I've found a major disconnect between the two. The MSM is presenting the new legislation as a major expansion of government surveillance powers. Here is how the Eric Lichtblau of the New York Times introduced the Senate's passage of the bill:
  The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.
  The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years.
  But is that true? The new law is very complicated, and I've only been studying it for a few hours. It's quite possible that I'm missing something important. But based on my first reading, the media coverage of the new law strikes me as quite inaccurate.

  As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.

  So the question is, why is the press coverage painting such a different picture? I think there's a reason, but it doesn't have very much to do with the new surveillance rules. In this post, I want to summarize how the new surveillance rules compare to those under the Protect America Act of 2007, and then I want to consider why the press is reporting the new law as it is.

  First, a bit of background. The legal rules for monitoring individuals outside the United States has become an important issue under FISA because many foreign Internet and telephone communications are now routed through the United States in the course of delivery. For example, a person in Pakistan who calls another person in Pakistan might have the call routed through New York. This creates an opportunity for monitoring of that communication from inside the network of the provider located in New York.

  The legal question is, what kinds of rules should govern monitoring directed at targets overseas from inside the United States? The original FISA of 1978 wasn't supposed to regulate surveillance of individuals outside the United States, but then back in those days you didn't have foreign to foreign calls routed through the U.S. So what happens when technology changes?

  The Protect America Act of 2007 required the Executive to submit plans for monitoring individuals overseas to the Foreign Intelligence Surveillance Court (FISC). The FISC would then determine whether the monitoring plans were “directed at a person reasonably believed to be located outside of the United States.” So long as it was not “clearly erroneous” that the proposals were “reasonably” so directed, the FISC had to approve the monitoring. The monitoring could occur for one year. See 50 U.S.C. §§ 1805B (2007). But the Protect America Act sunset after six months, requiring new legislation to be passed if Congress wished to authorize such surveillance in the future.

  At the broadest level, the new Act continues the basic approach of the Protect America Act while adding more judicial review in significant ways. As in the Protect America Act, the government submits monitoring plan to the FISC as to whether the monitoring plans were "directed at a person reasonably believed to be located outside of the United States." The FISC then reviews the plan to see whether it does so or not. At the same time, it looks to me like the new law has considerably more judicial review than the Protect America Act.

Related Posts (on one page):

  1. Assessing Surveillance Laws in An Era of Sunset Provisions:
  2. Strange Op-Ed By Chris Hedges:
  3. The New FISA Law -- and the Misleading Media Coverage Of It:
Originalism Is Useful (mail):

(Oh, and no need to make it seem like a "gotcha" if I missed something; I'm just trying to be accurate, not to score points, so I'm happy if you can help me be more accurare.)



Oh, snap!
7.11.2008 5:08am
Modus Ponens:

I tend to think that the most accurate way to frame looking at the new law is by reference to the Protect America Act negotiated just last year.

I tend to think that your libertarian readers and colleagues will tend to think that the most accurate way to frame looking at the new law is by reference to FISA as commonly interpreted before President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States without the court-approved warrants hitherto required for domestic spying.
7.11.2008 5:57am
Brendan (mail):
Orin, great post, very helpful. I remember that you once wrote a post on why you though telecom immunity was not such a big deal. Do you have any additional thoughts on that, or if not, could you link to that post?
7.11.2008 6:40am
Dittybopper:

Fifth, the new law brings under FISA for the first time the surveillance of U.S. citizens abroad. In the past, this was left to executive order: The government was trusted to comply with the Fourth Amendment and only monitor U.S. citizens abroad in ways that satisfied the Fourth Amendment (whatever that meant, as the rules are rather vague). The new law imposes a statutory warrant requirement for surveillance of U.S. persons abroad: the government must get a FISA Court order based on probable cause to believe the person is an agent of a foreign power located outside the United States. Sec. 704. The law also requires various types of Congressional oversight. See, e.g. Sec. 707.


Well, as someone who used to be in the signals intelligence business, and who had to interpret FISA in their daily work, it was my understanding back in the 1980's that FISA forbad the monitoring of US Persons regardless of their location, with just some very narrow exceptions (basically, training and indentification. That is what let us copy US hams while in training at Fort Devens).

Basically, a US Person is a US Person regardless of where they are located.
7.11.2008 7:28am
bill-tb (mail):
When you consider that on 9/11 the terrorist amongst us became very clear, and with the capture of US citizens on the battlefields, the need to update FISA is obvious to all except ... It tales only a finger to push the button, no brain needed.

Great post -- The Democrats and the drive by media have been lying for so long, they can't pull out. Most people can't see the irony, the Democrats who have been spreading the FISA lies with the help of their sycophants in the media, are the very same who made this FISA law update possible. Need I say Obambi is the best example of this.

Now if you would only expose the "standing scam" of all these meaningless environmental lawsuits and how that works to restrict America's energy supplies. I can't figure out when the Congress granted these gorups standing so they could sue and shut down America's energy supplies with the catch all lie - "protected lands".
7.11.2008 8:34am
cboldt (mail):
-- the bill also has a provision that for all intents and purposes ends up providing immunity in those lawsuits. To a lot of people, that resolution of the lawsuits has tremendous symbolic importance --
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The symbolism that I get from this section is that Congress is saying that it intends sections 1809 (criminal penalties for foreign intelligence surveillance outside of FISA) and 1810 (civil cause of action) to be powerless cruft.

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While Congress probably has the power to extinguish claims based on statutory infractions, it will be interesting to see whether or not Congress manages to extinguish claims of a constitutional infraction. I don't think any plaintiff can win in court, but I think that call is for the Court to make, not Congress.
7.11.2008 8:45am
Just Dropping By (mail):
But the press coverage seems to be comparing the new law to the law before the Protect America Act, when technological change had created an unexpected limit on the scope of government power that pretty much everyone agreed shouldn't be there.

I see you've been reading the John Birch Society's "Guide to Rhetoric": "Don't say 'some people believe,' say 'everybody knows.'"
7.11.2008 8:48am
Dittybopper:
I forgot to mention, though, that Orin's main point is absolutely correct: Coverage of FISA has been uniformly bad. Even the public debates in Congress show that most Senators and Representatives have little understanding of the topic they are debating.

I think the reason for this is because a full understanding of how FISA is applied in practice requires a security clearance and CI access, wherein lies the conundrum: How do you effectively publicly debate a law that effects the production of secret and top secret intelligence without revealing classified information?

If those debating the various aspects of FISA don't have access to how it is applied in practice, how can we trust the public debate process (in the press, on the web, or in open congressional session) since it is applied with incomplete and possibly incorrect information?

These are questions with no easy answers.
7.11.2008 9:01am
cboldt (mail):
-- I tend to think that the most accurate way to frame looking at the new law is by reference to the Protect America Act negotiated just last year. --

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I don't think the framing is any more or less accurate, depending on the frame of reference. A complete view takes stock of all three species of FISA law, as well as the numerous changes made between 1978 and passage of the PAA.

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Based on Senator Bond's July 8 description of H.R.6304, I think you may be missing some of the more interesting parts of the new law.

