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FISA: What Isn't Electronic Surveillance?
Experts are still digesting the revision to the Foreign Intelligence Surveillance Act signed (pdf) by President Bush yesterday, known as the Protect America Act. It's a fairly safe bet, judging by the amount of expert disagreement about the act's provisions, that most members of Congress don't know what they've just passed.
What's clear is that now the Attorney General and the Director of National Intelligence can now obtain the international communications of U.S. citizens or residents without a warrant provided that such surveillance is "reasonably believed" to be "directed at" persons outside the country. The FISA Court's new, restricted role here is to determine -- up to six months after the fact of the surveillance -- that the government's procedures in seeking the primarily-foreign data is not "clearly erroneous." If it isn't, the surveillance goes forward.
One of the most controversial, and little understood, provisions in the bill changes the definition of electronic surveillance -- but not substantively. In short, it takes out from Fourth Amendment protections surveillance of a person "reasonably believed to be located outside of the United States," no matter who that individual communicates with, inside or outside the United States. "This deems certain acts as not electronic surveillance as a legal matter, when they certainly would be surveillance as a factual matter," says Marc Rotenberg of the Electronic Privacy Information Center.
In fact, the legality of collecting such information without a warrant turns entirely on who the government says it's primarily interested in. "If you are talking with somebody overseas, and the government intercepts that communication, it is electronic surveillance if government says they were directing the surveillance at you," says Jim Dempsey, policy director of the Center for Democracy and Technology. That kind of electronic surveillance would require, under FISA, a probable-cause warrant. But the law allows the government to skirt that requirement by shifting the emphasis of its investigation: "It is not electronic surveillance if the government says it's directing the surveillance at a person overseas."
This goes beyond the Terrorist Surveillance Program. As described by President Bush in December 2005, communications monitored by the TSP had to involve, on one end, a known al-Qaeda figure. Now, the subject of surveillance simply has to be "reasonably believed" to have "foreign intelligence information" and be, more likely than not, outside the U.S. "The only thing they can't do is that they can't ask the FBI to go put a tap on your phone to listen to your phone conversations with other people in the U.S.," says Kate Martin of the Center for National Security Studies. "But what they basically do is they scoop up the stream of all calls going in and out of the U.S. ... There's no individualized suspicion, no individualized collection or acquisition" of information.
Entirely without a warrant, the act allows the collection of:
foreign intelligence information from or with the assistance of a communication service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or as they are stored, or equipment that is being or may be used to transmit or store such communications...
That's a very broad provision, and, again, experts disagree about from whom such "foreign intelligence information" can be acquired. "Could break into your house and rummage around? Probably not," says a senior congressional source. "The more likely abuse here is to use their physical search authority and pen registers or trap-and-trace" -- i.e., devices that monitor outgoing and incoming calls from and to a particularly phone number -- "to get into databases and monitor your internet usage, like your internet history, or your email."
Most experts seem to think that the likeliest interpretation of this provision is that the DNI and the Attorney General can demand information from your phone company or your Internet Service Provider without a warrant, provided that they say that the information they're seeking is "concerning" a foreign-based investigation. "We're talking about them going to Verizon, AOL or Google, and saying, 'Here's the authority by the DNI required for you to comply,'" says Rotenberg. "This is about ISPs. That's where the action is." No wonder President Bush said that he wants liability protection from lawsuits against communication companies -- or, as he put it, "those who are alleged to have assisted our Nation following the attacks of September 11, 2001." (See Balkinization for more on that elegant locution.)
Says the Congressional source, "It's up to Google to decide whether to contest that request." That is, you don't know if your overseas communication information has been requested by the government, so you don't have legal standing to bring suit against the government. Instead, your phone company or ISP has to decide whether to challenge the basis of the request. According to the New York Times, some telecoms already feel uncomfortable with the new surveillance requirements.
Democratic Congressional aides said Sunday that some telecommunications company officials had told Congressional leaders that they were unhappy with that provision in the bill and might challenge the new law in court. The aides said the telecommunications companies had told lawmakers that they would rather have a court-approved warrant ordering them to comply.
So telecoms may now be the ones we look to to bolster civil liberties, even as the President wants to exempt them from liability for complying -- allegedly! -- with warrantless surveillance before it was explicitly authorized by Congress. Rarely has more hinged on a company living up to the maxim, "Don't Be Evil."
Comments (43)
BlueInTexas wrote on August 6, 2007 5:37 PM:"Up to the telecom companies to challenge the request in court."
