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Strange Op-Ed By Chris Hedges:
The new FISA amendments compare to last year's Protect America Act by expanding judicial review dramatically, clarifying that the law cannot be used to monitor individuals inside the United States without a warrant, and imposing, for the first time, a warrant requirement on the surveillance of Americans overseas (in addition to the preexisting warrant requirement on the surveillance of Americans inside the United States). It is a major improvement over last year's law from a civil libertarian perspective. So how does former New York Times reporter Chris Hedges describe the new law? Let's take a look:
If the sweeping surveillance law signed by President Bush on Thursday — giving the U.S. government nearly unchecked authority to eavesdrop on the phone calls and e-mails of innocent Americans — is allowed to stand, we will have eroded one of the most important bulwarks to a free press and an open society.

The new FISA Amendments Act nearly eviscerates oversight of government surveillance. It allows the Foreign Intelligence Surveillance Court to review only general procedures for spying rather than individual warrants. The court will not be told specifics about who will be wiretapped, which means the law provides woefully inadequate safeguards to protect innocent people whose communications are caught up in the government's dragnet surveillance program.
  I don't know Chris Hedges, but I'm genuinely curious about whether he has actually read the law. I tend to doubt he has.
cboldt (mail):
I find his "eroded one of the most important bulwarks to a free press" to be misplaced.
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One day, somebody will post a comparison of the substance of the judicial oversight provisions in FISA-1978, PAA, and whatever H.R.6304 is called ("FISA Amendments Act of 2008," FISA-2008 maybe for shorthand, in case FISA is amended again in some future year, better to not have a bunch of "FAA" [FISA Amendment Act] to ambiguate the discussions)
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Until then, all I see is naked assertions, such as "major improvement."
7.12.2008 1:20pm
cboldt (mail):
I also take Chris Hedges' "nearly eviscerates oversight" to be a naked assertion. I'm sure it's possible to put together a coherent summary, with more substance that that, without the clinical statutory style.
7.12.2008 1:22pm
John (mail):
I was at a dinner with several people in CT, and the notion of biased reporting came up, and there was a general regret expressed at how biased the media had become in its "factual" reporting. One woman said, "Well, at least the Times tries to be objective." This was met with nods.

So there you go. You have to remember that the Times is trying to be objective. Surely.
7.12.2008 1:46pm
Charlie (Colorado) (mail):
Why should he read the law? He knows what he's supposed to think.
7.12.2008 2:01pm
Germanicus:
Op-Eds are not supposed to be "factual" reporting. I don't know enough about the amendment to say how off base Hedges was, but regardless, this particular incident isn't a check against the Times's substantive news credentials.
7.12.2008 2:02pm
Germanicus:
Also, I don't know why the NYT should be held accountable for what someone who used to work for them wrote.
7.12.2008 2:04pm
John (mail):
Germanicus,

I agree that in some sense op-eds are not "factual," but opinion. Yet op-eds do recite facts on which the opinions are based. I think the paper does have a responsibility in printing some one's op-ed to see that the factual matter in the op-ed is, in fact, true. The Times did not do this (and routinely lets some op-edders like Kristof get away with factual errors), and I don't think it's a coincidence that the errors cut against the Administration.
7.12.2008 2:12pm
DangerMouse:
Chris Hedges is a liberal who was booed at a college commencement because the crowd didn't accept his theory that America sucks. He also works for the New York Times. But I repeat myself.

That's really all you need to know.
7.12.2008 2:34pm
Mr. X (www):
I still don't find it persuasive that we should evaluate the new FISA law against the short-term stopgap Protect America Act, rather than against the law as it existed from 1978-2007.
7.12.2008 3:02pm
davidbernstein (mail):
The same Chris Hedges who made the false charge that Israeli soldiers were provoking Gaza children to throw rocks at them so they could subsequently murder them.
7.12.2008 3:05pm
Doc W (mail):
Laws mean little unless we stand up for them. Immunity for the telecoms who broke the law ends the clear message that laws don't apply to the big boys. The president flouts the law, then bullies Congress into cleaning up after him retroactively. What reason is there to doubt that the pattern will continue? This is how rights are lost and republics fall.
7.12.2008 3:10pm
TerrencePhilip:
Chris Hedges is a liberal who was booed at a college commencement because the crowd didn't accept his theory that America sucks.

Ah, I remember him now-- he was invited to speak at a college graduation and said nothing at all about the students, their achievements, or anything else before immediately launching into a pompous denunciation of the Iraq war. He used a lofty tone of voice like the old cliche of the pedantic prof. The crowd booed him. Interviewed later he said something about how "sad" it was to "see this in my country."

Earth to Hedges: it's not them, it's YOU.

This overblown drama-king editorial is perfectly in keeping with his earlier notorious episode. I'm sure he's fun to have at a party.

What an ass.
7.12.2008 3:16pm
just sayin':
Orin's real quarrel with Hedges is that the latter is comparing FISA-2008 to the longstanding FISA regime that prevailed until July 2007, while Orin thinks the baseline should be the (temporary) Protect America Act of last August.

Hedges isn't alone in disagreeing with Orin about what the baseline should be. See, e.g., this post by Marty Lederman, responding to (and otherwise praising) an earlier Orin post that addressed this issue more directly.
7.12.2008 3:16pm
M. Lederman (mail):
Hey, Orin: Reasonable people can quibble, perhaps, with the claim that the old FISA was "one of the most important bulwarks to a free press and an open society," but other than that, is there anything mistaken in the block from Hedges that you provide? And isn't he right that he will now have to tell his foreign sources that there can be no assurance that their communications aren't being monitored -- that there's a much greater risk of such monitoring today than there was from 1978 until Bush started violating the law in 2001?

One might think that's a good thing or a bad thing -- but still, it's a pretty big deal, right?
7.12.2008 3:58pm
Michael B (mail):
"Strange op-ed by Chris Hedges" ≈ "Op-ed by Chris Hedges"
7.12.2008 4:11pm
Michael B (mail):
"One might think that's a good thing or a bad thing -- but still, it's a pretty big deal, right?" M. Lederman

It's a big deal, a big deal that was wrought not by a Reichstag fire but by other events - and whatever the perfect balance might be deemed to be, it's not served by the monocular focus that Hedges' summary reflects.
7.12.2008 4:18pm
SDonelan:

And isn't he right that he will now have to tell his foreign sources that there can be no assurance that their communications aren't being monitored — that there's a much greater risk of such monitoring today than there was from 1978 until Bush started violating the law in 2001?

Could a reporter ever make this promise to foreign sources? Did the GRU (formger KGB) and many other nations stop electronic surveillance? Several other countries long had polcies that all cable landing stations and satellite earth stations in those countries have survelliance facilities for use by the local government security services.