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... we [this is the administration, DNI McConnell, speaking through Senator Bond] agreed to replace our version of what we call a carve-out from the definition of electronic surveillance [the PAA excluded interception of international (US-foreign) communications targeting the foreign end from the legal definition of "electronic surveillance"] said that interception of any communication with their definition of a carve-out which they call construction. Operationally, there is no difference between the two approaches, but we think our approach is more forthright with the American people because we put our carve-out right up front instead of burying it several chapters later in title VII of FISA as they wanted to do. ...
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One consequence of their approach is that the same acquisition activities the Government uses to target non-U.S. persons overseas will trigger both the definition of electronic surveillance in title I of FISA and the construction provision in section 7. Essentially, we have agreed to build an unnecessary internal inconsistency in statute as a political compromise. I reluctantly agreed to do this because the DNI and the Attorney General assured us that going for the carve-out now would not create any operational problems for the intelligence community, but we should fix this in the future during less politically charged times.
7.11.2008 9:02am
cboldt (mail):
-- how can we trust the public debate process (in the press, on the web, or in open congressional session) since it is applied with incomplete and possibly incorrect information? --
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Hope and naivete.
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My observation has been that the quality of public debate is fairly uniform as to accuracy, completeness and conclusion, whether the subject is complicated, simple, transparent or opaque.
7.11.2008 9:08am
M. Lederman (mail):
Very helpful post, Orin. A few reactions here.
7.11.2008 9:12am
AntonK (mail):
"The MSM is presenting the new legislation as a major expansion of government surveillance powers. Here is how the Eric Lichtblau of the New York Times...."

After 8 years of this kind of coverage you still sound surprised, and without a hint of irony!
7.11.2008 9:30am
cboldt (mail):
-- The MSM is presenting the new legislation as a major expansion of government surveillance powers. --

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Heh. True that. It did the same sort of breathless reporting when it revealed the TSP. Some people thought the TSP activity was a major expansion of government surveillance powers, when in fact, the government had those powers (and more) all along.

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The government also has the power to conduct purely domestic warrantless surveillance, provided the surveillance is aimed at obtain foreign intelligence information. This power exists even though FISA sets up a pseudo-barrier.
7.11.2008 9:44am
cboldt (mail):
Thinking on a macro scale, there is a disconnect if the topics of scope of statutorily-permitted surveillance and retroactive immunity are phrased as 1) Congress reducing the scope of permitted surveillance, then 2) granting immunity for past surveillance that exceeded the older, broader law.
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I understand that phrasing the story like that is technically flawed, because the immunity related to FISA-1978, and the "contraction in power" (although Congress is powerless to intrude on an inherent power) refers to the PAA, but the combination of topics (immunity and change in statutory limits) hang together better when both refer to FISA-1978.
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There's a certain symmetry to viewing an increase in the scope of statutorily permitted surveillance, and coincidentally, stopping legal action based on the previous, more restrictive parameters.
7.11.2008 10:08am
Respondent:
I continue to maintain that judicial review which allows a one way right to appeal is utterly meaningless. If the right to appeal is only in the hands of the government, there is no conceptual diiference between the government getting three bites at the apple (allowing appeal to an appellate court, and then the Supreme Court), or an infinite number of bites. Since the government can quit at any stage, this system skews the results in favor of approving virtually every government request. I think it is a matter of common sense that any system of judicial review can only be found to be meaningful if it either offers no right to appeal, or gives both sides an equal chance to do so.
7.11.2008 10:26am
MarkField (mail):

What the press cares about is the question of retroactive immunity for the lawsuits challenging the Bush Administration's TSP program that the Times disclosed in 2005. That issue has taken on major symbolic resonance, and the bill also has a provision that for all intents and purposes ends up providing immunity in those lawsuits. To a lot of people, that resolution of the lawsuits has tremendous symbolic importance: To those hoping that the lawsuits would "punish" the Bush Administration for its very likely unlawful monitoring, getting rid of the lawsuits symbolically lets the Administration "get away with" the illegal monitoring.


I'm puzzled why you would put scare quotes around "punish" and "get away with". It seems to me that there are two pretty important principles here: the rule of law; and equal justice under the law. The immunity provisions violate both. They sweep under the rug past violations of the law, and they do so on behalf of the rich and powerful. That's not behavior we want from Congress, it's the very worst of Beltway corruption.
7.11.2008 10:52am
cboldt (mail):
-- I continue to maintain that judicial review which allows a one way right to appeal is utterly meaningless. --
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The jurisdiction of FISC is narrowly drawn to the granting of secret orders for surveillance, and there's no way for "the other party" to be involved. FISC is an ex parte operation.
7.11.2008 10:53am
Respondent:
cboldt,

I have little quarrel with FISA being an "ex parte" operation. My point is just that since there is only one side's interest getting represented, there is no legitimaacy in a system that allows for appeal. A system stacked in favor of one party by allowing that party to keep appealing till it gets the results it wants (with no provision for appeal representing the other side), makes the judicial check on inappropriate use of executive power virtually meaningless.
7.11.2008 11:03am
cboldt (mail):
-- makes the judicial check on inappropriate use of executive power virtually meaningless. --

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The judicial check happens if/when the surveillance is entered into a trial, in a different court.

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I agree with you, the judicial check in FISC is based on "trust" on the part of the public. The process is almost totally secret. But at the stage of getting a warrant, the target doesn't get a voice anyway. That problem isn't limited to FISA warrants, it also pertains in Title III warrants.
7.11.2008 11:12am
SATA_Interface:
So a fundamental question I have for the lawyers (am a simple pension analyst myself) - what's the point of getting a warrant in the first place? My understanding is that it provides a layer of oversight to keep law enforcement from kicking in any doors they want and harassing people in search of criminal activity during a slow work day. And that if you didn't get a warrant, you would be punished by not being able to use the evidence you obtained without the proper warrant.

So then how does FISA work with surveillance evidence. The whole "secrecy" angle is a little confusing to see how oversight would occur and possibly negate evidence in a case.
7.11.2008 11:52am
methodact:
Whoa. The apologetics-of-the-day in this post sound like from an amalgam of Alfred E. Neuman and Armstrong Williams.

When you reverse engineer this back to SAIC and the advent of the Total Information Awareness program the maths presage a different denouement.

It is no coincidence that upon passage of this bill in the Senate, AT&T felt sufficiently emboldened to enter into this.

Despite many legal characterizations of CP as terrorism, lots of ppl would be surprised that the one of domestic intelligence purposes of the FISA black hole, is also put to targeting those naughty images.

For those who may want to know, file-sharing is next in the crosshairs for the Total Surveillance apparatus, despite whatever de minimis red herring apologetics might be applied by highbrow hacks.
7.11.2008 11:53am
Cousin Dave (mail):
Mark Field, when you're willing to apply that same standard to everyone who participated in the Clinton-approved Echelon program, then we can talk. Until then, your post is just partisan hackery.

Orin, this is a pretty good writeup. I'm with Dittybopper in that I'm confused by the description of who the law does and doesn't authorize surveillence of. There seems to be some co-mingling of citizenship and physical locatin in the description. I've always been under the impression that US Persons enjoy Fourth Amendment protection (in regards to American government agencies) anywhere in the world that they happen to be. I've also been under the impression that foreign persons do not necessarily enjoy the full protection of the Fourth Amendment, even when they are physically in the U.S.

My main concern with the new law is that I don't see any description of anything that allows an expedited process for time-critical situations. It appears to me that the described process can take days in situations where the time avaialble to act is only minutes. That's been one of the biggest criticisms of the existing law, as something that has really hamstrung intelligence collection.
7.11.2008 11:57am
Cousin Dave (mail):
SATA: The primary purpose of the FISA program really isn't to collect evidence for criminal prosecution; it's to collect intel for military use. The reason the FISA courts are there is to prevent the process from being abused to collect information on US citizens that could be put to nefarious political or business use. Given that anything collected by the FISA process is unlikely to ever be used in a criminal prosecution anyway, the processes for things like maintaining proveable chain of custody for evidence really aren't there.