I hope that the telecom companies don't have an upcoming business merger, or a telecom related bill in Congress when they go to court to fight the request. The Admin may just decide to make them pay for their impertinence.
Relying on the telecoms is a no win situation.
Anonymous wrote on August 6, 2007 5:56 PM:Bush to Google: "All your base are belong to us."
Diogenes' watercarrier wrote on August 6, 2007 6:07 PM:Just out of idle curiosity, did Bush add a 'signing statement' to this one?
Anonymous wrote on August 6, 2007 6:13 PM:Not to worry. Nancy Pelosi says they're going to pass a "fix" later. I'm sure Bush will sign it right away.
T.J.H wrote on August 6, 2007 6:15 PM:Apparently, the members of the House and Senate haven't heard about what happens "when you give a mouse a cookie". I personally feel let down by my elected officals right now.
Anyone else find it a bit sickening that it was the FEAR of seeming weak on the "war against TERROR" that helped those who were against this Act vote to pass it anyway?
EH wrote on August 6, 2007 6:21 PM:"Terror" is a codeword for not having a good reason to speak of.
Richard L. Adlof wrote on August 6, 2007 6:22 PM:Don't worry the Robert's Supreme Court will uphold this piece of jack-booted thuggery . . . Alito will 'right' the majoriry decission which affirm the government's right to its freedom to squelch our speech.
M M wrote on August 6, 2007 6:23 PM:By the way, Google wants to bid on government controlled wireless spectrum as part of its diversification strategy. Nothing like a little unspoken leverage during those discussions between Gonzales and Google.
Billy Pilgrim wrote on August 6, 2007 6:26 PM:T.J.H
No, you're not alone. The wimps who let this pass are the same ones who acquiesced to the rush to war with Iraq even though it was obvious to any idiot that the justifcation for the war was bogus.
So to what purpose, other than rigging elections for Republican victories, is the new snooping to conducted? U.S. intelligence could not recognize a real threat if it were hit on the head with a telephone pole (click on name).
Perfidius wrote on August 6, 2007 6:51 PM:I think next year the only leverage we have is to support primary candidates pledged to uphold the constitution against these collaborationist dems.
Bob wrote on August 6, 2007 6:53 PM:http://www.icdc.com/~paulwolf/cointelpro/churchfinalreportIIIb.htm
One more chance for the Virginia farmboys to spy on the dangerous communist-infiltrated negro agitators and those leftwing hippie peaceniks! Now that they have all these wiretapping powers, they'll have to hire a few people who can speak Arabic or Urdu. Nahhhh...that would make too much sense, and everyone knows you can't trust those people.
OneCrankyDem wrote on August 6, 2007 7:04 PM:To answer a earlier question, Yes, Bush has issued a Signing Statement to this bill. You can read the entire Signing Statement in this diary if mine at DailyKos http://www.dailykos.com/story/2007/8/5/175336/3694
regular lurker wrote on August 6, 2007 7:16 PM:Something to think about next time you travel outside of the US.
Electronic surveillance...stock trades, wire transfers, e commerce, atm withdrawals, credit card purchases, phone calls...
Meanwhile, something I haven't seen discussed is the potential for corporate espionage. What's to stop a federal employee from monitoring international business communications for personal gain on their investments? Or more sinister, to interfere with the foreign trade of companies generally seen as "progressive" or liberal?
Don't mind me. Tin foil moment.
Bill wrote on August 6, 2007 7:25 PM:I could never imagine US intelligence officials enriching themselves through their positions *COUGH**DUSTY FOGGO***COUGH**#3 guy in the CIA***COUGH**. Nor could I see the US government doing anything just to benefit a corporation ***COUGH***UNITED FRUIT***ITT***COUGH***ANGLO-AMERICAN OIL COMPANY***COUGH***OVERTHROW OF CHILE AND IRANIAN GOVERNMENTS****COUGH.
I just can't imagine how anyone could be so radical as to think the people running the US government can't be tru***COUGH**J. EDGAR HOOVER WIRETAPPING DANGEROUS NEGRO AGITATOR COMMIE MARTIN LUTHER KING**COUGH**COUGH...trusted to protect our Constitution.
mbbsdphil wrote on August 6, 2007 7:52 PM:Yeah, that's a bit like relying on a telecomms company to say how they make money selling your individual viewing or calling habits. AT&T, for example, if it's supplying your cable tv, claims ownership of your viewing habits - what you select from their menu - 24/7. That information doesn't sit on the shelf; it's used individiually and collectively and generates billions for the industry.