How far does the legal juridiction of the United States extend around the world?
7.12.2008 4:38pm
cboldt (mail):
-- I still don't find it persuasive that we should evaluate the new FISA law against the short-term stopgap Protect America Act, rather than against the law as it existed from 1978-2007. --
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A complete appraisal will look at all three. I do agree that FISA-1978 is an essential part of the comparison. It's disingenuous to pass off FISA-2007 (the Protect America Act) as status-quo, but there's no harm in comparing FISA-2007 with FISA-2008. I'm the process of comparing the substantive content of the respective statutes, in an attempt to see the contents that underlies "expanding judicial review dramatically," "major improvement," "adding more judicial review in significant ways," "the statutory review by the FISC is now de novo rather than under a clearly erroneous standard" [FISA-1978 has a court review to the standard of "clearly erroneous" too - 1805(a)(5)], and the effect of "whether the protocols are reasonably designed to be limited to those outside the U.S. and that the minimization procedures satisfy the statutory standards."

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IMO, comparing standards of review is meaningless, without considering exactly WHAT the court has under review.
7.12.2008 4:46pm
cboldt (mail):
-- Could a reporter ever make this [we're not being overheard by the government] promise to foreign sources? Did the GRU (formger KGB) and many other nations stop electronic surveillance? --

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That's a fair example. Notice how freely the people of Russia speak? Tempered with the suspicion that their government might be listening. They don't care so much that the Russians are listening to the Americans, they care that their own government is listening to them.

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Likewise China. I recall recent Congressional hearings lambasting Yahoo for cooperating with the Chinese government (by turning over information in accordance with lawful orders from the Chinese government), to locate lawbreakers in China. It seemed totally hypocritical to me, because these same lawmakers insist on Yahoo (and any other carrier of communications) to cooperate and follow lawful orders from the US government, in order to identify lawbreakers or foreign intelligence threats.
7.12.2008 5:00pm
Modus Ponens:
Orin:

The Protect America Act of 2007 was written to expire after a mere 6 months.

Your insipid insistence that readers adopt this Act as the baseline for all present analyses of FISA and amendments thereto is the least imaginative, most nakedly ideological and indefensible position you've taken yet this year. Which is saying a lot.

Shame on you.
7.12.2008 5:06pm
cboldt (mail):
-- these same lawmakers insist on Yahoo (and any other carrier of communications) to cooperate and follow lawful orders from the US government ... --

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Just to clarify, what I mean by "lawful" in this context is the same thing that Congress means by "lawful" in its retroactive immunity provision (no recourse to Court to evaluate a claim of statutory violation). One can't reliably look to the statute to determine the limits of surveillance. The "lawful" limit is extra-statutorial.

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While I think the statutory comparison is interesting as a academic exercise, I think that's the extent of the value. "Lawful" encompasses some activity (not defined with particularity) that is not in conformity with the statutes.
7.12.2008 5:17pm
Al Maviva:
I still don't find it persuasive that we should evaluate the new FISA law against the short-term stopgap Protect America Act, rather than against the law as it existed from 1978-2007.

I agree. Just because actual telecom operations have undergone several revolutionary changes since FISA '78 was enacted, doesn't mean we can mess with the wise masterpiece that the founding fathers [of the Church Committee] created. It's timeless and practically enshrined in the Constitution because it kinda sorta sounds like the 4th Amendment - and man, do we ever care about the 4th Amendment.
7.12.2008 5:46pm
Al Maviva:
I still don't find it persuasive that we should evaluate the new FISA law against the short-term stopgap Protect America Act, rather than against the law as it existed from 1978-2007.

I agree. Just because actual telecom operations have undergone several revolutionary changes since FISA '78 was enacted, doesn't mean we can mess with the wise masterpiece that the founding fathers [of the Church Committee] created. It's timeless and practically enshrined in the Constitution because it kinda sorta sounds like the 4th Amendment - and man, do we ever care about the 4th Amendment.
7.12.2008 5:46pm
John (mail):
I doubt anyone cares, but above, when I said Kristof, I meant Krugman. Oops.
7.12.2008 5:54pm
Kazinski:
This is the sort of abuse that happens with the Bush NSA surveillance program: Terrorists disrupted, hostages freed.

Which is of course one reason the Chris Hedges of the world are against the program.
7.12.2008 6:30pm
Originalism Is Useful (mail):
Your insipid insistence that readers adopt this Act as the baseline for all present analyses of FISA

It is the penultimate iteration. Besides, if critics of the FISA compromise did not similarly criticize PAA, the onus is on them to explain why.
7.12.2008 6:35pm
Elliot123 (mail):
Can someone tell us what kind of conversation between an American in Ohio and an Al Queda member in Pakistan merits privacy? Does anyone here talk to Al Queda members in other countries? If so, what do you talk about? Who here is concerned their personal conversations with Al Queda members in foreign countries will be monitored? Does anyone know of anybody at all who is personally concerned about their conversations with Al Queda members in Pakistan? Who?

Then maybe someone can tell us why a onversation between Bin Laden and an Al Queda member in Iraq deserves privacy if it passes through a switch in the US?
7.12.2008 6:50pm
cboldt (mail):
-- if critics of the FISA compromise did not similarly criticize PAA, the onus is on them to explain why. --

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My guess is most critics of FISA-2008 were also critics of FISA-2007 (aka PAA). But even if a person comes to that table later, for whatever reason, they have no obligation to defend lack of objection to FISA-2007. Objections to FISA-2008 can stand or fall on their own merits.

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"If you didn't criticize ECHELON, you can't criticize FISA-2008" is likewise lame.
7.12.2008 6:55pm
cboldt (mail):
-- Can someone tell us what kind of conversation between an American in Ohio and an Al Queda member in Pakistan merits privacy? Does anyone here talk to Al Queda members in other countries? If so, what do you talk about? Who here is concerned their personal conversations with Al Queda members in foreign countries will be monitored? Does anyone know of anybody at all who is personally concerned about their conversations with Al Queda members in Pakistan? --

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Assuming the government is able to weed out conversations that involve known terrorists, and the government is monitoring calls where the known terrorist is on one end, it's a non-issue.

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By the way, you don't mind that you are a terrorist suspect, do you?
7.12.2008 7:00pm
Bruce Hayden (mail) (www):
Assuming the government is able to weed out conversations that involve known terrorists, and the government is monitoring calls where the known terrorist is on one end, it's a non-issue.
Not really. Old FISA made it irrelevant. Unless there were an existing warrant for intercepting the known terrorist's calls, the NSA could not legally intercept his calls to the U.S. under FISA. The person in the U.S. didn't even have to be here legally.

Of course, that is presumably a minority of the instances where this came up. Rather, most of the action was apparently with suspected foreign terrorists. Telephone numbers would be discovered in raids in Iraq or Afghanistan, and those numbers fed to the NSA for surveillance.
By the way, you don't mind that you are a terrorist suspect, do you?
Not likely, unless you are in the habit of talking to suspected terrorists in the Middle East.

Oh, and one of the features of the new bill that Oren pointed out in the previous thread, is that under the PAA, the feds couldn't target people here in the U.S. without a warrant, but in the new bill they couldn't pretend to target someone outside the U.S. while really targeting the person in the U.S.