The check and balance in the process is that the FISA court itself is a function of the judicial branch. So it acts as a check on the executive branch. Admittedly, since the whole process is conducted in secret, the possibility of collusion exists. But no one has come up with a better answer. And there is still Congressional oversight, such as it is.
7.11.2008 12:12pm
MarkField (mail):

Mark Field, when you're willing to apply that same standard to everyone who participated in the Clinton-approved Echelon program, then we can talk. Until then, your post is just partisan hackery.


How silly of me to comment on the merits of the issue raised by this post, rather than every other act which might (or might not) have raised a similar issue some time in the past.

Unless you're prepared to denounce the Holocaust to my satisfaction, I trust we'll see no more posts from you. I'll let you know.
7.11.2008 12:33pm
LtScooby (mail):
I do have one question and that is the "Border Exception" to the warrant clause. One has a diminished expectation of privacy at the border and due to data mining (aka, Total Information Awareness)one's level may be piqued as to the contents of the electronic transmission without reeding it. Can the border exception to the Warrant Clause trump FISA? I recently wrote a paper but while working on the BAR I don;t have much time to comment. Here is the premise
If the communication crosses he border, can we listen to it with some suspission without a warrant? What if it is coming from a known "Bad Guy"?
What if one of the parties is a US Citizen?
What if the parties do not intend their communication to cross into or out of the US? i.e. NY --> NY routed through Canada or Pakistan --> Pakistan routed through the US?
If anyone has questions of comments, feel free to send them. I could always use the occasional distraction from the Bar.
7.11.2008 12:41pm
Gary McGath (www):
Could it just possibly be that when Congress votes to exempt lawbreakers from liability for their actions, it's somehow difficult to believe that they have protection of our liberties in mind?
7.11.2008 12:50pm
Scott Teresi (www):
Brendan,

Orin's post, where I think he says that granting immunity saves the courts from a costly battle against the telecom companies that they would lose anyway, is here. I can't speak to the validity of his argument, though.

Scott
7.11.2008 1:23pm
gab:
Here Orin, let me fix this one statement for you.


"To those hoping that the lawsuits would "punish" let the Bush Administration off the hook for its very likely unlawful monitoring breaking the law, getting rid of the lawsuits symbolically lets the Administration get away with the illegal monitoring."
7.11.2008 1:23pm
gab:
And while I'm at it, how does the following comport with the 4th Amendment?

The FISA Amendments Act permits the government to acquire the international communications of U.S. citizens and residents without requiring it to identify the people to be monitored; to specify the facilities, places, premises, or property to be surveilled; to comply with meaningful limitations on the retention and dissemination of acquired information; to obtain individualized warrants based on criminal or foreign intelligence probable cause; or even to make prior administrative determinations that the targets of government surveillance are foreign agents or connected in any way, however tenuously, to terrorism.
7.11.2008 1:33pm
Dittybopper:

I'm with Dittybopper in that I'm confused by the description of who the law does and doesn't authorize surveillence of.



I'm not confused.

While I haven't had the chance to read this modification of FISA (I *DO* have a real life), unless something has drastically changed the US Government will still need a get a FISA warrant to knowingly monitor a "US Person" regardless of their location.
7.11.2008 2:14pm
Dittybopper:
Damn.

sed 's/need a get/need to get/g'
7.11.2008 2:16pm
Oren:
How to expand Executive power, a primer:

(1) Find a reasonable policy that violates a law you don't like (e.g. one that constrains the executive).
(2) Implement this policy in secret violation of the law
(3) Wait until it leaks (it will)
(4) Congress will eventually be forced to amend the law because, after all, your policy was reasonable. In doing so, however, they have now ratified your decision in (2), thus setting the precedent of plenary Executive power to ignore inconvenient laws.

That's what's infuriating to me about this whole thing -- Bush's utter contempt for the rule of law is being forgiven simply because ignoring the law happened to be a good idea. Even if you support the changes to FISA, I think it's evident that the Executive should not ignore the laws simply because he judges them to be poorly written.
7.11.2008 2:57pm
Franklin:
Speaking very mechanically:


Second, the press seems to be taking as the baseline the pre-Protect America Act state of the law. The Protect America Act of 2007 had a sunset of 6 months: The idea was that Congress would have to renegotiate after the law elapsed. I tend to think that the most accurate way to frame looking at the new law is by reference to the Protect America Act negotiated just last year.


But why? The PAA rules are not in force. Absent this law, the original FISA rules, as amended several times since 1978, would be in force. Hence, that's the appropriate comparison, and the general discussion of "expansions" is perfectly warranted.

(And if it was just international communications routed through the US that were at issue, this all would have been done a year ago. There was virtually zero disagreement about that. That was the red herring, not the issue..)
7.11.2008 3:02pm
Dittybopper:

Even if you support the changes to FISA, I think it's evident that the Executive should not ignore the laws simply because he judges them to be poorly written.


Based upon my understanding of FISA, having actually used it instead of theorizing about it, I can't see what was actually illegal about the program in question. In accordance with FISA, to knowingly monitor a US Person a warrant was still needed.

The big question was, what if you don't *KNOW* the US terminus is a US Person? You've got two choices: Run and get a FISA warrant for *EVERY* US-Foreign communication link where the US side is using an anonymous method (like a prepaid cellphone, or an anonymous e-mail account), or monitor it until you can tell whether you need a warrant (because the US terminus is a US Person) or not.

This enhancement, as near as I can tell, wouldn't apply to things like calls from your cellphone, home phone, or e-mail where it is obvious or easy to check that the likely user is a US Person.

Nor would it apply to purely domestic communications.

So really I can't see where it would be illegal. Monitoring a US Person requires a FISA warrant, same as before. Just some of the marginal interpretations are being changed to account for technologies that weren't dreamed of when FISA was originally written.
7.11.2008 3:46pm
cboldt (mail):
-- The big question was, what if you don't *KNOW* the US terminus is a US Person? You've got two choices: Run and get a FISA warrant for *EVERY* US-Foreign communication link where the US side is using an anonymous method (like a prepaid cellphone, or an anonymous e-mail account), or monitor it until you can tell whether you need a warrant (because the US terminus is a US Person) or not. --
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FISA-1978 didn't distinguish on whether the US terminus was a US person vs a foreigner. The words in 1801(f) are "in the US," with 1801(f)(1) describing further the target being a US person.

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The warrantless regime of 1802 applied to a narrow set of targets (terrorist not among the listed warrantless targets), using a narrow set of communications means (communication means used exclusively by the foreign agents).

.

At any rate, the conclusion is that a warrant would be required (to comply with FISA), US person or not, unless the conditions of 1802 are met. The snooper didn't have to "wait and see if it was a US Person" and only then get a warrant. If one end is in the US, and 1802 isn't met, FISA-1978 said "get a warrant."
7.11.2008 4:16pm
Cousin Dave (mail):
cbolt writes: "The warrantless regime of 1802 applied to a narrow set of targets (terrorist not among the listed warrantless targets), using a narrow set of communications means (communication means used exclusively by the foreign agents). "

Well, that was easy back in 1978, when cross-border phone cables were low bandwidth, everything was circuit switched, and foreign-to-foreign conversations seldom passed through the U.S. But those days are gone. We don't have any more Soviet spies with secret unlicensed transmitters sending out five-letter groups in Morse. What we have now are enemy agents using the same communications systems used by the rest of the public, on packet- and frame-switched networks where their traffic is intermingled with other traffic. A literal reading of 1802, as you've described it, would have the effect of a total ban, since the one narrow exception it allows is so easily bypassed by the enemy now.