As the first commenter suggested, a telecomms merger is subject to DOJ and/or FCC review. Agencies have discretion, "in the public interest", to determine what and how much company, market and industry data they want to see before approving (or not) teh merger. They can look briefly at a narrow range of issues that span a short period of time. Or, they can look at what the chairman, every salesman and accountant had for dinner for the past five (figuratively speaking).
The difference could be worth a hundred million in lower transaction and deal costs, better market timing, and six-twelve months less work. So, yeah, let's leave it up to the telecomms to decide whether to contest govt action that determines our privacy rights. Uh, huh.
tbhull wrote on August 6, 2007 7:53 PM:At least this bill did not provide the telecoms (AT&T, Verizon, etc…) retroactive immunity from liability for their actions going back until at least 2001. Bush will seek mthis in the very near future. Just as no meaningful difference exists between the dems and repubs for those that can see, as oppposed to blind foools, the distinction between the US government and the telcoms is very blurred. The only meaningful difference is the notion (not necessarily the practice) that the government is bound by the Constitution and the telcoms are not.
With that said, ponder this possibility raised in some measure by others at DailyKOS. The telcoms (assuming legislation provides immunity from liability), at the urging of the US government, rout/sale the domestic data en mass evidencing the content of phone call and e-mails, and all other electronic communications to an offshore company, perhaps even a CIA front company where the data is analyzed. This would be outside the constricts of the Constitution and FISA. The public would never know about this through court challenges. This scenario is not too dissimilar from the “silver platter” doctrine that occurred prior to the application of the 4th amendment to the states via incorporation through the 14th amendment. Prior to the 4th amendment’s prohibitionof unreasonable searches and seizures/warrant requirement, the states would gather evidence without a warrant and silver platter to the feds to be used in a federal investigation.
gtash wrote on August 6, 2007 8:25 PM:I want to know how something as comprehsnive as this, and so lamely drafted, can be un-done by Congress in the future. It seems to me there is no way patch and repair this sorry situation.
TheraP wrote on August 6, 2007 8:40 PM:So where is this all analyzed? Privately? And if so, to whom do these private spy companies owe allegiance? to bush? And how is this all paid for?
starwheel wrote on August 6, 2007 9:09 PM:who's to say how it will be used, if it gets into the hands of privateers?
Speaker impeachment-is-off-the-table Pelosi has promised to fix this. Ya know, after vacation.
Well, the Democrats have accomplished something.
I don't just hate Bush anymore.
Midwestblue wrote on August 6, 2007 9:41 PM:In my opinion, the only way they make it up to us is to impeach Gonzales, then Cheney, then Bush. I don't know any other thing they can do at this point. I hope Republicans hear a little something from their constituents, too. After all, polls show that Bush has lost the trust of the American people, and I don't think most people trust him with such power.
mdubbleyou wrote on August 6, 2007 10:27 PM:Move along. Nothing to see here.
Anonymous wrote on August 6, 2007 10:56 PM:Nancy Pelosi is incompetent. She should step aside as Speaker of the House in favor of Dennis Kucinich.
starwheel wrote on August 6, 2007 11:00 PM:Posted by: Midwestblue
Date: August 6, 2007 9:41 PM
------------------------------------------
Impeach them for what?
They already had a confession from Bush that he had been spying on Americans illegally. Was there a more clear case for impeachment?
Not only did they NOT impeach him but they basically legalized the illegal program and expanded it beyond what FISA even allowed!
The Democrats can't make up for this. More to the point, they don't want to. They are part of the problem.
gharlane wrote on August 6, 2007 11:08 PM:Anybody remember Todd Gitlin's hit piece on TPM the other day, "Obduracy and Slime"?
OK, PROFESSOR Gitlin, tell us again about the Big Difference between the Demublicans and the Republicrats. I DARE you.
Joe wrote on August 6, 2007 11:26 PM:Wiretapping is the crutch they use to make up for their general lack of ability in catching terrorists. The intelligence overhaul that everyone agreed is desperately needed hasn't ever happened.
The Cold War is over for everyone except US government bureaucrats.
Trip Adams wrote on August 6, 2007 11:27 PM:Am I the only one missing something here? I keep hearing how FISA "needs to be revised because it hasn't kept up with the technology since the 70's". Sure, communication methods have changed, but isn't the argument really that our capacity to screen those communications has improved? And if so, why is this a valid reason to ignore the need for a warrant and the role of a judge to decide validity? Because we can do something today that we couldn't do then?