So, under the new bill, the PAA, and even the original FISA, if you are here legally in the U.S., the government cannot target you for surveillance without a warrant (either FISA or Title III, depending on where the other end of the call is located). Regardless of how paranoid you are or how much you have succumbed to BDS.
7.12.2008 8:11pm
SDonelan:

That's a fair example. Notice how freely the people of Russia speak? Tempered with the suspicion that their government might be listening. They don't care so much that the Russians are listening to the Americans, they care that their own government is listening to them.

What about England or Germany? Were the citizens of those countries "chilled" because their own governments, as well as the US or the USSR/Russia may have collected foreign intelligence in or passing through those countries?

How many countries in the world, other than the United States, require prior judicial approval and oversight of the country's foreign intelligence collection activities?
7.12.2008 8:41pm
SDonelan:

Not really. Old FISA made it irrelevant. Unless there were an existing warrant for intercepting the known terrorist's calls, the NSA could not legally intercept his calls to the U.S. under FISA. The person in the U.S. didn't even have to be here legally.

Under old FISA, could the USA tap every communication circuit, cable, satellite link in France and intercept every call in France or from France to anywhere in the world whether or not the person was a "terrorist?"

If a person in France happened to place a call or receive a call from the US, did old FISA prohibit its the acquisition by the NSA in France unless there was a FISC order? There were executive orders and policies, but as far as the old FISA statute was concerned what limits on tapping French telephone lines in France by the NSA?
7.12.2008 9:10pm
cboldt (mail):
-- How many countries in the world, other than the United States, require prior judicial approval and oversight of the country's foreign intelligence collection activities? --
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My point was that people who think their government monitors their international calls are chilled in their international calls.

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Somebody else suggested that Russians in Russia think the Russian government monitors international calls (so a US reporter couldn't promise a Russian source that the Russians weren't listening in), and I said that's an interesting observation.

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And I think a prudent American will assume that the US government is likewise monitoring (or can legally monitor) HIS international communications. In the realm of foreign intelligence information, the fourth amendment is a THEORY (a wish maybe), not a reality. The FISA statute cannot inhibit an Article II power.
7.12.2008 9:20pm
cboldt (mail):
-- if you are here legally in the U.S., the government cannot target you for surveillance without a warrant --
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If the government listens to 100% of my international calls, it is not, by definition, targeting me. That's because I make about 10:1 ration of domestic to foreign calls, and if I was a target, the government would observe ten times as much traffic from me.
7.12.2008 9:27pm
cboldt (mail):
-- There were executive orders and policies, but as far as the old FISA statute was concerned what limits on tapping French telephone lines in France by the NSA? --
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US statutes are silent as to that conduct. No limits. If the Frenchman is in communication with an American, that too is "fair game," under the most restrictive FISA laws (and under the current FISA laws).

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French people have to look to French law for privacy. Good luck!
7.12.2008 10:13pm
Charlie (Colorado) (mail):
You know what, guys? It was also illegal in the old Soviet union for the NSA to tap or intercept Soviet mobile phones and such.

Look, try for a little bit of sense here: most any intelligence operation is illegal in the country against which the operation is directed.
7.12.2008 11:11pm
LM (mail):
John:

The Times did not do this (and routinely lets some op-edders like Kristof get away with factual errors), and I don't think it's a coincidence that the errors cut against the Administration.

The Times has also let Bill Kristol "get away with" a few factual errors already, despite his brief tenure. But I'm sure that's also somehow part of the grand Marxist Illuminati plan to spread BDS and build a NAFTA highway.
7.12.2008 11:42pm
Bob from Ohio (mail):

we will have eroded one of the most important bulwarks to a free press and an open society.


How cute, he thinks a secret court hearing secret, ex parte "evidence" that is practically impossible for the judge to evaluate is a "bulwark" of freedom.

FISA has always been a figleaf to fool the rubes like Hedges into thinking Congress and the courts were protecting him from the big, bad executive.
7.13.2008 12:28am
LM (mail):
Elliot123:

Can someone tell us what kind of conversation between an American in Ohio and an Al Queda member in Pakistan merits privacy? Does anyone here talk to Al Queda members in other countries? If so, what do you talk about? Who here is concerned their personal conversations with Al Queda members in foreign countries will be monitored? Does anyone know of anybody at all who is personally concerned about their conversations with Al Queda members in Pakistan? Who?

Then maybe someone can tell us why a onversation between Bin Laden and an Al Queda member in Iraq deserves privacy if it passes through a switch in the US?

None of your questions apply to me, and I was OK with the law before it was amended. But putting aside the AQ straw man running through your questions, I don't get why you seem incredulous that anyone would be worked up about this. It's taken for granted around here that a lot of people object on principle to just about any encroachment on freedom of expression or the right to bear arms. Why is it be hard to fathom that there are people fixated on other civil liberties?
7.13.2008 12:51am
SDonelan:

Look, try for a little bit of sense here: most any intelligence operation is illegal in the country against which the operation is directed.

Not all electronic surveillance is illegal even in the country. If you are a reporter promising foreign sources confidentiality, how do you know there isn't a legal court order signed by a judge in the country authorizing a wiretap on the line. Is a reporter also "chilled" by lawful wiretaps on the line?

Even in a domestic US-to-US call, if a reporter is speaking with people who may be targets of investigation, what privilege or exemption from a regular Title III wiretap order exists for calls with reporters? If the Godfather of organized crime called a reporter, how would a reporter know about the existance of the court order or lawful surveillance before or during the call? What promises of confidentiality should a reporter make about phone calls? The reporter may be notified several months later, but then does it matter?

1. US Intelligence monitors a foreign call outside the US (or possibly inside the US with a FISC order)
2. Another country's intelligence agency monitors a call inside the US (or somewhere else in the world)
3. US law enforcement monitors a call inside the US with a US court order
4. Another country's law enforcement monitors a call in that country following that country's rules

In none of the cases does the reporter know if the call is being monitored.

What is a US judge being asked to do to protect the confidentiality of a reporter communicating with people who may be targets of both law enforcement and intelligence agencies of several countries?
7.13.2008 4:49am
cboldt (mail):
Bruce Hayden -- under the new bill, the PAA, and even the original FISA, if you are here legally in the U.S., the government cannot target you for surveillance without a warrant (either FISA or Title III, depending on where the other end of the call is located) --
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FISA v. Title III does NOT turn on the location of the communicators. That choice turns on the nature of the suspicion, and the type of evidence being sought.
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Title III is used to obtain evidence of commission of any number of crimes enumerated in 18 USC 2516. Title III surveillance requires a warrant, but the warrant may be sought after surveillance starts.
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Electronic surveillance under FISA is used to obtain "foreign intelligence information," which has a legal definition in 50 USC 1801 [recently expanded to include WMD communications]. Some FISA snoops require a warrant, others do not. The transition from FISA-1978 to FISA-2008 works a shift in that line. FISA-2008 resembles FISA-2007 (PAA) in that regard, mostly adding "clarifying" FISA-2007 language (no targeting people in the US w/o cause), but not changing the substance (as to people located in the US).
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People legally in the US can be targeted for warrantless FISA surveillance if they are "working for a foreign government" and the snoop was directed at communications means under their sole control. Terrorists aren't "working for a government," so they don't fit into the no-warrant bowl established by FISA-1978.
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Sometimes a given actor presents activity that includes a chance of acquiring both, Title III-relevant and FISA-relevant information. But the choice doesn't have any relationship whatsoever to "where the other end of the call is located." Indeed, it can't. The snooper can't predict the presence or absence of an international communications, in advance.
7.13.2008 8:26am
Tom Cross (www):
When the House bill was announced the WSJ published a similarly disingenuous editorial:

The deal would extend the 1978 Foreign Intelligence Surveillance Act to cover eavesdropping on terrorist communications overseas...