Was FISA-1978 intended to implement a total ban? Obviously not. That being the case, why should it be interpreted that way now.
7.11.2008 5:23pm
Bruce Hayden (mail) (www):
One big reason that the FISC is ex parte is that the targets of surveillance do not know that they are being surveilled. To this date, we still have no U.S. Persons within the U.S. who have shown or been able to prove that they were illegally surveilled. And this is as it should be. FISA was not designed for use in criminal prosecutions, and I am unaware of any criminal prosecutions of even non-U.S. Persons utilizing information gathered that should be covered by FISA. The current case law against NSA programs under FISA seems to be stalemated under the State Secret Doctrine - whether or not someone was surveilled by the NSA with or without a warrant is classified information.

I frankly like the amendment (no surprise to those who have followed this here at volokh.com). The emphasis is now on targeting, but the reverse targeting that Marty Lederman was so worried about has been prohibited. The problem with the original FISA was that when interception moved from 1501(f)(1) to (f)(2), targeting became irrelevant, as well as whether the person was here legally. So, if al Qaeda operatives swam across the Rio Grande and then called back to OBL in his cave in Pakistan, interception would have been illegal, absent a warrant (ignoring Article II issues).

So, when discussing the new amendment, keep this in mind, that the NSA cannot legally target people in the U.S. legally a warrant. That includes U.S. citizens and legal aliens. There are also added protections for U.S. Persons outside the U.S. (my view is that under the original FISA, a warrant would not be required if the interception were outside the U.S.)
7.11.2008 5:25pm
Cousin Dave (mail):
By the way, I see the partisan hacks are out in full force on this thread. Mark Field's lithe dismissal of the Echelon program, refusing to even consider it in this context, is an implied endorsement of selective prosecution based on party affiliation. I know a lot of Democrats would like very much to simply ban all opposition parties, but I don't usually see such bare-faced admissions of same.
7.11.2008 5:25pm
Bob from Ohio (mail):

makes the judicial check on inappropriate use of executive power virtually meaningless.


FISA is just a fiction that makes Congress feel like it is protecting civil liberties. FISA has never been a meaningful check on the executive. It won't be one now.

If a future president feels the need to eliminate the very minimal check and ignore FISA, he will. And get away with it. Congress does not want the responsibility, it just wants to fool the civil liberties crowd.


The judicial check happens if/when the surveillance is entered into a trial, in a different court.


The information from the surveillance is never used in a future court proceeding. Hence, no judicial check.
7.11.2008 5:30pm
cboldt (mail):
-- The information from the surveillance is never used in a future court proceeding. --
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I wouldn't say "never," but certainly in a minute fraction of the times a warrant is issued.
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I'm glad I'm not the only person who sees the statute as a "fool the gullible" statute. Statutes can't limit Article II power. If Congress thinks the executive is out of control, they have a different widget with which to curb the conduct.
7.11.2008 5:56pm
cboldt (mail):
I don't have case citations handy, but FISA has been challenged by criminal defendants, and FISA has withstood the attack every time.
7.11.2008 6:02pm
cboldt (mail):
Found a few case citations where FISA was probably an element of a criminal trial, from EFF FAQ on FISA:

United States v. Megahey, 553 F. Supp. 1180, 1189-90 (E.D.N.Y. 1982)
United States v. Duggan, 743 F.2d 59 (2d Cir. 1984).
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In the Megahey litigation, the district court found that the phrase "primary purpose" is the guidepost for FISA-derived surveillance, given that "Congress clearly viewed arrest and criminal prosecution as one of the possible outcomes of a foreign intelligence investigation." The Second Circuit agreed, noting that, it is foreseeable that collected intelligence may be used in a criminal proceeding and "Congress recognized that in many cases the concerns of government with respect for foreign intelligence will overlap with those with respect to law enforcement." See also United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) (holding that the fact that the terrorist activity was directed at Northern Ireland was of no consequence to the legality of the FISA surveillance); United States v. Pelton, 835 F.2d 1067, 1076

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See also Squillacote
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Very tangential nexus in US v Belfield, 692 F.2d 141 (DC Cir. 1982).
7.11.2008 6:31pm
byomtov (mail):
I'm puzzled why you would put scare quotes around "punish" and "get away with".

MarkField,

That's pretty naive. Orin is part of the Bush III (sorry, I meant McCain) "Justice Commitee," or something. He can't jeopardize that judgeship.
7.11.2008 9:09pm
David M. Nieporent (www):
I'm puzzled why you would put scare quotes around "punish" and "get away with".
Well, it's hard to see how suing a telecom company constitutes punishing the Bush administration.
7.11.2008 9:46pm
rfg:
The point behind telecom immunity (or non-immunity) was never to "punish" the Administration. It was to make telecoms less willing to accept the assurances by government officials that a particular activity is legal at face value, without independently verifying it.

Those who feel that goverment officials will never make mistakes (much less actually lie or mislead), will not be concerned by this.

Those who feel that government officials are human, and so can err, lie, cheat, and otherwise behave like people, will feel differently.
7.11.2008 10:09pm
Oren:
Well, it's hard to see how suing a telecom company constitutes punishing the Bush administration.
You aren't trying very hard. Cheney was very clear early in the presidency that it was his intent to improve the stature of the Executive branch, not just for this administration, but permanently. The half-baked theory that the President can just order programs in gross violation of the law is an integral part of that view. An unmistakable refutation of this views (e.g.) of executive power would put a big dent on the legacy that he is trying to leave.
7.11.2008 10:38pm
Oren:

A literal reading of 1802, as you've described it, would have the effect of a total ban, since the one narrow exception it allows is so easily bypassed by the enemy now.

Was FISA-1978 intended to implement a total ban? Obviously not. That being the case, why should it be interpreted that way now.

It was not intended to do so, but yet it did so. Hence the need for an amendment sometime around 2001.
7.11.2008 10:40pm
Joe Kowalski (mail):
What I don't get is that the Fisa rework could have been folded into the Patriot act, and most folks wouldn't have been the wiser. The need for changing fisa was well known at the time the Patriot act was dumped into Congress's lap, and it would have been rubber stamped in all the same way. A whole lot of wringing of hands about the legality of the administrations actions could have been avoided.
7.11.2008 11:02pm
bdeck22 (mail):
Why the apparent difference between the media coverage of the new surveillance rules and what seems to be in the law?

Because news services are for-profit enterprises and recognize that freaking people out is worth more than intelligent, insightful commentary supported by fact and logic.

Looking forward to the next article.
7.12.2008 12:04am
cboldt (mail):
-- What I don't get is that the Fisa rework could have been folded into the Patriot act, and most folks wouldn't have been the wiser. --
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The administration explained that it wanted to keep the public in the dark about the scope of surveillance, hence not folding it into the USA PATRIOT Act.
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In the same vein, the administration holds that public awareness of the TSP (publication of the NYT article in December 2005) is a national security threat.
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Conclude what you want to from that, but I conclude that the actual scope of secret surveillance exceeds what is recited in statutes and other public "comforting" pronouncements about being protective of privacy .
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Because public awareness of government surveillance activity creates a national security threat.
7.12.2008 7:49am
cboldt (mail):
Cousin Dave: -- A literal reading of 1802, as you've described it, would have the effect of a total ban, since the one narrow exception it allows is so easily bypassed by the enemy now. --
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Oh yeah. Embassy communication signals are ALWAYS mixed up with other traffic, even at the CO.
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Total ban, my ass.
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1802 is narrowly drawn, maybe too narrowly (it excludes terrorists, for example) - but it's not a total ban based on some magic new technology that causes all signals to immediately mix with public traffic. Not to say that embassy and foreign-spy traffic is NEVER mixed with other signals, but it isn't, as you imply, ALWAYS mixed.
7.12.2008 8:40am
cboldt (mail):
Cousin Dave: -- Mark Field's lithe dismissal of the Echelon program, refusing to even consider it in this context, is an implied endorsement of selective prosecution based on party affiliation. --

.