Today, we can have an automated system that records, tracks, and interprets every signal that passes through a telco switch. Granted, this wasn't possible in the 70's, but hypothetically, the government could have assigned thousands of operators to "listen in" on calls and achieved the same goal. But would a FISA court have allowed that? The reasons why it would not permit such a program then should be the same resons not to allow it today.
It seems to me that the next logical step would be to plant listening devices in all hotels that have been visited by foreigners. How would this be any different or less effective?
The Oracle wrote on August 6, 2007 11:52 PM:This "revision" is all about Alberto Gonzales (with no court oversight or warrant requirement) being able to say that there's an ongoing investigation occurring overseas (involving illicit drugs or porn, let's say) and then being able to go to any domestic telecommunications or internet provider, demand their customeer records, and place warrantless taps on U.S. citizens without anyone knowing it.
FISA used to be a law that protected the privacy of U.S. citizens while giving our government legal tools to go after terrorists or spies.
Gonzales, first as "torture" counsel to Bush and now as Attorney General, has been trying to bypass FISA's legal restraints while at the same time expand FISA's mission beyond just protecting us from foreign terrorists and spies.
For instance, several years ago while Ashcroft was Attorney General and Gonzales was Bush's counsel (and after the 9/11 right-wing religious fundamentalist terrorist attacks), it was reported that an internet prostitution ring had been busted on the East Coast.
At the time I wondered why the feds were going after prostitutes at home when we were being threatened by right-wing religious fundamentalist terrorists trying to get into our country and kill people.
And around the same time the feds busted this on-line prostitution ring, we learned that a frequent visitor to the Bush White House, Jeff Gannon/Jim Guckert, was a male prostitute who advertised his "services" and rates on the internet. Why wasn't he ever busted?
Anyway, we all know Republicans are hypocrits, but this "revision" to FISA gives Alberto Gonzales unlimited and unchecked power to spy on all U.S. citizens, in furtherance of his pet, religious fundamentalist projects, to "clean-up" our society of all those things that al Qaeda, similar religious fundamentalists to our own homegrown ones, would love to "clean-up" if given the chance.
I don't know about you, but I don't view prostitutes, pornographers and druggies as being a bigger threat to our democracy and the lives of U.S. citizens when compared to the clear threat represented by the right-wing religious fundamentalist, bloodthirsty, murderous al Qaeda.
But Alberto Gonzales obviously does. And now he will waste valuable and essential intelligence-gathering time and resources on his own right-wing religious fundamentalist agenda instead of focusing all of our intelligence agency resources on averting another attack on our nation by right-wing religious fundamentalist terrorists.
Is he crazy??? Or just really, really stupid??? Or both???
Oil wrote on August 7, 2007 12:12 AM:Question:
If Communications between Americans and those foreign are, without warrant subject to surveillance, really mean the World Wide Web itself is the change in the status of FISA?
HipHopLawyer wrote on August 7, 2007 12:20 AM:How many conversations take place on TPMmuckraker that include both citizens inside the USA and citizens of other countries? How many daily conversations on how many blogs?
Enemy Combatant OR Belligerent?
Can we PLEASE stop talking about the "saving grace" of this Act being the six month sunset provision? The last subsection clearly states that any intelligence programs authorized under the Act will, notwithstanding the sunset, "remain in effect until their expirations".
In other words, in order to undo this, congress can't just block reauthorization in six months; rather, they will need to muster a veto-proof majority to _repeal_ it. And *that* will never happen.
This means that the WH has 6 months to authorize everything they could conceivably want, give all the programs long durations (10, 20, 30 years?) and then, in the very unlikely event that Dems grow some cajones in the next six months and block reauthorization, then, well, too bad!
Oil wrote on August 7, 2007 12:22 AM:Question:
If Communications between Americans and those foreign are without warrant subject to surveillance, really mean the World Wide Web itself is the change in the status of FISA?
drational wrote on August 7, 2007 6:43 AM:How many conversations take place on TPMmuckraker that include both citizens inside the USA and citizens of other countries? How many daily conversations on how many blogs?
Enemy Combatant, OR Belligerent?
"The only thing they can't do is that they can't ask the FBI to go put a tap on your phone to listen to your phone conversations with other people in the U.S."