The steep price of this authority is that from now on all of these overseas eavesdropping orders will require advance approval by a special FISA court of rotating judges...

No other nation in the world, to our knowledge, requires such deference to judges when tracking foreign enemies abroad.

The editorial leaves the distinct impression that overseas monitoring of terrorist communications will require a court order... they say "tracking foreign enemies abroad." They do bury a sentence in here that provides the correct scope, but if you read it in context its easy to miss its significance:

This will apply even to emails or calls that emanate in, say, Peshawar and never leave Pakistan -- except that by the accident of our Internet age they may happen to move through American switching networks.

The fact that people in Pakistan can use Google is hardly an "accident" of our Internet age.... Similarly Chris Hedges clarifies that:

The law, passed under the guise of national security, ostensibly targets people outside the country.

But that didn't stop you from calling him out on the overbroad language of his introductory paragraphs.

I don't point this out to justify Hedges choice of wording, but rather to point out that this particular sort of dishonesty isn't the exclusive providence of the left.
7.13.2008 8:54am
live+let_live:
FISA = "sound and fury signifying nothing"

1) Does anyone really believe that after crossing the border you have the same protections as when you stay home? Diplomatic pouches don't get read. That's a perk of being a diplomat. We don't get that perk. That's nothing new.

2) Maybe 20 years ago I saw a news show about electronic eavesdropping. They made the point that it's illegal for the NSA to listen in on all domestic calls. But it's not illegal for Canada to do it and sell it to the NSA.

We don't have to like it but it seems likely somebody is listening.
7.13.2008 11:36am
Heh:

This will apply even to emails or calls that emanate in, say, Peshawar and never leave Pakistan -- except that by the accident of our Internet age they may happen to move through American switching networks.



The fact that people in Pakistan can use Google is hardly an "accident" of our Internet age


Geesh. In a post where you're trying point out other's faults you fumble yourself. The "accident" isn't that they can use Google, it's that it wouldn't be surprising if in order to send an email from one house in Peshawar to another house in Peshawar, it may require that the email passes through gear in the USA. The quote you yourself quoted says this :)

This is not uncommon because a lot of the big services are hosted here. As much as the network of the internet is distributed (to some degree), the servers often are not.
7.13.2008 1:59pm
TRE:
Is "I tend to doubt he has" proper word usage? It seems wrong to me.
7.13.2008 2:14pm
Guest Atty:
Thomas Cross,

Do you disagree that under the new FISA bill, the government will be required to get a warrant to conduct surveillance of foreign targets? The only exception to that requirement that I'm aware of would be an emergency situation, which would still require a follow up court order. If you think an order wouldn't be required, what part of the statute makes you think that?
7.13.2008 2:55pm
OrinKerr:
A question for those who think that the PAA should not be the baseline because it was just a temporary stop gap measure: Are you being consistent with your position last year?

I participated in many hours of debates over the PAA last year, and every critic of the law agreed that the 6 month sunset was irrelevant: a later Congress would just rubber stamp it, making it effectively permanent, just like the Patriot Act. Now a year later, suddenly the sunset provision is now the most important part of the PAA.

Why the dramatic change os position?

Also, to the extent some are accusing me of being a knee jerk defender of the Bush Administration, I would like to put you in a room with the other commenters who think I am a knee jerk opponent of the Bush Administration. When you can reconcile your differences, let me know where you come out.....
7.13.2008 2:56pm
PC:
Can someone tell us what kind of conversation between an American in Ohio and an Al Queda member in Pakistan merits privacy?


It doesn't, it never has, and I will challenge you to find any mainstream commentator that argues otherwise. I'll also challenge you to provide details on why the administration (allegedly) started their "Terrorist Surveillance Program" before 9/11, given the administration's complete disinterest in terrorism until the events of that tragic day.

I'm also curious about when congress will get around to addressing the warrantless monitoring of domestic internet communications? Reasonable people can disagree about the merits of the FISA amendment, but that amendment seems to only address one program that we know about.
7.13.2008 3:19pm
Bruce Hayden (mail) (www):
Bruce Hayden -- under the new bill, the PAA, and even the original FISA, if you are here legally in the U.S., the government cannot target you for surveillance without a warrant (either FISA or Title III, depending on where the other end of the call is located) --
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FISA v. Title III does NOT turn on the location of the communicators. That choice turns on the nature of the suspicion, and the type of evidence being sought.
My mistake, if there was one, is a result of my reading of 18 USC 2511(2)(f):
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
I read the first part of this section to mean that a Title III warrant is not required for gathering foreign intelligence information when at least one end of the conversation was outside the U.S. (i.e. "international" and "foreign" communications). But I think that the last sentence is a bit more ambiguous.
Does it mean that the feds have a choice for how they collect electronic surveillance (as defined by FISA) is collected between FISA and Title III? Or does the fact that the first part of the paragraph did not mention purely domestic communications implicitly exclude these from FISA and leave Title III controlling?

I do remember some discussion about this some months ago, but wasn't paying enough attention to remember whether there was agreement here.
7.13.2008 4:35pm
cboldt (mail):

-- I read the first part of this section to mean that a Title III warrant is not required for gathering foreign intelligence information when at least one end of the conversation was outside the U.S. (i.e. "international" and "foreign" communications) --
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18 USC 2511 covers both Title III and FISA. The first part of 2511(f)(2) disclaims an intention to affect the acquisition of foreign intelligence information (FISA subject matter), using a means other than 50 USC 1801(f) "electronic communications." That first part essentially says "if the surveillance is of foreign intelligence information, and not covered by FISA, then 18 USC 2511 doesn't prohibit it." FISA is self limiting by it's own definition of "electronic surveillance," and EVERY definition of "electronic surveillance in 50 USC 1801 includes obtaining communications of a person in the US.

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-- But I think that the last sentence is a bit more ambiguous. Does it mean that the feds have a choice for how they collect electronic surveillance (as defined by FISA) is collected between FISA and Title III? --

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The second part of 2511(f)(2) is basically an "exclusive means" clause. IF the acquisition is one that is defined in either Title III or FISA, then those procedures (snoopers choice between Title III and FISA - with the choice driven by whether the information sought pertains to "foreign intelligence information" as defined in 50 USC, of not).