Do you think any of the activities conducted under ECHELON are a violation of US law? If so, which law? Meaning, which statute, or which provision of the US Constitution.
7.12.2008 8:49am
LtScooby (mail):
Here are a couple sites that will help in the discussion. Whether or not they help YOUR argument remains to be seen.

In re Sealed Case, 310 f.3d 717
*720 – Government must show that there is probable cause to believe that the target is an agent of a foreign power and must contain detailed information to support its contention that the target, who is a US Person, is adding, abetting, or conspiring in international terrorism

US v. Truong Dihn Hung, 629, f2d, 908 – targets must receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.
- Continues to discuss the difference between a "Criminal" warrant and an "Intelligence" warrant.

FISA is meant to take into account the differences between ordinary criminal investigations to gather evidence and foreign counterintelligence investigations to uncover and monitor clandestine activities.” Sarkissian, 841 F.2d at 965

I can not find the case in my notes but there is evidence that FISA searches have been conducted inappropriately. During discovery, the government turned over memos proving the plaintiff's case then asked for them back. The biggest problem with FISA and the courts is not that FISA works but that, due to national security, is unchallengeable. Here is the exchange.

Citizen: They have been spying on me.
Government: Prove it!
Citizen: Give me discovery.
Government: NO. All of that information is protected by national security.
Citizen: Then I can not prove anything.
Court: Case dismissed.

No review on the merits.

Any comments?
7.12.2008 9:33am
cboldt (mail):
-- The biggest problem with FISA and the courts is not that FISA works but that, due to national
security, is unchallengeable.
--

.

I don't know what precipitated the revelations under the Church Committee, but a significant number of participants thought that entire set of disclosures should never have been made public. The hearing transcripts show the anxiety.

.

I just read through the Sarkissian case (and thanks for the cites - I figured as long as I was looking, I may as well build a list of cases where FISA appeared into a criminal prosecution), and wondered what supported the request for a FISA warrant in the first place. No matter - if there isn't a need for a targeted warrant, then there isn't a need to have any particular suspicion in advance of the snoop.

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I wonder how the fruit of the "new" searches (generalized justification for snooping) will hold up in future cases.

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I also read somewhere that the primary use of FISA, for years (probably pre-9/11), was to disrupt the international drug trade. Those dudes are bad actors, even going so far as to blow up commercial aircraft to dispose of witnesses, informants, and/or enforcers. (Narco-terrorism: bombing of an Avianca commercial airliner in 1989) See News from DEA, Congressional Testimony, 05/20/03
7.12.2008 10:38am
cboldt (mail):
An interesting peek into the DOJ's FISA Operation: Justice Departments National Security Division Launches New Office of Intelligence - May 22, 2008
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Not directly pertinent to analysis of statutes, but the expansion of the number of attorneys working for the government on FISA-related matters was interesting. Manpower grew from 20 in the year 2000, to almost 100 as of the time the article was published.
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With the lowering of the "wall" between intelligence and law enforcement investigations, and the enhanced coordination between intelligence and law enforcement personnel, NSD has seen a steady increase in the number of requests to use information from FISA-authorized activities as evidence in criminal prosecutions of terrorists and spies. As a result, the NSD has created a separate Litigation Section to ensure sufficient resources are devoted to FISA-related litigation and to help prosecutors handle evidentiary and discovery issues in such matters.
7.12.2008 10:57am
cboldt (mail):
-- I can not find the case in my notes but there is evidence that FISA searches have been conducted inappropriately. During discovery, the government turned over memos proving the plaintiff's case then asked for them back. --
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I think you may be referring to al Haramain, tried in Oregon then shifted to the multi-district litigation under Judge Walker's care in the Northern District of California.

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There was an unintentional turnover of classified material in the Holy Land case, in Dallas, Texas. I don't recall FISA being part of that inadvertent turnover (6 boxes of material was provided, some of that was not meant to be produced to defense counsel), but it could have been.
7.12.2008 11:09am
AndrewM (mail) (www):
One important fact you almost never see mentioned in the recent news coverage of FISA is that the need for reform was precipitated by a secret court ruling in April 2007 that brought foreign-to-foreign communications passing through US-based equipment under the FISA regime. (To the best of my knowledge, the full details of this ruling still have not been made public).

This leads to this question for the legal experts: Does the FISA-applies-to-foreign-to-foreign-situations decision mean that, in the absence of immunity for the telecoms, anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on would have standing to sue?
7.12.2008 11:53am
cboldt (mail):
-- One important fact you almost never see mentioned in the recent news coverage of FISA is that the need for reform was precipitated by a secret court ruling in April 2007 that brought foreign-to-foreign communications passing through US-based equipment under the FISA regime. --
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I doubt that's a "fact." It's an administration claim, with no backing in statute or common sense. US Courts are utterly powerless as to foreign-foreign communications. To the extent there was a court objection, it was to something other than "we forbid getting that foreign-foreign stuff."

.

And that also fits the administration's description of TSP, which wasn't foreign-foreign, but was US-foreign, if acquired in the US. If a particular request for court order covered BOTH, US-foreign and foreign-foreign, and the court rejected that, it's literally true, but misleading as heck, to say "the court denied us access to foreign-foreign."

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-- anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on would have standing to sue? --

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Heh. NOBODY who engages in foreign-foreign communications has standing to sue in the US. There is no prohibition on the acquisition of foreign-foreign communications. Not in a statute, and not in the 4th amendment. They might have standing in a foreign court (using foreign privacy laws), but not in a US court.
7.12.2008 12:23pm
Oren:
US Courts are utterly powerless as to foreign-foreign communications.
Not if those communications are intercepted on US soil. Hence the fuss!
7.12.2008 4:49pm
cboldt (mail):
cboldt: US Courts are utterly powerless as to foreign-foreign communications.
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Oren -- Not if those communications are intercepted on US soil. Hence the fuss! --
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Show me the statute.
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1801(f) "electronic surveillance" does not encompass foreign-foreign communications, even when acquired in the US.
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(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States ...
7.12.2008 5:23pm
cboldt (mail):
The "trouble" with just foreign-to-foreign can be viewed without getting into the statutory or technical minutia.
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The government wants to conduct TSP, warrantless surveillance of communications with one side in US, one side outside of US, one party a suspected terrorist.
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But the government says that the trouble is loss of foreign-foreign (this is a great political point - swallowed hook line and sinker by the masses). Dumbass Democrats forget about the "one side in US" part of TSP needing to be accommodated by statute, and offer "foreign-foreign" without a warrant (as though it ever needed one, and as though a US Court is competent or cares to grant one in any event).
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Well, Duh - if the TSP is to be codified, then the code (statute) needs to say its okay to acquire international communications (one side in the US) without a warrant. Given the government a codified foreign-foreign (which can't be granted) does NOTHING toward codifying US-foreign acquisitions. Whatever adjustments were to be made to the statute, had to say it was statutorily permitted to acquire conversations with one end in the US (and w/o a warrant)
7.12.2008 5:32pm
cboldt (mail):
And just to expand in another direction, the government says it has ALWAYS been intercepting communications with one end in the US, w/o a warrant, when those signals traveled via satellite. It just needs a technical correction (permitting the acquisition of a signal on a piece of hardware instead of out of the air) so it can continue to do what it has always done, nice and tidy, permitted by statute.
7.12.2008 5:37pm
cboldt (mail):
cboldt: US Courts are utterly powerless as to foreign-foreign communications.
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Oren -- Not if those communications are intercepted on US soil. Hence the fuss! --
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Obtaining Court enforcement of some imagined right to not have foreign-foreign communications intercepted is problematic.
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Show me the standing that a foreigner has, if his communications are intercepted in the US.
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Assume my US-Canada communications are intercepted in Nigeria. Can a US court enforce an order against whoever in Nigeria intercepts those calls? As a foreigner to Nigeria, what rights to I have to keep my communications secret from them?
7.12.2008 6:43pm
Oren:
Show me the standing that a foreigner has, if his communications are intercepted in the US.
Irrespective of standing, such an interception would be in violation of FISA78, if I understand correctly (which is dubious, at best).

