In the many debates we've had here at the VC about the NSA's domestic surveillance program, we've been stymied by the lack of facts about how the program works. James Risen's new book, State of War: State of War : The Secret History of the C.I.A. and the Bush Administration, was released just today, and it has lots of juicy new facts to ponder. Risen's civil libertarian views are front and center, so the tone isn't exactly balanced, but the new facts make it an incredible read.

  Risen's book answers a bunch of our questions about why the program was started, and what it does differently than past NSA surveillance programs. We don't yet have definitive answers to the legal questions, but we have a much sharper picture of the issues. Further, I suspect these disclosures may have an impact on the public opinion; at first blush, at least to me, the new facts seem to present the program in a somewhat more sympathetic light than have some previous reports.

  According to Risen, the key to the new program is a shift in telecommunications technology in recent decades that has made U.S. networks the carriers of lots of international telephone and e-mail traffic.

  In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls — calls that do not begin or end in America — also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.
  In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.
  But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air.

  Reading over this part of Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

  Okay, so now let's take a look at the legal questions again. Recall that FISA prohibits "electronic surveillance," defined in relevant part as follows by 50 U.S.C. 1801(f):

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

  As I read this language, monitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic — it occurs within the United States — but it does not involve monitoring "a person in the United States." So if I'm understanding things correctly — always a big "if" when you post after 2 am — most of the program did not violate FISA.

  Now here's the part I can't quite figure out. If most of the program dealt with international calls, and didn't violate FISA, why would the program be designed so that it also tapped the calls of 500 or so people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2). So it seems like there are two possibilities: either the communications were wire communications and the designers of the program thought that the 500 people tapped in the U.S. were of sufficient importance (potential terrorists cells, etc.) that they didn't want to cabin the program to deal exclusively with foreign-to-foreign calls, or else the communications were electronic communications and perhaps the monitoring didn't violate FISA. (Can anyone else tell based on Risen's excerpt whether the communications were wire or radio? Maybe it's just late, but I'm not sure.)

  Here's another puzzle to ponder. A few passages in the Risen book suggest that the legal concerns offered by those who leaked this story may be different from the legal concerns that I've been focusing on in my posts. For example, according to the book, "[s]everal government officials who know about the NSA operation have come forward to talk about it because they are deeply troubled by it, . . . [t]hey strongly believe that the president's secret order is in violation of the Fourth Amendment of the Constitution, which prohibits unreasonable searches." Other parts of the book seem Fourth Amendment-focused, as well.

  That seems somewhat odd to me, because, as I've explained before, my primary legal concerns are statutory, not constitutional. This raises a couple of different possibilities. For example, it may be that the program doesn't violate FISA after all, and the debate within government has really been about the Fourth Amendment. The concern within some government officials may be that scanning traffic en masse for phone numbers or e-mail addresses of even foreign calls may violate the Fourth Amendment rights of domestic people whose communications are scanned (even only in the passing way that any Internet wiretap must scan all traffic). That is consistent with Risen's claim that "Now that [foreign to] foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States." The "regulations and laws" don't seem to be FISA, as I believe FISA is implicated only when the person monitored is in the United States; could those "laws" be the Fourth Amendment? Are there other "regulations" that govern the NSA that might be implicated here? It's hard to tell. Of course, it's also possible that the Fourth Amendment concerns are a bit of a red herring: the claim may be a cover for other motives. Who knows.

  In any event, it's way late, and I'm probably not being very coherent at this hour. More pondering tomorrow. Thanks to Lee Tien for the tip.