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"... and procedures in this chapter [Title III] or chapter 121 [access to stored communications] and FISA shall be the exclusive means of conducting electronic surveillance [a FISA-centric term] and the interception of domestic communications [a Title III-centric term]"
7.13.2008 6:01pm
cboldt (mail):
A minor do-over ... not changing the notion, just trying to disambiguate and express additional ramifications.
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18 USC 2511 covers both Title III and FISA. The first part of 2511(f)(2) disclaims an intention to affect the acquisition of foreign intelligence information (FISA subject matter), when that acquisition uses a means other than 50 USC 1801(f) "electronic surveillance." If the government undertakes signals interception other than "electronic surveillance" as defined in FISA, then the signals interception of foreign intelligence information is in a "no mans land," outside of FISA.
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That first part essentially says "if the surveillance is of foreign intelligence information, and not covered by FISA, then 18 USC 2511 doesn't prohibit it."
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FISA is territorially limited by it's own definition of "electronic surveillance." EVERY definition of "electronic surveillance" in 50 USC 1801(f) includes obtaining communications of or to a person in the US. When the government is obtaining foreign intelligence information other than per "electronic surveillance of 1801(f)," then NO party to the communication is a person located in the US. The general prohibition of 18 USC 2511 doesn't affect (prohibit) this "no person in the US" surveillance activity.
7.13.2008 6:15pm
cboldt (mail):
-- I read the first part of this section to mean that a Title III warrant is not required for gathering foreign intelligence information --
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A Title III warrant doesn't pertain when seeking foreign intelligence information. Title III warrants are issued against a fixed set of enumerated federal crimes, see 18 USC 2516.
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Not to say that snooping on a Title III warrant won't result in obtaining foreign intelligence, just that there is no reason or value to provide a "we are seeking foreign intelligence" recitation in a Title III warrant application. I would guess that few Title III snoops result in obtaining "foreign intelligence information."
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In order to obtain a FISA warrant, the government must aver that a significant purpose of the surveillance is to obtain foreign intelligence. If foreign intelligence is indeed obtained, it's almost inevitable that the surveillance will produce evidence of criminal activity. The information obtained under a FISA warrant can be exported to a criminal trial; under rules prescribed in FISA.
7.13.2008 6:31pm
Tom Cross (www):
Guest Atty: You obviously missed the entire point of my post.

No, of course I don't dispute that under the new FISA bill the government will be required to obtain warrants for surveillance of some foreign targets. The point is that this is only part of the story. The WSJ editorial clearly creates the impression that warrants are required when the monitoring is occurring overseas, which isn't the case.

The point is that you can lie through omission, by intentionally ignoring significant parts of the issue in an attempt to manipulate your reader into thinking something that isn't actually correct without outright saying a specific thing that can be factually disproven. This is how political partisans take advantage of uniformed people.

There is absolutely no difference between the intentional lies through omission in the WSJ editorial and the lies through omission Hedges editorial. If you object to one on the grounds that its misinformed or dishonest, you ought to note and object to the other.

Do you disagree that under the new FISA bill, the government will be able to conduct surveillance without explaining to the FISA court who, specifically, they are targeting?
7.13.2008 7:14pm
Tom Cross (www):
Heh:
The "accident" isn't that they can use Google, it's that it wouldn't be surprising if in order to send an email from one house in Peshawar to another house in Peshawar, it may require that the email passes through gear in the USA. The quote you yourself quoted says this :)

This is not uncommon because a lot of the big services are hosted here. As much as the network of the internet is distributed (to some degree), the servers often are not.

Generally speaking, email sent between two people in Peshawar doesn't route through gear in the USA. If this were the case the Internet would be so inefficient as to be almost useless. People in Peshawar end up communicating through servers in the USA because they are intentionally using American internet services. This isn't an accident. We're talking about services like Google and Myspace. People generally know these are American companies. This law allows the NSA to show up at the offices of American internet services that are mostly used by Americans and start collecting data, as long as they say they are only targeting the foreign users of that service. The Internet is not magical. Talking about "accidents of our Internet Age" does not come close to doing honest justice to what is being discussed here.
7.13.2008 7:26pm
godelmetric (mail):
Chris Hedges is a liberal who was booed at a college commencement because the crowd didn't accept his theory that America sucks. He also works for the New York Times. But I repeat myself.
Wait, Chris Hedges is a liberal strawman now? Have you people not read any of his columns over the last, oh, six years?

Here, I'll propose an alternate theory that doesn't require mindless political stereotyping: Chris Hedges got waterboarded for his last column, and now he's having an "oh s**t what have I done" moment, because he's been advocating policies that end in waterboarding for years now.
7.14.2008 12:46am
godelmetric (mail):
Oh, wait, that's Christopher Hitchens. I'm a fool. mea culpa.

Even more absurdly, I've actually met Christopher Hedges, albeit 5 years ago -- he's an exceptionally brilliant guy. (Obviously, that's not true of everyone who agrees with him.)
7.14.2008 12:53am
Thomas_Holsinger:
This is terribly unfair to drug smugglers. There should be a warrant requirement to inspect the personal belongings of Americans returning from overseas. And a warrant requirement to open the mail to and from overseas when it is addressed to, or from, an American citizen.
7.14.2008 1:27am
Thomas_Holsinger:
And, to keep terrorists from misusing the addresses of Americans to conceal their mail from government inspection, FISA should be amended to forbid them from doing so. Plus another amendment making it a felony for Americans to be terrorists. That should provide all the protection America needs from nefarious terrorists, because we all know how law-abiding terrorists are.
7.14.2008 1:35am
SDonelan:

A question for those who think that the PAA should not be the baseline because it was just a temporary stop gap measure: Are you being consistent with your position last year?

My position last year and this year is pretty consistent, I have a hard time understanding all of the changes, or what practical effect they have.

For better or worse, other countries seem to be able to write more understandable laws in this area. Some people may disagree with the laws in other countries, but at least they are clear what they require. The US laws for both criminal and intelligence electronic surveillance are a confusing mess.

Analyzing only a single inning of a baseball game may not reflect the overall game. Instead of just comparing the FAA-2008 with the PAA-2007, I think having more context would be useful. October 25 2008 will be the 30th anniversary of the original FISA. How has it changed?
7.14.2008 2:31am
SDonelan:

Generally speaking, email sent between two people in Peshawar doesn't route through gear in the USA. If this were the case the Internet would be so inefficient as to be almost useless.

Like many things, it depends. India and RIM/Blackberry have an ongoing dispute about where to put Blackberry servers, and how Blackberry messages between two people in India are routed via Canada. A difference is India is being very upfront and clear why they want messages routed via servers in India instead of Canada.

There are other examples of data communications ending up in other countries without the customer being aware of it. Ranging from people in the United States calling company 1-800 customer service lines being answered in other countries, to records of banking transactions at SWIFT in Europe.