The foreigners might not have the right in question, but certainly Congress can put whatever restrictions on the sort of interception that can happen on US soil. IOW, it's not the foreigner's stature that is implicated, it's Congress'.

Assume my US-Canada communications are intercepted in Nigeria. Can a US court enforce an order against whoever in Nigeria intercepts those calls? As a foreigner to Nigeria, what rights to I have to keep my communications secret from them?
No, but the Nigerian legislature can certainly place whatever restrictions they want as to what activities can be carried out within their borders (consistent with their constitution, blah blah blah).
7.12.2008 7:28pm
cboldt (mail):
-- Irrespective of standing, such an interception would be in violation of FISA78, if I understand correctly --
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Show me the statute. You're the one saying it's against the law, so show me.
7.12.2008 7:38pm
cboldt (mail):
-- ... certainly Congress can put whatever restrictions on the sort of interception that can happen on US soil. IOW, it's not the foreigner's stature that is implicated, it's Congress'. --

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Congress can't impinge on Article II powers, and it can't declare, provide, or cause foreign courts to enforce the rights of foreigners located outside of the country.

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-- the Nigerian legislature can certainly place whatever restrictions they want as to what activities can be carried out within their borders (consistent with their constitution, blah blah blah). --

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But they have no power to declare, enforce, or inhibit your privacy rights as you sit in the US. Whether they run a government-intrusive surveillance or not is none of your concern.
7.12.2008 7:46pm
Oren:
Show me the statute. You're the one saying it's against the law, so show me.
I was careless, if the interception is done in a packet-switched environment where the NSA must first grab all the data and then sweep for the relevant phone number, information about US citizens will have been intercepted, triggering the warrant requirement. It is these programmatic, automated systems that are legalized by FISA08.

Congress can't impinge on Article II powers, and it can't declare, provide, or cause foreign courts to enforce the rights of foreigners located outside of the country.
There's nothing that leads me to believe that interception of communications during a time of peace is even remotely implicated in Art II to the extent that Congress cannot put any limitations on it. Furthermore, I've made no mention of the rights of foreigners, only the clearly established right of Congress to regulate an interstate communications network.

But they have no power to declare, enforce, or inhibit your privacy rights as you sit in the US. Whether they run a government-intrusive surveillance or not is none of your concern.
It's none of my concern, but if they want to make it their business, they can. They can regulate their communications network however they please, really.
7.12.2008 7:59pm
Oren:
"clearly established right of Congress to regulate an interstate communications network."

should read:

"clearly established right of Congress to regulate interception of data on an interstate communications network on US soil."
7.12.2008 8:04pm
cboldt (mail):
-- There's nothing that leads me to believe that interception of communications during a time of peace is even remotely implicated in Art II to the extent that Congress cannot put any limitations on it. Furthermore, I've made no mention of the rights of foreigners, only the clearly established right of Congress to regulate an interstate communications network. --
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"Time of peace" is irrelevant. Foreign intelligence is the province of the executive in time of peace, as much as in time of war. Congress has no role in limiting the executive in obtaining foreign intelligence information that is occurring between foreigners in foreign lands.

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While Congress is free to regulate an interstate communications network, that right and power does not extend in a way that can limit the executive's power to obtain the communications of foreign people in foreign lands, even if those communications pass through the US.

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I say "US Courts are utterly powerless as to foreign-foreign communications." and so far, this is what you've shown:

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-- if the interception is done in a packet-switched environment where the NSA must first grab all the data and then sweep for the relevant phone number, information about US citizens will have been intercepted, triggering the warrant requirement. It is these programmatic, automated systems that are legalized by FISA08. --

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Obtaining information on a US person (citizen or not, located in the US will do for now) is inevitable. That's what "minimization" is for.

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But it's all BS anyway, because the government wants to be able to acquire US-foreign communications w/o a warrant. The government throws out the canard of "a court says it's illegal to take foreign-foreign" and the lackeys start to spin tales to support the canard.

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The point of FISA08 is to codify the warrantless acquisition of US-foreign communication, not to codify the acquisition of foreign-foreign (which is outside of the FISC competency/jurisdiction)
7.12.2008 8:20pm
cboldt (mail):
-- It's none of my concern, but if they want to make it their business, they can. They can regulate their communications network however they please, really. --
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The perspective of "turning the situation around" and putting a hypothetical restriction on a foreign country's acquisition of foreign-foreign (to it) seems to have gone right over your head.

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Our Congress could pass a law too, "It shall be illegal for the Chinese government to intercept communications between Taiwan and North Korea." But aggrieved Chinese folks have no recourse to US courts for a violation of such a nonsense law.

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Our Congress couldn't pass a law that says "It shall be illegal for the president to intercept communications between China and Taiwan." That won't fly, for reasons that ought to be obvious, regardless of the route those communications take. No Americans were affected by the conduct of this activity.

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The government gets some US-foreign stuff while it's snooping? Erase the tape and burn the paper. Problem "minimized."

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I'm beating a dead horse - my point in this exchange is simply that "the law forbids foreign-foreign" is an incredible claim. I can't keep you from believing it, any more than I can keep you from believing in the Easter Bunny or UFO's.
7.12.2008 8:41pm
cboldt (mail):
-- Erase the tape and burn the paper. --
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And erase my name, phone, IP, etc. from the "contact log." No traces of the contact/acquisition to be useful. If so, I really don't care what the government "overheard."
7.12.2008 8:49pm
Oren:
Our Congress couldn't pass a law that says "It shall be illegal for the president to intercept communications between China and Taiwan." That won't fly, for reasons that ought to be obvious, regardless of the route those communications take. No Americans were affected by the conduct of this activity.

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While Congress is free to regulate an interstate communications network, that right and power does not extend in a way that can limit the executive's power to obtain the communications of foreign people in foreign lands, even if those communications pass through the US.
Do you have any support for this sweeping assertion of unchecked executive power? There is no requirement in the Constitution that Americans be affected in order to Congress to have authority to take action nor is there any general exception to Congress' power with respect to foreigners. All told, you appear to have invented a Constitutional doctrine out of thin air.

Back in this reality, Congress has the power to regulate interception on any domestic interstate communication network however it sees fit, up to and including a total ban on any interception whatsoever.
7.12.2008 9:21pm
Oren:
The government gets some US-foreign stuff while it's snooping? Erase the tape and burn the paper. Problem "minimized."
Except that the minimization procedures only apply in the context of FISC warrants, which we didn't have to get. We could try to get a retroactive warrant, but that might be difficult since, by stipulation there is no probable cause to believe anything bad about the US target.
7.12.2008 9:24pm
cboldt (mail):
-- Except that the minimization procedures only apply in the context of FISC warrants --
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That's false. Have you read the law?
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50 USC 1802 Warrantless
Certification by Attorney General, transmitted to FISC and held under seal
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h)
7.12.2008 9:40pm
Oren:
Mea culpa, I got the sections confused.
7.12.2008 9:46pm
cboldt (mail):
-- All told, you appear to have invented a Constitutional doctrine out of thin air. --

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That Congress doesn't have the power to make laws that apply to foreigners in foreign lands and under the jurisdiction of foreign courts? Some thin air. If the president wants to send a spy to the Croatian Embassy in Lithuania, or in the US, he can. I won't argue the wisdom of poking around in foreign lands, but the Constitution gives that action to the president, until it comes to purse strings and war.