Tech Questions:
It's clear that some purely foreign communication gets routed through equipment in the US. What percentage of purely domestic calls or communication gets routed through equipment outside of the United States?
If communication gets routed through a satellite orbiting above the US, is this considered outside the United States?
Com-n-sense wrote on August 7, 2007 9:06 AM:Impeach/Out of Iraq GENERAL STRIKE SEPT.11th
Buy nothing - do nothing! Bring this country to a standstill!
Pass it on. Post a sign.
Davis X. Machina wrote on August 7, 2007 9:37 AM:drational asks: "If communication gets routed through a satellite orbiting above the US, is this considered outside the United States?"
It's all packetized. The packets go through everywhere, and nowhere, all at the same time, and don't come back together till the end.
A tame quasi-US jurisdiction -- Commonwealth of Northern Marianas comes to mind -- and some routing magic, and Bob's your uncle.
Of course, it's easier just to do it in New Jersey, and lie about it. It isn't like you'll get caught, or if caught, get punished. The President showed us that.
ERS wrote on August 7, 2007 10:06 AM:This law continues a tactic used by the Bush Admnistration at Guantanomo Bay and in the "extraordinary rendition" program. Constitutional rights are circumvented or fundamentally weakened within the United States by moving the action off American "soil," literally or in cyberspace.
Oil wrote on August 7, 2007 10:54 AM:Waves of light transfer.
Check out this report.
http://www.cnn.com/SPECIALS/2001/nsa/stories/codebreakers/index.html
biggerbox wrote on August 7, 2007 11:05 AM:Funny, my copy of the Constitution doesn't say that my right to be secure from unreasonable searches 'shall not be violated unless Comcast fails to object.'
What the hell kind of system depends on telecom corporations to be the defenders of my civil liberties? If I pay extra each month, can I get upgraded to the premium "no unreasonable searches" service plan? Will they jack up my rates every couple of months?
Paging Mr. Kafka ... Mr. Franz Kafka ...
Mae wrote on August 7, 2007 1:58 PM:A letter in the Boston Globe today from Daniel Speers, a technology expert who holds patents in call management systems had this to say.
"There is no technology nor science that identifies any suspicious communication without scanning all communications...Thus, in passing the Protect America Act of 2007, which the president signed into law, Congress has authorized the clandestine wiretapping of all Americans and all calls and communications to and from anywhere, whether private or commercial."
So regardless what the law says, the technology is such that everything will be scanned. Link here:
http://www.boston.com/news/globe/editorial_opinion/letters/articles/2007/08/07/bush_and_congress_serve_up_a_surveillance_law/
parrot wrote on August 7, 2007 3:52 PM:ITT all over again.
JMarcuscampbell wrote on August 7, 2007 4:01 PM:Spencer,
Please define what "overseas" means in relation to Canada, Since it is relevent to the 35 million Canadian's living to our north and west, Vancouver island(dips below the 49th), Alaska to the east etc...
THe question has relevance to Canadian minority Government of Stephen Harper who will be facing an election in the next year, most likely. Are collection rules same in Canada, as they are "overseas"
Willy Bova
Kate in WI wrote on August 17, 2007 4:41 PM:Great analysis, great comments. Egads!
'Protect America Act of 2007: Sec. 105C.
. . .
'(d) The Government may appeal any order issued under subsection (c) to the court established under section 103(b). If such court determines that the order was properly entered, the court shall immediately provide for the record a written statement of each reason for its decision, and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.'
In other words, no end in sight. And all these records are to "be maintained under security measures... and shall remain sealed." I repeat, no end in sight. This is supposed to reassure me?!
Read S.1927 here: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01927:
Kate in WI wrote on August 17, 2007 4:44 PM:Great analysis, great comments. Egads!
'Protect America Act of 2007: Sec. 105C.
. . .
'(d) The Government may appeal any order issued under subsection (c) to the court established under section 103(b). If such court determines that the order was properly entered, the court shall immediately provide for the record a written statement of each reason for its decision, and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.'
In other words, no end in sight. And all these records are to "be maintained under security measures... and shall remain sealed." I repeat, no end in sight. This is supposed to reassure me?!
Read S.1927 here: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01927:
kdpeolgs beyn wrote on September 12, 2007 2:54 PM:qdulmwi bmhs kzgdfqi uimtdcok ytec kzlrmwsbu zotcb
kdpeolgs beyn wrote on September 12, 2007 2:55 PM:qdulmwi bmhs kzgdfqi uimtdcok ytec kzlrmwsbu zotcb