It is global communications. And even the bad guys probably sometimes have their communications routed in ways they didn't expect.
7.14.2008 5:07am
Michael B (mail):
godelmetric,

I've read several of his articles over the years. Care to forward an actual argument, in lieu of your own mindless ad hominem plea, albeit one favorable to Hedges? Given his purported brilliance, you should have no trouble offering a salient example, one that will put my query to shame, no?
7.14.2008 8:38am
sonicfrog (mail) (www):
I think everyone should relax, take the night off, and watch the Gene Hackman movie "The Conversation".
7.14.2008 1:38pm
Thales (mail) (www):
"A question for those who think that the PAA should not be the baseline because it was just a temporary stop gap measure: Are you being consistent with your position last year?

I participated in many hours of debates over the PAA last year, and every critic of the law agreed that the 6 month sunset was irrelevant: a later Congress would just rubber stamp it, making it effectively permanent, just like the Patriot Act. Now a year later, suddenly the sunset provision is now the most important part of the PAA.

Why the dramatic change o[f] position?"

Orin, did the critics of the PAA you mentioned oppose the law on some of the same grounds that they opposed FISA amendments 2008? Your commentary isn't particularly clear on this point, but if so couldn't their opposition to both statutes and their assumption that the sunset would be ignored be consistent? Also, as Marty Lederman pointed out in a somewhat different way, regardless of what policy makers and talking heads (e.g., you and Marty) may have said in a nuanced and informed debate of the subject, the current popular outcry against the FISA reform seems to be a) possibly unaware that some of the civil liberties the complainers value were already taken away by the PAA, and b) better informed outcry than that which preceded (or not) the PAA, which was to my mind less publicized (possibly because it was farther away from the presidential election and the end of the Bush presidency). It seems pretty clear to me that the general and perhaps even educated public's frame of reference for "existing law" is FISA 1978, even if that is not technically accurate. Also, I think many educated people (me included) would even have been comfortable with some of the substance of the additional law enforcement powers, but with stronger Congressional and judicial oversight.
7.14.2008 2:47pm
Wilson (mail):
Orin's stand here is just really strange. He knows that everyone, including Chris Herges and all the other multitudes who are crying out against FISA, are doing so on the premise of comparing it to the previous FISA act.

Orin compares it to the 6 month sunsetting Protect America Act, and acts as though the new FISA bill is some sort of civil libertarian triumph, contrary to what the critics would have you believe. He then feigns confusion at the fact that people are railing against the new FISA bill.

Basically everyone is using a different standard for comparison than Orin, and instead of evaluating the appropriateness of his standard of comparison over theirs, he acts confused as to why folks are criticizing the bill in the first place, and assuming they haven't read it.

Above, when someone mentions this inconsistency, Orin responds by demanding that we remain consistent with our position from last year. As I'm sure he knows, this is no response at all to the difference in standards.

Orin is being insipid and weird on FISA, and for the life of me I cannot determine why. Get to the meat of it Orin. Why do you insist on using the PAA as the baseline when every single critic of FISA uses the previous bill? Their reasoning for their standard is clear; the PAA was set to expire at 6 months, so we should evaluate the FISA against the regime it is actually replacing.
7.14.2008 3:19pm
cboldt (mail):
-- Orin, did the critics of the PAA you mentioned oppose the law on some of the same grounds that they opposed FISA amendments 2008? --
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One can search for the critics who posted at VC (and some linked pages), and gauge the prominence of their sentiment on the sunset of PAA: site:volokh.com (PAA OR FISA) and (sunset OR rubberstamp OR rubber)
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I found some "irrelevance" sentiment attached to the 6 month term of the law, on the basis that even though the law was slated to sunset, the snoop orders persisted for a year.
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I didn't find evidence of some "dramatic change in position" or "resignation to life under the PAA" that would justify a conclusion that PAA/FISA-2008 critics would find diminished relevance of the transition from FISA-1978 to FISA-2008. But then, I didn't participate in the same hours of debate or research that Professor Kerr did.
7.14.2008 3:21pm
cboldt (mail):
An analysis of the substantive content and procedures of all three of them is useful.
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I think FISA-2008 is very much like PAA. With a narrowly applicable exception, I'm not seeing FISA-2008 as providing a major improvement over the PAA, from a civil libertarian perspective.
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That exception is the targeting from the US, of US persons while abroad (targeting from abroad, of US persons who are abroad, is outside the scope of Sec. 703). Section 703 is odd in its own right, in a way I haven't figured out. "If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order ... an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside ..." Odd, that.
7.14.2008 3:43pm
cboldt (mail):
Most of the sentiment of sunset of PAA that sticks in my mind is "let it expire, and let's get back to FISA-1978," or "don't extend it! let it expire!"
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There was also some sense of resignation to the Democrats in Congress capitulating to the administration demands, and a bit of surprise when the House didn't concur with the Senate in passing S.2248/H.R.3773. PAA expired, and critics of the PAA tended to object to FISA-2008. Why wouldn't the Senate even consider what the House had passed in March 2008? And at that point, my recollection is that those who objected to PAA objected to the House-passed H.R.6304, preferring what was, at the moment, status quo of FISA-1978 being the law, with PAA snoop order timed to expire one year from whenever they were entered (August 2008 to Feb 2009).
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Just my off the top of the head recollections - FWIW. Different from Professor Kerr's perspective, but he and I run in different circles of debate.
7.14.2008 4:00pm
Dr. Guest:
Tom Cross,

First, "you obviously missed the entire point" type of post is both lacking in humility (it screams "you don't get it" rather than "I didn't explain it very well" and while the former may be true, a more humble person might assume the latter). In any event, I didn't think the point was particularly complicated, but the point like many others depends on factual predicates, and it is the factual predicate that was the source of my inquiry. And it is an inquiry, not an argument.

What I asked was why you think that the new law doesn't require a court order to conduct overseas surveillance. You claim that the WSJ editorial misrepresents that fact, and I simply asked why you believe that is a misrepresentation. So I'll try again, in case my question was unclear, which it may have been: do you think that the new statute requires a court order in order to conduct overseas surveillance? You suggest that "of course" some foreign targets will require court orders, but why just some?

Again, I'm not trying to engage in an "argument" so much as I'm really just trying to understand the factual basis for your statement. Section 702 would seem to require a court order for any type of surveillance overseas involving a foreign person (and the other sections address overseas surveillance of American persons). So in which situations would a court order, authorized by a FISA court, not be required in order to conduct surveillance? Or are you suggesting that because the target does not have to be identified (at least for foreign persons), that the order is of little practical significance? Again, I'd just like to know whether you think an order is required (your last post suggests that it isn't) or whether you think that an order isn't that meaningful.
7.14.2008 5:40pm
Dr. Guest:
Tom Cross,

First, the "you obviously missed the entire point" type of post is both lacking in humility (it screams "you don't get it" rather than "I didn't explain it very well" and while the former may be true, a more humble person might assume the latter) and inaccurate. In any event, I didn't think the point was particularly complicated, but the point like many others depends on factual predicates, and it is the factual predicate that was the source of my inquiry. And it is an inquiry, not an argument.