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-- Back in this reality, Congress has the power to regulate interception on any domestic interstate communication network however it sees fit, up to and including a total ban on any interception whatsoever --

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Now that's just extreme. Congress can't regulate away "reasonable searches and seizures" and it can't regulate away the executive's power to conduct foreign intelligence inquiry.
7.12.2008 9:53pm
cboldt (mail):
-- Do you have any support for this sweeping assertion of unchecked executive power? --
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Closest I can come to is US v bin Laden, but that's a US citizen in Kenya, snooped and tossed w/o a warrant. No suppression of evidence.
7.12.2008 10:05pm
LtScooby (mail):
Just to help see the cites.
I hate it when people make assertions without factual backings. I see my friends cursing "academics" at so called "Eleat" law schools who believe they don't have to because they are "Smart" and the students have to back them up. So here ya'll go:

Transcript of Record at Day 30, line 10-20, U.S. v. Usama bin Laden, 397 F.Supp.2d 465 (2005). (Available at http://cryptome. org/usa-v-ubl-30.htm).

Viet D. Dinh &Wendy J. Keefer, FISA AND THE PATRIOT ACT, A LOOK BACK AND A LOOK FORWARD, 35 Geo. LJ Ann Rev Crim Proc iii, June 2006.

Terrorist Surveillance Program is no longer in existence and was deemed to be unconstitutional as executed. American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007).

Except in emergency situations, FISA requires the Government to obtain an order from the FISA court before engaging in electronic surveillance to collect foreign intelligence information where a party is within the U.S. or is a U.S. person.

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence, an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power. See 50 U.S.C. §§ 1801(i) (2000); 50 U.S.C. §§ 1804(a) (2000); §§1805(f) (2000); §§1823(a) (2000); §§1824(e) (2000).

Helpfull Cases
U.S. v. Mubayyid, 521 F. Supp. 2d 125, 131 (D.Mass. 2007);
U.S. v. Ning Wen, 477 F.3d 896, 898 (2007).
Stacey v. Emery, 97 U.S. 642, 645 (1878).
In re Sealed Case, 310 F.3d 717 (FISCR 2002). <-- Only FISCR case - EVER (that we know of)
Mayfield v. U.S., 504 F.Supp.2d 1023, 1040-41 (D.Ore. 2007). (Thanks for the reference before. Here is the cite)

4th does not apply if everyone is outside the US Martinez-Aguero v. Gonzalez, 459 F.3d 618, 622-623 (5th Cir. 2006).

PS I am unemployed after the bar if anyone is hiring:)
7.13.2008 11:40am
AndrewM (mail) (www):
Our Congress couldn't pass a law that says "It shall be illegal for the president to intercept communications between China and Taiwan." That won't fly, for reasons that ought to be obvious, regardless of the route those communications take. No Americans were affected by the conduct of this activity.
I don't this this statement is true; it's like saying Congress can't pass a law making it illegal for an American to rob a Chinese citizen flying to Europe who's laid over at an American airport, because "no Americans were affected by the conduct of this activity".

The question is, how far are the courts going to go in saying that electronic communications passing through the United States are "activity" that occurs within the United States. Published media accounts say the court went very far down this road in the April 2007 ruling. No one that I know of with access to the ruling, including the members of Congress with the requisite access, has disputed this.

But for the sake of moving the argument forward, I'll rephrase my original question: If the FISA court ruled in April 2007 that their jurisdiction included foreign-to-foreign communications passing through US based equipment, does this mean that, in the absence of immunity for the telecoms, anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on, would have standing to sue?
7.13.2008 11:41am
cboldt (mail):
-- If the FISA court ruled in April 2007 that their jurisdiction included foreign-to-foreign communications passing through US based equipment, does this mean that, in the absence of immunity for the telecoms, anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on, would have standing to sue? --
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I think the premise is bogus, but even if it wasn't, the foreigners have no recourse in a US Court, even if they can PROVE their communications were intercepted by the US government. Such an interception does not violate FISA-1978, FISA-2007, or FISA-2008; and foreigners do not enjoy the protections of the 4th amendment, even if the interception has no basis in suspicion.
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FISC jurisdiction is limited to the granting of surveillance warrants. If it is asked to provide a warrant for foreign-foreign interception, and denies the request (FISA has no provision for issuing foreign-foreign warrants), the affected party is the US snooper. The US did not appeal the ruling in April 2007. Press reports are pretty much in accord with the sentiment, "they didn't appeal because they thought they would lose."
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As to your standing question for a party other than the US government, a foreign party would have to sue in a federal District Court on some basis. I don't see one.
7.13.2008 12:50pm
cboldt (mail):
-- and foreigners do not enjoy the protections of the 4th amendment, even if the interception has no basis in suspicion. --
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Make that "foreigners in foreign lands," to be in accord with the hypothetical.
7.13.2008 12:52pm
cboldt (mail):
-- (FISA has no provision for issuing foreign-foreign warrants), the affected party is the US snooper. The US did not appeal the ruling in April 2007. Press reports are pretty much in accord with the sentiment, "they didn't appeal because they thought they would lose." --

.

There's an historical precedent for a snooper going to FISC to get a warrant, and FISC saying "your request is outside of our statutory power." That was President Clinton's request for a warrant to enter Aldrich Ames' home for searching and other surveillance purposes.

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President Clinton's reaction wasn't to skip the search, it was to conduct it anyway as a legitimate exercise of Article II power to obtain foreign intelligence information. He plenty of reason to suspect Ames was a foreign agent, and that a search could yield foreign intelligence information.

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In the instant TSP case, I don't believe the FISC rejection of April 2007 was based on "a request (or Court demand) for a foreign-foreign warrant." There is no provision in FISA to grant a foreign-foreign warrant. I believe the April 2007 rejection was based on 1802(f)(2), minimization, or some other aspect of FISA that touches on the acquisition of communications of a US person who has a reasonable expectation of privacy against the US government; and it was THIS case that the government was not confident it would win on appeal.
7.13.2008 1:46pm
Asp (mail) (www):
Orin Kerr: for whatever it's worth, Dianne Feinstein, ticking off six ways in which the new bill strengthens oversight, reinforced the point you tagged as 'most important' and on which you expressed some uncertainty. Russ Feingold, on the other hand, claimed that two of the strengths you cited are basically illusory.

First, the Feinstein reinforcement. You wrote:

Third, and perhaps most importantly, it looks to me that the statutory review by the FISC is now de novo rather than under a clearly erroneous standard: the court assesses de novo whether the protocols are reasonably designed to be limited to those outside the U.S. and that the minimization procedures satisfy the statutory standards. Sec. 702(i)(2)-(3)

The autonomy suggested by a "de novo" review seems in sync with a "reasonability" standard of review cited by Feinstein:

This bill strengthens court review. Under the Protect America Act, the Government submitted to the FISA Court its determination that procedures were in place to ensure that only people outside the United States would be targeted. The court could only reject an application for a warrant if it found that determination to be ``clearly erroneous.’’ This bill returns to the traditional FISA standard, empowering the court to decide whether the Government’s determination is ``reasonable.’’ This is a higher standard of review, so the court review under this bill is meaningful.

Next, Feingold. He suggests FISC's authority to enforce the ban against reverse targeting is toothless:

[The bill] prohibits intentionally targeting a person outside the U.S. without an individualized court order if, quote, “the purpose” is to target someone reasonably believed to be in the U.S. At best, this prevents the government from targeting a person overseas as a complete pretext for getting information on someone in the U.S. But this language would permit intentional and possibly unconstitutional warrantless surveillance of an American so long as the government has any interest, no matter how small, in the person overseas with whom the American is communicating. The bill does not include language that had the support of the House and the vast majority of the Senate’s Democratic caucus, to require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S. The administration’s refusal to accept that reasonable restriction on its power is telling.

Feingold also pooh-poohs the Court's ability to enforce minimization:

Fourth, this bill doesn’t protect the privacy of Americans whose communications will be collected in vast new quantities. The Administration’s mantra has been: “don’t worry, we have minimization procedures.” But, Mr. President, minimization procedures are nothing more than unchecked executive branch decisions about what information on Americans constitutes “foreign intelligence.”


Now, minimization is defined quite precisely in the 1978 FISA bill, and the new law returns to that standard. Among other things, minimization mandates "procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance" (that last clause does sound like a big loophole). According to Feinstein, this procedure is generally followed: "In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person’s name is not included in the report. That is the minimization process."

To me, the question is: does the FISC's 'de novo' authority to review minimization (and targeting) procedures provide a real basis for enforcing the law's nominal targeting and minimization requirements? Would the description of targeting and minimization procedures provided in a warrant request have enough specificity to make genuine assessment possible?

Also, how is compliance with the outlined procedures monitored? If I understand the law right, it's monitored through the reports of the inspectors general for each of the intelligence agencies as well by annual reports from the head of each agency and by the attorney general; their reports will be reviewed by FISC and by the intelligence and judiciary committees in Congress. Now, that's self-monitoring -- the executive branch reporting on its own performance. On the plus side, it's a lot of self-monitoring, with detailed requirements for what's to be reported. The fact that multiple agencies are turning in regular reports increases the likelihood that at least one will flag meaningful abuses. And it's hard to see how else the FISC and Congress could monitor compliance, other than through data supplied by the agencies doing the work.
7.13.2008 9:44pm
cboldt (mail):
-- Now, minimization is defined quite precisely in the 1978 FISA bill, and the new law returns to that standard. Among other things, minimization mandates "procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance" (that last clause does sound like a big loophole). --

In the below comments, I am talking about the warrantless acquisition of international calls to which a person in the US is a party. FISA-1978 required a warrant for this, neither PAA nor FISA-2008 requires a warrant for this.
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PAA and FISA-2008 are equivalent in their requirements for those warrantless acquisitions: "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." FISA-2008 recites or clarifies what the government said was implied by PAA - no reverse targeting, no intentional acquisition of domestic-domestic communications.
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PAA had a court apply "clearly erroneous" to a narrow inquiry, that the procedures to establish surveillance would result in acquisition of communications of a person reasonably believed to be located outside of the United States. I think this is an easy element to show to a much higher standard, and that claiming some "tightening" by moving from "clearly erroneous" to "clear and convincing" is misleading. The change in standard of review wouldn't make any substantive difference. Using a track metaphor, shifting the 100 yard dash qualifying point from 2 minutes to 30 seconds doesn't change the fact that all the contestants will qualify for the big race.
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All three versions of the law, FISA-1978, PAA, and FISA-2008, refer to and require the DOJ/DNI to apply exactly the same minimization - 1801(h). But FISA-2008 also permits minimization to 301(4), which I haven't scoped out yet.
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Under the PAA, the "minimization" protocol was opaque to FISC unless a communications provider challenged a snoop directive. I'm trying to figure out whether or not FISA-2008 has a way to skirt the "assess whether such procedures meet the definition of minimization procedures" court review, but I think there is no avoiding submitting to that.
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Under FISA-1978, the court review of minimization is also "meet the definition of minimization procedures [per 1801(h)]."
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I agree with you that minimization, as defined, is a big loophole. It doesn't prevent snooping, it prevents disclosure or dissemination. It's some sort of barrier to retention, but under that barrier, the government is permitted to retain "nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information."
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The specificity and particularity of DOJ snoop descriptions / order requests (not an order is required, but the snooper is required to describe how the surveillance directive to the telecom won't intentionally acquire (keep) domestic-domestic traffic, even if an order is not sought) changes radically going from FISA-1978 to FISA-2007, and does not change substantively when going from FISA-2007 to FISA-2008. The 2007 and 2008 versions boil down to "make sure you only obtain international calls, and apply 1801(h) minimization [Again, I'm very curious about the 301(4) minimization procedure - I have no comment on that at this time, except it's new to FISA-2008]
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The "specific" [702(g)] certification made by the DOJ/DNI under FISA-2008 is reviewed by FISC for "whether the certification contains all the required elements," which is less intrusive that challenging the contents or substance of those elements.
7.14.2008 12:20am
cboldt (mail):
There are a number of changes not much probed - for example, the new regime (PAA and FISA-2008) broadens the number of persons authorized to instigate warrantless surveillance. That population used to be President and AG. Now it is head of an element of the intelligence community [See 50 U.S.C. 401a(4)]
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The secret accountability reporting to FISC and Congress (I presume to a gang-of-8-like audience) is triggered by "dissemination of intelligence reports containing a reference to a United States-person identity," and "United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting." I have no idea what those triggers constitute (meaning I can't rephrase or paraphrase the meaning), or whether or not the triggers are easily avoided in practice. In any event, the report is numerical, like the current reports of number of warrant applications, refusals, and modifications.
7.14.2008 12:40am
cboldt (mail):
-- But FISA-2008 also permits minimization to 301(4), which I haven't scoped out yet. --
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Turns out this isn't something "new" to FISA-2008.
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301(4) = 50 USC 1821(4) - “Minimization procedures” with respect to physical search
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It has operative parameters very similar to minimization pertinent to electronic surveillance.

specific procedures ... reasonably designed in light of the purposes and technique, to minimize the acquisition and retention ... of nonpublicly available information ... consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information
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nonpublicly available information ... shall not be disseminated in a manner that identifies any United States person ... unless such person’s identity is necessary to understand such foreign intelligence information or assess its importance

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Jumping back to electronic surveillance and minimization under 101(h), the third component is authorization to disseminate, on a finding of evidence of criminal activity
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The fourth and last component is to either get a warrant or dispose of information on a US person within 72 hours; but this requirement pertains ONLY if the snoop was conducted pursuant to 1802.
7.14.2008 7:09am
cboldt (mail):
-- The secret accountability reporting to FISC and Congress (I presume to a gang-of-8-like audience) is triggered by "dissemination of intelligence reports containing a reference to a United States-person identity," and "United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting." I have no idea what those triggers constitute --

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Cryptome hosts a US government document that describes this, somewhat. "Dissemination" is transmitting of acquired details (NSA is one potential source of raw data) between government agencies. NSA "acquisition" of a communication [with details] "doesn't count" as dissemination until and unless the data is transmitted to another agency.
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See http://cryptome.org/nsa-ussid18.pdf. Legal Compliance and Minimization Procedures. It's dated, coming from 1993, but describes with particularity the sort of communications contents that justify dissemination of United States-person identity from NSA to a requesting agency, as well as the level of authority needed to approve the requested dissemination. E.g., "All proposed disseminations of information constituting U.S. PERSON privileged communications (e.g., attorney/client, doctor/patient) and all information concerning criminal activities or criminal or judicial proceedings in the UNITED STATES must be reviewed by the Office of General Counsel prior to dissemination."
7.14.2008 10:23am
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