What I asked was why you think that the new law doesn't require a court order to conduct overseas surveillance. You claim that the WSJ editorial misrepresents that fact, and I simply asked why you believe that is a misrepresentation. So I'll try again, in case my question was unclear, which it may have been: do you think that the new statute requires a court order in order to conduct overseas surveillance? You suggest that "of course" some foreign targets will require court orders, but why just some?

Again, I'm not trying to engage in an "argument" so much as I'm really just trying to understand the factual basis for your statement. Section 702 would seem to require a court order for any type of surveillance overseas involving a foreign person (and the other sections address overseas surveillance of American persons). But maybe I've overlooked a key provision, in which case perhaps you can illuminate the rest of us. So in which situations would a court order, authorized by a FISA court, not be required in order to conduct surveillance? Or are you suggesting that because the target does not have to be identified (at least for foreign persons), that the order is of little practical significance? Again, I'd just like to know whether you think an order is required (your last post suggests that it isn't) or whether you think that an order isn't that meaningful.
7.14.2008 5:46pm
cboldt (mail):
-- do you think that the new statute requires a court order in order to conduct overseas surveillance? --
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Judging from his answers, I have a feeling that your correspondent is making some assumptions about the meaning of "conducting overseas surveillance."

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The curt answer to your question is, "No." A more informative answer would be "It depends on what 'conducting overseas surveillance' means." Or, in your previous wording, "It depends on what 'conducting surveillance of foreign targets' means."

.

-- Section 702 would seem to require a court order for any type of surveillance overseas involving a foreign person --

.

Section 702 does NOT require the telecom to have an order from a court, although it does require the snooper to submit a certification to the FISC. The certification is basically "the snoop that we directive sent to the telecom is to snoop on a foreign person, to obtain foreign intelligence information, and isn't set up as a ruse to snoop on a person in the US."

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But if the snooping of a foreigner took place "from overseas," then FISA wouldn't apply at all.

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Yet another permutation, the one alluded to in the WSJ piece, is snooping on two foreigners (both in foreign lands), and doing so from equipment in the US. FISA doesn't apply directly to that situation either.
7.14.2008 6:22pm
OrinKerr:
Wilson,

Your description of my position is truly strange. Obviously I am not feigning "confusion at the fact that people are railing against the new FISA bill. " Of course they are: it contained the immunity provision!!! I am only looking for an accurate description of what the bill does prospectively, and some consistency with the long debate we have had in the past. Having been closely involved in debates over surveillance for the last decade, though, I know well that this is a tall order indeed.
7.14.2008 6:28pm
Guest Here:
Cboldt,

Why, if the surveillance occurs overseas, would it not be covered by the new FISA? I don't read anything in the new statute that makes a distinction about where the surveillance occurs with respect to foreigners. If such a person is targeted and is outside the U.S., why would the new FISA procedures not apply?
7.14.2008 11:42pm
cboldt (mail):
-- I am only looking for an accurate description of what the bill does prospectively, and some consistency with the long debate we have had in the past. Having been closely involved in debates over surveillance for the last decade, though, I know well that this is a tall order indeed. --
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That could be taken as an insult, a challenge, and/or a confession.
7.14.2008 11:42pm
Guest Here:
Also, cboldt, why wouldn't the situation you described - two foreigners being "snooped" on from here in the U.S. not be covered by the new bill, which describes procedures for "snooping" on persons located outside the U.S.?
7.14.2008 11:59pm
cboldt (mail):
-- Why, if the surveillance occurs overseas, would it not be covered by the new FISA? I don't read anything in the new statute that makes a distinction about where the surveillance occurs with respect to foreigners. If such a person is targeted and is outside the U.S., why would the new FISA procedures not apply? --
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If I understand your inquiry, it asks a narrow question about a US snooper playing overseas, to take the communications of a foreigner.
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In order to be in FISA at all, the activity has to satisfy the elements recited in 1801(f) "electronic surveillance."
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None of that statutory language draws foreign interception of foreigner's communications into the net of "electronic surveillance."
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1801(f) "Electronic surveillance" means - (1) the acquisition ... of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person
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(2) the acquisition ... of the contents of any wire communication to or from a person in the United States
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(3) the intentional acquisition [radio] ... if both the sender and all intended recipients are located within the United States

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Under FISA-2008, if the person targeted is a US person, and the US person is overseas, and the acquisition is taken from the US, the acquisition is in new section 703. But if the acquisition is NOT from the US, then the acquisition is not in new section 703. The exact language is "IN GENERAL- The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance [see 1801(f)] or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States."
7.14.2008 11:59pm
cboldt (mail):
-- why wouldn't the situation you described - two foreigners being "snooped" on from here in the U.S. not be covered by the new bill, which describes procedures for "snooping" on persons located outside the U.S.? --
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If the two (or more) foreigners are all in a foreign land, the activity isn't "electronic surveillance" as defined in 1801(f)
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Yeah, it's "electronic surveillance" as a matter of plain English - but the law has to adopt precise definitions that frequently defy plain English. This is such a case.
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But if the activity is not "electronic surveillance" as defined by FISA, then it's outside of FISA.
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New Section 703 is a recapitulation of 1801(f)(1), providing a means to apply that section when the targeted US person is not located in the US.
7.15.2008 12:08am
Guest Here:
I understand the quirky definition of electronic surveillance -- but where is that definition referenced in section 702? I think it's strangely absent, which is probably why the WSJ took the position it did, because it's not clear that section 702 is limited to electronic surveillance (the FISA version).
7.15.2008 12:22am
Guest Here:
Cboldt,

Further to the earlier post, the specific language you cite in section 703, which does reference the FISA buzz words ("electronic surveillance"), is curiously absent from the other two section, which suggest that those sections, which deal with foreign persons and acquisitions outside the U.S, may apply more broadly than section 703, which is limited to the FISA-defined "electronic surveillance." Otherwise, why include the phrase in 703 but omit it from 702 and 704?
7.15.2008 12:28am
cboldt (mail):
Go back to your initial question: Why, if the surveillance occurs overseas, would it not be covered by the new FISA?
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I'll ask the mirror image: Why, if the surveillance occurs overseas, would it be covered by the new FISA?
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If some aspect of the US government is violating a foreign law, that's an issue for a foreign law and foreign court to address.
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It's not against any US law to conduct surveillance overseas, against foreign targets.
7.15.2008 12:57am
Guest Here:
It wouldn't be against any US law -- except that the law just changed, which begs the question. Whether it "should" be against a US law is another matter, but if a US law sets forth procedures for conducting surveillance against persons outside the U.S., it would seem to be "against" that law not to follow those procedures. And if one were to conduct certain types of surveillance outside of those condoned procedures, one might be subject to the criminal penalties provided in the statute.

Again, you cited the definition of "electronic surveillance" in FISA and seem pretty confident that the restriction in 703 applies to 702 and 704. But the omission of that phrase in those sections is odd, as I would hope you'd concede. And I don't see how you get to your conclusion that it's not against the US law to conduct certain types of surveillance overseas, and I certainly wouldn't fault the WSJ or anyone else for wondering about the effect of this statute.
7.15.2008 1:04am
cboldt (mail):
-- I don't see how you get to your conclusion that it's not against the US law to conduct certain types of surveillance overseas --
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I followed the laws that purport to forbid certain species of surveillance, and they don't.
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FISA is riddled with "US person" and "US location" limitations. Where those limitations are absent, the law doesn't apply.
7.15.2008 1:15am
cboldt (mail):
-- you cited the definition of "electronic surveillance" in FISA and seem pretty confident that the restriction in 703 applies to 702 and 704. --
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I think 702 at least (I haven't looked at 704) stands on its own, and separate from the 1801(f) definition of "electronic surveillance." 702 aims to be a "carve out" from the definition of electronic surveillance, to permit the warrantless acquisition of communications to which a US person is a party, when the communication is international and acquired in the US.
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702 is a permission, not a prohibition.
7.15.2008 1:30am
Dr. Guest:
So, cboldt, earlier you said that FISA doesn't apply to overseas surveillance. Now, you're saying that 702 "stands on its own" and permits such surveillance (but doesn't prohibit it). Just to be clear, are you saying that if the government intercepts communications of two foreigners overseas, that approval from a FISC would not be required under section 702? If your answer is no, then FISA does apply, which is completely contrary to your earlier statement that such as situation "isn't" FISA. IF the answer is yes, that approval from a FISC would not be required, your answer would seem to contradict the language of section 702.
7.15.2008 9:55am
Dr. Guest:
Where does 702 say that the acquisition of the communication must be in the U.S. That seems to be a limitation you've added to the statute, not one apparent from its language.
7.15.2008 10:00am
Dr. Guest:
By the way cboldt, I think there is an argument that supports your position, but it's a fairly complicated one (which isn't to say that it's wrong, just not readily apparent from reviewing isolated pieces of the bill).
7.15.2008 10:29am
cboldt (mail):
-- earlier you said that FISA doesn't apply to overseas surveillance --
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Meaning that the government has no statutory obligation to do anything, when it conducts surveillance of foreigners located overseas. 702 permits surveillance (without warrant) when one of the persons is in the US.
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-- are you saying that if the government intercepts communications of two foreigners overseas, that approval from a FISC would not be required under section 702? --
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That's what I'm saying. To read 702 the way you seem determined to, would mean the government would have a new obligation *by 702) to file paperwork when it intercepts communications between two or more foreigners all located abroad.
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-- Where does 702 say that the acquisition of the communication must be in the U.S. --
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It doesn't. My mistake. I was mentally importing some combination of "electronic surveillance" and/or the general principle that communications providers outside the US are operated under foreign privacy laws, not US privacy laws; and don't recognize legal orders from other governments. E.g., a search warrant or administrative order from Zimbabwe doesn't have legal effect to enter and search your home (in the US), or tap your telephone (in the US).
7.15.2008 10:53am
cboldt (mail):
-- I think there is an argument that supports your position, but it's a fairly complicated one --
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The way you pose the question makes the response be in the nature of trying to prove a negative, which is by nature either impossible or fairly complicated. "Show me where is says the government doesn't need (US) paperwork or a (US) warrant to surveil foreigners in a foreign land."
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Well, show me where it says the government doesn't need (US) paperwork to drive a truck on public roadways in Europe. Or operate a radio transmitter in Africa, etc.
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US privacy laws are written to cover action in the US and/or surveillance against Americans.
7.15.2008 11:17am
Dr. Guest:
I don't think I'm asking you to prove a negative so much as I'm asking you to prove that a specific provision, ostensibly designed to address intercepting communications of foreign persons, doesn't apply when the interception occurs overseas. For instance, if Congress said you need to complete certain paperwork to drive in Europe, saying that "it's in Europe" isn't really a response to the issue of whether Congress enacted the restriction in question.

You say that US privacy laws are written to cover actions in the US and/or surveillance against Americans, but that doesn't really answer the question either. Congress could enact regulations involving communications among foreign persons for the very purpose of ensuring that interceptions of such persons don't incidentally affect Americans (after all, in many cases, one may not know at a given time the nationality of one or more participants). The question, then, is whether the new legislation, specifically section 702, forbids the government from engaging "snooping" on such communications absent approval by a court.

I understand that your position is that the statute does not prohibit the government from engaging in such "snooping" even though it does list certain procedures for targeting those persons. All I was trying to do, and I'm not sure why you're being so snarky about it all, is flesh out your interpretation of the new law to see why you think that 702 wouldn't be interpreted to require compliance. And I think I can see the argument, but I'm genuinely interested to see why you think the statute should be interpreted that way.

Respond if you wish, but I'm really not trying to be argumentative. I think people are knocking the WSJ for misrepresenting the statute, and though that may have occurred, I certainly don't think it's intentional. The statute is rather contorted, and their reading of the bill isn't entirely implausible (though I think it may be incorrect).
7.15.2008 3:25pm
cboldt (mail):
-- I don't think I'm asking you to prove a negative so much as I'm asking you to prove that a specific provision, ostensibly designed to address intercepting communications of foreign persons, doesn't apply when the interception occurs overseas. --
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There's no such direct recitation in this (or most other chapters) of US law. It's an artifact of limited jurisdiction, with the limit being driven by geography. My example of a Zimbabwe order not having legal effect in the US works in the reverse. An order from the USAG, or the head of an element of the US intelligence community, doesn't have force of legal compulsion against actors in foreign countries.
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And if the electronic service provider doesn't obey the executive's order, in the US, the executive can obtain court-ordered compulsion. As with executives, courts too have limited jurisdiction. But the geographic limitation of jurisdiction isn't spelled out in FISA.
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-- I think people are knocking the WSJ for misrepresenting the statute --
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The WSJ statements describe a different hypothetical from "intercepting communications of foreign persons, doesn't apply when the interception occurs overseas."
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The WSJ says that the procedures of 702 apply when "intercepting communications comprised solely of foreign persons in foreign lands when the interception occurs in the US."
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Like the jurisdictional answer when the government is issuing an order (to a telecom that is within its jurisdiction), the rebuttal to the WSJ contention can't be derived solely via reference to Section 702, or even of FISA as a whole.
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I think the WSJ is riffing from the administration canard that the FISC was requiring warrants for entirely foreign traffic that routed through the US, and section 702 now satisfies that unreasonable demand by FISC.
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I don't believe I can compose an explanation that will disabuse most readers of the notion that "US law and/or the Constitution compels court oversight when the government snoops on foreign communications conducted overseas."
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I don't expect the WSJ to research every detail, I'm not surprised that they got it wrong, and I'm not surprised that a substantial number of people think the WSJ got it right and/or that a US court required the US government to obtain a warrant under FISA-1978, for snooping on foreigners conversations conducted overseas, on the grounds that the foreigners' communications "got oversight protection" because it came through the US.
7.15.2008 4:55pm